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You are here: BAILII >> Databases >> The Law Commission >> TOWARDS A COMPULSORY PURCHASE CODE: 2 PROCEDURE (A Consultative Report) [2002] EWLC 169(11) (18 November 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/169(11).html Cite as: [2002] EWLC 169(11) |
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Part XI
CONCLUSION
… the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law[1]
11.2 There can be few areas of the law which are in more obvious need of radical treatment, under each of the heads mentioned in the statute, than the law of compulsory purchase. We have already referred to CPPRAG’s description of the “unwieldy and lumbering creature” represented by the present law, as a result of piecemeal evolution over more than 150 years,[2] and the Government’s own recognition of the defects of the present law.
11.3 Such a position is unacceptable in a modern society, particularly in an area of the law which has such direct relevance to human rights guaranteed by the Human Rights Act 1998. Modernisation of the law is a key policy objective of the present Government.[3] The Commission’s central role in that task has been underlined on numerous occasions.[4] The Law Commission believes strongly that reform of the law in this area should be seen as an essential priority in its own right, regardless of any identifiable financial savings or gains. The following discussion of the impact of our proposals, in financial and other terms, should not detract from that message.
The cost of implementing the proposals set out in this policy statement will be partially influenced by the extent to which the revised procedures, accompanied by a fairer and more clearly defined compensation code, result in acquiring authorities making increased use of their compulsory purchase powers. Furthermore, the extent to which any such cost has to be borne by the public sector will depend on the degree to which the availability of more efficient compulsory purchase powers makes replacement schemes more attractive as investment opportunities for private sector bodies working in partnership with acquiring authorities.[5]
To the extent that the procedural changes proposed in this statement are effective in speeding up the compulsory purchase order confirmation and implementation stages, there should be substantial savings in administrative costs, including those associated with organising and running the inquiry and professional fees. If, as expected, the greater degree of certainty about the system reduces the number of objections to any particular compulsory purchase order, there should be a need for fewer inquiries and those which are held should generally be much shorter. Allowing authorities to confirm orders themselves where no statutory objections are sustained should, of itself, represent a substantial saving of both time and money.[6]
. . . the diversity of views expressed by respondents [to the Policy Statement] representing different types of interests also highlighted the fact that there are inevitably going to be tensions arising between the interests of those acquiring the land and those from whom it is being taken. Some of these tensions can probably never be resolved to the complete satisfaction of both sides. In such cases it will ultimately be for Parliament to determine the appropriate balance between protecting property rights and serving the public interest.[7]
It also made the point that:
If we can achieve a system which is simpler and fairer, it can be expected that, in general, it will also operate more quickly and efficiently. Many of the proposals already outlined above will therefore contribute to improving performance, . . .[8]
Thus, it is recognised that the objectives of simplicity and fairness will themselves contribute to a more efficient system, and consequent cost savings, albeit unquantifiable.
(1) The implementation of compulsory purchase orders, having regard to the changes already proposed by Government;
(2) Provision of a mechanism whereby eligible claimants can require acquiring authorities to make advance payments of compensation without delay where an estimate has been made [This aspect has been dealt with in our Compensation Consultative Report in Part VIII at Proposal 13(ii)]; and
(3) Compensation where compulsory purchase orders are not proceeded with after the date of notice of making (the first notice date), whether that be because of abandonment, withdrawal, quashing or refusal of confirmation.
We indicate below in broad terms the likely consequences of reform.
11.12 More particularly we address:
(1) Service of documents We set out some simplified rules for the service of notices by two methods: standard service and special service. “Special service” is designed to facilitate the Government’s intention to extend “statutory objector” status to owners of easements and other rights over the subject land. By avoiding the need for personal service, the proposal will limit the additional cost to authorities of that policy objective. It will thus mitigate the implementation costs for authorities who are spending public money; while ensuring that interested persons are more likely to find out earlier about proposals affecting their rights (which could save costs at a later stage).
(2) Powers of the court Where the validity of a compulsory purchase order is successfully challenged in court, the court must quash the whole order. We propose that the court should be able to quash only the confirmation process, or make such other order as is appropriate. This will mean that the order is better targeted to the ground of challenge, and will avoid the entire order being voided from its inception (leaving the acquiring authority to start from the beginning). The proposal will therefore mitigate wasted time and expenditure, where the defect is simply procedural and does not affect the validity of the initial order.
