Cpo Report 2015 Main Report May2015

7/26/2019 Cpo Report 2015 Main Report May2015

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Bond Dickinson LLP Compulsory Purchase Orders 2003 2014I

IntroductionPlanning and Housing CPOs 2003-2014

Compulsory Purchase Orders: 2015 update


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Bond Dickinson LLP Compulsory Purchase Orders 2003 2014II 1

Foreword 2

Introduction 4

Planning and Housing CPO Statistics 2012-2014 7

Effectiveness of CPOs

Implementation by Acquiring Authorities 19

Reasons why some CPOs fail

Secretary of State decisions 2009 2014 22

Enabling power and clarity of objectives 23

Technical deficiencies 25

Procedural issues/Withdrawal of Order 27

Housing CPO evidential burden 29

Deliverability/Financial Viability/Alternative Scheme 33

Acquisition by agreement 37

Failure to demonstrate need 38

Not confirmed/Withdrawal by consent 40

Comments on reasons for CPO failure 42

Appendix: Schedule of CPOs 43

Contents


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Bond Dickinson LLP Compulsory Purchase Orders 2003 2014 32

Foreword

Continued high success rates with both

Planning and Housing Compulsory PurchaseOrders (CPOs) and a recovery in the use ofPlanning CPOs demonstrates howcompulsory purchase assists in drivingurban regeneration and housing renewal.

CPOs are demonstrably an effective

tool in the armoury of local

authorities. As can be seen from our

latest research, Planning CPOs

continue to drive regeneration, and

facilitate development and

redevelopment, particularly in urban

areas. Although levels of usage

remain lower than pre-recession

figures, 2014 saw a significant

recovery in the use of PlanningCPOs, hopefully presaging the

returning economic confidence and

increasing viability of major schemes.

Both Planning and Housing CPOs

have very high success rates. In

broad, headline terms we consider

that it is reasonable to conclude that

95% or more CPOs are actively

confirmed or result in acquisition

by agreement being achieved.

Moreover such rates have been

achieved consistently, year

upon year.

To the extent that the making of

Planning CPOs operates as a proxy

for economic confidence given that

the making of a CPO is often

representative of a key step incommitment by both the public and

private sectors towards a major

development scheme the signs of

renewed development activity are

encouraging. In 2014 58 Planning

CPOs were submitted compared

with 36 in 2013 representing a 61%

increase. Moreover although the hot

spots for use of CPOs remain

London, the Midlands and the North

West, there is evidence that CPOs

are being used nationwide. In

addition, CPOs are used to

assemble site for smaller schemes of

considerable local significance.

For example, 2014 has seen

Planning CPOs made promoting

major schemes such as the retail-led

Whitgift Centre in Croydon, theWatford Health Campus, and

housing-led schemes such as

Barnet LBCs West Hendon

Regeneration Area and Phase 3

of the Edge Hill project made by

Liverpool City Council.

Frank Orr

Legal Director

T: +44 191 279 9086E:frank.orr

@bonddickinson.com

Key contact

Housing CPOs are more likely to

involve acquisition of individual

properties or small groups or

clusters. That they can be aneffective, coordinated tool for

housing regeneration and

improvement is well evidenced by

their use by Burnley Borough

Council, which has utilised Housing

CPOs extensively as part of its

Vacant Property Initiative (VPI),

addressing long-term vacant

property as part of a targeted

approach to housing improvement.

CPOs must of course be used

carefully and proportionately, having

proper regard to the rights of

affected third parties. Acquiring

Authorities must demostrate that

there is a compelling case in the

public interest for a CPO to be

confirmed.

Generally local authorities

possessing compulsory purchase

powers (ie Acquiring Authorities)

use their powers sparingly and most

make only one CPO in any givenyear. There is a small, but not

insignificant, body of Acquiring

Authorities that use their powers

more frequently. This we consider

reflects their positive experience

gained from repeated success with

CPOs and the allocation of

resources such as dedicated

CPO staff.

Our Freedom of Information

enquiries to Acquiring Authorities (for

which we are grateful for the

responses received) suggestshowever that in many cases there is

an absence of an active corporate

memory of how CPOs were used

and what lessons have been

learned. We would fight shy of

suggesting that a statutory register

of CPOs and their outcomes is

required, but it is best practice for an

acquiring authority to review how its

CPOs have been promoted and

whether identified objectives have

been achieved.

As this report goes to press the

Department for Communities and

Local Government and HM Treasury

have jointly instigated consultation

on proposed reform to compulsory

purchase processes. The

consultation reiterates Governments

view that compulsory purchase

powers are an important tool for

assembling land needed to help

deliver social, environmental and

economic change and that usedproperly, compulsory purchase can

contribute towards effective

regeneration.

The consultation also recognises the

need for the compulsory purchase

system to balance interference with

third party rights whilst improving

efficiency and delivery. The

proposals therefore seek to

streamline processes in a number

of ways, including the introductionof timescales for key stages and

decision-making, whist maintaining

fairness to third parties. As this

report identifies compulsory

purchase is an effective tool for

delivering change and regeneration

but there is scope for improving

delivery of properly made CPOs

and that aim of the consultation is

very much to be welcomed.


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Introduction

Among the key messages of the

earlier reports were:

CPOs are a vital tool for

regeneration.

Usage in 2009 was at its lowest

for several years.

Success rates for both Planning

and Housing CPOs were generally

high.

There was a range of reasons,

from technical to evidential, why

some CPOs were not confirmed.

This report updates the statistics

further to the end of 2014 and alsolooks at Secretary of State decisions

between 2009-2014 not to confirm

CPOs, i.e. it seeks to identify the

reasons why CPOs sometimes fail.

In addition, based on information

obtained from Acquiring Authorities,

the report includes initial conclusions

about levels of implementation of

CPOs and commencement of

schemes where sites have been

assembled by CPO.

In 2010, Dickinson Dees LLP (now Bond Dickinson LLP) publisheda detailed review of the use and success of Compulsory PurchaseOrders (CPOs), particularly Planning1and Housing2CPOs. The reportcontained a statistical analysis of the outcomes of CPOs, analysing

how many were confirmed (with or without modification), how manywere not confirmed and how many were treated as withdrawn.It also contained case reviews of the reasons why CPOs were notconfirmed. An update of the statistics was published in 2012.

The statistical report focuses on

Planning and Housing CPOs since

these are by far the most numerous

CPOs made. However, the decision

reviews also include reference to

CPOs made under other powers

where there are notable reasons for

non-confirmation. The key findings of

this report include:

Many local authorities make use of

compulsory purchase powers but

do so sparingly.

Success rates for both Planning

and Housing CPOs remain

consistently high.

In 2013 the use of Planning CPOs

fell to the lowest level since 2003

(the first year covered by this

study), but recovered significantly

in 2014.

Use of Planning Act powers still

remains lower than levels achieved

pre-recession.

There is consistently more

frequent use of Housing Act

powers than Planning Act powers,

with spikes in Housing CPO usage

reflecting targeted programmes of

use by one or two Acquiring

Authorities.

For example, 2013 saw an

increase in the use of Housing Act

powers principally because of

extensive use by a small number

of Acquiring Authorities.

Planning CPOs are more likely to

comprise more complicated

schemes and attract objections

than Housing CPOs;consequently, Planning CPOs on

average take longer than Housing

CPOs to be determined.

Most confirmed CPOs are

implemented by means of General

Vesting Declaration (GVD) as

opposed to using a Notice to

Treat. This vests title in the

Acquiring Authority when

possession occurs.

1. Made under s.226 Town and Country Planning Act 1990

2. Made under s.17 Housing Act 1985

Data derived from Acquiring

Authorities in respect of

implementation is incomplete but

provisionally indicates:

up to 88% of Planning CPOs and

90% of Housing CPOs being

implemented by one or other ofthe statutory methods, or by

agreement in the light of a

confirmed CPO.

at least 56% of Planning CPOs

and 61% of Housing CPOS have

resulted in completed schemes or

schemes that are in progress.

Acquiring Authority derived data

of the timescales involved in the

CPO process is consistent with

DCLG/NPCU data.

