Slides to accompany a local RICS meeting held at The Feathers Hotel, Ludlow, on 5 February 2015. Includes the latest on HS2 hardship and other purchase schemes.
3. • Acquiring authority makes
CPO and other cp
scheme (e.g. highway
scheme)
• Objections lead to public
inquiry
• CPO confirmed by
minister or sometimes
acquiring authority (2004
Act)
• AA proceeds by Notice to
Treat or Vesting
Declaration
• Notices to Treat served
on all substantial interests
• Responses to Notices to
Treat include claimants’
details and notification of
claim
• AA agrees compensation
or serves Notice of Entry
• Accommodation works
agreed
• Advance payments (90%)
available
• Importance of Enabling
Act
• Consider enlarging
Notice to Treat by
Counter Notice?
• Consider Blight Notice?
5. Owners (not in occupation)
• Land taken
• Severance and Injurious Affection
• Very limited disturbance
6. Tenants
• General basis for longer-term tenants
• Notice to Quit or Notice of Entry?
• s20 (CPA 1965) basis for annual/shorter
tenancies
• ‘value tenant’s interest’ & other heads of
claim (- 4 yrs rent reorganisation payment,
s12 Agriculture Act 1968)
7. No land taken
• Execution of works: McCarthy rules
• Use of works: Part One claim
Valuation dates
• Entry
• Settlement/LT Award
• First anniversary of ‘qualifying date’ for Part
One claims
8. Other items of claim
• Home Loss payments
• Farm Loss payments abolished
• Basic Loss payments
• Occupier Loss payments
• Valuer’s fees: was: Ryde’s Scale (1996); now:
Quantum Meruit
• Disputed compensation to Upper Tribunal (Lands
Chamber) (formerly the Lands Tribunal)
9. SEVERANCE AND INJURIOUS
AFFECTION
• Right to enlarge Notice to Treat for part of house,
manufactory or garden - material detriment test
• Right to enlarge Notice to Treat/Entry for part of
farm - reasonably capable of being farmed test
• Small severed areas of land (<0.5 acre)
• Betterment?
11. Compulsory Purchase Order
Specifies land
• Subject to Minister's
confirmation
• Rights of Objection
Procedure:
• Acquisition of Land
Act 1981
• covers CPOs under
most public general
acts
12. Draft CPO
Advertised
Notice to
• owners, lessees, occupiers
• anybody who would be entitled to notice to
treat, e.g. mortgagee, trustee
• anybody entitled to s10 claim under
Compulsory Purchase Act 1965 (injurious
affection from carrying out works)
13. CPO Notice states
• land required
• purpose of CPO
• where copies and plans can be
inspected
• Time limit for objections
– (at least 21 days)
14. OBJECTIONS TO DRAFT CPOs (ALA
1981)
Made to confirming minister
• may require them in writing
• can ignore any which can be dealt with by Lands
Tribunal (Upper Tribunal Lands Chamber)
• Public local inquiry (or hearing) if objections not
withdrawn.
• May also be dealt with by written representations
or private hearing
– (Planning and Compulsory Purchase Act 2004)
15. ‘RELEVANT OBJECTIONS’ UNDER
PLANNING AND COMPULSORY
PURCHASE ACT 2004
• Concept of Relevant Objection i.e
• Objection from anybody entitled to be
notified of CPO (as above)
CPO can be confirmed without inquiry if
• No relevant objections
• Or Relevant Objections are withdrawn
16. CPO can be confirmed in stages
Acquiring Authority may confirm CPO itself
in limited circumstances
• Prior approval from Confirming Minister
• No objections
• No modifications
• Cannot be confirmed in stages
20. Basic Loss Payment
S106/s33A
• 7.5% of value of interest taken
• Maximum £75,000
• Freehold interest or tenancy of more than
one year seems to qualify
21. Occupier’s Loss Payment, Other Land
s107/s33C
Maximum of
1. 2.5% of value of interest
2. Land Amount,
– £2.50/square metre or £2,500 whichever is more
where all the land is acquired.
– £2.50/square metre or £300 whichever is more
where only part of the land is acquired
3. Buildings Amount, i.e. £25/square metre GEA
• Total claim limited to £25,000.
