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Compulsory purchase orders: 2017 update November 2017 Contents

Foreword 1 Introduction 2 Statistics 4 Housing CPOs 2015-2016 10 Planning CPOs 2015-2016 18 Appendices 28 • Appendix A. Compulsory purchase orders 2015 – 2016 29 • Appendix B. Section 226(1)(a) and (1A) Town and Country Planning Act 1990 30 • Appendix C. Section 215 Town and Country Planning Act 1990 30 • Appendix D. Section 17 Housing Act 1985 30 • Appendix E. Department for Communities and Local Government Guidance on Compulsory Purchase process and the Crichel Down Rules for the disposal of surplus land acquired by, or under threat of, compulsion (October 2015) 31 • Appendix F. National Planning Policy Framework 31 • Appendix G. Ministerial Statement 10 May 2013 32 • Appendix H. Human Rights and Equality 33 -- Section 149 – The Equality Act - Public Sector Equality Duty 33 -- European Convention on Human Rights 34 -- Circular 2006/04 Compulsory Purchase and the Crichel Down Rules (now withdrawn) 34 -- Guidance on Compulsory Purchase process and the Crichel Down Rules for the disposal of surplus land acquired by, or under threat of, compulsion (October 2015) 34 • Appendix I. Compulsory Purchase of Land (Written Representations) Regulations 2004 35 • Appendix J. Planning CPOs submitted 2015 and 2016 by Acquiring Authority 36 • Appendix K. Totals of Planning and Housing CPOs submitted 2003-2016 by Local Authorities listed by region 37 Foreword

Compulsory purchase can be incredibly helpful to investment and community building, when used appropriately by local authorities, helping them bring forward much-needed housing and package parcels of land in ways that support regeneration. Despite its benefits, this report confirms that

CPO remains an under-used process – particularly when compared to the frequency of applications during the pre-recession period. With the country facing a housing crisis, proposals for Garden Towns/Villages and more development on complex urban sites will likely gather pace and local authorities therefore need to be supported in the understanding of the tools at their disposal. Increased use of CPOs will not act as a silver bullet to addressing these challenges, and there are other means of supporting the development of new housing and regeneration – better resourcing of planning departments; improved and more transparent engagement between the public and private sector; and innovative thinking around infrastructure funding, for example. However, even if we are to accept these relatively low levels of use as the “new normal”, it is clear that increasing its use could still go a long way to unlocking more sites and more housing. This report finds that CPO remains a complicated and expensive process. Reforms proposed in the previous Parliament would help simplify this process, but are yet to come into force, and we would urge Government to bring these forward and consider how to go further in their reform. Empowering and encouraging local authorities to be more proactive with the use of CPOs will likely go a long way. Legislative change will no doubt prove difficult within the current parliamentary constraints, and Government will look to the industry to come forward with ideas, and evidence, to help support its agenda. The BPF therefore welcomes the findings and recommendations of this excellent report as it adds to a helpful body of evidence, and looks forward to working with Womble Bond Dickinson, Government and all our members to bring forward much-needed reform and regeneration. Melanie Leech, Chief Executive, British Property Federation

womblebonddickinson.com Compulsory purchase order: 2017 update 1 Introduction

This is the fourth in our In large part, this report echoes many of below) that the average is 98 days, series of reports looking the key messages of previous reports: identical to the 2013 figure. at the usage and success • CPOs are a vital tool for regeneration • In short, it takes on average two months for an unopposed Housing rates of compulsory purchase • Success rates for both Planning and CPO to be determined once it is orders (CPOs), principally Housing CPOs remain high submitted to the Secretary of State those made under the Town • There are a range of reasons, from for confirmation and three months and Country Planning Act 1990 technical to evidential, why some for an unopposed Planning CPO. s226 (1)(a) (ie Planning CPOs) CPOs were not confirmed • For both opposed Housing and and those made under • A significant number of local authorities Planning CPOs it appears to be taking make use of compulsory purchase longer to determine these. Most the Housing Act 1985 s17 powers but generally do so sparingly. significantly, opposed Housing CPOs (ie Housing CPOs). would appear to be taking three times However, this report additionally makes as long to determine as they did in In our previous reports we have the following findings. 2013, notwithstanding that it may be assessed Housing and Planning CPOs assumed that most were determined both quantitatively and qualitatively. As regards the statistical assessment: by way of written representations. Our first report in 2010 contained a • In 2015, 57 Planning CPOs and 54 • We have collated all Planning and statistical analysis of the outcomes of Housing CPOs were submitted Housing CPOs submitted between CPOs, analysing how many were respectively. In 2016, 40 Planning CPOs 2003 – 2016 by region. As previously confirmed (with or without modifications), and 39 Housing CPOs were submitted. reported, the North West of England how many were not confirmed and how These figures are toward the lower end and London regions predominate in many were treated as withdrawn. The of the range of CPOs submitted terms of totals of CPOs submitted. report also reviewed Secretary of State annually in the years 2003-16 covered • Within the regional figures, however, decisions and case law. by our previous research. Moreover, the there is a wide range of usage. range of 40-60 CPOs per year for both The data supports our previous Our second report in 2012 contained a Planning and Housing CPOs reflects the conclusions that: purely statistical update of the figures “new normal”. through to the end of 2011. -- Many authorities have used their • Both Planning CPOs and Housing compulsory purchase powers but Our third report in 2015 was a more CPOs continue to demonstrate high do so sparingly levels of success. extensive review containing both a -- A relatively small number of statistical update and a detailed review • The figures indicate that: authorities account for a significant of Secretary of State decisions through -- for Planning CPOs at least 87% in proportion of CPOs made. to the end of 2014. The report also 2015 and 82% in 2016 succeeded. included details of levels of This may be even higher when We have reviewed the reasons why implementation of confirmed orders considering withdrawn CPOs the Secretary of State has not based on information collated from due to aquisition by agreement confirmed Housing and Planning Acquiring Authorities. CPOs in 2015-2016. -- for Housing CPOs the equivalent This fourth report in our series continues figures are at least 79% in 2015 • The reasons for non-confirmation of the statistical assessment through to the and 88% in 2016. Housing CPOs include: end of 2016 and looks at Secretary of - Whether the property is vacant or State “not confirmed” decisions in • This level of success is consistent with - in limited use – assessment of extent 2015-2016; ie it seeks to identify why previous years and demonstrates an of actual use of the property some CPOs were not confirmed. established, long-term trend. • In terms of the time taken to -- Individual circumstances of determine CPOs, there is continuity the owner for unopposed orders. For example, -- Degree of harm caused by the unopposed Housing CPOs were CPO and insufficient to warrant determined on average in 70 days confirmation as compared with an average 63 days -- Engagement of PSED1 and in 2013, the last year for which ECHR2 – including a failure to comparative figures are available. accommodate disabilities Similarly the figures for unopposed Planning CPOs would suggest -- Failure to show CPO was 1. Public Sector Equality Duty being used as a “last resort”, 2. European Court of Human Rights (subject to the adjustments noted

2 Compulsory purchase order: 2017 update womblebonddickinson.com -- Compliance with an undertaking remember that not only must join the same queue awaiting an whilst not fulfilled by the owner but negotiations be undertaken proactively; Inspector. We would recommend that sufficient work had been undertaken they must also be seen to have been this aspect of the system be reviewed undertaken. In opposed cases, the to check whether our observations are • The reasons for non-confirmation Secretary of State will expect “chapter well-founded and, if so, how time- of Planning CPOs include: and verse” of efforts to acquire and savings can be achieved. At the time -- Conflict with Ministerial Statement negotiate. In finely balanced cases of this report’s publication, the provisions “the benefit of the doubt” may well be of the Housing and Planning Act 2016 - Failure to assess - given to an owner. This is, perhaps, a to introduce timetables for the alternative schemes lesson which has been taken from the determination of CPOs, as well as the -- No longer any need for examination of Nationally Significant ability for inspectors to confirm CPOs, confirmed order Infrastructure Projects and the approach have not been brought into force. -- Late attempt to change purpose being taken to the examination of those Those changes could have the effect of order applications. of speeding up the process and also provide greater certainty for all involved. -- owner’s recent limited It is difficult to be certain how many improvements being sufficient CPOs are dealt with by way of written Lastly, where a CPO is limited to a -- Lack of detail in the Council’s representations as against by way single property (most likely a Housing case as to compliance with of public inquiry since the National CPO) but nonetheless the detailed Guidance (including failure Planning Casework Unit (NPCU) does circumstances of individuals are crucial to assess alternatives) not keep its records on that basis. (and possibly determinative) to However, given the content of Guidance assessing the proportionality of State -- Planning permission not and from experience as practitioners, it interference with rights, then it may be being conclusive of need may reasonably be assumed that it is more appropriate in some cases for -- Where the case is finely balanced the more complex CPOs that are dealt some form of hearing or inquiry to take - ‘benefit of doubt” to the objector. with by way of public inquiry. Those of place rather than reliance on the basis course tend to be Planning CPOs rather of written representations. There is evidence of an increasingly than Housing CPOs. It is notable that detailed assessment being required five of the eight CPOs not confirmed of the individual circumstances of by the Secretary of State in 2015-2016 landowners and occupiers when were determined by way of written weighing the proportionality of representations, including all of the interference with their rights, including Housing CPOs that were not confirmed. the application of the PSED. Significantly Moreover, each of those Housing CPOs this approach is not limited to the took over a year to determine. Aylesbury Estate Planning CPO decision (a large phased regeneration scheme Our impression is that more which attracted the media headlines) but CPOs are being determined by written has also been applied to much smaller, representations rather than by way of single property Housing CPOs in which public inquiry. Given that wider use of the individual circumstances of the written representations was intended respective owners have been to produce time-savings it is striking considered in detail. that the opposite, in fact, appears to have happened albeit the sample is The application of PSED and human relatively small. rights considerations, on a fine-grained basis, represents a greater focus in The written representations process approach and requires consideration by is front-loaded in that it imposes an acquiring authority of PSED and relatively short deadlines on the human rights both at an early stage of acquiring authority to make additional the process of intended acquisition and representations and thereafter for on an on-going basis; as well as a additional submissions by both the greater understanding of affected objector and acquiring authority. parties’ needs and therefore a greater Thereafter however, there is no fixed level of engagement. Omissions cannot timetable or deadline within which the readily be rectified at inquiry or written Secretary of State must make this representations stage. Moreover, decision. Anecdotally, it appears that acquiring authorities are well advised to written representation decisions simply

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Statistics

Planning and Housing CPO To the extent that the use of Planning within the range of 40 – 60 also Statistics 2015 – 2016 CPOs can be considered to be a proxy displayed in years 2009 – 2012 Figure 1 below indicates that: for economic and redevelopment inclusive. The figures for 2013 therefore activity, and in particular as a barometer increasingly appear to be an outlier as In 2015: of economic confidence, the longer against the broad range of 40 – 60 • Local Authorities submitted 57 term annual figures of Planning CPOs in Housing CPOs submitted per annum. Planning CPOs. This is almost identical the broad range of 40 – 60 represents the “new normal” at a much lower level. In previous years we have emphasised to the 58 Planning CPOs submitted in the more volatile pattern of Housing the previous year, 2014. We have previously caveated our CPO submission. That remains the case • 54 Housing CPOs were submitted, reports to suggest that decreased to this extent. The four highest annual representing a 19% decrease from the usage of Planning CPOs continued to figures during the years covered by this 66 submitted in 2014. reflect subdued economic confidence report are all for submission of Housing in previous years because of the long CPOs (2003, 2004, 2006 and 2013 In 2016: lead-in times to prepare some CPOs. respectively). From 2009 – 2016, However, that position appears however, in six of these years, the • 40 Planning CPOs were submitted. increasingly difficult to sustain. There number of Housing CPOs fell within the This is the joint second lowest annual does not presently appear to be any range of 40 – 60 i.e. very similar to total in all the years covered by our indication of a revival of Planning CPO Planning CPOs. 2013 is the outlier in research since 2003. In 2009, 40 usage to pre-recession levels of 70 – 80 which 92 Housing orders were Planning CPOs were submitted. In per annum. submitted followed by 66 in 2014. 2013, 36, the lowest annual total were submitted. Levels of Housing CPO usage have We would suggest that such a level • 39 Housing CPOs were submitted. tended more to reflect access to public now reflects the default level of absent This represents a low annual total. sector funding by local authorities, as targeted programmes with high levels Indeed in the years covered by our opposed to general economic activity. of usage. The levels experienced in research only 2012 (with 37 CPOs) Previous increases in annual figures 2015 and 2016 would suggest that the saw a lower total of Housing CPOs reflected the undertaking by a small 2013 figure very much represents the submitted. number of Councils of targeted exception to the present trend. programmes of improvement. The spike As we have previously reported, in in usage in 2013, for example, terms of the longer term trend set out represented two or three Councils being in figures 2 and 3, the number of particularly active in that regard. The Planning CPOs submitted continue submission of 54 Housing CPOs in 2015 to be within a range significantly lower and 39 in 2016 respectively fall broadly than pre-recession figures.