(3) Alternative procedures for obtaining entry We accept the Government’s policy approach relating to retention of the notice to treat and the vesting declaration routes. We believe that the alternative procedure in the 1965 Act today performs no useful purpose, and we propose its repeal. This accords with our statutory objective of repealing obsolete enactments, and will have no adverse cost effects.
(4) Time limits Government has made the policy decision that, for reasons of fairness and efficiency, the implementation process should be subject to stricter time-limits. We have formulated more detailed proposals to give effect to this policy. This will provide greater certainty for participants in the system, and limit the hardship and economic consequences of blight.
(5) Deed poll procedure We propose to re-state in modern form the procedures for transferring title where landowners are unco-operative, or untraceable, or otherwise unable or unwilling to act. This should both simplify and expedite matters, and thus should reduce authorities’ costs.
(6) Easements and other rights There is considerable uncertainty as to the effect of the powers of acquiring authorities, and the rights of those affected, in respect of easements or other rights over land subject to compulsory purchase. We set out new mechanisms for extinguishing or for simply overriding rights, and for clarifying the status of the rights in the future. That certainty should ensure that costs are not wasted at later stages, and should also produce a fairer settlement (for example, where compensation is paid on the basis of extinguishment, that will be reflected both in the quantum and the finality of the settlement).
(7) Divided land We have taken account of the Government’s proposals for clarifying and modernising the rights of owners in respect of land severed by compulsory purchase. The present law is derived from a number of sources, and parts are archaic or confused. Our approach has been to create a unitary procedure (involving service of a “divided property notice”) applicable to both notice to treat and vesting declaration routes. We also suggest an extension of the present rights, to enable such a notice to be served by any owner whose retained land, following the acquisition, has ceased to be capable reasonably of continued use for its previous purpose. This, we believe, will create a more logical and fairer mechanism, although it is likely to add marginally to the costs of authorities.
(8) Limitation We make proposals for rationalising the limitation periods applicable to determination and recovery of compensation. They should clarify the position for parties and should prevent unproductive litigation. In particular, this will assist financial planning of authorities by providing an end-date for their potential liabilities. We have taken account of our own recommendations for reform of the Limitation Act 1980, which have been accepted in principle by Government.
(9) Refusal of entry We propose to restate in modern form the present enforcement procedure for enforcement by warrant to the sheriff, which has proved simple and cost-effective. The proposal also clarifies the responsibility for the enforcement costs, as between the authority and the sheriff. The cost will not increase (instead the initial burden will be better defined between two public bodies); as now, the ultimate liability will normally be borne by the obstructing landowner.
(10) Implementation costs We propose replacing the present complex provision relating to the costs of payments into and from court, with a more simply expressed discretion. This gives effect to the established principle that all reasonable costs incurred in connection with implementation of an order will be borne by the authority.
(11) Local land charges We propose that compulsory purchase orders should be registered as local land charges, and the main stages in their progress recorded. This accords with the Government’s objective of openness. We agree that timely notification will help reduce property owners’ anxiety and will enable them to keep professional fees and other expenditure to a minimum.
(12) Abortive orders We make detailed proposals to carry forward the Government’s policy to give a right of compensation, where a compulsory purchase order does not proceed for any reason, and loss results. This may add to the compensation costs for authorities, but it will achieve a fairer system for those affected, and may encourage more efficiency in the use of compulsory purchase powers.
[1]Law Commissions Act 1965, s 3(1)
[2]Part I, para 1.3 above.
[3]See White Paper, Modernising the Law, Cm 4155 (December 1998), para 1.11.
[4] In a speech to a Law Commission's Conference in 2001 ("Catching the Eye of Government"), Lord Bach (Parliamentary Under-Secretary to the Lord Chancellor) confirmed the Government's commitment to keeping the law "up-to-date, relevant and useable", and to "keeping the Law Commission at the centre of the law reform process".
[5]Policy Statement, App, para 6.1.
[6]Ibid, App, para 6.2.
[7]Policy Response Document (July 2002), para 5.
[8]Ibid, para 15.