22. Occupier’s Loss Payment, Agricultural Land
S107/s33B
Maximum of
1. 2.5% of value of interest
2. Land Amount, i.e. £100/ha up to 100 ha, and
£50/ha for next 300 ha (to maximum claim of
£25,000) OR £300 if more
3. Buildings Amount, i.e. £25/square metre GEA
Total claim limited to £25,000.
or
• payment under s12 Agriculture (Miscellaneous
Provisions) Act 1968
23. • Both landlords and tenants may qualify for Basic
Loss payments in appropriate circumstances
• Strict time limits for payment
• Advance payments available
• No payment where CP due to owner’s neglect,
e.g. damage to listed building, unfit housing etc
• Discretionary power where acquisition by
agreement – practical point
24. Relationship to Home Loss Payment
• Loss Payments and Home Loss Payment may be paid
together
– E.g. acquisition of farm or mixed hereditament
• Home Loss Payment calculated first, based on value
of home
– HLP = 10% of MV
– £4,900 to £49,000 range
• Value of home DEDUCTED from value of entire
property to arrive at Loss Payment
25. Home Loss Payments
wef 1 2014
Statutory Instrument 2014 No. 1966
The Home Loss Payments (Prescribed
Amounts) (England) Regulations 2014
• Min £4,900
• Max £49,000
• Tenants: £4,900
26. Planning Act 2008 Localism Act
2011
• Infrastructure Planning Commission (IPC)
becomes part of Planning Inspectorate
• Nationally Significant Infrastructure Projects
(NSIPs)
• National Policy Statements
• Development Consent Orders
• Compulsory Acquisition Powers
26
27. NSIPs
• Generating stations
• Cables and Pipes
• Gas storage
• Highways
• Airports
• Harbours
• Railways
• Dams and water transfer
• Hazardous waste and waste water
• Size thresholds
27
31. Pre-application: Adviser
• Procedural advice
• Information re. Land tenure and
occupation: 14 days deadline
• Consultation responses: 28 days
• Pre-entry surveys and compensation
claims
• Early alert to compulsory acquisition
31
32. 2. Acceptance by IPC
• IPC time period 28 days to
accept or reject on grounds of
adequate consultation and
quality
32
33. Rookery South, Bedfordshire
Waste Combustion Plant, 65 MW,
Bedfordshire
First Application and Decision
Developer’s Artist’s Impression
33
34. 3. Pre-Examination: Adviser
• Register as an ‘interested party’
• Make ‘relevant representation’
• Initial representations – in outline
– Principal arguments
– NOT merits of NPS, compensation issues
• Respond to published representations: 21
days
• Preliminary meeting
• Clarify role: representative, expert witness
• Working up detailed representations
34
35. 4. Examination: Adviser
• Preparation of detailed submissions: 28 days
• Preliminary hearings: procedures, requests for
expert witness
• Respond to other submissions: 21 days
• Hearings: representative or expert witness
• Request compulsory acquisition hearing
• Respond to local authority Local Impact Report
• Land Acquisition negotiations
• Resolution of acquisition issues via ADR or
Compulsory Acquisition Hearings
35
36. 5. Decision: Adviser
National Policy Statements
• Energy
– Overarching
– Renewables
– Fossil fuels
– Oil and Gas
– Electricity network
– Nuclear
– Approved on 19 July
2011
36
38. .. And what IPC does not cover:
• Infrastructure below the NSIP thresholds
– Lower voltage electricity lines
– Local highways
– Smaller pipelines etc etc
• Proposals covered by Hybrid Bill
proposals
– Eg HS2, the high-speed northern rail link
38
39. IPC: All Change!
• Localism Act 2011
– Powers and procedures transferred to Major
Infrastructure Planning Unit within Planning
Inspectorate
– All decisions will be taken by ministers:
Commissioners will recommend based on
National Policy Statements
– NPS therefore retained
40. Problems with tree roots
Wright v Horsham DC [2011] UKUT319
(LC)
• Compensation for refusal of TPO
consent to fell 3 oak trees
• Claims for underpinning work of
£23,253.25 + £750 for distress etc
• Awarded in full
– Cost of underpinning should be in
reasonable contemplation when consent
is refused
41. More tree roots
Halifax Insurance v Teignbridge
DC [2011] UKUT 213 (LC)
• TPO: Refusal of consent to thin
crown on tree in 3rd party
ownership
• Compensation awarded £7,602
for remedial works and preventive
measures
• 3 tests for compensation:
– Cause?
– Compensation reasonably
foreseeable?