The reasons why some CPOs are

not confirmed range from the

technical to evidential and include:

for CPOs generally: technical

drafting errors; the availability of

alternative solutions falling short of

the need for compulsory

acquisition; and failure to

demonstrate that all Order land

was needed

for Housing CPOs: the weight tobe given to an owners ability to

deliver a comparable scheme; the

personal circumstances of an

owner; and the Acquiring

Authoritys failure to put in place

delivery mechanisms for its

preferred scheme

for Planning CPOs: a successful

challenge to the assumptions

underlying the viability of a

proposed scheme; failure to

demonstrate that a CPO was

timely; evidence of planning

impediments; failure to meet the

tests in Circular 06/04; non-

conformity with Local

Development Framework; and

absence of updated evidence

base establishing quantitative

need.

It should also be noted that the

levels of CPOs not confirmed does

not necessarily mean that the CPO

has failed. CPOs are often treated

as not confirmed at the request of

an acquiring authority when

acquisition has occurred by

agreement against the background

of a CPO.

Given that that success rate of

Planning and Housing CPOs

remains high it can be concluded

that they continue to represent a

significant tool available to local

authorities to promote site assembly

and regeneration. We have also

drawn some initial conclusions

based on Acquiring Authority dataas to the extent to which confirmed

CPOs are implemented and the

objectives of the acquiring authority

have been achieved. That field of

study would benefit from further

detailed research.


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Planning and Housing CPO Statistics 2012-2014

Figure 1 shows that:

In 2012:

46 Planning CPOs were submitted

by Local Authorities. That is

almost identical to the 47 Planning

CPOs submitted the previous

year, 2011.

37 Housing CPOs were

submitted, representing a 25%

decrease from the 50 submitted

in 2011.

In 2013:

36 Planning CPOs were

submitted. This is the lowest figure

in all the years covered by this

report, i.e. since 2003. Indeed it is

lower than the 40 submitted in

2009, during the depths of the

recession.

In contrast, 92 Housing CPOs

were submitted the highest level

for ten years. During the years

covered by the survey, only 2004

demonstrates higher levels of

usage.

2012 2013 2014

Planning CPOs

submitted (including

those not determined)

46

(27 opposed)

36

(14 opposed)

58

(31 opposed)

Housing CPOs

submitted (including

those not determined)

37

(13 opposed)

92

(23 opposed)

66

(22 opposed)

Figure 1:

Planning and Housing CPOs submitted 2012-2014 totals

In 2014:

58 Planning CPOs were

submitted. This is a return to 2010

levels and reflects a recovery from

the 36 submitted in 2013.

66 Housing CPOs were

submitted. This is a drop of 29%

from the 92 Orders submitted in

2013 but is in line with the general

levels of usage from 2009-2011.

Moreover, in terms of the longer term

trend, the number of Planning CPOs

submitted post-recession andeconomic downturn continue to be

of a different order to the levels of

usage witnessed 2004-2008.

To the extent that the use of Planning

CPOs can be viewed as a proxy for

economic/redevelopment activity

and in particular as a barometer of

economic confidence, then the

confirmed lower levels of usage are

perhaps unsurprising. What is

unclear is whether there is any

specific underlying reason for the

drop in 2013 to 36 CPOs.

Given the lead-times involved in

preparation of Planning CPOs it

may reasonably be assumed that

the 2013 figures reflect prevailing

economic conditions in 2011-2013

in the UK. Moreover, given the

increase in Planning CPOs in 2014

to a level consistent with all other

years from 2009, it is suggested

that the 2013 should not

necessarily be viewed as indicative

of any longer term trend.

Levels of usage of Housing CPOs

are perhaps less representative ofgeneral economic activity and

more closely tied to access to

public sector funding. As Figure 2

demonstrates, they are more

volatile than Planning CPOs. An

increase in the use of Housing

CPOs can be attributed to a small

number of Councils undertaking

targeted programmes of

improvement. The significant

increase in 2013 to 92 Housing

CPOs would appear to reflect

more extensive use of CPOs by a

number of authorities, notably

Burnley as shown on pages 14

and 15.


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Figure 2:

Planning and Housing CPOs submitted from 01/01/03 to 31/12/14

Figure 3:

Planning and Housing CPOs determined from 01/01/03 to 31/12/14

The change in the numbers of

Planning and Housing CPOs

submitted each year for the period

2003-2014 is illustrated in Figure 2.

In broad terms, the level of usage of

Planning CPOs from 2009-2014

remains down from previous levels

at around three quarters of 2004-

2008 levels. However the

submission in 2014 of 58 planning

CPOs represents a significant

recovery in usage from the previous

years figure of 36 which was the

lowest annual figure in the years

covered by the study.

Whilst the above figures for

submission of CPOs are robust there

have been some difficulties with the

data available in respect of

determination of CPOs. In March

2011, the National Planning

Casework Unit (NPCU) within the

Department for Communities and

Local Government (DCLG) was

established and from May 2012 it

began to have responsibility for

compulsory purchase matters that

had previously been overseen by the

National Unit for Land Acquisition

and Disposal (NULAD). Prior to

that formal handover, it appears that

to a limited degree NPCU operated

in tandem with NULAD. For example,

between 14 March and 31

December 2011, NPCU received

three Housing CPOs for

determination. It is understood that

during that period all other Planning

and Housing CPOs continued to be

handled by NULAD.

The handover from NULAD to NPCU

was completed around 30 April

2012. From that date onwards it is

understood that all Planning and

Housing CPOs have been dealt with

by NPCU.

Planning and Housing CPO Statistics 2012-14(continued)

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Housing

Planning

20

40

60

80

100

In 2012 to the end of April of that

year, NULAD determined 14 Housing

CPOs, whereas NPCU determined

15 Housing CPOs in the rest of the

year. In the same time periods,

NULAD determined 26 Planning

CPOs whereas NPCU determined

18. We would suggest that this data

reflects both NULAD completing the

determination of outstanding CPOs

before it ceased to have such

responsibility and also NPCU taking

a little time to get up to speed with

its new responsibilities.

The level of usage of Housing CPOs,

having been more or less constant

over the past four years, took a

significant upturn in 2013. The profile

of use is shown on pages 14 and 15

in Figure 6. In broad terms it reflects

the making of Housing Act CPOs

once or twice per annum by most of

the authorities using the power and

one authority making extensive use

of it.

20

40

60

80

100

120

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Housing

Planning


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66%64%

67%

14%

4%

4%

7%

9%

7%

9%

3%

2%

26%

18%

Confirmed without modification

(including referred to Acquiring

Authority for confirmation)

Confirmed with modification

Not confirmed

Withdrawn

Other

2012

2014

2013

Figure 4:

How Planning CPOs were determined 2012 2014

Figures 4 and 5 show how Planning

and Housing CPOs, respectively,

were determined from 2012-2014.

For Planning CPOs these figures

denote continuing high rates of

success and indeed an increase in

CPOs recorded positively as havingbeen confirmed. The key points to

note include:

The percentage confirmed without

modification (including those

referred back to Acquiring

Authorities for determination)3was

remarkably consistent: 66% in

2012; 64% in 2013 and 67% in

2014.

This represents a general increase

in the percentage of CPOs

confirmed without modification as

compared with 46% between

2003 and 2009 and 60% in

2010-2011.

Confirmation with modification is

more variable: 9% in 2012; 26%

in 2013 and 18% in 2014.

Whilst confirmation without

modification remains more or less

consistent, as regards the balance

of CPOs, ie CPOs eitherconfirmed with modifications or

not confirmed or withdrawn

respectively, these outcomes

often reflect the submisson of

objections to a CPO.

That where there is an objection

to a CPO, potential outcomes

may include:

modification of an Order as a

result of more active scrutiny and/

or negotiation

not confirmed decisions where a

CPO actively fails in the light of an

objection

acquisition by agreement (with the

CPO subsequently being either

recorded as not confirmed or

withdrawn).

The confirmation with modification

figures in earlier years are: 31%

from 2003-2009; 23% in 2010;

and 12% in 2011.

7% of CPOs in 2013 were

recorded as not confirmed. This

is consistent with 6% (2003-2009)

and 8% (2010).

4% not confirmed in 2014 is

slightly below average. 14% in

2012 is above average. The figure

of 18% for 2011 would appear to

be out of step with t he broad

pattern.

