Reflections on Waterfront's land assembly for major infrastructure projects conference: Practice eats theory for breakfast

It was a pleasure to chair today's 3rd annual conference on land assembly and compulsory purchase for major infrastructure projects.

Having attended and presented at various similar conferences over the past decade or so, since the advent of the Planning Act in 2008, it was particularly enjoyable and refreshing to be hearing today about a whole range of practical issues and lessons that have been learnt from real, implemented projects.

It's fair to say it's been a long time coming and I doubt I'm the only person who has grown a little tired of hearing different spins on the same sorts of presentations about how the process should work in theory. However, 11 years in, we're now finally able to discuss projects that have been through the process, are out the other side, and which are already fully operational or well on track to being there.

During the course of the day I made a few notes of what I considered to be the most pertinent points from a range of excellent speakers. For those of you who couldn't make it (what on earth were you doing!?), I've set them out, in no particular order, below:

• Compulsorily acquisition should be a last resort: Nothing new in this, but we heard some excellent examples of where sensible deals to acquire land have been reached, including cases where promoters have paid a little more than might have been necessary through the Compensaiton Code in order to get deals done, remove risk and potential objections, and provide landowners with certainty. Sure, not all promoters have the ability to do that, not least because funding is often only available following the grant of the DCO, but option and conditional agreements are alternative options to outright acquisition, and we heard of cases where they have been used to good effect in practice.
• Temporary possession powers: One speaker provided examples of where using land temporarily had been very cost effective, awhilst another provided examples of where it can be very costly!  Both are true, but it depends on the circumstances – in rural areas it can be more cost effective to occupy under temporary powers but if you’re in an urban environment costs can be higher, especially if there’s a viable alternative use for that site. It's sensible to have a flexible approach to land assembly – get the right advice and apply different strategies on a parcel by parcel basis.
• Open space land: Land doesn't need to be designated as open space to qualify; it’s a wide definition. If the public can access it, the chances are somebody will use it for recreation! Identify it early and deal with it appropriately (avoid it if you can).
• Land assembly programme as part of the wider project programme: Think about what the landowners use their land for / how they use it / what are their requirements? Are they relocating a business? How long will that take? It's impossible to overstate the importance of ensuring that contractors understand the compensation liability that flows from rushing to get on to land. Land agents should feed in to the land possession programme and flag risks at an early stage. 
• Discretionary compensation schemes: We heard about some that have worked well and others that have been criticised. We're in a world where all claimants are equal, but some are more equal than others (i.e. Heathrow's 125% of market value offer versus other promoters paying 110%). Landowners will compare and contrast different schemes and question their appropriateness. 
• Examination processes are resource-heavy: Not new news if you've been through one, but an important point if you're about to do so. Hereward Philpot QC underlined the importance of getting the right team in place and ensuring you have everybody lined up and ready for the examination process - no holidays allowed, and Christmas is cancelled!! 
• Balancing ponds and access tracks: Louise Staples of the NFU reminded us all of the points that are most important to rural landowners. She reported that promoters are learning lessons from previous schemes and 'things are getting better', but the importance of an agricultural liaison officer, and people with detailed local knowledge on matters such as drainage are of utmost importance. Having the appropriate people on board a project team to be able to engage in a meaningful manner with farmers can pay dividends. (I'm not trying to commit Louise here, but I think she may have undertaken to produce a best practice document for promoters, setting out farmer's expectations...... I suspect some elements may represent a wish-list but there are lots of things that should be done as a matter of course, which are now starting to happen). 
• Use an independent DCO expert: Rick Campbell of SP Renewables set out some great lessons from the East Anglia 1 project, the most original of which I thought was the use of an independent DCO expert to attend community consultation events to explain the DCO process. This was to speak at events at which SP Renewables themselves were not represented, to explain how the process works from an independent viewpoint. 
• Flexibility is important: Anothr point that is hardly earth-shattering, but Rick, Anne Richards and Sarah Collins offered some lessons learnt about the benefits of explaining to landowners exactly why it is that flexibility is necessary. Landowners want certainty, obviously, and having never been involved in planning major infrastrucutre it's not immediately obvious why wide limits of deviation or flexible working areas are required, so taking the time to explain the design development process can be hugely beneficial, and help to overcome misunderstandings or mistrust. 
• Balance the tension between developing the best engineering solutions and taking account of advice from property professionals: Many of the lessons that were presented today were borne out of project designs being engineering-led, with minimal or no input from property professionals. The value of feeding in informaiton about how land is used, what compensaiton liabilities will flow, and the risks and implications of different options is priceless. I think all of the presenters would concur that benefits derive from involving land and property professionals in the design development and option selection process from the earliest stage possible - it can reduce cost and overcome objections.
• Pay reasonable fees: I would say this, wouldn't I!? True, but it's a fact - the benefits of having knowledgable agents working as part of the project team, but also representing landowners, cannot be underestimated. As Ian Lindsey explained, there is a huge dearth of compulsory purchase experts within the surveying field, and good advisors come at a cost, but they also deliver results and set sensible expectations when advising landowners. Capping rates at ￡175/hr, which I know some promoters look to do, is a false economy (not to mention that it flies in the face of the RICS Professional Statement for surveyors advising in relaiton to compulsory purchase), whereas developing an open and transparent fees policy at the earliest stage of a project will generally result in more deals being concluded and, all in all, a far lower cost to the project. Failing to pay reasonable fee rates opens the door to agents who are not specialists and who may provide poor advice, which costs everybody in the long-run and is unlikely to help in building good relationships with landowners. Rant over. Applying caps is a sensible way to control things.
• Property cost estimates are not budgets!!! Nuff said.
• Identify risks early: Obvious, maybe, but it's far easier to identify risks if you have people in the team who have been through the process before. Otherwise lots of risks are easily missed, and might not be identified until it's too late. The earlier you identify risks and put strategies in place to deal with them, the more control you’ll have over them.  Employing somebody with past experience as a challenge agent will usually pay dividends.
• And the final point…..Don’t reinvent the wheel!: We’re at a stage now that projects have actually been delivered through the DCO process, so instead of talking about theory at conferences, we’re talking about lessons learnt. Promoters need to speak to each other, learn from one another, and having gone through the process a few times we should all now be able to look forward to the process continually improving.

Thanks to all those who attended today, and to all of the presenters. It really is a positive step to be talking about lessons learnt from project delivery and it's definitely onwards and upwards for major infrastructure projects in the UK......whatever happens on December 12th!