Figure 1 Planning and Housing CPOs submitted 2015 – 2016 totals

2015 2016

Planning CPOs submitted (including those not determined) 57 40 (23 opposed) (23 opposed) Housing CPOs submitted (including those not determined) 54 39 (13 opposed) (4 opposed)

womblebonddickinson.com Compulsory purchase order: 2017 update 5 Statistics continued

Planning and Housing CPOs • That decrease is however offset by an • The annual percentages for CPOs not submitted 2003 - 2016 increase in Planning CPOs confirmed confirmed are 2% in 2015 and 6% in The change in the numbers of Planning with modification: 29% in 2015 and 2016. Again these fall within the broad and Housing CPOs submitted each year 30% in 2016. That contrasts with 9%, range of recent years: 3% (2012), for the period 2003 – 2016 is illustrated 26% and 18% in the prior three years. 6.5% (2013) and 7% (2014). in Figure 2. The figures for 2015 and • When confirmations, both with and • As previously, there has been 2016, as noted above, are consistent without modifications, are considered a degree of inconsistency as with the figures for 2009 – 2012 the totals for 2012 to 2016 are: 75%, to how “not confirmed” decisions inclusive. 2013 is an exceptional outlier 90%, 85%, 87% and 82% respectively. are recorded by NPCU3 as against for reasons previously analysed. The “withdrawn”. However, after checking overall pattern from 2009 onwards • Moreover, orders categorised as with NPCU the data has been suggests that 40 – 60 is the range of “withdrawn” have invariably been corrected in order that “not Planning CPOs that can reasonably be withdrawn because acquisition by confirmed” reflect only those expected to be submitted each year. agreement has been achieved against the background of a CPO CPOs actively not confirmed by the Similarly the level of usage of such that it is no longer necessary to Secretary of State as against orders Housing CPOs, after a spike in 2013 pursue the CPO. If the figures for withdrawn by acquiring authorities and an above average figure in 2014, “withdrawn” CPOs are added to the when acquisition by agreement has has returned to a level of usage very confirmations, then in 2015 94% of been achieved. similar to that of Planning CPOs, in the CPOs may be considered to have • In 2015 14% of CPOs were withdrawn. range of 40 – 60 per annum. succeeded and 91% in 2016. In 2016 that figure was 6%. Planning and Housing CPOs Housing CPOs • Possibly the most meaningful determined 2003 - 2016 Figure 5 indicates how Housing CPOs assessment of successful use of Figure 3 shows the figures for Planning were determined in 2015 and 2016. The compulsory purchase is to combine and Housing CPOs determined in any results for 2015 and 2016 continue the confirmed, confirmed with given year broadly track the level and trend set in 2014. modifications and withdrawn figures. pattern of submissions. That produces the following figures: Key points to note include: 93% in 2015, 94% in 2016. These Planning CPOs figures are consistent with previous Figures 4 and 5 show how Planning and • Success rates for Housing CPOs years. Success rates may therefore Housing CPOs respectively were remain high. safely be considered to fall within determined in 2015 and 2016. • Total confirmations (i.e. confirmations the 90-95% range. There are relatively few surprises in both with and without modification) those results when compared against were 79% (2015) and 88% (2016) previous years. The pattern of respectively. determination of CPOs remains • Figures for confirmations without reasonably consistent. modification (70% in 2015, 72% in 2016) are similar to the 2014 figure As indicated in Figure 4, Planning (69%) but lower than the figures of CPOs continue to demonstrate high 76% in 2010 and 80% in 2013. rates of success: However all these more recent figures • The percentage of CPOs confirmed are higher than the averages for without modification (including those previous years for which data is referred back to acquiring authorities available: 62% (2003 – 2009), for determination) remains high at 61% (2010) and 68% (2011). 58% and 52%, albeit slightly down • The figures for confirmations with in 2012 – 14 with figures of 66%, 64% modifications (9% in 2015, 16% in 2016) and 67% respectively. are broadly consistent with the range of recent years (14%, 9% and 11% in 2012, 2013 and 2014 respectively).

3. National Planning Casework Unit

6 Compulsory purchase order: 2017 update womblebonddickinson.com Figure 2 Figure 3 Planning and Housing CPOs submitted 2003-2016 Planning and Housing CPOs determined 2003-2016

Planning Housing Planning Housing

120 120

100 100

80 80

60 60

40 40

20 20

03 04 05 06 07 08 09 10 11 12 13 14 15 16 03 04 05 06 07 08 09 10 11 12 13 14 15 16

Figure 4 How Planning CPOs were determined 2015 How Planning CPOs were determined 2016

7% 9% 6% confirmed without modification confirmed without modification (including referred to acquiring 9% (including referred to acquiring authority for confirmation) authority for confirmation) confirmed with modification confirmed with modification not confirmed not confirmed 29% 58% withdrawn 52% withdrawn

30%

Figure 5 How Housing CPOs were determined 2015 How Housing CPOs were determined 2016

5% 6% 6% 14% confirmed without modification confirmed without modification (including referred to acquiring (including referred to acquiring authority for confirmation) authority for confirmation) confirmed with modification 16% confirmed with modification 2% not confirmed not confirmed 9% withdrawn withdrawn other 72% 70%

womblebonddickinson.com Compulsory purchase order: 2017 update 7 Statistics continued

Timescales to determination figures of 686 and 906 days seems that written representation Figures 6 to 8 below provide a respectively for determination of CPOs. decisions join the queue awaiting an breakdown of the time taken by the These are 2 – 3 times higher than any Inspector. Moreover, we understand Secretary of State to determine CPOs. other unopposed order and may from NPCU that its database does These figures represent the time (in reflect a mis-posting of data. If those not include a filter to establish whether days) between first receipt of a CPO by figures are excluded, an average of 98 a case went to Public Inquiry or the Secretary of State and the CPO days results. This is in fact, more or less was dealt with by way of written being determined (ie confirmed, not identical to the 2013 Planning representations, so it has not been confirmed, remitted to the acquiring unopposed CPOs figure. possible to take that point further authority for decision or treated as • For Housing CPOs, the figure of 70 at this time. withdrawn by letter). days for unopposed orders is in line • It would appear from the data Figure 6 with the last available figure of 63 days in Figure 6 that there is considerable Planning and Housing for 2013. consistency in the time taken to CPOs determined in 2016 • The average time taken to determine determine unopposed CPOs. In broad opposed Housing orders has, however, terms this amounts to around 3 months Opposed Unopposed increased significantly. It was 420 days for unopposed Planning CPOs and (days) (days) in 2016, as compared with 296 in 2012 around 2 months for unopposed and 119 in 2013, the last years for which Housing CPOs (subject to the Planning 383 168 caveat above). (98 excluding figures are available, and so a significant 2 outlier increase in the determination period. • However, opposed Planning and decisions) • Looking at the time taken to determine Housing CPOs, appear to be taking the “not confirmed” Housing CPOs, longer to determine. The most Housing 420 70 suggests that these decisions were significant increase is in the time taking at least a year to determine, taken to determine Housing CPOs – Figure 6 sets out the time taken in even though they all followed the a threefold increase in the time taken 2016 to decide both Planning and written representations process. since the latest available figures Housing CPOs differentiated between in 2013. those CPOs that were opposed and • Indeed what may warrant further those unopposed. investigation is the extent to which the Figures 7 and 8 further differentiate the written representations procedure time taken by the Secretary of State to The following key points are worthy results in time savings. The process is determine CPOs. of note: front-loaded in that it imposes relatively short deadlines of the acquiring Those CPOs referred back to the • The 2016 Planning CPO figures for authority to make additional acquiring authority to be able to confirm opposed orders (383 days) compare representations and thereafter for are of course unopposed orders. These with 323 (2012) and 281 (2013) in the last additional submissions by both the figures are, therefore, broadly consistent years for which the figures are available. objector and acquiring authority. with the time taken to determine unopposed orders in Figure 6 above • The 2016 figure for unopposed Thereafter, however, there is no fixed (which includes all unopposed orders). Planning CPOs is 168. However, this timetable or deadline within which the figure comes with a health warning Secretary of State must make this because it includes two “outlier” decision. Anecdotally it sometimes

Figure 7 Planning CPOs determined in days 2015 – 2016

Confirmed Confirmed Referred (by Secretary of (by Secretary of to Acquiring State) without State) with Authority for Not Overall modifications modifications confirmation Withdrawn Confirmed Average

2015 325 265 49 179 397 189 2016 322 329 235 133 477 304

8 Compulsory purchase order: 2017 update womblebonddickinson.com Planning and Housing CPOs • Many authorities have used their • In the North West, as previously submitted 2003 – 2016 by region compulsory purchase powers but reported, the extensive use of Figures 9 and 10 provide an overview of do so sparingly. housing compulsory purchase powers Planning and Housing CPOs submitted • A relatively small number of by Burnley and Wigan Councils, and 2003 – 2016 by region. authorities account for a significant of planning compulsory purchase powers by Liverpool and Manchester As indicated in our previous reports proportion of CPOs. This is particularly the case with Housing CPOs, with the City Councils respectively, contribute the greatest use of planning compulsory significantly to the results. purchase powers has been in the distribution of Planning CPOs being North West and London followed by somewhat more even. • In the West Midlands, Birmingham the West Midlands. • The total of CPOs submitted by Great and Wolverhampton Councils have Yarmouth is a little misleading since made substantial numbers of Housing Housing CPO usage follows a similar the Council’s legal department CPOs, with the former also making pattern, with the North West and London promoted orders on behalf of other 19 Planning CPOs. regions again leading the way. The West authorities, but NPCU’s records, Midlands as well as the Yorkshire and particular in earlier years, lists CPOs Humberside regions have also made under Great Yarmouth’s name. significant numbers of Housing CPOs. • CPO totals in the London region However, within the regional totals there reflect a wider and more regular are very significant variations between use of powers. Even against that local authorities. A full list of all of those background of broader usage the local authorities that have submitted programme of Housing CPOs made Planning and Housing CPOs is included by Newham stands out. at Appendix J. From that data the following key points can be discerned:

Figure 8 Housing CPOs determined in days 2015 – 2016

Confirmed Confirmed Referred (by Secretary of (by Secretary of to Acquiring State) without State) with Authority for Not Overall modifications modifications confirmation Withdrawn Confirmed Average

2015 347 66 65 367 400 170 2016 286 181 79 169 359 156

Figure 9 Figure 10 Planning CPOs submitted 2003 – 2016 by region Housing CPOs submitted 2003 – 2016 by region

2 2

17 10 12 1 2 7 72 7 1 0

East East East East East East East East West West West West West West North North North North South South South South London London Midlands Midlands Midlands Midlands Yorkshire Yorkshire Yorkshire and Humber and Humber

