Following the Government’s immediate response to the coronavirus pandemic in respect of the planning system, which largely focused around practical measures such as remote working, the Ministry of Housing, Communities and Local Government (MHCLG) has now issued updated guidance in relation to compulsory purchase matters.

Challenging requirements

The Government wants the compulsory purchase order (CPO) process to be progressed, although it recognises that several requirements contained within the statutory process for making and confirming a CPO, such as public access to documents, mean that this is challenging to do while following public health guidelines.

The key concern for acquiring authorities is the period in which parties served with notices have to respond or access information. The guidance sets out the following pragmatic advice:

• Postal deliveries

While Royal Mail is not currently capturing signatures on delivering mail sent by recorded delivery following public health guidance, recipient names are being logged which meets the requirements under S6(1) Acquisition of Land Act 1981 (the 1981 Act) where a document or notice is “served” on a person.  This is particularly relevant where Schedule 16 notices are served or notices which have a time-limited period within which parties are required legally to provide a response.

• Statutory time periods

Given the public health guidelines on self-isolation and delays in the postal system, local authorities are being encouraged to increase statutory time periods for responses to notices which are served in regard to the following:

• Schedule 16 notices
• Requisition notices requesting information about a person(s) interest in the land
• Objections to CPOs

This requirement should be reviewed on a case by case basis given the possibility of it being cited as a ground for challenge if a notice is served on a named person/non-resident leaseholder(s) who may be in furlough or self-isolating.  Acquiring authorities are therefore encouraged to seek alternative addresses, including email, for individuals with a qualifying interest who may have difficulty in receiving notices at their primary address, especially if that is a business location.   This does not replace the requirements under Section 6 of the 1981 Act but is an additional added measure.

• Access to information

The 1981 Act requires the acquiring authority to identify a place within the locality where a copy of the order and map can be inspected, either upon making a CPO or after it is confirmed. MHCLG has stated that where publication of the order and map are online is satisfactory to meet this requirement.  However, where a CPO is made, and to prevent unfairly prejudicing those who do not have online access, it also requires contact details of where the notice has been served so that hard copies can be requested if necessary.  Upon easing of Covid-19 restrictions the order and map should once again be made available for inspection in a local office.

Requirements under the following procedures must also be approached in the same way – notices can specify an online location for inspection but should also make provision to post out/email copies of documents where requested.  These requirements relate to relevant provisions under:

• Compulsory Purchase of Land (Prescribed Forms) (Ministers) Regulations 2004
• Compulsory Purchase of Land (Written Representations Procedure) (Ministers) Regulations 2004
• Compulsory Purchase (Inquiries Procedure Rules) 2007

Where MHCLG’s Planning Case Work Unit (PCU) is required to return documents to the acquiring authority and they cannot do so electronically they will contact the acquiring authority to agree where hard copies should be sent. Notices confirming an order will also be sent by email or in the post, with hard copies to follow.

Acquiring authorities expecting to submit a CPO for confirmation within the next six months are asked to contact the PCU at PCU@communities.gov.uk to agree handling arrangements.

• Dealing with claimants

If a CPO is being implemented during Covd-19 then acquiring authorities are asked to act reasonably when dealing with business and residential claimants, especially regarding vesting orders so claimants are not compelled to experience undue hardship.  The following guidance is offered in this respect:

Residents should not be unduly evicted during this period

Acquiring authorities are reminded of their obligation for advance payments under Section 52 Land Compensation Act 1973

Timely payments should be made in respect of any agreed compensation to ease additional cash flow burdens resulting as a consequence of Covid-19.

Act reasonably

The guidelines are heavily geared towards asking  acquiring authorities to act reasonably and take into account current pandemic and its impact at an individual level when making decisions in respect of serving notices, including erecting site notices, making and confirming a CPO as well as the subsequent possession of the property and compensation payment.  Although the guidance does not amend any statutory provision it can be relied upon by a claimant or a party with a qualifying interest to argue that an acquiring authority has not followed the guidance which is to the individual’s detriment.  The ultimate risk is that the CPO is declared ultra vires and undermines the entire process.

Greater due diligence

Even if such an eventuality does not arise there is the risk of reputational damage for an acquiring authority therefore caution should be exercised and its CPO reviewed on a case by case basis to determine how the guideline should be implemented.  Acquiring authorities are advised to undertake greater due diligence in identifying the affected party and liaising with them in advance of any notices being served.  Acquiring authorities should also keep a detailed record of all communication and correspondence in the event a challenge arises.

How can we help?

Our national CPO team advises both acquiring authorities as well as claimants on all aspects of CPOs in relation to major infrastructure and regeneration schemes across the UK; from initial advice through to implementation and compensation. 

Should you have any queries or require any further information please visit our web page or get in touch and we will do our utmost to provide you with the best advice during these unprecedented times.

Need more advice?

This situation and Government guidance is evolving daily and we will continue to update our clients as more details are unveiled. You can also visit our dedicated COVID-19 online resource hub for additional guidance.