– General rules on damages
42. Staying underground
O’Donoghue & others v SoS
for Transport [2011] UKUT 203
(LC)
• Subsoil beneath 26 properties
in North and East London
• £50 each nominal payment for
‘tube’ of subsoil for
underground railway – the St
Pancras link to the Channel
Tunnel Rail Link (‘HS1’)
43. Bocardo v Star Energy
High Court 2008
• Surrey oilfield
• Bocardo Estate, Oxted
• Star Energy: Petroleum Production
Licence
• 1990 – 2007: 1 million barrels +
• 800 feet deep
• Trespass? Value of Wayleave?
44. Bocardo v Star Energy
27.8.2008
EWHC 1756 Ch
Bocardo Estate
45. • Trespass
– 17 years without being noticed
– Simple ownership of minerals does not
convey right to enter and remove them
• Wayleave
– 9% of value of the oil (£6.9 million)
– Limitation – deliberate concealment (by Star)
would have prevented a limitation period
defence
46. Bocardo (2)
The Court of Appeal Supreme
CourtCourt of Appeal
• Supported finding that oil extraction was a trespass,
even though B’s use and enjoyment was not affected
‘one iota’
• Compensation: based on s8(2) Mines (Working
Facilities and Support) Act 1966.
• Star proposed £82.50: £50 for a deep tunnel plus
special purchaser uplift plus 10%
• CA awarded £1,000
Supreme Court [2010] UKSC 35
• Confirmed trespass: unanimous all 5 judges
• Nominal award of damages only: 3:2 majority
47. And sticking with the Supreme
Court
Transport for London v Spirerose Ltd
[2009]UKHL 44
• A lengthy case
• Concluded that hope value, rather than full
development, value should be reflected in
award
• Lengthy consideration of Point Gourde,
value to owner and how to discount value
attributable solely to the scheme
48. Ongoing effects of Spirerose
Persimmon Homes (Midlands) Ltd v SoS for
Transport [2009] UKUT126 (LC)
• Four key questions
– Would there be a sustainable highways objection
in the ‘no-scheme world’?
– Would there be a sustainable planning objection
in the ‘no-scheme world’?
– If there was an objection, is there hope of future
development?
– Should betterment be set off against contiguous
land?
49. Ignoring the effects of the scheme
Are we to imagine
1. That ‘the scheme’ had never
been thought of?
– In other words unravel several
years’ worth of policy
development
OR
2. That ‘the scheme’ has been
‘cancelled’ immediately prior to
the valuation date?
50. Statutory Planning Assumptions
What’s the point of these?
• They set the valuation ‘scene’ – a series of
assumptions about planning uses in the absence of
compulsory purchase
Where were they found?
• In sections 14-17 of the Land Compensation Act 1961
Where do we find them now?
• Section 232, Localism Act 2011has inserted new ss
14, 16 and 17 in LCA 1961 and repealed s15.
51. The New Statutory Planning
Assumptions
• Regard to any planning permission in force at
valuation date
– On relevant land or other land
• Regard to prospect of planning permission, subject to
assumptions:
– Scheme has been cancelled on the launch date;
– No action taken by AA for the scheme (eg acquisitions);
– No prospect of the same or a similar scheme in exercise
of a statutory function or with CP powers;
– For highway schemes, that no highway will be built to
meet the same needs
• NB Application to other land
New Section 14, LCA 1961
Also repeals old Section 15 LCA 1961
52. Planning assumptions
continued
• Assume planning permission for the AA’s
proposals
– No change here
– Note complementarity with Rule 3, Section 5, LCA
1961:
• Any value attributable to scheme requiring statutory powers
is left out of account
• Assumption of PP for development within Sch 3,
TCPA 1990 is abolished
– Mainly concerned buildings which had stood on sites
before 1947 TCPA – an anachronism
New Section 15, LCA 1961
53. Section 17 Certificates of
Appropriate Alternative
Development (LCA 1961)
• Certificate must now
relate to valuation
date, not application
date.
• Appeals now lie to
the Upper Tribunal
Lands Chamber
instead of Planning
Inspectorate
54. The Creeping Impact of Localism
on Land Management
• DCLG Circular 06/04: Compulsory Purchase and
the Crichel Down Rules
– Amended in 2011, p57
• Local authorities must consider requests to use
CP powers for community assets that are in
danger of being lost, particularly if they come from
voluntary or community organisations
• Link to Assets of Community Value (Localism Act)
and proposed Local Green Area Designations –
(Nat Env White Paper): Beware!
55. A fourth head of claim?
Should we be formulating a fourth head of
claim?
• Valuation of land taken
• Severance and Injurious Affection
• Disturbance
• Matters not directly based on the value of
land?