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Housing CPOs

2015-2016

Housing CPOs not confirmed The Planning CPO decisions not to If the CPO was confirmed it was 2015 and 2016 confirm appear to be on a trajectory proposed that the Council proposed to Five housing CPOs were not confirmed where the reasons not to confirm market the property with requirements by the Secretary of State. Each was impinge on the previously separate for the buyer to carry out all necessary determined pursuant to the written but parallel issue of compensation. improvements within 6 to 12 months. representations process. The Housing CPO decisions not to confirm, are fact specific and therefore Objection The key reasons why the CPOs were it is difficult to see or predict the The owner objected principally on the not confirmed include: direction of travel regarding reasons not ground that the CPO, if confirmed and to confirm other than the usual suspects, implemented, would make him • Nature of vacancy within the property homeless. He stated he had been as against extent of actual use of lack of evidence, no compelling case made, PSED not properly considered. caring for a friend and had been away the property. “for a considerable period”. He also • Individual circumstances of the owner. As regards CPO process, the evidence worked full time and was often not at home. Since October 2013, however, his • Degree of harm caused by suggests that proceeding by written case was that he had been giving the order lands insufficient to warrant representations is no guarantee to a property more attention. He also confirmation. speedy decision nor does it appear to be faster than proceeding by way of disputed the Council’s evidence as to • Engagement of PSED and ECHR – public inquiry. the condition of the property. It had a failure to accommodate disabilities. new central heating boiler and windows installed among other improvements. • Failure to show that the use of CPO The East Riding of Yorkshire (8 was a “last resort”. He argued that the property was safe Cave Road, Brough) CPO 2014 and habitable. • Undertaking not fulfilled by the owner but sufficient work undertaken. CPOs, being site specific, are by He further disputed the Council’s case in definition also fact specific. The East respect of complaints having been Summary of why some CPOs fail Riding of Yorkshire (8 Cave Road, made: this was hearsay. Complaints had This report also contains analysis Brough) Compulsory Purchase Order not been made to him. Additionally he of failed CPOs. Reasons include: 2014 (DCLG decision letter 13 March criticised the Council’s behaviour 2015) was a Housing CPO that was • a CPO confirmed but subsequently alleging that unacceptable trespass and determined by consideration of written quashed on PSED grounds. surveillance had been carried out. representations. • CPOs not confirmed where the Inspector’s conclusion acquiring authority had not discharged Background The Inspector’s conclusion was that the its PSED duty. The order land comprised a vacant objective of re-use of the house was in semi-detached house in a “pleasant accordance with local and national • Inappropriate use of CPO powers. village location” that had been empty for policy. However, he considered that the • Compliance with an undertaking: 20 years and required “full renovation” key issue was whether the existing whilst not fulfilled by the owner to bring it back into use. Neighbours had house was being used or was empty sufficient works had been made complaints about its poor together with its condition. The Inspector completed to warrant the CPO not condition; including a flooded kitchen, considered that it was partially furnished to be confirmed. rotten floor and doors, and generally and contained necessary facilities for poor condition throughout. The Council • CPO not confirmed on heritage day-to-day living including a kitchen and had been in contact with the owner but grounds and that the intended appliances and a bathroom. However, efforts to acquire by agreement had purpose could be achieved by he acknowledged that there was a long proved unsuccessful. alternative means. list of problems with the condition of the Council case property. On the other hand, there were • CPO not confirmed as an many elements of the house’s condition order was no longer required. The Council wished to see the property brought back into beneficial use as a that were not of concern. • CPO not confirmed where the owner dwelling in accordance with its Housing The house did not appear to be lived in; had made improvements to the Strategy. The Strategy recognised the order land. there were indeed no furnishings. But disproportionately negative impact that the Inspector did not consider that to be • CPO not confirmed – the benefit of high profile empty properties could have definitive evidence that the house was the doubt given to the objector where on a locality. not used from time to time. There were the case was “finely balanced”. no beds but it was “possible to sleep in • The Aylesbury Estate CPO case. a house without a bed”.

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This is another case in which the Owner particular facts in respect of the The East Riding of Yorkshire The owner was an elderly lady in condition and use of the order land Council (341 Boothferry Road, very considerable ill health, which were critical. On the question of Hessle) CPO 2015 was itemised in the report. She lived emptiness as against use, the in a care home some distance from Inspector’s judgement ultimately differed Orders to which objections are received the order land. The state of her health from that of the acquiring authority – he are handled differently by NPCU from was considered to amount to her concluded that on that spectrum, there those that do not receive objections. being disabled within the terms of was evidence of use. However, given In the case of The East Riding of the Equality Act 2010. “the absence of sleeping facilities in the Yorkshire Council (341 Boothferry form of beds” this may well be thought Road, Hessle) Compulsory Purchase Third party representations not to reflect habitation in the usual Order 2015 (which was a Housing CPO Representations were made on behalf sense of that term. decided by DCLG letter of 17 February of third parties including via the local 2016) the owner had not technically Member of Parliament. Neighbours were In addition, one must look carefully at submitted an objection. The order was concerned that their security had been the particular circumstances of the therefore registered as “unopposed” compromised as: a dividing wall was individual owner. The Inspector because no written objection had been near to collapse; the front wall was concluded that he was “aware that the submitted, albeit it was noted that the leaning onto the pavement; the garden current proprietor indicates he would be owner was understood to object. was considered to be a gathering point homeless if the CPO were to be Moreover, the decision was made for antisocial behaviour; fences were confirmed. His continued visits to the directly by the Secretary of State on falling onto neighbours land; and drains property, brief and intermittent though the basis of the written representations were blocked. In short, they argued that they are, and limited improvements received and without an Inspector’s the property was derelict. carried out so far, seem to me to show a report. Secretary of State decision longer term commitment to the house”. Council case The Secretary of State however However, the onus is squarely on an The acquiring authority’s case was concluded that the CPO should acquiring authority to demonstrate a that the property was in poor condition, not be confirmed. compelling need in the public interest had been empty for about 15 years There was no evidence that methods for intervention by means of compulsory and suffered from neglect, poor of Alternative Dispute Resolution (ADR) purchase. Despite not knowing about management, and overgrown gardens. had been pursued. There was a the Objector’s detailed plans for the Complaints had been received deficiency of evidence regarding house and the uncertainty as to the from neighbours. detailed steps to encourage the owner improvements to be carried out, the to bring the property back into use. Inspector was ultimately not persuaded The acquiring authority had contact with the owner who was an elderly lady and that it was a case where “the defects No notices under s215 of the Town of the property are so serious that made offers to acquire. Indeed the owner had agreed to sell. Contracts and Country Planning Act 1990 had it adversely affects other housing been served. It was unclear why this accommodation to any material degree”. had been drawn up but not exchanged because the owner had not made the was not considered as an option for necessary arrangements to remove securing improvements to the property. Reasons for refusal: personal effects. This is a process which requires an Extent of actual use of house, owner to clean up a property when its individual circumstances of The acquiring authority had contact condition adversely affects the amenity owner and degree of harm with the owner’s social worker and of the area. In addition the required caused by order lands had taken steps such as instructing information (comprising quantitative auctioneers to check the condition of analysis of housing supply and demand, the contents as the owner was unable number of dwellings in the district, total to travel. number of substandard dwellings etc) that should accompany a Housing CPO was not included.

12 Compulsory purchase order: 2017 update womblebonddickinson.com By reason of the owner’s physical a voluntary sale, serving a notice under Reasons for refusal: and mental condition the PSED, as set s215 of The Town and Country Planning Engagement of PSED and ECHR – out in s149 of the Equality Act 2010, was Act 1990, or otherwise. The Secretary of failure to accommodate disabilities, engaged. That created a public sector State therefore considered that the failure to show CPO was “last resort” equality duty that public bodies must, Council had failed to justify compulsory in the exercise of their functions, have purchase as a “last resort”. due regard to the need to: This case is especially unusual in that, The Cheshire West and Chester (a) eliminate discrimination, despite there being no formal objection, Borough Council (450 Sutton harassment and victimisation. the CPO was not confirmed. The Way, Great Sutton, Ellesmere absence of a formal objection was Port, Cheshire, CH66 4RL) (b) advance equality of opportunity perhaps seen as reflecting the owner’s CPO 2015 between persons who share a individual circumstances that were such relevant protected characteristic and as to engage the PSED. The Cheshire West and Chester persons who do not share it. Borough Council (450 Sutton Way, The decision letter sets out the Great Sutton, Ellesmere Port, Cheshire, (c) foster good relations between acquiring authority’s case including CH66 4RL) Compulsory Purchase persons who share a relevant considerable efforts to engage with the Order 2015, was a Housing CPO, protected characteristic and persons owner, her representatives and social determined by way of written who do not share it. The protected worker. The owner’s case forming part representations (DCLG letter 26 April characteristics are: age, disability, of the decision letter thereafter simply 2016) where human factor, in the form of gender reassignment, marriage and iterates the owner’s ill health and a family dispute, was the central issue. civil partnership, pregnancy and circumstances living in a care home. The maternity, race, religion or belief, decision letter states that “the owner’s ill Background sex and sexual orientation. health appears to render her disabled The order property was a single within the meaning of the Equality Act… dwelling house on Sutton Way, a main The Secretary of State noted the as her physical/mental impairments thoroughfare in a primarily residential disabled status of the owner and have a substantial and long-term area of Ellesmere Port. It comprised a concluded “it appears that the primary adverse effect on her ability to carry out two storey, mid-terrace house with reason the owner of the property finds normal day-to-day activities, hence her lockable enclosed service passage to herself in the position of Compulsory inability to live independently”. the rear garden that it shared with its Purchase Powers being sought – rather neighbour property. The property had than a voluntary restoration/sale of the Thereafter, the Secretary of State been unoccupied for over four years property being possible – relates to her assesses the acquiring authority’s case since the death of the objector’s mother. physical, and possibly mental disability.” against the requirements of guidance and in particular efforts to negotiate and Council case It was concluded therefore that provide quantitative housing evidence. The acquiring authority’s case was the insufficient attempts had been made to It considers in detail the PSED and need to secure the re-habitation and consider alternative options. It was the ECHR. use of the property so as to assist the evident from the chronology in this case further potential of any visual and that the owner had previously The Secretary of State’s conclusion physical decline of the locality. The consented to the voluntary sale of the that he was unconvinced by the on-going vacancy of the property meant property. “Given the owner’s disability evidence that every attempt had been it was at risk of deterioration. Complaints one would expect a heightened scrutiny made to achieve a voluntary sale or to had been received from concerned of the effect that the CPO would have accommodate the owner’s disabilities close neighbours. in relation to interference with her in accordance with the PSED, sets a human rights”. very high bar for an acquiring authority The death of the elderly lady owner of when dealing with a disabled person. the property had resulted in a family Given the owner’s state of health, Indeed there would appear to be a very dispute. The property had passed to her greater efforts should have been made real practical difficulty in demonstrating two sons, one of whom was the executor. by the Council to accommodate her full and proper efforts to negotiate in The on-going dispute in turn had disabilities in seeking a mutually circumstances in which an owner’s prevented positive steps being taken acceptable solution regarding disposal disability makes reciprocal engagement to bring the property back into use. of the property, whether by facilitating difficult, if not impossible.

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The brothers seemed unable to agree the exterior of the property front and the public interest was so harmed by on what to do with it in terms of sale to rear on an “access required” basis, the consequences of that dispute – i.e. a third party or one buying out the leaving the Council representative the on-going vacancy – that the case for other’s share. Offers by the Council to to observe. compulsory acquisition in the public facilitate private sector leasing by a interest was to be a compelling one. housing association had been rejected. Parties were subsequently given That itself is a high bar. The Council’s Council Tax department the opportunity to make further was also having difficulties recovering representations on the basis of The Inspector was not persuaded in this outstanding debts. the inspection. instance for the following reasons:

There was no apparent prospect of the Conditional withdrawal of objection • The principle of utilising compulsory brothers reaching accommodation. The The objector’s solicitor then wrote to purchase powers to acquire vacant most appropriate solution was therefore NPCU stating that “the Objector was housing is well established but this an order to “clean the title and allow the willing to accept the CPO on the basis case was simply two brothers failing to property to be brought back into use as that [a] fresh valuation of the property’s agree a sensible accommodation of much needed housing stock”. market value is obtained”. Since this did their differences. not constitute a clear and unconditional • He noted that Council officers had withdrawal of the objection it was not It was argued that the Council’s Empty acted diligently and patiently in the accepted and the order considered Homes Strategy aimed to unlock the middle of “an increasingly bitter therefore on the basis of an potential of homes that are empty on a dispute” and that the Council’s outstanding objection. long-term basis and compulsory frustration was well understood. purchase was identified as a last resort. Inspector’s decision • Family disputes are identified in the Co-owner support for order The Inspector made express reference Empty Homes Strategy as one of a Support for the order came from one to the requirements set out in number of reasons for vacancy. brother who considered that his brother paragraphs 110 and 111 of the CPO • The current condition of the property had not been negotiating properly. Guidance concerning orders made is “average” or “below average”. Compulsory acquisition would end the under housing powers. difficulties, which he alleged were • Externally, the property was sound caused by his brother not discharging The nub of the problem was that the and was reasonably maintained on duties as administrator of their mother’s brothers were unable to agree on the whole. The report contained a estate. a practical way forward. One brother detailed description and assessment wished to dispose of the property and of the property. Objection share the proceeds, whereas the other, The executor brother however objected who had administrative responsibility, • Complaints from neighbours were on the ground that he was anxious to wished to retain the family home for his noted, as was the fact that the Council retain the family home and was in own use in one way or another and had considered the possibility of negotiations with his brother, the therefore proposed to “buy out” his serving a s215 Notice. co-owner of the property. brother’s share. • No interior inspection had been undertaken, but there was no reason Site visit The Inspector described this situation to doubt that the property remained The Inspector undertook a site visit in of estranged brothers as “not at functional, if dated. It was “perfectly January 2016. The Council all uncommon”. marketable”. representative attended but the objector did not attend. A phone call to the “The fairness, or otherwise, of the • It was in below average condition, objector’s solicitor elicited the response offers made by one brother to the other especially in relation to the external that the letter arranging the site visit had is not a matter for me. The diligence, or appearance, but not so as to not been received. otherwise, of the former in administering constitute a serious blight on the his mother’s affairs, of itself, is similarly neighbourhood. However, Regulation 8(3) of the of no direct concern and the effect on • Further deterioration was likely to be Compulsory Purchase of Land (Written their personal lives and wellbeing is a relatively gradual process. Representations Procedure) (Ministers) likewise immaterial. Moreover, it seems Regulations 2004 provides that an to me that compulsory purchase to, Notwithstanding that the Council Inspector is not bound to defer an in effect, resolve what is essentially stated it had no confidence in the arranged accompanied inspection. In a private dispute, would represent owners bringing the property back into this instance the next-door neighbour a serious intervention.” use, the Inspector considered that there was able to permit access through the was no hard evidence to support that shared enclosed service passage. The The only circumstance in which the proposition. In addition there was no Inspector was therefore able to inspect Inspector considered that compulsory particular shortage of housing in this area. purchase would be justified would be if

14 Compulsory purchase order: 2017 update womblebonddickinson.com Above all the use of compulsory One immediate effect of such direction Background acquisition to resolve a family dispute is that an acquiring authority has only 39 Broad Lane was a Late Victorian end was inappropriate. “Confirmation of the fifteen working days in which to make of terrace 3 storey building with single CPO would no doubt guarantee a fair additional representations in support of storey front projection and 2 storey rear and equitable division of the value in the case it has already made in its addition. The area was a mix of the house, but that is not material”. statement of reasons. Thereafter, the residential and commercial uses. Of the objectors also have fifteen days to make sixteen properties in the terrace, nine The Inspector concluded that the additional representations followed by appeared vacant or disused. Most had balance of considerations was an acquiring authority having the shutters similar to the order land. insufficiently clear to conclude that opportunity to make final comments. there was a compelling case in the Council case public interest at the present time to If an acquiring authority considers it The Council’s case was that the property compulsorily acquire the house likely that the written representations had been vacant for about six years. subject to the order. procedure may be followed it is prudent Windows to the ground floor shop to ensure that as full a case as possible is and upper floor flat were boarded up. The key elements in this case were advanced at the outset. Assuming that Floorboards had been pulled up. the fact that the on-going vacancy and there will be a further six weeks from the There was no kitchen or bathroom. condition of the property was not such relevant date to submit a fuller Statement The roof had partly fallen in. Debris and not such as to cause the requisite of case and, thereafter, evidence for rotting wood made it additionally unacceptable harm as to justify inquiry can leave one under pressure to dangerous to visit. compulsory purchase. In contrast with prepare evidence if the shortened written other decision letters or Inspectors’ timescale is imposed. A s215 Notice issued in 2009 had not reports, no mention is made of either been complied with. Further visits to the PSED or ECHR. Indeed an interesting It is notable that all of the Housing CPOs property in 2010 and 2012 indicated point arises where the co-owners of not confirmed were determined by way further deterioration. The objectors had a property subject to a CPO find of written representations. Where the installed a pull down shutter/grill. themselves on opposite sides of the individual circumstances of the case. It is perhaps a notable omission in landowner are very significant and The Council argued that there was this instance as to how their respective possibly determinative of the outcome significant pressure on Housing in human rights stood to be considered. of a proposed CPO, an interesting Haringey. Its Empty Property Strategies question is what level of detailed of 2005-2008 and 2009-2019 Written representations evidence or information is in practice respectively provided policy support to In addition, the application of The before the Secretary of State. There is reduce the number of empty homes. Compulsory Purchase of Land (Written no opportunity for the evidence to be The Council intended to contract with a Representations Procedure) (Ministers) tested forensically by way of cross- registered provider to purchase the Regulations 2004 should also be noted. examination, although each party does, property to provide permanent social The Guidance on Compulsory Purchase of course, have the opportunity to housing. In addition the objector had process sets out the Secretary of State’s comment on the other’s case. provided no schedule of work. approach to the application of such regulations. The policy is “to offer the Objector’s case written representations procedure to Reasons for refusal: The Objector’s case was that he had objectors except where it is clear from Limited adverse impact of property, commissioned complete repair of the the outset that the scale or complexity inappropriate to use CPO to resolve building. Renovation was expected to of the order makes it unlikely that the private dispute last 3-6 months. He also considered that procedure would be acceptable the Council’s case was unsustainable or appropriate”. because it was not viable. The London Borough of Site Visit The Regulations prescribe a procedure Haringey (39 Broad Lane When the Inspector carried out his site by which objections to a CPO can be N15 4DJ) CPO 2015 visit the objector and 2 or 3 colleagues considered in writing if all the remaining were busy carrying out repairs. All objectors agree and the confirming The London Borough of Haringey windows had been replaced with new minister deems it appropriate, as an (39 Broad Lane N15 4DJ) Compulsory UPVC windows. There were new doors. alternative to holding an inquiry. In Purchase Order 2015 was a Housing Roof repairs and extensive internal practice, this can mean that even if an CPO determined by the Secretary of repairs had been carried out. acquiring authority may prefer for a State (letter dated 5 May 2016) following public inquiry to be held, the Secretary an Inspector’s report on the basis of of State may direct that the written written representations. representations procedure be followed.

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Inspector’s conclusions Objection In his conclusions the Inspector referred The Stevenage Borough Council The owner’s objection, comprised to paragraph 111 of Guidance as it related (53 Archer Road) CPO 2014 in the evidence of Mr W Dennehy, to acquisition of substandard properties sole director of the company owning which may be justified as a last resort in The Stevenage Borough Council (53 the order property, was that it was cases where: Archer Road) Compulsory Purchase always his intention to renovate the Order 2014 was a Housing CPO that property and to live there but incidences • A clear housing gain will be obtained was confirmed by the Secretary of of crime and anti-social behaviour made State but subsequently successfully • The owner of the property has failed it difficult to make good the damage challenged pursuant to s23 Acquisition to maintain it or bring it to an caused. The disrepair of a neighbouring of Land Act 1981 on human rights and acceptable standard property; for example continued water PSED grounds. damage and damp which had caused • Other statutory measures, such as the some of the defects in the property. service of statutory notices, have not Background The requirements of the Council set achieved the authority’s objective of 53 Archer Road was a terraced out during mediation were unrealistic. securing the provision of acceptable two-storey house with a rear and front garden, which presented a housing accommodation. Mr Dennehy also made reference to familiar picture of neglect. Its porch illness that had prevented him taking In this instance all three of the above and extensions suffered from rotten steps he had wanted to. In addition, points had been met. However, despite timber. The gardens were overgrown. criminal activity had caused him to not fulfilling an undertaking he had Fencing was broken and rubbish had move out in 2009. He had returned given, the owner had carried out a accumulated. It had been vandalised. in 2012 but had to move out again substantial amount of work such as: The interior of the property was in need because of “the actions of others”. external works to roof, windows and of repair and extensive refurbishment. doors; and internal works comprising The water supply and gas supply had He contended that if funds were new floors and ceilings, new staircases, been cut-off and capped-off. available to the Council to pursue internal partitions, plastering, ceilings, refurbishment then why couldn’t such Neighbours had made complaints and and improved wiring. funds be available to him? in response the Council had served The Inspector and Secretary of State s215 Notices. In response the gardens Inspector’s conclusions therefore concluded that sufficient had been tidied. Further complaints led The Inspector noted that the house was progress had been made such that the to further s215 Notices that were not in a state of neglect that had a seriously CPO was no longer necessary to ensure complied with so the Council itself had detrimental effect on the character and that renovation took place. cleared away materials. appearance of the area. There was no evidence that works to neighbouring Council case This was a case in which the owner property had had any adverse effect on The Council’s case was that it had had given an undertaking to the Council the order property. It was the neglected advised the owner over many years that had not been fulfilled. Nonetheless state of the order property that attracted about its Empty Homes Strategy and circumstances had subsequently problems such as deposit of waste and the potential for intervention. There changed considerably such that the litter. It was a “magnet” for such activity. Inspector concluded that so substantial had been repeated discussions and was the amount of work carried out offers of a Home Improvement Loan. The continued neglected state, far from that “it seems inconceivable …that the The need for social rented housing in being functionally habitable, combined owner will not now continue with the Stevenage is high. There was support with considerable efforts undertaken by renovation and finish the work in for the Council’s case from local Council to encourage the objector to order to recoup some of the costs councillors and neighbours. Although renovate the property, indicated that through renting out the flat and the the owner had indicated he would there was little likelihood of the property commercial unit.” renovate the property, he had not being restored as a home if the CPO taken steps to do so. were not confirmed. Reasons for refusal: Whilst meeting guidance tests for acquisition the owner had carried out substantial work even if in breach of undertaking

16 Compulsory purchase order: 2017 update womblebonddickinson.com There was a need for homes within It was further agreed that “this error its area. The Council had necessary amounted to a breach of the PSED… resources to purchase the property and also affected the human rights and to undertake renovation works. balance struck by the Inspector and the Secretary of State under Article 8, The Council had considered and Article 1 of the First Protocol to that compulsory acquisition was the ECHR”. the most appropriate power. Other powers would not satisfactorily In both this case and the Aylesbury address the unacceptable effects that Estate case (see below), the Secretary the property had on neighbours. s215 of State has been prepared to submit Notices had previously been used and to consent orders quashing decisions, not complied with. The Council had tried albeit from different perspectives. to encourage the owner to contemplate In the Stevenage case the order was other solutions but the owner had not confirmed but it was latterly accepted seen fit to pursue these. that the objector’s physical and mental condition and importantly its effect upon The Inspector’s conclusion was that his ability to conduct negotiations had not there was a clear need for acquisition been properly taken into account. That of the property because of the harm that was the case even though the inquiry it was causing to neighbours in the area process was followed rather than that of and the local need for housing. If written representations, presumably confirmed, there was a reasonable affording a greater opportunity for those prospect that financial resources matters to be explored and tested. required to acquire the property and This should be contrasted with the East bring forward renovation were available. Riding case at Hessle above in which the The benefits of improvement to the area owner’s physical and mental condition outweigh the private loss. The use of was taken into account and given CPO was accordingly proportionate. substantial weight so as to warrant non-confirmation of the CPO. On the basis of the Inspector’s report the Secretary of State It remains to be seen what will happen confirmed the order. in the event that the Stevenage CPO process is recommenced, but it appears However that decision was challenged that the Secretary of State is setting pursuant to s23 Acquisition of Land a high bar when it comes to Act 1981. circumstances in which there are Subsequently a consent order was physical and/or mental impediments agreed by the Secretary of State to an owner fully participating in acknowledging that the decision be negotiation with a view to acquisition quashed because the Inspector erred in by agreement. law in his report. He did not have the necessary regard to “the implications of Reasons for refusal: the claimant’s diagnosis of suffering from Undertaking not fulfilled but severe depression for (i) his ability to sufficient work undertaken maintain the property; (ii) his ability to conduct effective negotiations … in relation to the property; and (iii) his ability to represent himself effectively at the inquiry in relation to his objection.”

