CPA Archive

Review of Fees for the Lands Tribunal - consultation response

Infrastructure Planning Commission- Minutes of meeting with CPA 26 January 2010

The Planning Act 2008

The Act provides for the setting up of a new body, Infrastructure Planning Commission (IPC) whose prime responsibility will be to determine nationally significant planning projects (NSIPs). The Act outlines details for the setting up of a suite of National Policy Statements (NPSs) which define planning policy in areas such as nuclear development and airport expansion and sets out the framework for the introduction of the Community Infrastructure Levy (CIL).

The Act also uniquely provides that the IPC can grant compulsory purchase powers as part of a grant of development consent. The Act also amends section 237 of the Town and Country Planning Act 1990 (Section 194 and Schedule 9: power to override easements and other rights). The amendment for which the CPA lobbied will ensures that: (…) the use of any land in England acquired or appropriated by a local authority for planning purposes (whether the use is by the local authority or by a person deriving title under them) is authorised by virtue of this section if it is in accordance with planning permission (…) (Paragraph 4 of Schedule 9).

The Act also makes a number of changes to existing development control procedures. Link to the Act in the form it received RA.

Current Position

• Applies to England and Wales

• Royal Assent on 26 November 2008

• It is coming into force in a piecemeal fashion

Documents

Information on the Planning Act 2008 on the DCLG website

Infrastructure Planning Commission implementation Route Map, updated July 2009

IPC implementation overview chart, updated July 2009

Planning Act 2008 (Commencement No 1 and Savings) Order SI 2009/400, published 5 March 2009. This SI brings into force, on 6 April 2009, provisions of the Act in relation to England, and Wales, and to the extent specified in section 240(4) of the Act to Scotland, and relating to in summary:

• NPS and legal challenges to national policy statements
• Provisions relating to blight so far as it relates to land identified in NPS
• Grants for advice and assistance
• Delegation of functions to regional development agencies
• Use of land: power to override easements and other rights
• Certain provisions relating to the CIL
• A number of other provisions not detailed here.

Member(s) responsible

So that we can make the best use of comments received, please include your name and contact details (phone and / or email). We may wish to contact you to discuss your comment further. Please note that we will NOT identify the source of any comments or attribute any quotes without your express permission.

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Blight Procedures Changed Back Again!

Further to the news item posted below a delegation from the Committee raised the issue with the Department for Communities and Local Government (CLG) who in turn raised it with the Ministry of Justice. CLG have confirmed that paragraph 198(b) to Schedule 1 of the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 (circular 2009/1307) repealed s.153(2) of the Town and Country Planning Act 1990 as we reported.

However, Sch 2 para 66 of the circular put the same time limit back again, this time in the Lands Tribunal Rules 1996 at Rule 10(6).

Therefore there has been no change to the rules relating to blight notices, except as to where they are written down. As you were...

[Blight Procedures Changed

Members will be aware that an acquiring authority can serve a counter notice in response to a blight notice. If they do so, the person who served the blight notice can refer the matter to the Lands Tribunal to determine whether the counter notice should be upheld.

Members may also be aware that there was a two month time limit for that reference to be made. That was until paragraph 198(b) to Schedule 1 of the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 (circular 2009/1307) removed it. From 1^st June 2009 s.153(2) of the Town and Country Planning Act 1990 has been repealed.

Many thanks to Barry Denyer Green for bringing this to the attention of the Committee. ]

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Section 10 - Compulsory Purchase Act 1965 - Injurious Affection where no land is taken.

s.10 of the Compulsory Purchase Act 1965 is a re-enactment of s. 68 of the Lands Clauses Consolidation Act 1845, but its meaning comes from judicial law and not from the wording of the statute. The interpretation is summarised into four rules in Metropolitan Board of Works v McCarthy (1874), which are known as the McCarthy rules.

There are two problems with this provision which the CPA feel require reform. The first is that compensation is restricted to reduction in the value of land (temporarily or permanently) and so consequential losses such as trading impacts and other "disturbance" items cannot be claimed.

The second problem is that it is very difficult to establish whether or not a claim satisfies the McCarthy rules, particularly the second rule which states that the injury for which compensation is claimed must have been actionable at law in the absence of statutory authority. It is this requirement that needs clarification to enable both affected owners and occupiers and Acquiring Authorities enjoy certainty over their rights and responsibilities.

Current Position

Barry Denyer Green's paper for s.10 reform was submitted to DCLG on 18^th June 2007 with a view to reform being included in the Planning Act 2008. The view of DCLG was that the subject was not within the scope of the Bill.

Due to the scale of the change proposed, this reform will require primary legislation and this means inclusion in a future Government Bill with suitable scope. In order to ensure that we are ready to promote a reform when a suitable Bill comes forward, a further level of detail is being developed on the exact reform to be pursued. The proposals are at an early stage and comment from members is welcomed.

We also anticipate that DCLG will require evidence of the problems being caused by the current system. We therefore welcome any examples of problems encountered by members in relation to the quantum of or eligibility for s.10 compensation.

