Compulsory Purchase Order and Side Roads Order

11 June 2019 update: The final outstanding objection to the Gedling Access Road Compulsory Purchase Order and Side Roads Order has been formally withdrawn. The Inspector for the Public Inquiry has decided that as all of the objections have been satisfactorily resolved a Public Inquiry is no longer required. Nottinghamshire County Council will now await the Secretary of State for Transport’s formal confirmation of the Orders which will enable construction of the Gedling Access Road to commence later this year.

Nottinghamshire County Council (NCC) is working on a project to construct the A6211 Gedling Access Road (GAR) which will connect the B684 Mapperley Plains in a south-easterly direction for a distance of 3.8km to its junction with the A612 at Trent Valley Road and Nottingham Road.

There are over 60 plots of land to be acquired permanently to build the Gedling Access Road and less than 30 where rights are to be acquired. More than half of all the land plots are in public sector ownership and the remaining third-party land comprises of 15 private landowners.

In order to secure the land required to construct the GAR a Compulsory Purchase Order (CPO) and Side Roads Order (SRO) is required. In accordance with guidance published in 2018 by the Ministry of Housing, Communities and Local Government (MHCLG), NCC has consulted with stakeholders and has sought to acquire the necessary land and rights by agreement where possible.

In order to ensure delivery of the GAR, CPO powers were progressed simultaneously with land acquisition by agreement.

The SRO is made under sections 14 and 125, and in accordance with Schedule 1, of the 1980 Highways Act (the 1980 Act). The CPO is made under sections 239, 240, 246, 249 and 250 of the 1980 Act.

The making and confirmation of the SRO enables NCC to improve, raise, lower, direct or otherwise alter highways; stop up highways; stop up private means of access to premises required as a consequence of the construction of the classified road; and to provide new private means of access to premises.

The making and confirmation of the CPO enables NCC to acquire the land and rights necessary for the construction and maintenance of GAR and ensure the necessary improvements are made to the local highway network, that mitigation measures are implemented, and that exchange land is provided.

Compulsory Purchase Order

A CPO is a legal function which allows an Acquiring Authority to obtain land or property without the consent of the owners. CPO powers are granted to an Acquiring Authority to compulsorily purchase land in order to carry out a function which Parliament has decided is in the public interest.

Guidance on Compulsory Purchase and Compensation

The Department for Communities and Local Government has produced five booklets which explain, in simple terms, how the compulsory purchase system works. These are:

It is important that booklet 1 is read first before reading the others in the series as it provides an overview.

The titles of booklets 2, 3 and 4 are self-explanatory and you need only read the ones which deal with the type of property you own or occupy. Booklets 2 to 4 explain your rights to compensation and how it should be assessed. Booklet 5 deals with the limited circumstances in which an Acquiring Authority may undertake works to reduce or 'mitigate' the adverse effect of its development.

This guidance is not a substitute for professional advice. If your property is the subject of a CPO you should seek advice from a professionally qualified person such as a chartered surveyor or solicitor, who should be able to advise on your rights and act on your behalf if appropriate. It is best to seek professional help as early as possible.

The Royal Institution of Chartered Surveyors operates a Compulsory Purchase Helpline which can be contacted on 0870 333 1600. This helpline puts you in touch with experienced chartered surveyors in the local area who will provide up to 30 minutes of free advice.

The Acquiring Authority for the Gedling Access Road

Legislation in England and Wales gives many authorised bodies (often referred to as Acquiring Authorities) the power to acquire land compulsorily where the landowner or occupier is not willing to sell by agreement. In the case of the GAR, the Acquiring Authority is NCC as Local Highway Authority.

Authorisation of the CPO

NCC as Acquiring Authority made the CPO for the GAR on 25 October 2018. However, confirmation of a CPO is required from the Secretary of State, after a Public Inquiry if objections to the Order are made and not withdrawn. The Minister has the power to confirm, modify or reject the CPO.

Powers to make the CPO

The CPO has been made under 239, 240, 246, 249 and 250 of the Highways Act 1980 and the Acquisition of Land Act 1981.

The CPO Process

The CPO process is made up of a number of stages, these are:

Formulation/Information Gathering: The Acquiring Authority decide that land is required for some particular purpose or scheme and that they are prepared to use compulsory purchase powers to assist in achieving this. Boundaries are defined and information is gathered.
Resolution: A formal resolution is made to use compulsory purchase powers. For the GAR, the County Council’s Transport and Highways Committee considered a report prepared by officers and approved the use of compulsory purchase powers.
Referencing: Acquiring Authorities collect and record information on land ownership and occupation. The process builds upon the initial information gathering exercise which an Acquiring Authority would have undertaken during the formulation stage.
Making the Order: The Acquiring Authority makes the CPO. The CPO will have a heading or title which identifies the general area within which the land is situated and the year in which the CPO was made.
Notification and Publicity: Before the Acquiring Authority submits the CPO for confirmation, all known persons with an interest are informed by the Acquiring Authority serving a notice on them. A notice is also published for two successive weeks in one or more local newspapers and must also be fixed on or near to the land included within the order.
Objections: The notifications of the making of the CPO invite the submission of objections to the Secretary of State within 21 days.
Public Inquiry– If valid objections are received, a Public Local Inquiry will be scheduled. No later than six weeks after the relevant date the Acquiring Authority serves a Statement of Case on the Secretary of State and each remaining objector. This sets out the case to be put forward at the inquiry and justifies the reasons for making the CPO.
Written Representations Procedure: As an alternative to an inquiry, objections may be considered by an Inspector through the written representations procedure.
Decision: After considering the Inspectors Report, following an inquiry, or the use of written representations procedure, the Secretary of State will decide to confirm, modify or reject the CPO. All persons with an interest are notified of the decision and the decision must also be published in one or more local newspapers. Once the CPO is confirmed, the Acquiring Authority has the power to compulsorily acquire or seek possession of property.
Challenging the Decision: Once confirmed, there is limited scope for challenging the decision (within a strict timetable). Challenges may be on the basis that the powers granted are ultra vires, that procedural rules have not been followed, or that the Secretary of State or Inspector has not acted properly in reaching a decision.

Rights to Compensation

The principles of compensation are governed by the compensation code, which is derived from statute, case law and established practice. One of the main principles is that of equivalence, that is a claimant should be placed in no better or worse position in financial terms after the acquisition than they were prior to the acquisition.

In accordance with Rule 2 of Section 5 of the Land Compensation Act 1961, a claimant is entitled to the value of their land/property. Because of the effect a Compulsory Purchase Order can have on property values, when assessing the level of compensation, regard is paid to the "no scheme world", that is the effect of the CPO, both positive and negative, is ignored and the value of the land or property to be taken is on the basis of open market value.

Payment of Professional Fees

Professional fees incurred in dealing with an objection to a CPO, a statutory objector who is successful in sustaining an objection, such that the CPO is not confirmed, or the objector’s land is excluded from the CPO, will be awarded costs unless there are exceptional circumstances for not doing so.

In respect to professional fees incurred in negotiating a claim for compensation, the Acquiring Authority will usually pay the reasonable surveyor’s and legal fees which are incurred in negotiating the claim. However, the position can change if settlement of the claim cannot be agreed and the matter is ultimately referred to the Upper Chamber (Lands Tribunal) for determination.

Timescale for Compensation

When compensation is agreed with the Acquiring Authority, this will be paid at the earliest opportunity, normally within 1-2 months of agreeing compensation,subject to the Acquiring Authority seeking appropriate internal approvals.

Once the land or property is taken by the Acquiring Authority under a CPO and the claim for compensation has not been settled, under Section 52 of the Land Compensation Act 1973, a claimant can request an Advance Payment. An Advance Payment is based upon 90% of the Acquiring Authority’s initial estimate and must be paid within two months of the request. The balance of the claim can be settled by negotiation or ultimately determined by the Upper Tribunal (Lands Chamber) if settlement cannot be reached.

Loss Payments

Under the compensation code there are a number of loss payments which can be paid, subject to claimants meeting the requisite qualifications. If you are a qualifying occupant of a residential property you may be entitled to a Home Loss Payment which equates to 10% of the Market Value of your interest, subject to a minimum payment of £5,300 and a maximum payment of £53,000.

Under the Planning and Compulsory Purchase Act 2004, property investors and business owner occupiers who meet the qualifications can claim a Basic Loss Payment. This payment is calculated at 7.5% of the value of an interest up to a maximum sum of £75,000. In addition, an “occupier”, whether they be an owner occupier or a business tenant (subject to qualification criteria) may also be entitled to an Occupier Loss Payment. This payment equates to an additional 2.5% of the value of the interest, or £25 per sq. m of building taken (or £2.50 per sq. m of land) subject to a minimum sum of £2,500 and a maximum payment of £25,000.

Injurious Affection

Injurious affection relates to a compulsory purchase situation where an Acquiring Authority only requires part of someone's property ownership. For example, an Acquiring Authority may need to acquire a portion of the rear garden of a house but not the house itself. The impact of taking part, but not the whole, can adversely affect the value of the part retained. This is known as injurious affection.

The Compulsory Purchase Code allows you to claim compensation for the loss that you have suffered as a direct result of the retained part of your property ownership being worth less as a direct result of the Acquiring Authority acquiring part of your ownership.

There are circumstances where a person who loses part of their property can obligate the Acquiring Authority to take the whole. Notice would need to be served on the Acquiring Authority under the Acquisition of Land Act 1981 or the Compulsory Purchase Act 1965 on the grounds that it has caused a significant level of material detriment. If the Acquiring Authority accepts the counter notice then they would be obligated to acquire the whole interest. An Acquiring Authority may contest a counter notice in which case the matter is determined by the Upper Tribunal (Lands Chamber).

Whilst injurious affection is a complicated area of law and practice, with proper advice you can resolve the problems caused by only part of your property being taken by a compulsory purchase order.