The annual totals of actively

confirmed Planning CPOs were:75% (2012); 90% (2013) (ie both

with and without moderation) and

85% (2014).

3. As per the powers contained in s.14A Acquisition of Land Act 1981

As has been emphasised in

previous reports, the fact that a

CPO is listed as not confirmed

does not necessarily mean that a

CPO should be considered to

have failed. In many cases, it

reflects an acquisition byagreement and request for an

Order to be treated as not

confirmed.

There appears to be greater

consistency and accuracy in the

recording of Planning CPO data

compared with the earlier years

covered by our reports.



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76%

14%

3%3%

3%

9%

6.5%

3%

80%

1.5%

10%

7%

11%

1%1%

69%

Confirmed without modification

(including referred to Acquiring Authority)

Confirmed with modification

Not confirmed

Withdrawn

Inverted

Other

2012

2014

2013

Figure 5:

How Housing CPOs were determined 2012 2014

Figure 5 indicates how Housing

CPOs were determined in 2012,

2013 and 2014. The results for 2013

show a significant increase in usage

of Housing CPOs from the

immediately preceding years and an

increase in the percentage of CPOsconfirmed. In addition, of the CPOs

confirmed there is an increase in the

percentage of CPOs confirmed

without modification. The key points

to note include:

Success rates for Housing CPOs

are consistently high.

Total confirmations (confirmations

both with and without

modification) were 90% (2012);

89% (2013); and 80% (2014).

Confirmations without modification

(76%, 80% and 69% 2012-14)

(including those referred to the

Acquiring Authorities for

determination) are all higher than

averages for previous years for

which data is available: 62%

(2003-2009), 61% (2010) and

68% (2011).

Confirmations with modification.

(14%, 9% and 11% 2012-14)

were all lower than previous yearsdata with one exception: 19%

(2003-2009), 15% (2010) and

12% (2011).

The increase in confirmation

without the need for modification

and the concomitant fall in the

percentage of CPOs confirmed

with modification may indicate

improvements in the technical

standard of Orders and increasedfamiliarity with the statutory and

policy requirements.

The annual totals of CPOs not

confirmed were 3% (2012); 6.5%

(2013) and 7% (2014). The latter

two years were slightly higher than

both the 5% average from 2003-

2009 and 4% and 2% in 2010 and

2011, respectively.

The 3% of Housing CPOs

withdrawn in 2012 and 2013

respectively contrasts with 10%

(2003-2009), 18% (2010) and

16% (2011). In that respect, 10%

of withdrawals in 2014 is more in

line with the historic pattern.

The differentiation between not

confirmed and withdrawn in

respect of Housing CPOs needs

to be treated with caution. We

consider that previously there was

a degree of inconsistency in

recording Orders as either not

confirmed or withdrawn.

Present practice would usually

appear to treat CPOs as not

confirmed where requested to be

treated as withdrawn. It is perhaps

safer to compare the combined

totals of Orders both not

confirmed and withdrawn. For

example, that exercise shows a

reduction from 15% (average2003-2009), 22% (2010) and 18%

(2011) to 6% (2012), 9.5% (2013)

and 17% (2014).



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Figures 6 (a) and (b) indicate how CPO usage is spread across local authorities.

Figure 6a:

Number of local authorities submitting Planning CPOs 2013 2014

Figure 6b:

Number of local authorities submitting Housing CPOs 2013 2014

1 2 3 4 5 6 14 21

NumberofLocalAuthorities

2013

Number of Housing CPOs submitted

2014

0

5

10

15

20

25

30

0

2013

1

Number of Planning CPOs submitted

NumberofLocalAuthorities

2 3 4

5

10

15

20

25

30

2014

In 2013, 31 separate Acquiring

Authorities submitted Planning

CPOs. Of these, 26 made a single

CPO in that year. Three authorities

(Burnley, Birmingham and

Wolverhampton) made two CPOs

and two (Hackney and Rochdale)

made three.

In 2014, 40 separate Acquiring

Authorities submitted Planning

CPOs. Of these, 28 made a single

CPO in that year. Seven authorities

(Barnet, Burnley, Daventry, Hastings,

Birmingham, Lincoln and Watford)

made two CPOs. Four authorities

(Hackney, Ealing, Enfield and

Liverpool) made three CPOs. One

authority (Brent) made four CPOs.

In 2013, 36 separate authorities

submitted Housing CPOs. Nineteen

authorities each made a solitary

CPO. Five authorities (Birmingham,

Doncaster, Leeds, Newham,

Redditch) made two CPOs. Four

authorities (Bradford, Great

Yarmouth, Hounslow,

Wellingborough) made three CPOs.

Bristol made four CPOs. Four

authorities (Derby, Sutton, Wigan,

Wolverhampton) made five CPOs.

Stoke-on-Trent made six CPOs. By

far the most prolific user of Housing

CPO powers was Burnley which in

2013 made 21 separate CPOs.

In 2014, a similar pattern emerges.

Thirty eight separate authorities

submitted Housing CPOs. Twenty

five authorities each made a solitary

CPO. Nine authorities ( Barnet,

Bristol, Broadland, Barking and

Dagenham, East Riding of Yorkshire,

Ipswich, Tendring, Stevenage and

Wolverhampton) made two CPOs.

Three authorities (Derby, Blackburn

with Darwen and Wigan) made three

CPOs. Burnley made 14 CPOs.

Burnley has used Housing CPO

powers extensively as part of its

Vacant Property Initiative (VPI).

This initiative was particularly active

in 2006-2009 and latterly in

2013 -2014 and has been used to

address long-term vacant property

as part of a targeted, cluster

approach to housing market renewal.

It is understood that around 70

properties have been subject to

compulsory purchase in this way.


Those acquired have been

refurbished and sold thereby

bringing the properties back into

use. Proceeds of sales were

recycled back into the VPI.


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Region No. ofCPOssubmittedin 2014

Total number ofCPOs opposed ofthose submitted

No. of CPOsdeterminedin 2014

Confirmedwithmodification

Confirmed withoutmodification(including referred toacquiring authority)

Notconfirmed

GO-East 4 2 3 1 4 -

GO-EastMidlands

2 - 4 - 4 -

GO-London 22 13 16 2 11 2

GO-North East 4 3 2 1 1 -

GO-North West 13 6 6 2 4 -

GO-South East 5 1 3 - 1 -

GO-South West 1 1 2 - 2 -

GO-WestMidlands

4 4 2 1 1 -

GO-YorkshireHumber

3 1 3 1 2 -

Figure 7:

Planning CPOs by region 2014

Region No. ofCPOssubmittedin 2014

Total number ofCPOs opposed ofthose submitted

No. of CPOsdeterminedin 2014

Confirmedwithmodification

Confirmed withoutmodification(including referred toacquiring authority)

Notconfirmed

GO-East 13 4 8 1 5 -

GO-EastMidlands

4 1 4 - 3 -

GO-London 10 3 22 2 14 3

GO-North East 1 1 1 - 1 -

GO-North West 25 5 23 - 20 1

GO-South East 1 1 1 - - 1

GO-South West 5 2 3 - 2 -

GO-WestMidlands

3 2 8 1 6 -

GO-YorkshireHumber

4 3 3 1 2 -

Figure 8:

Housing CPOs by region 2014


The results for 2014 are consistent

with previous findings:

CPO usage continues to be

spread widely but thinly. Many

authorities use CPO powers, but

do so sparingly. In particular it is

unusual for an authority to make

more than one Planning CPO

annually.

Of course, the number of

individual CPOs does not of itself

reflect the scale or nature of the

intervention by an Acquiring

Authority.

In line with previous reports

regionally London and the North

West consistently have the

highest totals of both Planning

and Housing CPOs made.

For Planning CPOs, in London 22

were submitted in 2014

compared with 10 the previous

year. In the North West 13 were

submitted in 2014 compared with

nine in 2013.

For Housing CPOs, in the North

west 25 were submitted in 2014

as against 28 the previous year. In

London 2014 saw 10 submitted

compared with 18 in 2013.

There is otherwise fluctuation

between regions. The 2014

figures show an increase in the

use of Housing CPO powers in

the East region to 13 from four in

2013. The opposite has occurred

in the West Midlands: a fall to

three from 14 in 2013.