Documents

Paper submitted to DCLG on 18th June 2007

Covering letter to DCLG dated 18th June 2007

Summary of responses to questionnaire circulated to CPA members/CPA National Conference delegates - Summer 2008

Member(s) responsible:

Paul Astbury, CPA Immediate Past Chairman

Barry Denyer-Green, Elected Member

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HS2 Consultation

HS2 Exceptional Hardship Scheme Consultation

The DfT have consulted on a voluntary scheme to address exceptional hardship caused by blight on the HS2 preferred route. Following consultation with its members, the CPA has responded accordingly and a copy of the Association's final response can be downloaded here.

The consultation papers can be found on the DfT website - click here

The scheme is now in effect and details are now available on the HS2 website - click here

Paul Astbury BSc (Hons) MRICS | CPA Immediate Past Chairman

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Lands Tribunal Rules

The Tribunal Procedure Committee carried out a consultation exercise on new draft rules for the Upper Tribunal (Lands Chamber). The closing date for this consultation was 20th July 2010. Documentation is available here.

The CPA were invited to comment. Our response can be viewed here.

Planning Assumptions and the Localism Bill

Please click here for an update and short history of progress on Planning Assumptions and the Localism Bill as delivered by Philip Maude, CPA Chairman, to CPA National Conference on 23rd June 2011

Please see below an extract from the Hansard report on the Localism Bill 2^nd Reading showing Lord Boyd’s speech in favour of our proposed amendment.

Lord Boyd of Duncansby: My Lords, I declare an interest as a Scottish solicitor but registered to practise in England and Wales. Part of my practice is in planning matters and I am also a legal associate of the Royal Planning Institute. My noble friend Lord Beecham drew our attention to the size of this Bill. In those circumstances it might seem perverse of me, and unwelcome to your Lordships, to address an issue that is not in the Bill, but it relates to the planning assumptions that underpin the assessment of compensation on compulsory purchase.

Let me tell the House why I am addressing this issue at this stage. In 2002 the London Borough of Wandsworth served a purchase notice on a company called Greenweb Ltd for a small piece of land to preserve its status as a public open space. Both the local authority and Greenweb were agreed that the market value of the land was £15,000. Greenweb had in fact paid £30,000 for this piece of ground. Greenweb contended that under the statutory rules it was entitled to considerably more. Indeed, it said that it was entitled to £1.6 million-over 100 times the value. The issue went to the Lands Tribunal and from there to the Court of Appeal, which, with great reluctance, upheld the landowner's claim and Greenweb Ltd found itself with a windfall of more than £1.5 million in profit for a £30,000 outlay. Though that case may be an extreme example of the perversity of some of the rules on compensation and the injustices that can be created, it is an example nevertheless.

The injustice is not just on the side of local government. Another case, decided by the House of Lords in 2009, Transport for London v Spirerose Ltd, arguably produced

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an injustice on the other side. In that case, the House of Lords said that the landowner was entitled to £400,000 for the land that was the subject of the compulsory purchase order. The Lands Tribunal and the Court of Appeal had valued the land at £608,000, the difference being in the assumptions that were made about the planning permission that was granted, the House of Lords saying that all that the landowner was entitled to was "hope value".

The law on compulsory purchase and compensation is a minefield of complexity, a mixture of statute overlaid with judge-made rules and again overlaid with statute. In 2002, the noble and learned Lord the then Lord Chancellor referred both the procedural and the compensation issues to the Law Commission. In 2003, it published its final report on the compensation issues. That report was well received. Regrettably, the previous Government did not find time to implement the report's recommendations. This is not the time or the place to try to implement all of them, but there is a need to address one aspect which underpinned both the cases that I have mentioned and produced the most difficult results: the planning assumptions that are made in assessing compensation.

In Committee in another place, Barbara Keeley moved amendments which would rewrite the planning assumptions in the Land Compensation Act. The amendment had the backing of the Compulsory Purchase Association and the Royal Institution of Chartered Surveyors and was in accordance with the recommendation on planning assumptions contained in the Law Commission's report. In response, the Minister, Greg Clark, very helpfully said that he would reflect seriously on what had been said and consider representations with an open mind. Since then, I am pleased to say that-as reported to me at least-good progress has been made. There was a meeting between the CPA, RICS and officials of the government department, and they have been encouraged by the positive nature of the exchanges. An impact assessment has been drafted, and there seems to be general agreement that no concomitant changes or amendments are required, an issue which concerned the Minister in Committee.

I hope that this matter can now be addressed. There is widespread agreement as to the nature of changes that are required and the need to effect them now. In the Court of Appeal judgment, all three judges expressed the hope that parliamentary time would be found to address these issues. Lord Justice Buxton said that if government were not prepared to act, local authorities, faced with uncertainty and deprivation of scarce funds, must exert political pressure to correct the anomaly.

We will return to this issue in Committee. Those who have promoted the change in the law have been greatly encouraged by the Government's response so far. I hope that that will continue. Certainly, if the Government decide to bring forward amendments to the Bill, they will have my full support in doing so.