Law Commission consultation on compulsory purchase

We provisionally propose that the consolidated compulsory purchase legislation should set out clearly those persons who are entitled to receive a notice to treat. We think that (as now), the authority should be required (where necessary for its scheme to proceed) to serve notice on any:

1. owner of a freehold interest;
2. owner of a leasehold interest (other than a “short tenancy” as defined by section 20(1) of the Compulsory Purchase Act 1965);
3. mortgagee (whether legal or equitable); and
4. any person entitled to the benefit of a contract for a freehold or leasehold interest (including an option or right of pre-emption).

Do consultees agree?

We invite consultees’ views as to whether acquiring authorities should be under any additional obligation to serve notice to treat (or other form of notification) on other interest holders or occupiers when initiating implementation of a compulsory purchase by the notice to treat method.

We invite consultees’ views as to whether there should be changes to the form or content of a notice to treat. In particular:

1. Should there be a prescribed form of notice to treat? If so, what should be the consequence if an acquiring authority fails to use the prescribed notice?
2. Should a notice to treat set out all the heads of compensation that may be available to the landowner? (The current requirement, in section 5(2)(c) of the Compulsory Purchase Act 1965, only refers to the purchase of the land and to compensation for damage sustained by reason of the execution of the works.)

We invite consultees’ views on the use in practice of the counter-notice procedure (requiring possession to be taken on a specified date) in section 11B of the Compulsory Purchase Act 1965, and whether they have encountered any difficulties with it. If so, please explain the facts of the case and the nature of the difficulty.

We provisionally propose that Schedule 5 (forms of conveyance) to the Compulsory Purchase Act 1965 should be repealed.

Do consultees agree?

We provisionally propose that section 23 (cost of conveyances etc) of the Compulsory Purchase Act 1965 should be repealed and replaced by a simple provision stating that the acquiring authority should pay all reasonable costs in connection with the compulsory conveyance of land.

Do consultees agree?

We invite consultees’ views as to whether the costs of the compulsory conveyance of land should be assessed by:

1. a costs judge of the High Court; or
2. a judge or member of the Upper Tribunal (Lands Chamber).

We provisionally propose that section 28(2) (stamp duty) of the Compulsory Purchase Act 1965 should be repealed without replacement.

Do consultees agree?

We invite consultees’ views regarding the effect and continuing relevance of section 28(3) of the Compulsory Purchase Act 1965 and the reference therein to section 7(4) of the Law of Property Act 1925. Can section 28(3) be safely repealed?

We invite consultees’ views as to whether the deed poll procedure in the Compulsory Purchase Act 1965 presents any issues in practice, in particular, whether it creates difficulties for acquiring authorities seeking to obtain title.

We invite consultees’ views as to whether:

1. Schedule 1 to the Compulsory Purchase Act 1965 should be repealed without replacement; or
2. Schedule 1 should be replaced by a simpler provision, stating that where the owner of an interest in land has limited power to deal with that land, the acquiring authority may apply to the Upper Tribunal:
   1. to appoint an independent surveyor to determine (after allowing submissions by the authority and the owner) the compensation to be paid in respect of the interest; and/or
   2. to make an order empowering the owner to dispose of their interest to the authority on such terms as the Upper Tribunal considers appropriate (including as to the manner of payment of compensation).

We provisionally propose that the procedure in Schedule 2 (absent and untraced owners) to the Compulsory Purchase Act 1965 should not be restricted to situations where owners are absent from the United Kingdom or are untraceable. The procedure should be available where the owner is:

1. untraceable;
2. unwilling to deal with the acquiring authority; or
3. unable to deal with the authority by reason of illness, absence or other circumstance.

Do consultees agree?

We provisionally propose that, where an acquiring authority takes possession of land without having served a valid notice to treat on someone with a relevant estate or interest in the land, the acquiring authority should be required to serve a notice to treat and notice of entry on the omitted party. The current requirement in section 22 of the Compulsory Purchase Act 1965, which is “to purchase” the land within the time limit set out in the section, should be amended.

Do consultees agree?

We invite consultees’ views on whether the present rules for rectifying accidental omissions under section 22 of the Compulsory Purchase Act 1965 (other than the requirement for the acquiring authority “to purchase” the omitted interest) are appropriate. If consultees believe the rules are inappropriate, we invite views about how should they be amended or replaced.

We invite consultees’ views as to whether there should be a mechanism for payment into court where a general vesting declaration has been used to acquire the land.

We provisionally propose that section 29 of the Local Government (Miscellaneous Provisions) Act 1976 (relating to refunding of unclaimed compensation to local authorities) should be extended to cover all forms of acquiring authority.

Do consultees agree?

We provisionally propose that notices after execution of a vesting declaration, required by section 6 of the Compulsory Purchase (Vesting Declarations) Act 1981, should additionally be served on all those whose interest will vest in the acquiring authority as a result of the declaration.

Do consultees agree?

We provisionally propose that section 8(1) of the Compulsory Purchase (Vesting Declarations) Act 1981 be amended to make clear that any rights included in a general vesting declaration will vest in the acquiring authority on the vesting date, along with the ability to enter upon the subject land to exercise those rights. As a consequence, the vesting of rights in the authority should not be subject to any minor tenancy or long tenancy which are about to expire, and the provisions of section 9 of the 1981 Act will not apply.

Do consultees agree?

We invite consultees’ views on whether, and how, the prescribed forms of general vesting declaration and notice after execution of general vesting declaration should accommodate a situation where the acquiring authority is seeking to acquire rights over land, rather than acquire the land outright.

We provisionally propose that section 12 (unauthorised entry) of the Compulsory Purchase Act 1965 should be repealed without replacement.

Do consultees agree?

We provisionally propose that the procedure (in section 13 of the Compulsory Purchase Act 1965) allowing the acquiring authority to issue a warrant to obtain possession of land be retained, with the following changes:

1. the warrant should be executable only by the High Court enforcement officer and references to the sheriff should be removed; and
2. it should be made clear that the costs of the enforcement process are to be borne initially by the acquiring authority (whilst remaining payable ultimately by the landowner).

Do consultees agree?

We invite consultees to tell us about any instances in which the warrant-based enforcement procedure in section 13 of the Compulsory Purchase Act 1965 has caused problems in practice. If so, please explain the facts and the nature of the problem.

We invite consultees’ views as to whether the Upper Tribunal (Lands Chamber) should have jurisdiction to decide whether the sum claimed by the acquiring authority as costs of enforcement (under section 13 of the Compulsory Purchase Act 1965) is reasonable in all the circumstances of the case.