56. Pattle and Pattle v SoS for Transport
[2009] UKUT 141 (LC)
• Rule 6, s5, LCA 1961
– Compensation for Disturbance or any other
matter not directly based on the value of the land
• Lost rent not directly based on value of land
(???)
– As a disturbance claim, the owner was not in
occupation to qualify for compensation
– But as any other matter, possession is not
required in order to claim
59. Blight procedures are used to
force authority to purchase
property from you: compulsory
purchase in reverse
We need to consider
• Who qualifies:
Qualifying persons
• What is blight?
• Procedural aspects
• Compensation
60. To qualify for statutory blight
protection you must be one of:
1. Resident owner-occupier of
dwellinghouse
2. Owner-occupier of
hereditament of less than
£34,800 annual value (=
rateable value) (England and
Wales, £30,000 in Scotland)
3. Owner-occupier of
agricultural unit
61. The property must be BLIGHTED
in whole or part
• Schedule 13, Town and
Country Planning Act
1990 (as amended) e.g.
– Roads
– Designated in
development plan for
public authority functions
– Draft CPO, or allocated
in Special Act
AND
62. REASONABLE EFFORTS TO
SELL
• Must have FAILED, (other
than at substantial
discount)
Requirement to market
property does NOT apply if:
• CPO has been confirmed
• Special Act shows land
required
64. Authority Action on receipt of blight
notice
• Accepts notice, OR
• serves Counter-
Notice
– 2 month time limit for
counter-notice,
otherwise blight
notice becomes valid
65. Reasons for valid counter-notice
• No blight
• No qualifying interest
• No interest
• No intention to acquire
• No intention to acquire in next 15 years
• Intend to buy only part of the property
66. Upper Tribunal (Lands Chamber)
Claimant refers notice &
counter-notice to UT (LC)
(formerly Lands Tribunal)
2 month time limit
UT (LC) confirms validity
(or not), in whole or part
67. Exercise: extent of blight notice
Do you serve Notice for whole of
property or just the area affected
by the draft CPO?
68. Material detriment: s8, Compulsory
Purchase Act 1965
• Material detriment test
where part of a ‘house,
building or manufactory’
required for compulsory
purchase.
• In CP generally, cannot
be required to sell part of
a ‘house etc’ if there is
serious affect on amenity
or convenience
69. Effect of confirmed Blight Notice
• Relevant authority deemed to have served
Notice to Treat
• Which leads to compensation claim under
usual headings, e.g.
– Land taken
– Severance & injurious affection
– Disturbance
– Home Loss payments (since 1991), Basic and
Occupier Loss etc
70. Farms and Blight
• Owner-occupier of agricultural unit must have
occupied whole of unit
– Including dwellings and buildings occupied for
purpose of farming
• Section 158 1990 Act: deals with Affected
Area and Unaffected Area of farms
• Unaffected Area must not reasonably [be]
capable of being farmed
71. Reasonably capable of being
farmed
• A physical not an economic test
– Eg Johnson and Johnson v North Yorkshire
• The unaffected area is considered with other
relevant land
– Land in the same agricultural unit
– Land in another agricultural unit of which claimant is
‘owner’
• Freehold or lease > 3 years unexpired
72. Agricultural Unit
Land which is
occupied as a unit for
agricultural purposes,
including any
dwellinghouse or other
building occupied by
the same person for
the purpose of farming
the land.
73. So Dealing with a Farm
• Establish Blight – reasonable effort to sell needed?
• Identify Affected and Unaffected Land
• Identify extent of agricultural unit and any other
agricultural units
• Form view on whether unaffected land is incapable of
reasonably being farmed – with other relevant land in
same ag unit or other ag unit with owner’s interest
• Serve Blight Notice in respect of whole agricultural unit
74. • Wait up to 2 months for counter-notice
• Consider grounds of counter-notice
• Refer to Upper Tribunal (Lands Chamber) within 2
months
• UTLC confirms in whole or part depending on
‘reasonable capability of being farmed’
• Claim compensation on basis of deemed Notice to
Treat
75. Compensation in farm claims
• Usual headings: land taken, S&IA,
disturbance, Basic and Occupier Loss etc
• HOWEVER
– Compensation for unaffected land
– Limited to existing use value (s158, 1990 Act)
76. Discretionary Blight
• Much more vague area
• Discretionary Blight provisions in Highways Act,
Planning and Compensation Act 2004 and Land
Compensation Act 1973, s26
• Cover:
– Land which is seriously affected by the carrying out of
the works
– Mitigation of adverse effects arising from the
existence or use of public works
– From time proposals are published
77. A discretionary power
• Limited guidance
• Blight by proximity for roads
– Within 100 m of centre line
– Reasonable efforts to sell
• 20 weeks marketing
• Offers at least 5% below MV
• Moving for specific reasons: work, dependent
relations etc
• Qualifying Interests as Statutory Blight
80. Eligible?
• Owner occupier private residential
property
• Owner occupier business premises RV up
to £34,800
• Owner occupier agricultural unit
• Mortgagees in possession
• Personal representatives – deceased had
qualifying interest
81. Criteria
1. Property type and rights therein
2. Location
1. Close to route: likely to be adversely affected
2. But not over tunnel sections
3. Efforts to sell
1. Market for 3 months
2. No offers within 15% of realistic asking price
4. No prior knowledge of Phase 2 when
purchased
5. Exceptional hardship
82. Stats on Phase 1EHS
Outcome EHS Criteria
1 2 3 4 5
Accept 367 273 210 390 129
Reject 23 117 180 0 261
Total 390 390 390 390 390
EHS Criteria
1 Property type and interest
2 Location of property
3 Efforts to sell and impact of blight
4 No prior knowledge of HS2
5 Exceptional hardship
83. • 88% of accepted applications were within 400
m of route
• 98% of rejected applications were more than
200 m from route.
• 29 applications were accepted despite not
meeting all the criteria (n=390)
• 0/4commercial applications were accepted
• 101/372 residential applications accepted
• 3/14 agricultural applications accepted
• Overall 104/390 applications accepted
84. Towards Formal CP&C for HS2
No
compensation
EHS Statutory blight
Formal acquisition and
compensation procedures
Discretionary Blight Part 1
S10/McCarthy Claims
SofS Safeguarding
Orders
Hybrid Bill ~
Statutory Blight
(Sch13, T&CPA1990)
85. Queens Speech
9 May 2013
HS2 Hybrid Bill
• Legal powers for compulsory purchase
• Deemed planning permission to construct and
maintain the railway
High Speed Rail (Preparation) Act 2013
• Authorise govt expenditure
• Allow expenditure on design, ecological surveys
and other prep work
• Require expenditure to be reported
• “Demonstrate Parliament’s backing for cracking on
with this vital project which already enjoys cross
party support”
86. Current ‘Schemes’ for HS2
Blight
Rural Support Zone
• 60 – 120 m in rural areas
• Owner occupied houses, small businesses
and farms
• Sell for unblighted value plus some costs
• Or 10% cash payment to stay put
87. Home Owner Payment Scheme
• Home Owner Payment
• £7,500 to £22,500 (banded)
• Comes into effect after Royal Assent
Need to sell Scheme (replaces EHS)
88. Express Purchase Scheme
• Applies in Safeguarded Zone
– 60 m
– Since April 2014
• Streamlined purchase at unblighted value
+ 10% (max £49,000)
• 60 properties worth £54.2 million
purchased under EPS by December 2014
89. Total property purchase HS2
December 2014
• Statutory blight: 60
• EHS Phase 1: 132
• EHS Phase 2: 41
• Total 233 properties, £157.4 million
90. Fee case Joshua v Southwark
• Fee of £31,607 on claim of £129,000
• Reduced to £3,500
– Time allowed
– Fee rates of £150 and £200 per hour
Brickkiln Waste v NI Elec Board
• Necessary wayleave
• No evidence of actual devaluation
• Nevertheless some injurious affection
RAMAC v Kent CC
• Value of land taken existing use
• Rest of impact IA
91. Contact Details
Translating new knowledge for rural professional
practice
cdcowap@gmail.com
07947 706505
Twitter: @charlescowap
Blog: http://charlescowap.wordpress.com/
Slideshare: http://www.slideshare.net/cdcowap
Notas del editor
The illustration is of one of the DCLG’s five explanatory booklets on compulsory purchase. They’re a helpful quick reference and clients may find them useful in order to understand more fully the work you are doing on their behalf.
See Jnl of Property Investment & Finance (2011) Vol 29, Issue 6
The illustration is of one of the DCLG’s five explanatory booklets on compulsory purchase. They’re a helpful quick reference and clients may find them useful in order to understand more fully the work you are doing on their behalf.
The Annual Value limit is reviewed after every rating revaluation. The current limits are set for England in the Town and Country Planning (Blight Provisions) (England) Order 2010, Statutory Instrument 2010 No 498 which came into force on 1 April 2010. The same limit applies in Wales.
