Can land be occupied on a temporary basis under a CPO? Discuss.

As most of you will know, a compulsory purchase order cannot provide powers of temporary occupation.?It can only provide powers to acquire land, to acquire new rights over land and to extinguish existing rights.?

Development?Consent?Orders,?Transport?and Works Act Orders?and?Hybrid Acts of Parliament?are?much more flexible tools?and?can provide for compulsory temporary occupation.??

Neighbourhood Planning Act 2017

This inconsistency is addressed?by the Neighbourhood Planning Act 2017?s.18?to s.31.?

S.18 provides that?an acquiring authority may take temporary possession of land compulsorily. Thereby providing the same powers to all acquiring authorities.?As most of you will also know, these?provisions have not?yet?been activated.?With a general election looming, it seems unlikely that this?will?get to the top of?this?government’s,?or the next government’s, list of priorities any?time soon.?

Temporary occupation as a new right

In the meantime,?what does a promoter do if it?has to?use a CPO? I am old enough to remember how major projects were?delivered?before the wonders of the Planning Act 2008.?Acquiring authorities have often needed to occupy land temporarily. This can be achieved?via the acquisition of new rights in some circumstances.?Rights can only be acquired permanently. However if the?Order?specifies that the new rights to occupy land are for a purpose which is clearly temporary in relation to the works for?the?project, the rights are effectively temporary.?This makes it clear to the landowner for practical purposes and compensation purposes that?the occupation is temporary.?The?acquiring authority could?also?provide?a unilateral undertaking to state that the rights are temporary,?they will be extinguished when no longer needed,?the land will be reinstated?prior to hand back?and the acquiring authority?will?not register the rights?with the Land Registry. ??

Under a CPO,?acquisition of new rights?is provided?for by the?Local Government (Miscellaneous Provisions) Act 1976?s.13; or if?the project is a highway scheme, the?Highways Act 1980, s.250?to s.252.

Government Guidance

The 2019 ‘Guidance on?Compulsory purchase process and?The Crichel Down Rules’?does not refer to temporary occupation?under a CPO.

DfT Circular No 2/97?provides?guidance on the?preparation of CPOs for highway schemes.Paragraph 72 states that?s.250 to s.252 does not provide?for the creation of?rights for limited periods.

Compensation?

?Under a DCO?or TWAO, the temporary occupation?provisions will provide that the?claimant can claim for any?loss or damage arising from the?temporary occupation.?Therefore?loss?arising from the temporary occupation?in relation to the temporary land and the claimant’s retained land?is covered.?However,?compensation for the acquisition of new rights is for injurious affection under?s.7 of the Compulsory Purchase Act?1965;?i.e. diminution in value only.

If the land to be?temporarily?occupied?via the acquisition of rights?is?say a field or a car park that is not in regular use,?there?may?be no significant?disturbance based?loss?and compensation for diminution in value may provide sufficient compensation. However,?if?for example,?the land was?part of?a car park?or yard?occupied in conjunction with?a commercial property,?then the losses?are likely to?be disturbance losses and?may?exceed?diminution in value. In this case?statutory?compensation?may?not be adequate?and the acquiring authority may need to provide an undertaking to pay compensation?in excess of?diminution in value.

Risk

There is a risk that?temporary occupation via the acquisition of rights?could be successfully challenged?on the basis that temporary occupation of land goes beyond the intention of the legislation?and the compensation provisions?may be?inadequate?in some circumstances.?The result?could be?that the CPO is not confirmed?unless the acquiring authority can demonstrate that?it has an alternative site for temporary occupation and the scheme is still deliverable without the?rights?acquisition.?

Mitigation

?As always, early engagement with the landowner and?completing an agreement for temporary occupation?is the best approach. However if this is not possible, a?safer?approach?may?be to show the land needed on a temporary basis as permanent acquisition. The argument for this would be that although the acquiring authority does not need?the land permanently,?it has no right?of?temporary occupation. If this was challenged,?the acquiring authority could?offer?a?temporary occupation agreement with the?owner,?or?agree to downgrade the?permanent acquisition to?acquisition of?rights for a specified temporary purpose.

Conclusion

It is possible to use the new rights acquisition provisions to occupy land on a temporary basis provided that the?land is not significantly occupied and?compensation?for diminution in value?will?be sufficient.

Where land is occupied it will be necessary to seek agreement with the owner or show the land as permanent acquisition.?If permanent acquisition?was used as the fallback position, the land can of course be?sold back to the owner when the occupation?ceases as provided for under the Crichel Down rules.?? ? ?

To discuss this topic further or learn how Ardent can support your project needs please get in touch with Mark Davey via LinkedIn or email [email protected]