A relatively small number of

Councils as noted above in figure

6b account for a significant

proportion of Housing CPOs. With

Planning CPOs the distribution is

more even.

Our earlier findings established

that Planning CPOs are more

likely to generate objections than

Housing Orders. That still remains

the case but there has been an

increase in objections to Housing

CPOs rising to 33% as compared

with 26% in 2013.

Figures7 and 8 provide a breakdown of usage by former Government Office regions for 2014.

In addition to the above data we

have analysed those Orders

submitted in 2012 and 2013 and

determined by the Secretary of State

in terms of how long it takes from

the receipt of the Order and the

Secretary of States decision date.

These are set out overleaf in

Figure 9.


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Effectiveness of CPOs Implementation by Acquiring Authorities

2012 2013

Opposed Unopposed Opposed Unopposed

Planning 323 123 281 97

Housing 296 112 119 63

Figure 9:

Average time (in days) from receipt of CPOs to Secretary of State decision, 2012-2013

Our previous research has focused

on the CPO process up to the

Confirming Authoritys decision.

It is acknowledged however that the

mere fact of whether or not a CPO

has been confirmed has some

limitation as a measure ofeffectiveness of compulsory

purchase as it does not address if

and how implementation occurs.

We have already noted above that

withdrawal or non-confirmation of a

CPO is not necessarily an indication

of failure; more often than not we

would suggest it reflects acquisition

by agreement having been achieved

against the background of a CPO

such that a confirmed Order is no

longer required. Conversely, the

confirmation of a CPO does not

necessarily mean that it will

subsequently be implemented and

all interests acquired. Indeed

following confirmation there are a

number of potential scenarios that

may apply including:

Immediate acquisition by

implementation of the CPO of all

or some land comprised within

the CPO; or

Acquisition by agreement

notwithstanding that the CPO has

been confirmed; or

Delay in acquisition

postponement of implementation

by GVD and/or Notices to Treat;

or

The CPO is never implemented.

Are confirmed CPOs alwaysimplemented?

As regards Planning CPOs in

particular there is a myriad of factors

affecting viability and deliverability,

and therefore, in turn, the speed and

manner in which a CPO may beimplemented by the Acquiring

Authority. We would suggest that

anecdotally there is evidence that

where schemes were conceived

pre-recession but site assembly was

facilitated and concluded by means

of CPO in a wholly different

economic climate then there have

been significant delays in the

implementation of the relevant Order.

Indeed such situations have required

considerable resourcefulness by

CPO practitioners to keep the

implementation window open,

including reliance upon Notices to

Treat rather than GVDs and thereby

effectively extending the window for

taking possession from three years

to six years from the date of

confirmation of CPO powers.

In respect of Housing CPOs,

especially those of single, problem

properties, the situation is often

more straightforward andimplementation frequently proceeds

in good time by disposal of the

property to the market forthwith.

At the Compulsory Purchase

Association conference in 2014, a

question was asked from the floor as

to whether there were any statistical

data about whether CPOs were

successful in the sense of both

being implemented and thereafter

the intended scheme coming to

fruition. Of course it is recognised

that the CPO process of itself cannot

ensure delivery of a scheme per se,

but as a mechanism it uniquely

may facilitate a scheme which

would not otherwise be possible.

We therefore made Freedom ofInformation requests to all Acquiring

Authorities that DCLG data indicated

had made CPOs since 2003,

enquiring as to what steps were

taken post-confirmation and whether

confirmed CPOs were implemented

and the underlying scheme was

delivered. We also sought

information as to how long both the

pre-confirmation process took and

how long it took in total, from

making a CPO to commencement of

the underlying scheme.

The responses were varied but we

have obtained data in respect of

over 800 CPOs upon which we have

based the following observations.

Responses ranged from fully

completed answers to all questions

together with additional details and

analysis on the one hand, to refusal

either to acknowledge that the

authority had made any CPOs or todecline to supply any data on the

grounds of confidentiality on the

other hand. Moreover, the

incomplete nature of many

responses reflects the somewhat

varied nature of Acquiring

Authorities corporate memory

of the reasons why CPOs were

undertaken and the outcomes of

the process. There is presently no

statutory or other obligation on

Acquiring Authorities to keep a



12/25


register of CPOs made and/or

confirmed, or indeed to record the

outputs of the process. We consider

that whilst there would be benefits

from a statutory obligation to keep

a register of CPOs made and their

respective outcomes, these would

not necessarily be proportionate to

the costs involved. However, as a

matter of best practice, Acquiring

Authorities may wish to keep such

a record or register and may wish to

complete a brief lessons learned

report at the conclusion of the CPOprocess reflecting on how the CPO

proceeded and identifying any best

practice issues relevant to future use

of CPO.

On the basis of the data collected

we would make the comments

below.

Figure 10 indicates that, as

practitioners may expect, GVD is the

most common way of implementing

a CPO. There is clear evidence that

the majority of CPOs have been

implemented by means of GVD,

Notice to Treat or a combination of

(i)

GVD

(ii)

NoticestoTreat/

of Entry

(iii)

Combinationof (i) and (ii)

(iv)

Agreement

(v)

Nopossession

taken

(vi)

Unknown

Planning 51.8% 2.6% 11.7% 8.8% 11.4% 13.6%

Housing 69.1% 1.5% 6.2% 6.6% 8.8% 7.6%

Figure 10:

Method of implementation of Planning and Housing CPOs 2003-2014

Figure 11:

Schemes undertaken pursuant to Planning and Housing CPOs 2003-2014

the two. The responses received

indicate that 70% of Planning CPOs

and 77% of Housing CPOs have

been confirmed by means of the

formal, statutory process.

In addition, it is interesting to note

that responses indicated that in

8.8% and 6.6% of Planning and

Housing CPOs, respectively,

possession was obtained by

agreement notwithstanding that a

confirmed CPO was in place. These

figures perhaps need to be treatedwith some caution, however, and are

deserving of further analysis.

Taking the combined totals for

columns (i) (iv) in the above table

represents a positive answer to

whether implementation took place

in respect of 75% of Planning CPOs

and 83% of Housing CPOs.

In addition, upon closer inspection

and enquiry it appears that some

responses stating that no

possession was taken have been in

circumstances where, in fact,

acquisition by agreement had

occurred. Those figures t herefore

also require further examination. The

unknown responses reflect gaps in

the database. If the unknowns are

discounted the figures are 88% of

Planning CPOs and 90% of Housing

CPOs being implemented by the

statutory method or by agreement in

the light of a confirmed CPO.

Figure 11 reflects an attempt to get

to the heart of the question as to the

extent to which Planning and

Housing CPOs result in the deliveryof the intended underlying scheme.

On a positive note, 31% of Planning

CPOs have resulted in completed

schemes together with 25% of

schemes being described as in

progress. In comparison, 50% of

Housing CPO schemes have been

completed, with 11% being in

progress.

Where schemes are described as

not yet commenced that indicates

that it is still envisaged that there is a

likelihood or intention to carry out

the scheme. In contrast, the not

Not yet

commenced

In progress Completed Not

undertaken

Unknown

Planning 14.9% 25.4% 31.1% 15.7% 12.9%

Housing 8.1% 11.1% 49.7% 19.6% 11.5%

Average time (in months) between

CPO made andCPO confirmed

CPO confirmedand possession

Possession andSchemecommencement

Planning 10.82 10.79 9.47

Housing 8.18 9.45 6.18

Figure 12:

Average timescales for implementation of Planning and Housing CPOs 2003-2014

undertaken column reflects those

schemes that will no longer happen

or are unlikely to happen. Around

16% of Planning CPOs and 20% of

Housing CPOs are not undertaken.

From the responses received, it

appears likely that, in terms of

Housing CPOs, some Orders where

the scheme has not occurred have

however resulted in outcomes that

were not anticipated at the outset,

for example by way of sales to third

parties or otherwise, and have

thereby delivered an alternative

scheme.

Figure 11 reflects initial analysis of

the responses received. It is

intended in due course that more

detailed analysis will be undertaken.

In addition, we have calculated the

average timescales for

implementation of Planning and

Housing CPOs from the data

submitted by Acquiring Authorities

as set out at Figure 12 above. These

data are not as fine-grained as the

DCLG/NPCU records of time taken

to process CPOs; the data reflects

the passage of months rather than

days. In broad terms, Figure 12 acts

as a check against the data derived

from the NPCU figures. However, the

correlation between the two sets of

data is striking.