Town and Country Planning (Limit of Annual Value (Scotland) Order 2010 sets a limit of £30,000 for Scotland also with effect from 1 April 2010
The phrase owner-occupier means not only a freeholder but also a fixed-term tenant with at least three years of his tenancy remaining. In order to make a claim, the owner-occupier of a hereditament must have occupied the hereditament in whole or substantially for at least six months immediately before serving a blight notice, or for at least six months before leaving the property unoccupied for no more than 12 months immediately before serving a blight notice. The same requirements for occupation apply to the resident owner-occupier of a dwelling.
The owner-occupier of an agricultural unit must have occupied the whole of the agricultural unit for the same time as the other categories of owner-occupier. Thus the agricultural owner-occupier is distinguished from the other types because he must have occupied the whole of the agricultural unit, whereas owner-occupiers of small business properties and domestic property need only have occupied the property concerned substantially. The phrase agricultural unit means land which is occupied as a unit for agricultural purposes, including any dwellinghouse or other building occupied by the same person for the purpose of farming the land.
A mortgagee can also serve a blight notice in appropriate circumstances; so can personal representatives of a deceased person.
In the case of Ministry of Transport v. Holland [1962] 14 P & CR 259, the claimant had stopped living in his house ten years before serving a blight notice. However, he had continued to store goods in three sheds in the garden and in the garage. He was held not to come within the blight provisions, and could not therefore serve an effective blight notice.
The 1990 Act refers to those interests which entitle a person to serve a blight notice as qualifying interests and to those persons entitled to serve blight notices as claimants.
For the full list see Schedule 13 itself, which was extended by the Planning Act 2008 to include Nationally Significant Infrastructure Projects dealt with by Development Consent Orders.
Schedule 13 of the 1990 Act sets out in detail the definitions of blighted land under the following headings:
Land allocated for public authority functions in development plans etc.
New towns and urban development areas.
Clearance and renewal areas.
Highways.
New streets.
General Improvement Areas.
Compulsory Purchase.
Schedule 13 has been extended by the Planning Act 2008 (section 175 for England and Wales, s176 for Scotland) , and now also incorporates:
Land subject to a Development Consent Order under the 2008 Act, over which compulsory acquisition has been authorised (or within the ‘limits of deviation’ of such an order, or subject to an application for compulsory purchase powers under such an order).
Land in a location identified in a national policy statement as suitable (or potentially suitable) for a specified description of development.
Two particular areas are worth clarification:
The reference in Schedule 13 to highways encompasses the construction, alteration or improvement of a highway. It also refers to land which may be required for the mitigation of any adverse effect on the area surrounding a highway (under section 246 of the Highways Act 1980).
The reference in Schedule 13 to compulsory purchase itself is concerned with the blighting effect of any proposed or confirmed Compulsory Purchase Order (CPO) or special Act . Thus a highway, for example, may be the subject of blight as a highway in its own right, or because it has become the subject of a CPO.
It is important to note that blight - as statutorily defined - only extends to the boundaries of proposed public development, and no further. It is well known by valuers and the public that the blighting effects of certain developments can extend well beyond their immediate boundaries.
See the VOA Guidance Manual for a little more discussion of ‘reasonable efforts to sell’
http://www.voa.gov.uk/Corporate/Publications/Manuals/LandCompensationManual/sect1/g-lc-man-s15-pn2.html#P176_11658
A blight notice in statutory form is served on the appropriate authority. The appropriate authority is the authority which would in due course have come to acquire the interest compulsorily following the planning proposals which have blighted the property.
Section 150 goes on to make some rather confusing provisions for the service of blight notices where the claimant is only entitled to an interest in part of the hereditament or agricultural unit. The effect of these appears to be:
1. A claimant who is only entitled to an interest in part of a hereditament or agricultural unit can serve a blight notice in respect of his interest in that part.
2. However, a notice served under this provision must include the whole of the claimant's interest in that part of the hereditament or agricultural unit.
3. Where a claimant is entitled to an interest in the whole of a hereditament or agricultural unit, only a part of which is blighted within the statutory definition, his blight notice must relate to the whole of the property - not just to the blighted area
The significance of this appears to be that a claimant cannot require the appropriate authority to acquire a selected part - typically the blighted part - of his property. The logic of this is that the blight provisions exist to provide for those who wish or need, but are unable, to sell blighted property; usually a claimant will be serving a blight notice because he has been unable to sell the whole of his property in the usual way. However, we shall see that the appropriate authority can, if it wishes, seek to buy only a part of the property when we consider the authority's right to serve a counter-notice. And in the case of an agricultural unit, although the blight notice must be served in respect of the whole of the unit, its subsequent confirmation will relate only to the blighted part of the unit (subject to what is said below).
