Practical considerations when assembling land for acquisition

Assuming the new Labour government holds firm on its announcement to prioritise decision-making on transport and energy schemes that have been “sitting unresolved for far too long” – indeed, who expected the decision to grant consent to the Sunnica, Gate Burton and Mallard Pass solar farms all on the same day – we can expect an increasing number of these to move into delivery and the implementation of land powers.

So, having spent the last 6 years of my career doing just that – providing advice on and facilitating the implementation of compulsory acquisition powers under consented Development Consent Order and Transport and Works Act Orders – I thought I’d put pen to paper and reflect on some practical considerations that I think, from my own experience, we can all usefully keep in mind.

Know your stakeholders

The implementation of compulsory acquisition powers can be an incredibly stressful, anxious, and confusing time for affected parties. It’s Important therefore to harness the working relationships that should’ve been built during a scheme’s promotion. Incidentally, I’m a firm believer that every scheme should have a team of proactive and diligent case managers who should be out there talking to and working collaboratively with affected parties, understanding their concerns and the impact of a scheme on their interests to make the process as seamless and as transparent as it can be, bringing affected parties along the journey.

Of course, stakeholders can be internal as well as external, and I’ve quickly come to appreciate how the integration of land, engineering and legal workstreams is essential to a more effective, efficient compulsory acquisition process. It all helps ensure land acquisition boundaries accurately reflect detailed designs or as-built positions, new rights and restrictive covenants are appropriate for the infrastructure they are drafted to protect and maintain, and internal processes are agreed for serving statutory notices. My key message: identify who you need to engage with and engage them early in the process.

Know your scheme

It’s worth investing time developing an understanding of the scheme you’re working on, and its designs. After all, it’s the designs or as built information that we as land assembly professionals should be using to inform our approach to compulsory acquisition. Too often I’ve come across scenarios where engineering solutions are misaligned with what land powers can facilitate. It’s not enough for land to just do land and engineering to just do engineering, the two need integrating so that they can work together and deliver the best outcome when assembling land to acquire for a scheme’s construction, operation, maintenance and protection, and therefore project delivery.

Having invested time to develop your understanding of the scheme you’re working on, you might just stumble across an opportunity to reduce a scheme’s land acquisition requirements, or a situation where it may be possible to rely more heavily on lesser powers (for example, creating rights over land that are less than full ownership) – resulting in a more cost-effective solution insofar as compensation is concerned. ?

I think what I’m trying to say is, land assembly shouldn’t just stop when a scheme is granted consent.

Know your process

If you’ve had any success in the case management space during a scheme’s promotion, then you may have found yourself in a position where your client has entered into Land and Works Agreements with affected parties. These tend to include contractual obligations regulating amongst other things how consented order powers are implemented. So, as part of the compulsory acquisition process, make sure you’ve done your diligence and reviewed anything your client may have contractually committed to that might influence your approach.

And then there are of course the statutory procedures to follow when implementing compulsory acquisition powers (outside of any contractual arrangements). I suspect most will be familiar with the two most common, General Vesting Declarations (GVDs) and Notices to Treat / of Entry (NTT/NoE), the procedural requirements for which are set out in the Compulsory Purchase (Vesting Declarations) Act 1981 and the Compulsory Purchase Act 1965.

Each has their merits and weaknesses when it comes to vesting and taking possession of land, so it’s important to understand your client’s objectives and adopt the process that meets their needs but be mindful of programme constraints as both processes require a minimum of three months’ notice before vesting and possession can take place. And, it probably goes without saying, but I’ll say it anyway, do make sure you take appropriate legal advice on the procedural steps for effecting GVDs and NTT/NoEs, as familiarity with these is essential if want to avoid being at home to any procedural non-compliance issues that may affect your client’s ability to vest or take possession of the land they need.

Wrapping Up

From my years of experience, three key considerations stand out: understanding and engaging stakeholders, developing a deep knowledge of the schemes, and being well-versed in the processes. Proactively building relationships with affected parties, integrating land and engineering workstreams, while adhering to statutory procedures, can ensure a more effective and efficient process in assembling land for compulsory acquisition (and indeed implementing compulsory acquisition powers), that in turn facilitates project delivery.