Effectiveness of CPOs Implementation by Acquiring Authorities(continued)


13/25


Enabling power and clarity of objectivesReasons why some CPOs fail Secretary of State decisions 2009 2014

By definition, CPOs are site specific.

Moreover, each CPO stands or falls

on its own merits. An Acquiring

Authority commencing the

compulsory purchase process is well

advised to remind itself of the

Secretary of States requirements in

Circular 06/04 (currently being

revised).

In particular, it should be

emphasised that the onus is

squarely on an Acquiring Authority

to demonstrate that there is a

compelling case in the public interest

for compulsory acquisition. The

decision letters reviewed

demonstrate how the Secretary of

State can be expected to weigh

carefully and balance the competing

public and private interests and to

assess whether the interference

proposed is both proportionate and

necessary.

An Acquiring Authority should bear

in mind that the Secretary of State

will look at each CPO on its own

merits this is not a tick box

exercise. It will therefore need to

apply its mind to particular

circumstances of each case. The

onus is firmly on it to demonstratethat there is a compelling interest in

the public interest and consequently,

notwithstanding the generally high

success rates, there is no room for

complacency. An Acquiring Authority

must therefore clearly identify the

objectives and benefits of its

proposed scheme, demonstrate that

efforts have been made to acquire

by agreement (or reach other

acceptable arrangements for access

to or use of land) and establish a

robust evidential base in order to

establish the need for compulsory

purchase.


For developers seeking to take

possession of, and develop a site

assembled by means of compulsory

purchase, engagement with the

process is a pre-requisite. For

example, the CPO process requires

efforts to be made to acquire by

agreement. There is some evidence

in decision letters that CPOs have

on occasion been perceived as a

short cut to site assembly, obviating

the need to try to acquire by

agreement. That is an approval

taken at ones peril. A developer will

also be called upon to demonstrate

the likely viability of its s cheme. That

requirement should come as no

surprise and evidence of both

deliverability and, where appropriate,

viability should be advanced.

Objectors opposing schemes should

note that an objection has a

proportionately greater prospect of

success where a Public Inquiry is

held and evidence is forensically

tested. In Housing CPOs, objections

putting forward evidence of

deliverability of renovation or

redevelopment by the existing owner

have proved successful. In Planning

CPOs, as cases below demonstrate,

an Inquiry provides an opportunity to

test an Acquiring Authoritys

assumptions about viability.

The reasons why CPOs can fail as

evidenced by recent Secretary of

State decisions are set out below

under the following headings:

Enabling power and/clarity of

objectives

Technical deficiencies

Procedural issues/withdrawal of

Order

Housing CPOs evidential burden

Planning CPO viability,

deliverability and alternative

schemes


statutory and policy requirements

Orders not confirmed/withdrawn.

4. Great Yarmouth Borough Council (Land at Hall Road, Hopton-on-Sea, Great Yarmouth, Norfolk) Compulsory Purchase Order 2009 (S125 Local Govt Act 1972 and

S164 Public Health Act 1875. Decision 30 March 2010)

It is essential at the outset to

establish clearly the particular

objectives of a case and therefore

identify the most appropriate power

under which to make a CPO. The

approach of Great Yarmouth

Borough Council and Hopton-on-

Sea Parish Council ultimately was

fatally unclear in respect of both

(Great Yarmouth Borough Council

(Land at Hall Road, Hopton-on-

Sea, Great Yarmouth, Norfolk)

Compulsory Purchase Order

2009)4.

The Order Land in Hopton-on-Sea

on the Norfolk coast comprised 0.4

hectares of woodland covered by a

Tree Preservation Order. It was

adjacent to the local church, bowling

green, a single residence and post

office. Planning applications for

residential development of the site

had previously been refused by the

LPA and on appeal.

The impetus for compulsory

acquisition came from the Parish

Councils desire to manage the site

as a woodland walk/nature reserve.

The Parish Council was also

concerned about the areas untidy

and ill-maintained appearance.

There was an extensive history of

negotiations between the Parish

Council and landowner. Ultimately,

no substantive progress was made

so the Parish Council requested that

the Borough Council make a CPO.

Negotiations recommenced and an

undertaking was given by the

landowner to make reasonable

endeavours to clear, tidy and make

the land safe to the Parish Councils

reasonable satisfaction within a

specified period of a few months

and thereafter maintain it to the

Parish Councils satisfaction. The

CPO was thereupon withdrawn. The

deadline for works was subsequently

extended by six months but by that

time there was little evidence of

progress so a second CPO was

made. In the meantime the area was

fenced off and some works

undertaken by the landowner.

Statutory power

The Order was made pursuant to

S125 of the Local Government Act

1972 (LGA) and S164 of t he Public

Health Act 1875 (PHA). S125 LGA

provides that a District Council may

in certain circumstances

compulsorily acquire land on behalf

of a Parish Council provided the land

is for a purpose for which the Parish

Council is authorised to acquire land.

However, that does not include

matters specified in S124(1)(b) LGA,

namely the benefit, improvement or

development of their area. S164

provides that a local authority may

purchase or take on lease lay outplant improve and maintain lands for

the purpose of being used as public

walks or pleasure grounds

The Secretary of State accepted that

the acquisition of the lands for use

as a woodland walk/nature reserve

fell within the ambit of S164 PHA

and therefore S125 LGA applied but

commented that the Councils desire

to tidy up the site and improve its

scruffy and neglected appearance

and its use by undesirables fell

within the exclusions in S124(1)(b)

LGA and therefore were not matters

which alone would form a proper

basis for a CPO. Likewise, the value

of the woodland in providing a

setting for the church was not a

matter of itself for which the Parish

Council was entitled to seek a CPO.

These may be additional benefits,

as the Council put it, but since t hey

fell outside the powers the Secretary

of State gave them little weight.

The Inspector also noted that the

undertaking that had been accepted

by the Parish Council did not provide

for public access to the land but only

for the land to be cleared, tidied and

made safe. The Inspector

accordingly concluded that

improving the appearance and

maintenance of the land might in fact

be the overriding objective for the

Parish Council. Laudable as that

may be it was not a proper basis for

a CPO under S124(1)(b). The

Inspector therefore concluded that

in considering whether the Order

should be confirmed I have therefore

had regard to the creation of a

woodland walk/nature reserve and

have given little weight to any allied

benefits.

There were additional planning and

evidential objections to the CPO.

Local Plan policy provided support

for the creation of wildlife habitats.

However, the supporting t ext to the

policy stated that the Council would

seek access arrangements to sites.


14/25


Technical deficiencies

The landowner pointed out that no

such access agreement had been

sought. The Inspector noted that the

landowner had not ruled out the

potential for granting a lease and

during the Inquiry a draft lease was

offered albeit one that wasunacceptable to the Council.

Also, the Council argued that there

was a shortfall of 0.84 ha of informal

recreation space/childrens play

space and that the Order Lands

would meet half of that shortfall.

However, the Secretary of State was

sceptical that the woodland would

be suitable for a range of recreational

uses and in any event such uses

would conflict with the proposal as a

nature reserve. Although there was

relatively little accessible woodland

on the coastal fringe, the Order land

had no particular scientific or nature

conservation interest and was in any

event protected by policy from

development and was unlikely to be

lost as a wildlife area.

The Secretary of State thereforeconcluded that a compelling case

had not been made out and the

purposes werent sufficient to justify

interference with the landowners

human rights and that despite there

being no obvious impediments to

the project, the use of compulsory

purchase powers would not be

proportionate.

In this instance, the Borough

Councils case suffered from lack of

clarity as to precisely what it was

that the Parish Council wished to

achieve. Indeed there was arguably

some confusion about the precise

intended use and its benefits. Clearly

there was a tension between nature

reserve and childrens play space

use, for example. This wassignificant because of the Secretary

of States approach to give weight to

the benefits that fall within S164

PHA and not the ancillary or allied

benefits.

The land was suitable as a woodland

walk/nature reserve, but was not of

particular nature conservation

interest. The Secretary of State was

not convinced that land was of the

right type to address the shortage of

recreational space. Moreover a lease

may well have been long enough to

secure a significant proportion of any

benefits and could be available. In

addition no attempt had been made

to secure an access agreement.