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Planning CPOs

2015-2016

Planning CPOs not confirmed Background Inspector’s report and Secretary of 2015 and 2016 The CPO contained land at High State decision Five planning CPOs were not confirmed Park Street, Kelvin Grove, South Street The Inspector recommended that the by the Secretary of State. Three were and Madryn Street – part of an area order be confirmed with modifications. determined following public inquiries known as the Welsh Streets – in However, the Secretary of State and the other was determined pursuant Toxteth, Liverpool. disagreed and concluded that it to the written representations process. should not be confirmed. Council’s case The key reasons why the CPOs The order land comprised ten specific Local and National Planning were not confirmed and issues properties within a larger site where framework involved include: planning permission was sought for In terms of the planning framework, redevelopment. The order land plots the Secretary of State disagreed with • Conflict with Ministerial Statement. comprised predominately two or three the acquiring authority and Inspector • Failure to assess alternative schemes. storey terraced dwellings plus a mixture and concluded that the order scheme of commercial and retail units. would conflict with UDP policies relating • No longer any need for to the historic environment and he confirmed order. The Council’s case was that the gave due weight to these policies • Late attempt to change purpose proposed development would deliver in the adopted plan. In contrast he of order. a mixed tenure scheme with a balance attached very little weight to the of household sizes, types and tenures emerging local plan. • Owner’s recent limited improvements. distributed throughout the site. • Lack of detail in Council case as to He also considered that the scheme compliance with Guidance (including The order land was referred to as would conflict with local policy in so failure to assess alternatives). Phases 1 and 2 which together formed far as it was concerned to protect local Phase A of the conjoined called-in character and also with Paragraph • Planning permission not conclusive planning application. Within that phase, 58 of the National Planning Policy of need. the application was for the demolition Framework (NPPF). • Where case finely balanced - of 279 units and the construction of 154 “benefit of doubt” to objector. new dwelling houses together with the Notwithstanding that the Secretary of refurbishment of existing housing stock. State accepted that the scheme did not conflict with the Council’s Housing Liverpool City Council Within Phase A it was proposed that around 116 units would be affordable Strategy, and therefore neither with (Welsh Streets Phases 1 and 2) new build units and 37 would be Paragraph 51 of the NPPF, he considered CPO 2013 affordable refurbished units allocated for that the scheme did conflict with the a mix of rent and affordable ownership Government position as set out in the The Liverpool City Council (Welsh and outright sale. 38 of the houses Written Ministerial Statement of 10 May Streets Phases 1 and 2) Compulsory would be for outright open market sale. 2013. That Statement accepted the Purchase Order 2013 was a Planning recommendations in George Clark’s CPO determined by the Secretary of The Council contended that the scheme Empty Homes Review requiring State (letter dated 15 January 2015) would deliver an attractive, vibrant and refurbishment and upgrading of existing following a public inquiry conjoined with sustainable new neighbourhood and homes to be the first and preferred an inquiry into the called-in planning that a better choice of homes would, option and demolition of existing homes application for redevelopment of the in turn, attract economically active to be the last option after all forms of order lands. The Secretary of State’s residents to move to the area. market testing and options for decision not to confirm the CPO was refurbishment were exhausted. made against the recommendations of Funding and delivery would be in place the Inspector. This was a particularly via the Council’s Capital Programme The Secretary of State agreed with the high profile scheme and CPO that with Heads of Terms with Plus Dane Inspector that the physical condition of engendered a good deal of publicity Group in place and a developer partner properties in Welsh streets was not the at the time, not least because of “the to be appointed. result of deliberate neglect or damage Beatles’ factor”. and consequently took into account such Objection condition when assessing the heritage The principal, indeed one outstanding, value of the streets as a whole. objection was advanced by Save Britain’s Heritage (SAVE) namely that there were better alternatives. The public benefit would not outweigh the harm and the scheme would not comply with local and national planning policy.

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Heritage and Culture setting of the listed buildings would not However, an alternative scheme, if In terms of heritage and culture be preserved. However, the Secretary of viable, would involve substantially less the Secretary of State agreed with State disagreed with her assessment that demolition and correspondingly more SAVE’s assessment of heritage matters the harm to the setting of the listed refurbishment. In that way the Secretary and concluded the Welsh streets were buildings was small, instead attaching of State considered that the upgrading “of considerable significance as non- very considerable importance and weight of “intrinsically characterful” Victorian designated assets of historic, to it. homes to modern standards could architectural, cultural and social interest.” deliver “a broadly comparable package Density and local character of social, economic and environmental No 9 Madryn Street was the birthplace Local policy required development to benefits to the area”. of Richard Starkey, better known as Ringo be of a density that related well to its Starr, and had previously been saved in locality. Whereas the Secretary of State The Secretary of State accepted the the interests of its cultural significance, noted the efforts to achieve a degree of Inspector’s conclusion that the along with a further part of Madryn Street. conformity with the existing pattern of proposals would meet the aim of SAVE argued that the demolition of much heritage and townscape but disagreed paragraph 50 of the NPPF to deliver a of Madryn Street would significantly harm that the design would fit in well with the wide choice of high quality homes, the ability to understand and appreciate character of the area. Instead he agreed widen opportunities for home ownership this part of Liverpool’s Beatles heritage. with SAVE that the design of the proposal and create sustainable, inclusive and Even though one could no doubt visit failed to respond to local character, mixed communities. However, in his similar streets, the Secretary of State history and distinctiveness. view “so too would a future for the placed importance on the actual street Notwithstanding the retention of some Welsh Streets involving less demolition where one of the Beatles was born. street names and orientation of streets, and more refurbishment that would The regeneration proposal advanced the existing character would be lost, retain more of its heritage value.” by the Council was therefore considered existing density would be halved by a to be short-sighted and damaging to “suburban” approach and a broken street Economic benefits the future tourism potential of Madryn pattern created, with an excess of The Secretary of State also agreed with Street and the Secretary of State parking spaces. Provision of open space the Inspector’s assessment of the concluded that “the surviving built was also considered to be excessive economic benefits of the scheme but and cultural heritage in the Welsh given the amount in the area. agreed with SAVE that the scheme was Streets is of considerable significance”. short sighted in terms of the heritage Alternatives/reduced intervention benefits and future tourism benefits. The Welsh Streets have proximity to In terms of social well-being the Viability Princes Park (Grade II* registered park Secretary of State was unconvinced that The scheme was viable and capable and garden), the Princes Park and the appraisal exercise of renewal/ of being delivered. In contrast, no Princes Avenue Conservation Areas, and refurbishment alternatives was wide specific alternative scheme had yet to a group of Grade II listed buildings. enough in scope and analysis. be demonstrated to be viable. However, Notwithstanding that the order lands In light of the Written Ministerial Statement crucially the Secretary of State were outside the Conservation Area and he considered that some demolition considered that not all alternatives or that there was little inter-visibility, the might be justified but not the scale of options had been assessed, including Secretary of State agreed with SAVE’s demolition proposed. He was an intermediate scheme involving more analysis that a functional relationship unconvinced that sufficient forms of selective demolition. Although some between them constituted an important market testing and options involving demolition may be justified, the part of the setting. He concluded that the refurbishment had been exhausted. Secretary of State was not persuaded proposed scale of demolition would have Therefore, although the proposal did not that the proposed scale of demolition a detrimental impact on the setting, conflict with paragraph 51 of the NPPF or was justified. character and appearance of the with the Council’s own Local Plan Conservation Area causing some harm to policies, it did conflict with the Ministerial Accordingly his conclusion was which considerable weight and Statement and that was accorded that the purpose for which the land was importance are attached. considerable weight. proposed to be acquired did not accord with adopted planning framework and The Welsh Streets were also close to As regarding the order scheme within would not fully achieve the social, or Grade II listed villas, terraces and stable the context of housing supply the environmental well-being objectives blocks dating from 1850-60. These Council could demonstrate a five year sought. Crucially and although the formed part of an area of large houses housing land supply plus a 12% buffer. potential viability of the scheme had facing towards Princes Park and The net loss of 210 units would, been demonstrated, the Secretary of comprised significant architectural value therefore, have no adverse effect on State was not satisfied that the intended both individually and as a group. The the adequacy of housing land supply. purpose could not be achieved by Inspector had acknowledged that the alternative means.

20 Compulsory purchase order: 2017 update womblebonddickinson.com This is a case that has echoes of the It was proposed that the replacement Croydon (The London Borough of Stroud District Council (Stroud bridge would be transferred to the Croydon (Land West of East Croydon Water Navigation and Thames ownership of the Company of Station, the Gateway Site) CPO 2007 and and Severn Council) (No 12) Proprietors of Stroud Water Navigation Dartford (the Dartford Borough Council (Lodgemore Bridge) CPO 2015 (CoPSN) and leased on to the Stroud (Lowfield Street) CPO 2004) schemes Valleys Canal Company. considered in our first report. In each of Some orders can from a distance appear those cases, conjoined inquiries were more than a little confusing. The Stroud The order listed the order lands held both into the planning application for District Council (Stroud Water Navigation as being in unknown ownership. the scheme and the associated CPO. In and Thames and Severn Council) Objection each case planning permission was (No 12) (Lodgemore Bridge) Compulsory One objection was submitted by Hartley refused and the order not confirmed. Purchase Order 2015 is one such case. It Property Trust Ltd, pointing out was a Planning CPO determined pursuant Where the planning application discrepancies between the order land to written representations (by DCLG letter and planning permission site and for the scheme underlying the CPO 29 April 2016). is considered by the Secretary of State contending that that part of the land at the same inquiry, having been Background within the order land was in fact within called-in, it may well be that the planning Indeed it is not readily apparent why the the objector’s ownership rather than position and any possible impediments acquiring authority continued with the unknown ownership. promotion of the CPO, which sought to are considered in greater detail than may It also contended that the project was acquire 0.0055ha of land straddling the otherwise be the case. The strict legal not viable and did not accord with the Stroudwater Navigation canal for the position is that planning permission is not canal restoration project and would purpose of facilitating the replacement a pre-condition for confirmation of a prejudice the objector’s ability to of the existing rigid canal bridge at Planning CPO, and the policy develop his own land for residential Lodgemore Lane, Stroud by the requirement in Guidance gives leeway development. In conjunction with the construction of a new lifting bridge. for an acquiring authority to establish that CPO process, a title dispute was lodged the CPO should be confirmed in the Council’s case with the Land Registry. absence of a planning permission by The Council’s case was that restoration demonstrating a convincing, prospective of the canal from Ocean, Stonehouse to As a result of incorrectly identifying the case showing that planning permission Bowbridge, a distance of some 6.7km, owner of the order lands the acquiring will, in all likelihood, be forthcoming. had tourism and housing benefits. The authority had not properly sought to acquire by agreement and there had However, that situation is materially bridge at Lodgemore Lane acted as a barrier to the passage of boats and been an absence of communication distinct from one in which the Secretary with objectors. of State has refused planning permission prevented the wider benefits of Phase 1a of the wider project being delivered. and therefore the planning impediment In addition to the land ownership and Accordingly, in November 2014 the has demonstrably crystallised. What is registration issues it was contended that Council resolved to make a CPO for unusual about the Welsh Streets case there was a discrepancy between the either a swing bridge or a lifting bridge. (and distinct from the Croydon and order map and planning permission Planning consent for a new swing Dartford examples), is that the Secretary plan. The land required was in excess bridge had been granted in 2011. of State differed from the Inspector’s of that in the order map and impinges Planning permission for a lifting bridge recommendations to such an extent. on the objector’s land. was granted in February 2015. The viability of the project was also Reasons for refusal: The principal purpose of the CPO was disputed. The benefits said to accrue Conflict with Ministerial Statement and stated to be the enabling of the existing from facilitating vessels of all sizes and failure to assess alternative schemes bridge over the canal to be removed types to negotiate the canal at that and replaced with a new lifting bridge. location were challenged. It was also The new bridge at 30 tons, would be argued that construction of a lifting significantly greater than the 8 ton bridge was inconsistent with the weight of the old one and would character and heritage of the canal and significantly improve access for vehicles, would prejudice the objector’s ability plant and machinery to premises to the to develop its own land. south of the canal such as WSP Textiles Ltd who supported the CPO.

