Rural Compulsory Purchase Update 2011

Charles Cowap MBA MRICS FAAV

Compulsory Purchase Update

The Theory

Charles Cowap

Penkridge, Staffs

10 October 2011

http://www.slideshare.net/cdcowap



Theoretical framework

Classical Utilitarianism John Rawls’ Theory

of Justice

Pretium concept of compensation

Barry Denyer-Green Market pricing

Compensatio concept of compensation

Sharing the Pain



Planning Act 2008

• Infrastructure Planning Commission (IPC)

• Nationally Significant Infrastructure Projects (NSIPs)

• National Policy Statements

• Development Consent Orders

• Compulsory Acquisition Powers

3



NSIPs

• Generating stations

• Cables and Pipes

• Gas storage

• Highways

• Airports

• Harbours

• Railways

• Dams and water transfer

• Hazardous waste and waste water

• Size thresholds

4



The Application Process

5

1. Pre-Application 2. IPC Acceptance


Charles Cowap MBA MRICS FAAV 6

3. Pre-Examination 4. Examination



5. Decision 6. Post-decision



Pre Application Stage

Proposals @ 10 October 2011 Number

Pre Application 59

Pre Examination 2

Examination 1

Decision 1

Archived 8

Total 71

Energy schemes 53

Transport schemes 16

Waste water schemes 2

TOTAL 71

8





Pre-application: Adviser

• Procedural advice

• Information re. Land tenure and occupation: 14 days deadline

• Consultation responses: 28 days

• Pre-entry surveys and compensation claims

• Early alert to compulsory acquisition

10



2. Acceptance by IPC

• IPC time period 28 days to accept or reject on

grounds of adequate consultation and quality

11



Rookery South, Bedfordshire

Waste Combustion Plant, 65 MW,

Bedfordshire

Decision due by 15 October

Developer’s Artist’s Impression

12



3. Pre-Examination: Adviser

• Register as an ‘interested party’

• Make ‘relevant representation’

• Initial representations – in outline

– Principal arguments

– NOT merits of NPS, compensation issues

• Respond to published representations: 21 days

• Preliminary meeting

• Clarify role: representative, expert witness

• Working up detailed representations

13



4. Examination: Adviser

• Preparation of detailed submissions: 28 days

• Preliminary hearings: procedures, requests for expert witness

• Respond to other submissions: 21 days

• Hearings: representative or expert witness

• Request compulsory acquisition hearing

• Respond to local authority Local Impact Report

• Land Acquisition negotiations

• Resolution of acquisition issues via ADR or Compulsory

Acquisition Hearings

14



5. Decision: Adviser

National Policy

Statements

• Energy

– Overarching

– Renewables

– Fossil fuels

– Oil and Gas

– Electricity network

– Nuclear

– Approved on 19

July 2011

15



6. Post-decision

• Legal challenge

16



.. And what IPC does not cover:

• Infrastructure below the NSIP thresholds

– Lower voltage electricity lines

– Local highways

– Smaller pipelines etc etc

• Proposals covered by Hybrid Bill proposals

– Eg HS2, the high-speed London-Birmingham rail link

17



IPC: All Change!

• Localism Bill

– Powers and procedures to be transferred to Major

Infrastructure Planning Unit within Planning Inspectorate

– All decisions will be taken by ministers: Commissioners will

recommend based on National Policy Statements

– NPS therefore retained

– April 2012?

– Meanwhile, business as usual for IPC



Problems with tree roots

Wright v Horsham DC [2011] UKUT319 (LC)

• Compensation for refusal of TPO consent to fell 3 oak

trees

• Claims for underpinning work of £23,253.25 + £750 for

distress etc

• Awarded in full

– Cost of underpinning should be in reasonable

contemplation when consent is refused



More tree roots

Halifax Insurance v Teignbridge DC

[2011] UKUT 213 (LC)

• TPO: Refusal of consent to thin

crown on tree in 3rd party ownership

• Compensation awarded £7,602 for

remedial works and preventive

measures

• 3 tests for compensation:

– Cause?