It is hard not to have some sympathy

in this instance for the Parish Council

given that it had spent five years

from negotiations first commencing

to progressing the second CPO.

However, if there is an alternative

means of achieving the identified

objectives short of the need for

compulsory acquisition, then careful

consideration should be given to that

alternative. In this instance could a

suitably framed access agreement

have sufficed. In other cases, one

may wish to consider whether

outright acquisition is needed or

whether an easement would be

sufficient.

The Secretary of State will refuse to

confirm a CPO that is demonstrably

technically flawed and not capable

of modification or remedy. Guidance

in Appendix V to Part I of the

Memorandum to Circular 06/04 sets

out the technical requirements. Inaddition the procedural

requirements, for example, as set

out in The Compulsory Purchase

(Inquiries Procedure) Rules 2007 or

The Compulsory Purchase of Land

(Written Representations Procedure)

(Ministers) Regulations 2004, must

be followed. A combination of

technical and procedural errors can

be fatal to a CPO as demonstrated

by two Planning CPOs made by

Mansfield DC (Mansfield District

Council (Brownhill Road) CPO

2010andMansfield District

Council (Bould Street) CPO 2010)5.

The procedural error was that

newspaper notices did not appear in

two successive weeks. The second

notice appeared two weeks after the

first, thereby effectively shortening

the objection period for those who

saw the second notice.

In addition, the Order Maps were

contrary to the Circular in that: they

were undated; they did not contain

street names or house numbers or

local landmarks; and boundaries

were not clearly delineated and

numbering hard to pick out.

Furthermore, the Order Schedule did

not include Table 2 and no signed

certificates had been provided.

There can be no surprise that the

CPOs were rejected on technical

grounds. Although the Secretary of

State may permit some

modifications to a CPO where it is

possible to do so without causing

prejudice to an objector, it isimportant to take care at the outset

to follow both the statutory

requirements and the Secretary of

States requirements as to the form

of an Order.

Checking the draft Order

The NPCU in Birmingham provides a

valuable informal checking service

for draft CPOs. This can be

especially useful not just for complex

Orders, but in allowing fresh eyes to

scrutinise the CPO schedule and

map. Acquiring Authorities are

recommended to make use of the

NPCU.

The limitation on the scope for

modifying an Order is well

demonstrated by a Housing Act

CPO made by the East Riding of

Yorkshire Council (The East Riding

of Yorkshire Council (11

Lansdowne Road, Bridlington)


2009)6.

The Councils Housing CPO case

was well made out. The property

was in disrepair and had partially

collapsed. The Council had

negotiated with the landowner over

a prolonged period of time, had clear

5. Mansfield District Council (Brownhill Road) CPO 2010 (S226(1)(a) TCPA 1990. Decision 17 February 2011)

6. The East Riding of Yorkshire Council (11 Lansdowne Road, Bridlington) Compulsory Purchase Order 2009 (S17 Housing Act 1985. Decision date 22 September2010)

proposals to bring it back into use

and the owner had shown no

commitment to renovation. It is clear

from the decision letter that the

Secretary of State would in all

probability have confirmed the Order

had it not been for a fatal flaw in theCPO.

There were two notable errors:

The CPO Map included part of an

adjoining property in error.

The CPO Map failed to include a

rear single storey extension that

was an integral part of the

dwellinghouse to which the CPO

related. It also omitted the rear

yard to the property.

Consequently, the description of

the area of land in the Schedule

was materially inaccurate.

Modification of the CPO to remove

the land included in error was

possible and caused no prejudice.

However, it was not possible to bring

into the CPO land excluded in error.

Although there was no overall

ambiguity in the Councils intention

that proposed modification was not

consented to by t he objector. The

Secretary of States position is that

he may not, without the consent of

all persons interested, modify a CPO

by adding land not originally included

in the CPO. That is, with the

agreement of the Secretary of State

one may modify a CPO to remove

Enabling power and objectives(continued)

It is hard not to have some sympathyin this instance for the Parish Council

given that it had spent five years fromnegotiations first commencing toprogressing the second CPO. However,if there is an alternative means ofachieving the identified objectives shortof the need for compulsory acquisition,then careful consideration should begiven to that alternative.


15/25


Procedural issues/Withdrawal of Order

land, but one cannot insert land not

originally included in the CPO

without the consent of all affected

parties and acquiescence of the

Secretary of State.

The East Lindsey District Council

(The Gatherums, Louth)


20127would also appear to have not

been confirmed following a request

for withdrawal because of technical

7. East Lindsey District Council (The Gatherums, Louth) Compulsory Purchase Order 2012 (S226(1)(a) TCPA 1990. Decision date 16 October 2012)

In cases where an Acquiring

Authority wishes to withdraw a CPO

because acquisition has been

achieved by agreement, an

application is made to the

determining Secretary of State who

determines that the CPO is notconfirmed. Details of those CPOs

not confirmed/withdrawn in this

way are set out later in this report.

But what happens when an

Acquiring Authority wishes to

withdraw a CPO but there is an

outstanding objector who opposes

the withdrawal? This issue was

addressed in a Planning CPO Order

made by Kings Lynn and West

Norfolk BC (Borough Council of

Kings Lynn and West Norfolk

(Waterfront Regeneration Area,

Land at the Friars) Compulsory

Purchase Order 2009).8The

underlying scheme fell within a

strategic transport route forming part

of mixed-use development within a

wider regeneration area. Kings Lynn

BC sought deferral of a Public

inquiry for six months on grounds

that the economic downturn meant

a review of its regeneration project

was necessary. A statutory objectoropposed the deferral on a number of

grounds; most particularly that his

own development proposals would

be prejudiced by delay. The

Secretary of State refused to

sanction deferral. The Council wrote

to PINS stating that it wished to

withdraw the CPO.

8. Borough Council of Kings Lynn and West Norfolk (Waterfront Regeneration Area, Land at the Friars) Compulsory Purchase Order 2009 (S215 (1)(b) TCPA 1990.

Decision 14 May 2010)

Its stated reasons were: to enable a

review of its Waterfront Regeneration

Area; that an alternative route not

involving the remaining objectors

land had been found for the strategic

transport link (and planning

permission for this alternative routehaving been granted four days

earlier); and to enable funding to be

utilised by a deadline. It was stated

that this request was without

prejudice to making a second Order

because the Councils underlying

purpose had not changed. The

Government Office for London (GOL)

was minded to cancel the Inquiry

and wrote to the Council stating that

in the interests of fairness and

natural justice where an Acquiring

Authority indicated close to an

Inquiry that it no longer wished to

pursue the CPO then remaining

objectors who have reasonably

incurred costs in preparation for the

inquiry should be able to seek an

award of costs against the Acquiring

Authority. GOL also stated that as

you are aware however compulsory

purchase order costs can only be

awarded where an inquiry has taken

place.

Jurisdiction

The Inquiry therefore proceeded.

The Council called no evidence and

instead relied upon its Statement of

Case. There was extensive debate

as to whether an Acquiring Authority

could withdraw a CPO. There was

broad agreement that there is no

express power to do so. However, is

there an implied power? The

objector argued that the Council was

functus officio i.e. it no longer had

the power to act in respect of the

CPO, the CPO baton having been

passed to the Secretary of State to

decide whether it could beconfirmed. It was also contended

that, in this case, the Council had

not in fact passed an appropriate

resolution to withdraw the Order.

The Council relied on the decision in

Persimmon v North Hertfordshire

(2001 1WLR 2393) in respect of the

withdrawal of a Local Plan. It also

argued that if the CPO was not

considered to be withdrawn it would

ask the Secretary of State to confirm

the Order in respect of those plots t o

which there were no objections.