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Inspector’s decision to be held in abeyance pending the scheme had materially changed. It transpired that the Inspector did not resolution of the land dispute. But since In that instance it was held that, have to consider, in detail, many of the it had chosen to pursue the order it was notwithstanding alterations to the points raised in the objection. There not confirmed since it was demonstrably scheme to be delivered, the purpose of was, in fact one key point that was in not required for the purposes of a lifting the order (i.e. town centre regeneration) itself fatal to the order. bridge that was now built. remained consistent. In the Lodgemore Bridge case the purpose itself had By the time matters came to be This is a most curious case. One fundamentally changed because the determined by the Inspector could speculate at length as to how original purpose could demonstrably circumstances were, as he noted, the various issues would have been no longer be achieved. “much changed”. The acquiring considered if the order had not fallen authority’s Statement of Reasons at the first hurdle. dated June 2014 referred to land being Reasons for refusal: required for the demolition of an existing An acquiring authority must provide No longer any need for confirmed bridge and the construction of a new a compelling justification that the order order, late attempt to change bridge. However, when the Inspector’s Land is needed. This fundamental purpose of order site visit was undertaken in March 2016 requirement derives both from statute he discovered that the “existing bridge” and policy guidance and satisfaction of no longer existed and had been this test must underpin an acquiring The Hastings Borough replaced by a new bridge. The Council authority’s approach to any CPO. It has Council (55 Victoria Avenue) – subsequently confirmed that the new been expressed in terms of showing CPO 2014 bridge was substantially complete and that one needs “every last square inch” had in fact been carrying road and of the order land. Or, in the metric terms The Hastings Borough Council (55 pedestrian traffic since January 2016. of this case, “every last 0.0055ha”. Victoria Avenue) – Compulsory Except for some minor works relating to Purchase Order 2014 was a Planning If it can be shown that the proposed its lifting capacity the new lift bridge was CPO decided by way of written scheme, or an acceptable alternative fully functioning. representations (DCLG decision letter scheme, can be delivered without the dated 25 May 2016). The Inspector concluded therefore that need for compulsory acquisition of land, as the new lifting bridge has been then that may constitute grounds for Background constructed, the CPO cannot reasonably non-confirmation (or confirmation with 55 Victoria Avenue was an end of be said to be required for that purpose. modification) of an order. What is terrace 2 storey house. Damp was indisputable, however, is that where the penetrating the outside flank wall In addition he concluded that the CPO scheme has already been carried out in abutting No 53. The Council considered cannot be considered or confirmed for advance of the confirmation (or indeed that some limited repairs had been a different purpose from that for which the implementation) of a CPO then both undertaken but no effective progress in it was made. The acquiring authority had as a matter of fact and law it cannot be making the house habitable had been sought to claim that the order land was said to be needed in order to deliver made. There was a demonstrable required for both construction of the the scheme. demand for affordable housing in the bridge and “its on-going management area. If the order were confirmed the and maintenance”. However the Moreover, an acquiring authority must acquiring authority stated that it would Inspector noted that such second limb be consistent in its purpose or rationale approach registered providers to agree of the reasoning only appeared in one for compulsory acquisition. The late a back to back purchase deal or put it email from its Solicitor. That amounted attempt to re-frame the case for on the open market. to a different purpose from that for acquisition in terms of maintenance which it was made. In addition, the rather than construction found little There had been regular Inspector noted that it was also unclear favour with the Inspector. The late communications with the owner, since how the on-going management and adoption by an acquiring authority of October 2009. The acquiring authority maintenance would comply with a purpose that did not either appear in had offered a number of potential the statutory requirement that the its Statement of Reasons or Case, will arrangements to him, including repair acquisition would facilitate the leave it on decidedly thin ice. and lease arrangements with the YMCA. carrying out of development, This situation is distinguishable from Objection redevelopment or improvement. cases such as the Newport The owner objected to the order on the The Inspector concluded that given that redevelopment scheme (R (Iceland ground that the house was required by the bridge had been replaced, the Foods Ltd) v Newport City Council 2010) him in order to let it to a tenant to acquiring authority had the option to in which the implementation of a CPO provide future income. He accepted that withdraw the order or ask for the matter was challenged on the grounds that the it was not in a habitable condition but it

22 Compulsory purchase order: 2017 update womblebonddickinson.com had not proved possible to agree Irrespective of what view may be taken thereby ameliorate existing harm, then arrangements with adjoining owners to about the likelihood of the owner to that extent the order can be said to allow necessary access to carry out completing works there was no detail have had beneficial effect external repairs. In addition, poor forthcoming from the Council as to how notwithstanding it was not confirmed. weather and non-performance from its present appearance was harmful. In building contractors had frustrated that context Paragraph 76 of the However, where such orders are improvements being carried out. He fully Guidance required the acquiring not confirmed and the owner thereafter intended to refurbish and make the authority to consider the alternative resiles from promises made at the house ready for occupation. means of achieving its objectives by inquiry or in written representations, other means. There was a lack of detail then the process has achieved Inspector’s decision of the extent to which the Council had relatively little – delay and cost being The Inspector noted that the property investigated use of alternative powers. the most significant outcomes. The had been in a poor and uninhabitable present process does include a condition for an extended period. Overall therefore, the objector’s recent mechanism whereby the Secretary Limited weight was to be given to the actions meant that there was a realistic of State may make determination of objector’s reasons for not carrying out prospect that the Council’s objectives an order conditional upon an owner refurbishment to date. However, a would be achieved without compulsory undertaking to carry out works chartered architect who was advising on acquisition. In any event the Council’s within a fixed timescale. There is some improvements now represented him. case was insufficiently strong to show limited scope for an order to be placed that compulsory purchase was essential into abeyance pending the outcome At the time of the site visit the to achieve economic, social and of undertakings previously given by scaffolding surrounded the order land. environmental well-being which is a an owner to an acquiring authority The interior of the building had been pre-requisite for the powers (it being but there are often practical fully refurbished, including structural a Planning CPO). difficulties negotiating the terms alterations to incorporate a new of such undertakings. bathroom, redecoration and This case well represents the factors replacement of finishes; and new that often come into play when central heating system. There was determining compulsory acquisition of Reasons for refusal: no longer any evidence of damp. The a single property in poor condition with Owner’s recent limited improvements, refurbishment had been professionally one owner. On one side of the equation lack of detail in Council case as to carried out and was substantially sit a number of factors including: compliance with Guidance including complete. However, repairs to the failure to assess alternatives roof and flank wall were unfinished. • the current state of the property • the owner’s previous actions The Inspector expressed scepticism The Council of the Borough of whether work could be said to have • evidence as to the owner’s been carried out in a timely fashion. current intentions Hartlepool (Longscar Building, But there had been considerable • personal circumstances. The Front, Seaton Carew) investment in refurbishing the interior CPO 2015 of the property and this demonstrated ln turn, it is incumbent upon an acquiring commitment on the objector’s part authority to demonstrate: Another case in which family relations to make the house habitable. were at the fore was The Council of the • the harm that will arise or persist if the Borough of Hartlepool (Longscar The Inspector was critical of the order is not confirmed Building, The Front, Seaton Carew) shortage of information about the status • what alternative steps it has Compulsory Purchase Order 2015 - of the Council’s housing policies noting considered or taken to achieve its a Planning CPO determined by DCLG that paragraph 76 of the Guidance desired objective (and hence show letter of October 2016 following a made it clear that the Secretary of State that only compulsory acquisition will public inquiry. can be expected to consider “whether do so) the purpose for which the land is being Background acquired fits in with the adopted local • how it has negotiated with the The Longscar Building is on the seafront plan for the area or, where no such up owner to acquire by agreement at Seaton Carew. It is of 1960s heritage and was owned by owners. In 2015, to date local plan exists, with the draft • that it has complied with all other Longsco Limited was granted an local plan and the NPPF”. The acquiring requirements of Guidance. authority’s submission fell short of the unregistered tenancy of the building for necessary level of reasoned justification If the effect of instigating the compulsory a period of 25 years. The directors of to show that there is a compelling case purchase process is to encourage the Longsco were the owners’ sons and for compulsory acquisition in the context owner of the property to begin to take it was Longsco Limited that objected of planning policy. steps of renovation or improvement and to the order.

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Council case amenities, space and facilities for claimed was unreliable. The proposals The Council’s case was that the residents and visitors; and support the would also be in breach of a restrictive Longscar Building was in a poor visual economic vibrancy of the area. covenant that restricted the use of the and physical state and had been building to, in short, leisure uses. substantially vacant for over ten years. It Planning Permission had a strong negative impact upon the Planning permission for the Council’s Harm to Conservation Area amenity of the seafront at Seaton Carew, scheme had been granted in November Furthermore the objector’s position exacerbated by the building’s condition. 2015 for development that Historic was that the building either does not In any event its design, mass, footprint, England described as creating “huge harm its surroundings, including the scale, materials and location all public benefits”. In addition, there were Conservation Area, or actually does or contributed to an adverse impact upon funding mechanisms in place to deliver could enhance the area. The Council the visual and other amenity of the sea the removal of the Longscar Building. considered that even if the building were to be brought back into use, its front and of the adjacent Seaton Carew Efforts to acquire Conservation Area. The Conservation use would still cause sufficient harm to The Council had made extensive the need to redevelop and regenerate Area was identified as being “at risk” attempts to acquire the Longscar and Historic England supported the Seaton Carew that the CPO would Building by consent. It had not proved be justified. Council’s proposed acquisition of the easy to engage with the owners. They Longscar Building. had been reluctant to give addresses for Objector’s case Regeneration programme communication and correspondence. The objector’s case was that it, Longsco The Council proposed a scheme of It had not always been clear who had Limited, was now in a position to improvements to the sea front area of been speaking on whose behalf and the refurnish and bring the Longscar which the Longscar Building was a part. Council had on occasion been asked to Building back into active use. The family Those improvements were, in turn, part contact agents only to find that they dispute that had resulted in the building of a programme of the regeneration of possessed no instructions. That said, being inactive had been overcome. Seaton Carew designed to improve the negotiations had taken place and Evidence had been given at the inquiry tourist offer and the attraction of the continued. The Council had made that in the event of the order not being settlement. The Longscar Building would formal offers to acquire the land since confirmed the objector “will pursue a be demolished and replaced with an 2011. The Council remained willing to planning application which will be open, landscaped area that would be negotiate, but the parties were poles implemented within a proposed used for open-air markets and as an apart on valuation. That was the timescale of less than 16 months”. events space. When not in use for those principal reason why voluntary acquisition had not been achieved. Masterplan - SPD purposes, it would be an enhanced The content of the SPD was criticised. public realm. A second phase of new Objector’s proposals Guidance emphasised the importance play facilities would follow. The objector’s contention was that the of conformity with the local plan. For a building could be refurbished and document to be a properly constituted The delivery of the demolition and re-opened for leisure uses. However the SPD required it to be supplemental to redevelopment of the Longscar Building Council considered that the objector’s and not in contradiction with adopted was critical to the regeneration of the most recent potential proposals were development plan policy. The SPD in so seafront and the proposed removal of but the latest of various and inconsistent far as it supported the removal of the the building enjoyed public support, schemes, none of which had come to Longscar Building went beyond what given longstanding public concern anything beyond an initial ‘pitch’ to the was permitted in the local plan. Sections about its continued presence. Council or initial drawings as a “fishing of the Masterplan created new policy The scheme accorded with the expedition”. There was no robust unsupported by the local plan. development plan when taken as a evidence to show that the objector Furthermore, the local plan supported whole. It also accorded with the Seaton had any settled intention or ability to the refurbishment proposals and not the Carew Masterplan that has been secure the refurbishment of the building Council’s proposed acquisition and consulted upon and adopted as a nor was there reason to conclude that demolition. the past impediments to bringing supplementary planning document. Character of existing building The Masterplan was amended after the building back into use had been overcome. A building of the mass and scale of the consultation but before its adoption in Longscar Building had existed since the order to strengthen the references to The objector’s proposals were not 1960s. Works to the building had been the need to remove the Longscar costed or demonstrably viable and considered acceptable in the context of Building. The SPD was part of an would require planning permission, the adjoining Conservation Area. The overarching regeneration strategy for for which no application had been building was not in the Conservation Seaton Carew to develop a clean, family made and permission might not be Area but was within its setting. It was not friendly environment; enhance public forthcoming. Furthermore, the funding a modern building but was of its time and is part of the character and context of the area.

