Compulsory Purchase in Focus: What You Need to Know About the New Guidance

Given the government’s priority to increase housebuilding, including the development of new towns and streamlining major infrastructure projects, the introduction of an updated guidance note on the compulsory purchase process could not have come at a better time.

Published on 3 October 2024 and available HERE, the new guidance updates the July 2019 Compulsory Purchase Process and the Crichel Down Rules, following consultation with several bodies, including the Planning Inspectorate, the Compulsory Purchase Association (CPA) and Homes England. Much of the document follows the same headings as the previous July 2019 version, with the headline changes set out below.

First, the requirement to achieve biodiversity net gain (BNG) to ensure that developments have a measurably positive impact may mean that it will be necessary for an acquiring authority to acquire land for biodiversity net gain purposes either with other land required for the scheme or alone. Section 13 of the updated guidance sets out when and what powers can be used by local authorities when acquiring land for the purposes of satisfying these requirements to facilitate BNG.

Second, we have discussed the impact of the Levelling Up and Regeneration Act 2023 (see Matt Boyd’s article on the LURA provisions) and how it has given Acquiring Authorities the ability to apply to disregard hope value when acquiring land for certain purposes. The updated guidance note provides clarity on the enabling powers and purposes for which an Acquiring Authority can apply under the Land Compensation Act 1961 to seek a section 14A direction. It highlights the importance of the Acquiring Authority, outlining the public benefits of the proposed scheme within their application and the need for the inclusion of a detailed ‘statement of commitments’. The guidance also sets out the impact it will have on how compensation is calculated and in which circumstances claimants are able to apply for additional compensation.

Third, following recent Public Inquiry decisions, including Vicarage Fields and Nicholson Quarter, the guidance further details the importance of the Acquiring Authority engaging and meaningfully negotiating with claimants prior to and in parallel with preparing and making a CPO. These negotiations will need to be evidenced by the Acquiring Authority, and full details will need to be submitted. Acquiring Authorities are also expected to cover reasonable costs of negotiations with owners and occupiers in advance of the use of statutory powers of acquisition.

The guidance has been updated on what constitutes reasonable steps to negotiate and states that if a claimant has made it clear to an Acquiring Authority that it does not wish to engage or communicate with them, they may decide not to continue with attempts to engage so as not to antagonise the claimant. However, a single attempt to engage with an affected party without receiving a response would not be sufficient to withdraw from the duty to negotiate.

Fourth, Acquiring Authorities will need to consider additional mitigation measures against the identified impacts of the exercise of compulsory purchase powers. Examples are already incorporated into the CPO process, such as the payment of suitable compensation and assisting the claimant in finding relocation properties. However, more emphasis will be put on acquiring authorities to engage effectively in relocation options and the early assessment of compensation. Such discussions with affected parties and providing suitable mitigation options will need to be documented as part of CPO submissions.

Fifth, further information is provided relating to the powers of Acquiring Authorities entering land for surveys prior to a Compulsory Purchase Order being made. Acquiring Authorities can enter land prior to CPO under Section 172 of the Housing & Planning Act 2016. The guidance now sets out what a notice of entry must include and what to do if there is a verbal or written refusal of permission.

The updates to the government guidance are targeted at speeding up the CPO process and reducing the challenges faced by Acquiring Authorities when engaging with unresponsive stakeholders. This will be beneficial for acquiring authorities as there is now more transparency on the requirements for achieving a successful CPO. For landowners, the guidance sets out their entitlements and the expectations of the acquiring authority when entering the CPO process. The guidance addresses previous concerns raised by acquiring authorities and claimants and is a positive step in speeding up the CPO process.

The update to the CPO government guidance, the implementation of the LURA and the introduction of the Planning and Infrastructure Bill show a concerted effort to reform the CPO and planning system to accelerate required development whilst ensuring and maintaining fair practices and environmental sustainability.

This is part three of a five-part series named “Compulsory Purchase in Focus”. Read part one (introduction) here, part two (home delivery) here and keep an eye out for part four on our LinkedIn page and website tomorrow.