The Inspector noted that, although

the Order fell not under the ambit of

Circular 8/93, but Circular 03/2009,

at Annex E paragraph E6 states:

exceptionally, an Order is not

confirmed for technical reasons or

because the Acquiring Authority

decided not to proceed with the

compulsory purchase and asks for

the Order to be treated as

withdrawn. The Circular couldtherefore be taken to imply such a

power but none is expressly

identified. The Inspector concluded:

The Order is to all practical intents

and purposes withdrawn and it

seems to me that to argue or

conclude otherwise serves no

purpose in the public interest. There

is however no explicit provision in

Technical deficiencies(continued)

Although there was no overall ambiguity in the

Councils intention that proposed modificationwas not consented to by the objector. TheSecretary of States position is that he maynot, without the consent of all personsinterested, modify a CPO by adding land notoriginally included in the CPO.

reasons. The Secretary of States

letter advises that the Council may

wish to note that the National

Planning Casework Unit provides

informal advice on draft Compulsory

Purchase Orders, should the

authority decide to submit a

subsequent Order.


16/25


Housing CPO evidential burden

law for withdrawal of a CPO. It thus

seems to me that the Order must

still be considered to stand and that

accordingly the proper course would

be for the Order not to be

confirmed.

As regards confirming the plots inrespect of which no objections had

been made, whilst there was a

convenience factor in doing so, the

Inspector expressly rejected that

approach. The reason and

justification for acquiring those small

areas was the same as for the rest

of the Order Land. Since the Council

did not argue that some of the Order

Land is needed and some is not and

was not pursuing compulsory

acquisition of the other plots in

respect of which there were

outstanding objections then its case

for compulsory acquisition could not

be sustained for the two small areas.

Housing CPOs made by Islington

LBCand the City of Westminster

respectively9are examples of Orders

not being confirmed but where the

use of compulsory purchase

arguably incentivised landowners to

take action to address problems

with the relevant property. These

Orders illustrate a dynamic

particularly relevant to Housing

CPOs namely the response of the

landowner. Planning CPOs are

essentially prospective the

Acquiring Authority is advancing a

case for the future development,

redevelopment or improvement of a

site. It is usually problematic for an

objector to counter those benefits or

attack them head-on unless he has

an alternative viable scheme of his

own. In contrast, Housing CPOs

expressly require assessment of the

current condition and use of

property. There is often therefore

increased scope for an objector to

take steps to address an acquiring

authoritys concerns and at the same

time counter the need for

compulsory acquisition.

Islington

The Islington case featured pre-1919three storey brick buildings. The

ground floor contained shops. There

was residential accommodation

above. The Councils case was that

the nearby area had been

regenerated by New Deal for

Communities. The Order lands were

empty, an eyesore, in disrepair and

in need of complete renovation.

There was also, it was argued, a

demonstrable need in the area for

housing. Extensive evidence of

contact with the owner was

advanced, especially the Councils

frustration with the lack of progress.

The Council therefore proposed to

pass the property to a Registered

Housing Provider (RP). It also

contended that the Owners lacked

the capacity to bring the property

into use and that piecemeal

acquisition of properties over many

years together with poor stock

management and maintenance had

blighted neighbouring property. A

Notice under Section 215 of the

Town and Country Planning Act

1990 had been served to require

works to the front elevations. In

short, the Councils case was that

Owners were financially not in a

position to remedy the situation and

had taken no steps to demonstrate

an intention to renovate.

The Owners case was that they

were intending to carry out works to

bring the properties back into mixed

residential and commercial use.

Planning Permission was now in

place. The Order was therefore

premature. A detailed explanation of

personal problems, share ownership

issues and other issues was given.

Factual matters were disputed,

especially that the Council had been

wrong that certain units were empty.

Some works had been undertaken

to comply with the S215 notice. The

Council had refused to accept an

undertaking not to make a CPO if

work began within 20 weeks. There

would be delays with redevelopment

if the Order were confirmed because

the RP would need new consents. A

week before the Public Inquiry, the

objectors met with local builders and

agreed implementation of the

planning permission, albeit there

were no written terms.

The Inspector concluded that the

poor state of building and housing

need was established. Compulsorypurchase is the last resort. There

were reasons for the delay: litigation

and personal circumstances were

mitigating factors. Planning

permissions for extensions and

refurbishment now existed. The

Owners had expressed the intention

to implement the permissions and

had made moves to do so even

though these might not have

advanced to a stage that provides

the Council with the comfort as to a

prompt and satisfactory outcome.

Dialogue with the Council had been

maintained and the S215 notice

complied with in part.

Objectors commitment

The Inspector noted that despite

the Councils contention to the

contrary I consider that [the

objectors have] shown a degree

of steadfast commitment to moving

forward with project of redeveloping

the properties [and] expressed [a]

preparedness to provide an

undertaking to the Council to ensure

development is carried out to an

agreed timetable should the Order

not be confirmed. There is also

evidence that the presence or threat

of a CPO may have deterred

potential financial backing for

developers and this has itself

frustrated action.

Procedural issues/Withdrawal of Order(continued)

Where acquisition by agreement has

been reached and an Acquiring

Authority needs to withdraw an

Order, i.e. cease the compulsory

CPO process that should not be

problematical. That is an

administrative process and theSecretary of State is amenable to

Orders being withdrawn de facto,

albeit that de jure they may be noted

as being not confirmed. However,

if an Order is proposed to be

withdrawn for any other reason, then

care is required and an Acquiring

Authority must be alive to the costs

implications. It is hard to see why in

principle objectors reasonable and

legitimate costs should not be

recoverable in some circumstances

where a contested Order is sought

to be withdrawn, especially close

to the date of an Inquiry.

9. The London Borough of Islington (141-157 Whitecross Street, London EC1Y 8JL) Compulsory Purchase Order 2009. (S17(1)(b) Housing Act 1985.

Decision date 6 May 2010) and City of Westminster (39 Kensington Gardens Square W2) Compulsory Purchase Order 2010)


17/25


In contrast, the Inspector concluded

that the Council had no formal

agreements in place with any

specified RSL or developer and that

factually the Council was wrong in its

belief that properties were not

occupied.The Secretary of States conclusion

was that this was a finely balanced

case and that from the evidence

presented there is likelihood that if

the properties remain with the

owners there is a reasonable

prospect of their refurbishment/

redevelopment and the residential

elements being brought back into

active use within a relatively short

space of time. This is likely to be

speedier than if the Order was to be

confirmed and the properties passed

on by the Council to an RSL. Given

those conclusions, a compelling

case for compulsory acquisition was

not clearly demonstrated.

Westminster

The Westminster case concerned a

Listed Grade II mid terraced property

in an established residential area in

central London. It comprised six

floors of accommodation including a

half basement that had been empty

for five years. There had been some

squatting and the Owner had

obtained a possession Order. The

building was in a deteriorating

condition. Statutory notices had

been served but not complied with.

Shortly prior to the CPO being

made, dangerous structure notices

and a S215 notice were served.

The Councils case was that it was

an eyesore and a blight on the

neighbourhood. It was proposed

that, if acquired, the Council would

dispose of it to Westminster

Community Homes Ltd which would

apply for planning permission to

convert it into affordable homes.

The owner lived overseas. Evidence

was produced of that there hadpreviously been delays but a new

professional team had been

appointed and that since then more

active steps had been taken. Of

crucial importance in the case was

the contention that no party was

likely to be in a position to bring the

building into use until planning issues

had been resolved. There was

disagreement between the owners

advisers and the Council as to

whether permission was required for

uses including self-contained flats.

A Certificate of Lawfulness of

existing use or development had

been applied for but refused. The

Owner applied for listed building

consent which was granted.

However, planning permission was

refused on grounds that 9 residential

units failed to provide an appropriate

mix of unit sizes including family

units. A revised scheme was

however acknowledged to be likelyto have officer support. The Owner

had already spent 60,000 on the

proposals and was not prepared to

give an undertaking sought by the

Council wherein the Council would

not implement a confirmed CPO if

certain conditions were met.

Intention and timescale

The Secretary of States conclusions

were that there was no issue

between parties as to the physical

state of the building. The Owners

actions constituted evidence of

intention to carry out works, the

delays were explicable and the

monies spent demonstrated

commitment. There was therefore a

strong financial incentive for the

Owner to pursue refurbishment andconversion. Moreover, it was not

clear that the Councils preferred

social housing developer was in any

better financial position to develop

than the Owner. Works undertaken

meant that the property was no

longer a blight or eyesore.

The Secretary of State concluded

that the Owners recent actions

provide strong evidence that the

property will be brought back into

residential use within a reasonable

timeframe. A CPO was t herefore

not required to achieve that aim, nor

was there an overriding public

interest having regard to Art 1 First

Protocol ECHR rights.