24 Compulsory purchase order: 2017 update womblebonddickinson.com Openness Impact on heritage there was little justification for leaving Creating openness where it does not In terms of impact upon heritage the the building substantially vacant and exist was not itself an appropriate Inspector concluded that the Longscar neglected for a decade. He noted that design objective. In any event the Building is “of an entirely different “having regard to the sensitivity of this surrounding area was already open. design, size and materials which does location, and evidence of the fragile The effect of increased openness would not complement the surrounding state of the seaside economy, there merely serve to expose the backs of a architecture; and which divides part of is a case for public intervention to neighbouring terrace of properties that it the old town from the Seafront”. solve the problem”. was generally acknowledged had an However, discordant buildings affected adverse impact. many heritage items and it would be Objector’s proposals unusual to seek their removal and The question therefore to be addressed There was no evidence advanced of replacement with open space in any but was whether the objector’s current equivalent schemes or examples in the most compelling circumstances. proposals to refurbish and re-use the which the mass and scale of an existing Such circumstances did not exist in this property were realistic. The Inspector building outside a Conservation Area case. Other buildings in the noted that “there is scope for some had been such as to justify its removal Conservation Area had horizontal scepticism about the capacity of and clearance in order to generate emphasis and there was merit in the Longsco Limited to undertake the work. Conservation Area benefits. objector’s case that removal of the The company has no track record, and any indications of financial support Alternative Longscar Building would expose the relatively poor aspect of the car park appear to rely on cooperation within the The demolition of the Longscar building family, which, as demonstrated, has was not the only means of achieving and rear of shops. The evidence falls short of providing that any harm caused been subject to internal disputes. There tourism benefits contrary to the are also doubts about whether the Council’s proposals. The Longscar by the building is so great as to justify its removal, as opposed to renovation. proffered expressions of interest in the Building was not “redundant resort refurbished premises would be likely to infrastructure” as claimed. The evidence Failure to investigate alternatives result in firm tenancies.” of economic, social and environmental As regarded the Council’s Masterplan benefits was not compelling and was proposals there was no indication of the Moreover, “the Council point out that no not specific to the Council’s scheme. investigation of alternative schemes that planning applications have been made would not require acquisition of order for the renovated building, and there are The claimed public support for the land. It may well be that the location concerns about whether any residential Council’s proposals resulted from a of order land would be best positioned accommodation proposed would be conflation of concerns about its for the market and events space, but capable of providing satisfactory condition and disuse and the no evidence that an alternative location amenity, or would overcome restrictive requirement that it be removed. would be so inferior as to prevent the covenants on the title. Above all, there is One could address its poor condition Council’s objectives being realised. no clear reason why, if there were a without resorting to demolition. realistic means of resolving the Viability The Masterplan and attendant planning problems posed by the building, Even on the Council’s evidence the permission are not of themselves effective action has not been taken at objector’s scheme was viable, albeit conclusive evidence of the need to an earlier date”. marginally so. acquire the land. The Council’s redevelopment proposals did not Nonetheless the Inspector gave credit Inspector’s conclusions provide adequate support for the case. to the directors of Longsco who “have The Inspector’s conclusion focused on experience of building projects and three strands of the Council’s case: There was reason to consider that running leisure businesses, and … the compulsory purchase was needed to recent repair of the roof and removal of • Concern about longstanding resolve the harmful effect of the poor unsightly outbuildings is an indication of dereliction and disuse of the building. condition of the property. It was a large some financial commitment”. • Effect on society, economic, site in a prominent location and “public environmental quality of area. responses to the Masterplan reinforces the view that it has had a seriously • A more fundamental point that the depressive effect on the town”. Indeed building was inappropriate for its “the combination of disuse and partial location, because it is an impediment dereliction would have undermined any to proper redevelopment of the attempt to improve the local seafront as set out in Masterplan and environment and promote the town its effect on the Conservation Area. as an attractive tourist venue”. The Inspector acknowledged that

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Viability evidence Inspector’s report The Council had provided evidence of The London Borough of In her report the Inspector the marginal financial viability of the Southwark (Aylesbury Estate acknowledged that the proposed objector’s scheme but the Inspector Site 1B-1C) CPO 2014 scheme would deliver a range of concluded that limited weight could be substantial benefits. It was in given to the Council’s cost estimates in is probably the single most high profile accordance with the local plan; it was the absence of a detailed survey and order in recent years. The Secretary viable and deliverable; there were no design. He concluded that the Council of State by decision letter dated 16 other means by which the Council’s did not prove that a positive financial September 2016 agreed with the regeneration objectives could readily be return would be so unlikely as to Inspector’s recommendation and achieved; it would deliver significant prevent the project from proceeding. decided not to confirm this Planning economic benefits and some social The Inspector also commented that it CPO. Subsequently that decision was benefits; the scheme contained robust was credible that the Council have been subject to a judicial review brought by and substantial buildings that would committed to the Masterplan project Southwark LBC. As at the date of this result in a more varied townscape; and have been reluctant to enter report, that decision had been quashed and a more permeable and user positive discussions as to deliver a by consent and a new public inquiry is friendly environment. refurbished building. due to take place in early 2018. Disbenefits for leaseholders Benefit of doubt Background But the Inspector and Secretary The matter was “finely balanced”, The Aylesbury Estate in Southwark was of State turned their attention to the but the Inspector concluded that constructed between the mid-Sixties “considerable economic and social the “benefit of doubt” should be and mid-Seventies and was originally dis-benefits in terms of consequences with the objector. home to some 7,500 residents. It was for leaseholders remaining on the widely acknowledged as suffering from order land”. There were shortfalls The Longscar case emphasises both high levels of social and economic in environmental standards in respect of that the Secretary of State’s policy is to deprivation and from 2001 onwards some individual flats and communal areas. assess an order against the planning regeneration proposals, including framework and the preparedness to demolition, had been advanced. Public Sector Equality Duty give owners the opportunity to deliver More critically however, it was a scheme. Even though planning Council’s case concluded that Southwark had not taken permission was in place and The 2010 Aylesbury Area Action reasonable steps to negotiate with deliverability of the Council’s scheme Plan envisaged phased regeneration, homeowners and acquire interests by had been demonstrated the Secretary comprising an overall proposal of some agreement and the PSED had not been of State was not satisfied that this itself 4,000 new homes over 20 years, and complied with – there would be demonstrated need for the scheme, per by 2013 two CPOs for land in Phase 1 significant impacts on protected groups se. Indeed the Inspector clearly did not had already been confirmed and the if the CPO were confirmed. In respect of share the view of the Council, Historic first new homes were ready for the PSED it should be noted that the England and a substantial body of local occupation. Secretary of State disagreed with the opinion of the adverse effect that the Inspector’s findings who had concluded In June 2014 the London Borough of building had on the locale. that there was no breach of PSED. Southwark made the third of its Phase 1 Particularly where matters are “finely CPOs comprising two parcels of land, The Secretary of State gave balanced” the Secretary of State will the effect of which, if redeveloped, considerable weight to the difficulties look closely at an owner’s intention and would be to replace 556 homes with for remaining long-term residents who capacity to deliver an alternative 830 new ones. A public inquiry was held were facing a difficult choice between scheme. In this instance the owners in April and October 2015. In January remaining in the local area by means were accordingly given “the benefit of 2016 the Inspector recommended that of accepting the financial package on the doubt” to deliver their proposals. the CPO not be confirmed because it offer from the Council founded on either As at the time of finalising this report, would not fully achieve the social, shared ownership/shared equity or, however, it is understood that a planning economic and environmental well-being alternatively, considering relocation. application has yet to be submitted by benefits sought. The Secretary of State This was particularly problematical for the owners. accepted that view and determined that those residents who were of an age the order should not be confirmed. that meant they were unable to obtain Reasons for refusal: a mortgage. Consequently that would Matter was finely balanced but necessitate the use of their savings and benefit of the doubt was given to investments with the concomitant loss the objector

26 Compulsory purchase order: 2017 update womblebonddickinson.com of financial security. If they were to be • The perceived failure to negotiate compulsory purchase. There is balance able to remain in the immediate area was challenged. Very substantial to be struck between the effect of then residents were effectively reliant progress had been made to acquire acquisition on individual rights and the on the options offered by the Council. all necessary interest by agreement. wider public interest in the form of On the other hand moving away from The particular phase of the Estate regeneration or redevelopment. the area, often where they had spent originally comprised 566 dwellings much if not most of their lives, would and the time of the inquiry 16 units The Aylesbury Estate decision in its invariably have significant adverse were still occupied, reduced to 8 at combined reading of the PSED and consequences in terms of separation the time of the decision. Of those 8, human rights potentially opens the from family and friends. non-resident landlords owned 4. door to a much increased need to give weight to the personal circumstance The PSED requires a Council to give • The planning permission in place of individual residents and their due regard to the need to: authorised redevelopment of 830 current community life. At the same dwellings representing an increase time it appeared to decrease the weight • Eliminate unlawful discrimination, of 264. to be given to compensation and harassment and victimisation • Compensation had been offered in other benefits offered as part of the • Advance equality of opportunity accordance with statute. There was statutory Compensation Code by an between persons who share a concern that the Secretary of State’s acquiring authority. protected characteristic and persons approach amounted to a novel, who do not share it broader policy test regarding the Indeed compensation was adequacy of compensation. considered to be insufficient and • Foster good relations between compulsory acquisition unjustified if, persons who share a relevant • The Secretary of State’s approach notwithstanding compliance with the protected characteristic and persons to interference with human rights statutory regime, residents’ financial who do not share it. represented a departure from the security was compromised. established approach that awards The Secretary of State concluded that: of compensation ensured that a fair The Aylesbury Estate decision did not he did not consider that the Council had balance was struck between public appear from a blue sky. Similar issues taken reasonable steps to acquire land and private interest. in the sense of a more intensive focus interests by agreement. In addition “the • The Secretary of State’s approach to on the impact upon current occupiers proposed purpose of the order will have well-being appeared to focus on the of land had been raised in Hammersmith considerable economic and social effect on individuals rather than on the and Fulham’s Shepherd’s Bush market dis-benefits in terms of consequences area per se. CPO case. In that case the Inspector for those leaseholders remaining…” recommended that the CPO not be • There was a contradiction between confirmed, considering that the scheme Additional comments by the the Inspector’s finding that there was Secretary of State may meet well-being tests, but only if no breach of PSED and Secretary of essential ingredients and the unique Unusually the decision not to confirm State finding of a significant negative was tempered by the further comments character of the market were preserved. impact on protected groups if the He took the view that “the personal that “the Secretary of State in principle CPO was confirmed. welcomes regeneration and much losses and widespread interference needed residential development. He Southwark LBC therefore sought to with private interests arising from also considers that the Council’s desired judicially review the Secretary of State’s confirmation of the order cannot be outcome could, in principle, bring with it decision. Its application was initially justified” and the “number, mix and considerable benefits. He considers that refused permission by Mr J Dove, but diversity of traders” was “vital to the potentially there is a good opportunity was subsequently granted permission distinctiveness of the market and for the Council to work positively with by Mr J Collins. Goldhawk Road shops”. the remaining leaseholders to alleviate the negative aspects he has highlighted Unsurprisingly this decision has given Reasons for refusal: above; with a view to resubmitting an rise to extensive comment. Not complying with public order in due course to achieve sector equality duty, CPO The need to have regard to the ECHR successfully the objectives set out in the would cause significant impact and in particular Article 8 (right to private planning framework”. on protected groups and family life) and Article 1 of the First Southwark’s response Protocol (right to peaceful enjoyment This report was prepared by Frank Orr with assistance In response to the Secretary of State’s of possessions) are well established as from Jonathan Bower, Antonia Murillo, Kate Ashworth, conclusion Southwark raised a number part of the matrix of factors to be taken Rachel Sykes and Aphrodite Christodoulou. of points. into account in the context of