Special provisions for blight notices in respect of agricultural units
Section 158 of the 1990 Act provides special provisions for blight notices served in respect of agricultural units, in addition to those points we have already considered. Section 158 applies where a blight notice is served in respect of an interest in the whole or part of an agricultural unit, and the agricultural unit contains land which is not blighted as well as land which is blighted. The blighted land is referred to as the affected area and the other land is referred to as the unaffected area.
The claimant in this situation may include in his blight notice a claim that the unaffected area is not reasonably capable of being farmed, by itself or with other relevant land, as a separate agricultural unit and the appropriate authority should buy his interest in the whole of the agricultural unit from him. Where the notice is served in respect of part of an agricultural unit, the claimant may seek to have the whole of that part purchased from him. The phrase other relevant land means the remainder of the agricultural unit (if relevant) in respect of which the blight notice is served, and any other agricultural unit which the claimant occupied on the date he served the blight notice and in respect of which he is entitled to an owner's interest. Thus another farm owner-occupied by the claimant would be caught by this provision, but not say a farm on which he is an annual agricultural tenant.
It is worth commenting on the significance of the phrase not reasonably capable of being farmed. It is sometimes thought by practitioners that a blight notice will succeed if the unaffected land will not be a viable agricultural unit. This is not the case, as demonstrated by the Lands Tribunal case of Johnson and Johnson v. North Yorkshire County Council (LT REF/67/1990, date of decision 31 July 1992). The test would appear to be a simpler, physical test and it is certainly clear from the decision that the personal circumstances of the claimant have no bearing on the question of whether land can or cannot reasonably be farmed.
In the case of national planning statements and orders under the Planning Act 2008 it will not always be obvious which authority is the relevant one for this purpose. In such cases, the Secretary of State will make a suitable determination.
Section 151 of the 1990 Act deals with the right of the appropriate authority to serve a counter-notice objecting to the blight notice. The authority has two months from the date of service of the blight notice to serve a counter-notice; if it does not serve a counter-notice the blight notice will stand and the authority is deemed to have served a Notice to Treat in respect of the property two months after the date of service of the blight notice. The authority is therefore empowered to acquire the interest in the property specified in the blight notice, and must proceed to do so.
The authority's counter-notice must specify the grounds on which it objects to the blight notice. It may object on the following grounds (section 151 (4)):
a. None of the hereditament or agricultural unit is blighted within the meaning of Schedule 13.
b. The authority has no proposals to acquire any part of the hereditament, or any part of the affected area of an agricultural unit, under its compulsory powers.
c. The authority intends to acquire a part of the hereditament or affected area of an agricultural unit. The part intended to be acquired must be specified in the counter-notice.
d. The authority has no intention to acquire any part of the hereditament or affected part of an agricultural unit within the next 15 years, where the blight arises from:
allocation in a structure plan, unitary development plan or land otherwise allocated in a development plan for a highway.
This objection may not be used if the authority can object under b. instead.
e. The claimant is not entitled to an interest in any part of the hereditament or agricultural unit to which the blight notice relates.
f. The claimant's interest is not a qualifying interest - the reason for this view must be specified in the counter-notice.
g. The claimant has not made reasonable endeavours to sell the interest etc. This ground of objection will not be available where a confirmed CPO is already in place (see above).
In addition to these grounds of objection, there are provisions for the service of a further counter-notice under section 152 in cases concerning development plans and highway schemes.
Counter-notices in respect of agricultural units
We have already seen the provision in section 158 of the 1990 Act which allow the claimant on an agricultural unit to claim that an unblighted area cannot reasonably be farmed by itself or with other relevant land. The authority can dispute this claim in its counter-notice (section 159) i.e. by claiming that the unaffected area is reasonably capable of being farmed, by itself or with other relevant land, as a separate agricultural unit.
The authority may still object on ground c. above (i.e. that it intends to buy a part of the agricultural unit), but if it doe s so it must also object because the unaffected area is considered to be reasonably capable of being farmed, by itself or with other relevant land, as a separate agricultural unit.