This was a finely balanced case in

which the Secretary of State was

faced with the need to determine

what weight should be given to the

presently stated and evidenced

intentions of a landowner as against

previously an undeniably indifferent

delivery performance. In such

circumstances it is to be anticipated

and is appropriate that the benefit

of the doubt should be given to an

owner where it can be demonstrated

that there is a reasonable prospect

of a satisfactory outcome without

resort to compulsion.

Bradford

A Housing CPO made by Bradford

City Council10sought compulsory

acquisition of a three storey semi-

detached dwelling within a

Conservation Area. The Order Lands

contained trees subject to a Tree

Preservation Order.

The Councils case was that the

property was in a dilapidatedcondition and had been substantially

unoccupied for ten years. Various

complaints about anti-social

behaviour and nuisance were

associated with the property. It was

a blight on the Conservation Area.

Notwithstanding contact between

the Council and the Owner, steps

had not been taken by the Owner to

engage professional assistance to

renovate the property.

The Owner explained her personal

circumstances including family, work

and health issues that had adversely

affected the upkeep of the property.

Details of work that had been

undertaken were set out. Evidence

was also submitted querying why

the Councils use of compulsory

purchase powers was directed at

the Order property rather than many

other properties. It was argued thatthe Council had paid little heed to

the personal circumstances and had

thereby compromised the owners

human rights.

The Inspector accepted that the

dwelling was in poor condition and

had an adverse effect on its

environs. It was not unreasonable for

the Owner to put renovation on hold

given her particular health and

personal circumstances. Given those

circumstances, the Inspector

considered that the timing of the

Councils compulsory acquisition

was insensitive and premature. On

balance, the case was less than

compelling, especially given that the

Council was not pursuing the

compulsory acquisition of many

other vacant properties in the area.

The Inspector concluded that

bringing one dwelling back into use,quicker than the Owner might be

able to manage, was unlikely to

significantly improve the housing

stock of the District and would

interfere unnecessarily with the

Owners human rights.

Housing CPO evidential burden (continued)

The Secretary of State concluded that the

Owners recent actions provide strongevidence that the property will be broughtback into residential use within a reasonabletimeframe. A CPO was therefore notrequired to achieve that aim, nor was therean overriding public interest having regard toArt 1 First Protocol ECHR rights.

10. City of Bradford Metropolitan District Council (7 Parkfield Road, Manningham, Bradford, West Yorkshire, BD8 7AB) Compulsory Purchase Order 2013 (S17 Housing

Act 1985. Decision date 4 January 2013)


18/25


Deliverability/Financial Viability/Alternative Scheme

Banbury

A further Housing CPO case in

which the balance between the

aspirations of the Acquiring Authority

and developer was in issue was the

Cherwell District Council CPO

under S17 of the Housing Act1985 in respect of The Crown

House site, Banbury11. The

purpose of the CPO was to provide

affordable housing and to regenerate

a long term vacant site in the centre

of Banbury. The landowner objected

on the basis that delays in bringing

the site back into use had not been

of the objectors making and that

planning permission had now been

granted and that the proposals for

bringing the site into beneficial use

were now viable.

Competing proposals

Initially an issue was raised as to

whether the CPO had been made

under appropriate powers but that

was not pursued further.

The Acquiring Authority promoted a

scheme for conversion of the

buildings on the site to 20 one bed

and 20 two bed residential units and

a 90 m2

ground floor retail space.The objector was Slighte Limited.

It proposed two potential schemes.

(i) 73 bedroom hotel, a restaurant

and 5 duplex apartments, together

with a change of use of part of the

existing office building to residential

use, making a total of 15 affordable

units; and (ii) conversion of Crown

House to 33 apartments.

The purpose of a Planning CPO

made by Manchester City Council

(City of Manchester (Former

London Road Fire Station)


2010)12was to safeguard and

enhance the regeneration of the

Piccadilly area and safeguarding the

fabric of a Grade II listed building,

namely the former London Road Fire

Station (LRFS). The Site also

included the Coroners Court, Police

Station and Bank.

The Inspector noted that the CPO

[was] unusual in that a scheme for

the redevelopment of the LRFS as a

regeneration driven, conservation-

conscious, 4* hotel, as favoured by

the Council, has been put forward

by the Objector (Britannia Centre

Ltd). In that sense, there were two

competing schemes, one supported

by the acquiring authority and that

promoted by the objector, Britannia.

The Council contended that

Britannia had failed to take

reasonable and adequate steps for

properly preserving the property, had

failed to bring forward proposals for

redevelopment in an acceptable

manner, and had not implementedplanning permission previously

granted.

Britannia countered that its

proposals would secure

development in a manner consistent

with the Councils regeneration

objectives for the Piccadilly area and

that the Council had disregarded

extant grants of planning permission

and LBC for its redevelopment as a

4* hotel, English Heritage support for

proposals, Britannias intention to

implement, and the timescales

required for redevelopment by a 3rd

party if the Council acquired the site.

Two key issues were identified:

Was there certainty, or at leastnear certainty, that Britannia

would complete the conversion

by 2014?

If not, was there a compelling

case in the public interest for the

Council to be in a position,

through a confirmed CPO, to

acquire the LRFS?

Britannias actions were subject to

some criticism. There was a lengthy

back-story of alleged delays. An

Implementation Agreement had not

been signed and there was tardiness

in implementing planning permission.

The Inspector was critical of the

basis upon which Britannias expert

witnesses were appointed and

instructed together with those

witnesses unquestioning

acceptance of what they had been

told by Britannia. Britannias

company witness also apparently

had little personal experience of the

matter and no knowledge ofcompany resolutions or financial

requirements as to acceptable rates

of return. The Inspector concluded

that unsurprisingly, against this

background, the Council has

concluded that Britannia cannot be

relied upon. At the same time, the

Inspector acknowledged the

possibility needs to be considered

that, whatever has gone before,

Britannia is now committed to

12. City of Manchester (former London Road Fire Station) Compulsory Purchase Order 2010. (S226(1)(a) TCPA 1990. Decision 28 November 2011)

redevelop in accordance with the

programme....

As regards the second issue, it was

argued by Britannia that a lack of

certainty around its proposal was

insufficient on its own to justify the

CPO. It was necessary for theCouncil to show that redevelopment,

in the near future, was necessary

and that there were demonstrable

regeneration and conservation/

building fabric benefits.

Timescale

The Secretary of State concluded

that although the purposes of the

CPO would accord with the adopted

planning framework for the area and

contribute to achievement of the

promotion or improvement of the

economic, social and environmental

wellbeing of the area, the financial

viability of the scheme the CPO was

intended to bring forward had not

been demonstrated and that, in

addition, the case for urgency had

not been made out. Moreover, and

crucially, redevelopment of the LRFS

with attendant regeneration benefits,

would be more likely to come

forward under Britannias auspices

than the Councils.

In addition, the Secretary of State

agreed with the Inspectors

conclusion that the fabric of the

building could be safeguarded by

measures that stopped short of

expropriation and, on that basis, the

purposes for which the acquiring

authority is proposing to acquire the

land could clearly be achieved by

other means.

Housing CPO evidential burden (continued)

The Inspector concluded that

although the Acquiring Authoritys

proposals accorded with the Local

Development Framework,

particularly in terms of meeting the

affordable housing needs of the

area, Slightes hotel led scheme

would accord marginally more

closely with development plan policy

by providing both housing and Town

Centre suitable development of a

restaurant and hotel.

Notwithstanding that 40 affordable

units would be a meaningful number

it comprised less than 1% of the

affordable units anticipated to be

delivered through the Plan system.

The Inspector therefore concluded

that the need for affordable housing,

whilst important, would not be

overwhelming.

In terms of funding and viability of

the Acquiring Authoritys scheme

there was little agreement between

the parties as to the costs involved

but the Inspector concluded that the

Acquiring Authority had a budget in

excess of 7 million and at a site

cost of 950,000 the combined

costs of site purchase and

construction would be comfortablywithin the Acquiring Authoritys

budget.

Track record v presentintentions

The Inspectors analysis of the

competing interests also included

assessment in detail of what

situation would prevail if the CPO

were n

Documents

Cpo Report 2015 Main Report May2015