– Compensation reasonably

foreseeable?

– General rules on damages



Staying underground

O’Donoghue & others v SoS for Transport [2011] UKUT 203 (LC)

• Subsoil beneath 26 properties in North and East London

• £50 each nominal payment for ‘tube’ of subsoil for underground

railway – the St Pancras link to the Channel Tunnel Rail Link

(‘HS1’)



Bocardo v Star Energy

High Court 2008 • Surrey oilfield

• Bocardo Estate, Oxted

• Star Energy: Petroleum Production Licence

• 1990 – 2007: 1 million barrels +

• 800 feet deep

• Trespass? Value of Wayleave?



Bocardo v Star Energy

27.8.2008

EWHC 1756 Ch

Bocardo Estate



• Trespass

– 17 years without being noticed

– Simple ownership of minerals does not convey right to enter

and remove them

• Wayleave

– 9% of value of the oil (£6.9 million)

– Limitation – deliberate concealment (by Star) would have

prevented a limitation period defence



Bocardo (2)

The Court of Appeal Supreme Court

Court of Appeal

• Supported finding that oil extraction was a trespass, even though B’s use and enjoyment was not affected ‘one iota’

• Compensation: based on s8(2) Mines (Working Facilities and Support) Act 1966.

• Star proposed £82.50: £50 for a deep tunnel plus special purchaser uplift plus 10%

• CA awarded £1,000

Supreme Court [2010] UKSC 35

• Confirmed trespass: unanimous all 5 judges

• Nominal award of damages only: 3:2 majority



And sticking with the Supreme Court

Transport for London v Spirerose Ltd [2009]UKHL 44

• A lengthy case

• Concluded that hope value, rather than full development, value

should be reflected in award

• Lengthy consideration of Point Gourde, value to owner and how

to discount value attributable solely to the scheme



Ongoing effects of Spirerose

Persimmon Homes (Midlands) Ltd v SoS for Transport [2009]

UKUT126 (LC)

• Four key questions

– Would there be a sustainable highways objection in the ‘no-

scheme world’?

– Would there be a sustainable planning objection in the ‘no-

scheme world’?

– If there was an objection, is there hope of future

development?

– Should betterment be set off against contiguous land?



Ignoring the effects of the scheme

Are we to imagine

1. That ‘the scheme’ had never been

thought of?

– In other words unravel several

years’ worth of policy development

OR

2. That ‘the scheme’ has been

‘cancelled’ immediately prior to the

valuation date?



The Creeping Impact of Localism on Land

Management

• DCLG Circular 06/04: Compulsory Purchase and the Crichel

Down Rules

– Amended in 2011, p57

• Local authorities must consider requests to use CP powers for

community assets that are in danger of being lost, particularly if

they come from voluntary or community organisations

• Link to Assets of Community Value (Localism Bill) and proposed

Local Green Area Designations – (Nat Env White Paper):

Beware!



A final thought

Should we be formulating a fourth head of claim?

• Valuation of land taken

• Severance and Injurious Affection

• Disturbance

• Matters not directly based on the value of land?



Pattle and Pattle v SoS for Transport [2009] UKUT 141 (LC)

• Rule 6, s5, LCA 1961

– Compensation for Disturbance or any other matter not directly

based on the value of the land

• Lost rent not directly based on value of land (???)

– As a disturbance claim, the owner was not in occupation to

qualify for compensation

– But as any other matter, possession is not required in order to

claim

See Jnl of Property Investment & Finance (2011) Vol 29, Issue 6



Theory Concluded

But a quick plug for

THE FIRST RICS RURAL WEBINAR

Thursday 13 October 2011, 9.00 am to 10.00 am

IHT VALUATIONS: AGRICULTURAL AND

RURAL PROPERTY AFTER GOLDING

https://training.rics.org/course/view.php?id=55





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Real Estate

Rural Compulsory Purchase Update 2011