However, the authority cannot serve a counter-notice on the grounds of having no intention to undertake the development where the blight notice has been properly served under the extended meanings of blight set out in the Planning Act 2008, ie national policy statements and development consent orders.
In cases where the relevant authority has objected because it intends to buy part of the property, the claimant can draw on section 8 of the Compulsory Purchase Act 1965. Section 8 provides that nobody shall be required to sell part of a house, building or manufactory if they are willing to sell the whole unless the Tribunal determines that there will be no material detriment; and nobody should be required to sell part of a park or garden belonging to a house if they are willing to sell the whole unless the Tribunal determines that there will be no serious affect to the amenity or convenience of the house. This was exactly the issue in dispute in the Tribunal case of Halliday and Few v. Secretary of State for Transport (LT Ref/89/1989, date of decision 28 March 1990).
Section 158 of the 1990 Act provides special provisions for blight notices served in respect of agricultural units, in addition to those points we have already considered. Section 158 applies where a blight notice is served in respect of an interest in the whole or part of an agricultural unit, and the agricultural unit contains land which is not blighted as well as land which is blighted. The blighted land is referred to as the affected area and the other land is referred to as the unaffected area.
The claimant in this situation may include in his blight notice a claim that the unaffected area is not reasonably capable of being farmed, by itself or with other relevant land, as a separate agricultural unit and the appropriate authority should buy his interest in the whole of the agricultural unit from him. Where the notice is served in respect of part of an agricultural unit, the claimant may seek to have the whole of that part purchased from him. The phrase other relevant land means the remainder of the agricultural unit (if relevant) in respect of which the blight notice is served, and any other agricultural unit which the claimant occupied on the date he served the blight notice and in respect of which he is entitled to an owner's interest. Thus another farm owner-occupied by the claimant would be caught by this provision, but not say a farm on which he is an annual agricultural tenant.
It is worth commenting on the significance of the phrase not reasonably capable of being farmed. It is sometimes thought by practitioners that a blight notice will succeed if the unaffected land will not be a viable agricultural unit. This is not the case, as demonstrated by the Lands Tribunal case of Johnson and Johnson v. North Yorkshire County Council (LT REF/67/1990, date of decision 31 July 1992). The test would appear to be a simpler, physical test and it is certainly clear from the decision that the personal circumstances of the claimant have no bearing on the question of whether land can or cannot reasonably be farmed.
Unlike the statutory blight provisions, the claimant cannot force the authority's hand by the service of a blight notice. The power to buy the affected area is exercisable solely at the discretion of the acquiring authority. A more positive contrast with the statutory blight provisions is that the blighted land is not confined to the boundaries of the public development itself: the authority may buy other land in the vicinity. This has come to be called blight by proximity, and useful guidance has been issued by the Department of Transport in the form of a Written Answer to a Parliamentary Question in the House of Commons on 17 January 1992:
My right honourable Friend will use the new power of earlier and wider acquisition to alleviate hardship by buying off-line property which in his opinion is suffering from 'blight by proximity'. Until now property not likely to be needed for a scheme could only be acquired if conditions during construction or after road opening would be intolerable. Acquisition will be from as early as the announcement of the preferred route. Each case will be considered on its merits, but as a guideline we would normally expect qualifying properties to lie within 100 m of the centre of the road.
The other guidelines are as follows:
(a) Where it would be intolerable for the occupier to remain in the property during works or once the road is open the vendor must show that he has made reasonable efforts to sell. The property must have been on offer for at least 20 weeks at a reasonable price and have been impossible to sell other than at a price substantially lower than that for which it might have been expected to be sold but for the scheme. Normally the difference should amount to not less than 5 per cent.
(b) There are a variety of reasons why a vendor might need to move without delay, and where they appear cogent, they should be accepted. In the case of owner occupiers of dwellings guidelines set out following main types of reason (sic) which should be accepted:
(i) acquisition of a job outside reasonable commuting distance when unemployed (what is reasonable under this and the next head will vary with the circumstances, including the means of the individual);
(ii) acquisition of a different job outside reasonable commuting distance (it is undesirable for blight to impede job mobility);
(iii) need to move for medical reasons, including need to look after an elderly relative in a different sort of house;
(iv) need to provide for growing family (primarily to be considered in relation to bedrooms - it is undesirable for growing children of different sexes to share);
(v) need to realise assets, perhaps because of serious financial difficulties or dissolution of marriage."
(Mr Christopher Chope MP, Under Secretary of State
Official Report, Vol.201, Issue 1577, Cols. 659-660)