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Appendices

The London Borough of Southwark The Wigan Borough Council (96 Appendix A (Aylesbury Estate Site 1B-1C) compulsory Highfield Grange Avenue, Wigan) Compulsory purchase orders purchase order 2014 (DCLG decision compulsory purchase order 2015 2015 – 2016 letter 16 September 2016) (Inspector (DGLG letter 8 December 2015) Lesley Coffey BA (Hons) BTP MRTPI The Derby City Council (3 Crompton (i) Compulsory purchase orders The Council of the Borough of Street) compulsory purchase order – not confirmed Hartlepool (Longscar Building, the Front, 2015 (DCLG letter 11 February 2016) Seaton Carew) compulsory purchase S17 Housing Act 1985 order 2015 (DGLG decision letter 13 The Swindon Borough Council The East Riding of Yorkshire (8 Cave October 2016) (Inspector John Chase (1 Exe Close, Swindon) compulsory Road, Brough) compulsory purchase MCD Dip Arch RIBA MRTPI) purchase order 2014 (DCLG letter order 2014 (DCLG decision letter 13 17 February 2016) March 2015) (Inspector Philip Major BA (ii) Compulsory purchase orders The Wigan Borough Council (23 (Hons) DipTP MRTPI) – withdrawn Wardley Street, Wigan ) compulsory The East Riding of Yorkshire Council (341 purchase order 2016 (DCLG letter 5 S17 Housing Act 1985 Boothferry Road, Hessle) compulsory December 2016) The Borough Council of Wellingborough purchase order 2015 (DCLG decision (6 New Street) compulsory purchase The Bedford Borough Council letter 17 February 2016) (DCLG decision) order 2013 (DCLG letter 12 January 2015) (23A St Michael’s Road) compulsory The Cheshire West and Chester purchase order 2015 (DCLG letter The Leicester City Council (32 Gospall Borough Council (450 Sutton Way, Great 24 November 2016) Street) compulsory purchase order 2015 Sutton, Ellesmere Port, Cheshire CH66 (DCLG letter 22 October 2015) Planning 4RL0 compulsory purchase order 2015 The North Kesteven District Council (DCLG decision letter 25 April 2016) The Wigan Borough Council (Highfield (South East Sleaford Regeneration Route, (Inspector Keith Manning BSc (Hons) Avenue, Golbourne ) compulsory Sleaford) compulsory purchase order BTP MRTPI) purchase order 2013 (DCLG letter 25 2014 (DCLG decision 27 March 2015) February 2015) The London Borough of Haringey (39 The London Borough of Ealing Broad Lane N15 4DJ) compulsory The Wigan Borough Council (Ellesmere (Havelock Estate Southall UB2) purchase order 2015 (DCLG decision Street, Astley, Tyldesley) compulsory compulsory purchase order 2014 letter 5 May 2016) (Inspector Clive purchase order 2013 (DCLG letter 25 (DCLG letter 14 May 2015) Hughes BA(Hons) MA DMS MRTPI) February 2015) The Cheshire East Borough S226(1)(a) Town and Country Planning The Wigan Borough Council (10 St Act 1990 Council (Churchill Way, Macclesfield) Stephens Avenue Wigan ) compulsory The Liverpool City Council (Welsh compulsory purchase order 2014 purchase order 2013 (DCLG letter 15 Streets Phases 1 and 2) compulsory (DCLG letter 8 July 2015) July 2015) purchase order 2013 (DCLG decision The Borough of Rochdale (Site 219-233 letter 15 January 2015) The Council of the Borough of Entwisle Road and adjoining land, Hartlepool (19/21 Tankerville Street, The Stroud District Council (Stroudwater Rochdale) compulsory purchase order Hartlepool) compulsory purchase order Navigation and Thames and Severn 2014 (DCLG letter 24 July 2015) 2014 (DCLG letter 29 July 2015) Canal) (no12) (Lodgemore Bridge) The Hastings Borough Council (26 North compulsory purchase order 2015 The Wigan Borough Council (395 Street, St Leonards on Sea) compulsory (decision letter 29 April 2016) Manchester Road, Astley, Wigan) purchase order 2015 (DCLG letter 3 (Inspector GD Jones BSc (Hons) compulsory purchase order 2014 August 2015) DMS DipTP MRTPI) (DCLG letter 28 August 2015) The Great Yarmouth Borough Council The Hastings Borough Council (55 The London Borough of Barnet (56 (Millora Works, Admiralty Road) Victoria Avenue) compulsory purchase Bedford Avenue, Barnet, Hertfordshire, compulsory purchase order 2015 order 2014 (DCLG decision letter 25 May EN5 2ER) compulsory purchase order (DCLG letter 1 September 2016) 2016) (Written representations) (Inspector 2014 (4 December 2015) John Chase MCD DipArch RIBA MRTPI) The Devon County Council (Trinity School, Exeter) compulsory purchase order 2016 (DCLG letter 6 December 2016)

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(d) acquire land in order to carry out Appendix B Appendix C on it works for the purpose of, or connected with, the alteration, Section 226(1)(a) and (1A) Town Section 215 Town and enlarging, repair or improvement and Country Planning Act 1990 Country Planning Act 1990 - of an adjoining house. - compulsory acquisition of land Power to require proper (2) The power conferred by subsection for development and other maintenance of land (1) includes power to acquire land for planning purposes (1) If it appears to the local planning the purpose of disposing of houses provided, or to be provided, on the (1) A local authority to whom this authority that the amenity of a part of land or of disposing of the land to a section applies shall, on being their area, or of an adjoining area, is person who intends to provide authorised to do so by the Secretary adversely affected by the condition housing accommodation on it [or of State, have power to acquire of land in their area, they may serve facilities which serve a beneficial compulsorily any land in their area— on the owner and occupier of the land a notice under this section. purpose in connection with the (a) if the authority think that the requirements of persons for whom acquisition will facilitate the (2) The notice shall require such steps housing accommodation is carrying out of development, for remedying the condition of the provided]. re-development or improvement land as may be specified in the (3) Land may be acquired by a local on or in relation to the land, or notice to be taken within such period as may be so specified. housing authority for the purposes (b) which is required for a purpose of this Part by agreement, or they which it is necessary to achieve (3) Subject to the following provisions may be authorised by the Secretary in the interests of the proper of this Chapter, the notice shall take of State to acquire it compulsorily. planning of an area in which the effect at the end of such period as land is situated. may be specified in the notice. (4) A local housing authority may, with the consent of, and subject to any (1A) But a local authority must not (4) That period shall not be less than 28 conditions imposed by, the exercise the power under paragraph days after the service of the notice. Secretary of State, acquire land for (a) of subsection (1) unless they think the purposes of this Part that the development, notwithstanding that the land is not re-development or improvement Appendix D immediately required for those is likely to contribute to the purposes; but an authority shall not achievement of any one or more Section 17 Housing Act be so authorised to acquire land of the following objects— 1985 - Acquisition of land compulsorily unless it appears to the for housing purposes Secretary of State that the land is (a) the promotion or improvement likely to be required for those of the economic well-being of (1) A local housing authority may for the purposes within ten years from the their area; purposes of this Part— date on which he confirms the (b) the promotion or improvement of compulsory purchase order. the social well-being of their area; (a) acquire land as a site for the erection of houses (c) the promotion or improvement of the environmental well-being of (b) acquire houses, or buildings which their area. may be made suitable as houses, together with any land occupied with the houses or buildings

(c) acquire land proposed to be used for any purpose authorised by sections 11, 12 and 15(1) (facilities provided in connection with housing accommodation)

30 Compulsory purchase order: 2017 update womblebonddickinson.com 110. When is the acquisition of However, the Secretary of State would Appendix E empty properties for housing not expect an owner-occupied house, use justified? other than a house in multiple Extracts from Department occupation, to be included in a Compulsory purchase of empty for Communities and Local compulsory purchase order unless the properties may be justified as a last defects in the property adversely affect Government Guidance on resort in situations where there other housing accommodation. Compulsory Purchase process appears to be no other prospect of and the Crichel Down Rules a suitable property being brought In considering whether to confirm such for the disposal of surplus land back into residential use. Authorities a compulsory purchase order the acquired by, or under threat will first wish to encourage the Secretary of State will wish to know: owner to restore the property to full of, compulsion (October 2015) occupation. However, cases may (1) what the alleged defects in the 76. What factors will the Secretary of arise where the owner cannot be order property are; State take into account in deciding traced and therefore use of whether to confirm an order under compulsory purchase powers may (2) what other steps the authority has section 226(1)(a)? be the only way forward. taken to remedy matters and the outcome; Any decision about whether to When considering whether to confirm an order made under confirm such an order the Secretary (3) the extent and nature of any works section 226(1)(a) will be made on its of State will normally wish to know: carried out by the owner to secure own merits, but the factors which the the improvement and repair of Secretary of State can be expected (1) how long the property has the property; to consider include: been vacant (4) the Secretary of State will also (1) whether the purpose for which (2) what steps the authority has wish to know the authority’s the land is being acquired fits in taken to encourage the owner to proposals regarding any existing with the adopted Local Plan for the bring it into acceptable use and tenants of the property. area or, where no such up to date the outcome Local Plan exists, with the draft Local Plan and the National Planning (3) what works have been carried Appendix F Policy Framework out by the owner towards its reuse for housing purposes. Extracts from National Planning (2) the extent to which the Policy Framework proposed purpose will contribute 111. When is the acquisition of substandard properties justified? to the achievement of the promotion 51. Local planning authorities should or improvement of the economic, Compulsory purchase of identify and bring back into social and environmental wellbeing substandard properties may residential use empty housing and of the area be justified as a last resort in buildings in line with local housing cases where: and empty homes strategies and, (3) where the purpose for which the where appropriate, acquire acquiring authority is proposing to (1) a clear housing gain will properties under compulsory acquire the land could be achieved be obtained purchase powers. They should by other means. This may include normally approve planning considering the appropriateness (2) the owner of the property has applications for change to residential of any alternative proposals put failed to maintain it or bring it to use and any associated development forward by the owners of the land, an acceptable standard from commercial buildings (currently or any other persons, for its reuse. in the B use classes) where there is It may also involve examining the (3) other statutory measures, such an identified need for additional suitability of any alternative locations as the service of statutory housing in that area, provided that for the purpose for which the land is notices, have not achieved the there are not strong economic being acquired. authority’s objective of securing reasons why such development the provision of acceptable would be inappropriate. housing accommodation.

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58. Local and neighbourhood plans We are further supporting local should develop robust and Appendix G authorities to take a lead. Under the new comprehensive policies that set out homes bonus, local authorities now earn the quality of development that will Ministerial Statement a financial reward for bringing a long- be expected for the area. Such 10 May 2013 term empty home back into use. To date policies should be based on stated this has provided an income to councils objectives for the future of the area The Minister for Housing (Mr Mark of £63 million for 55,000 homes brought and an understanding and evaluation Prisk): The coalition agreement outlined back into use. of its defining characteristics. Planning this Government’s commitment to policies and decisions should aim to introduce a range of measures to get Our reforms on council tax flexibilities ensure that developments: empty homes back into use, reflecting and the new empty homes premium now the general election manifesto pledges allow councils to remove the special tax • will function well and add to the of both coalition parties. We want to subsidies being given to empty homes overall quality of the area, not just for increase housing supply, remove the and instead use the funding to keep the the short term but over the lifetime blight that rundown vacant properties overall rate of council tax down and of the development cause and help support local economic support front-line services. growth from refurbishment and • establish a strong sense of place, improvements. I would like to update the My Department’s refurbishment schemes using streetscapes and buildings House on the steps we have taken. are also assisting the improvement of to create attractive and comfortable social housing and getting empty homes places to live, work and visit As part of this commitment, we have back into use. During the current explicitly rejected the last Administration’s spending review period, the Government • optimise the potential of the site to top-down, large-scale Whitehall targets have allocated £1.6 billion to the decent accommodate development, create for demolition and clearance. The homes backlog programme to provide a and sustain an appropriate mix of obsession with demolition over grant to local authorities to support them uses (including incorporation of green refurbishment was both economically in bringing 127,000 poor quality council and other public space as part of and environmentally wasteful, as well as homes up to the decent homes standard developments) and support local involving significant damage of our by April 2015. facilities and transport networks nation’s heritage. By contrast: In addition, following a number of • respond to local character and The Government have committed £160 large-scale voluntary transfers, the history, and reflect the identity of million to bring empty homes back into Government have made gap funding local surroundings and materials, use. Some £100 million of this funding is grants to private registered providers to while not preventing or discouraging being paid directly to local authorities, enable stock to be brought up to decent appropriate innovation registered housing providers and homes standard. The total amount of gap community groups to bring around 7,600 funding will be £500 million during the • create safe and accessible empty homes back into use as affordable current spending review. It is currently environments where crime and housing. £60 million is being allocated to expected that gap funding outside disorder, and the fear of crime, 20 partnerships which suffer from London will contribute to making 43,500 do not undermine quality of life significant clusters of empty homes which homes decent between 2011 and 2015 or community cohesion have good market prospects but require (we do not have comparable figures for • are visually attractive as a an intensive approach to return them to a London). result of good architecture and liveable standard. This will produce a By the end of April 2015, 18,500 appropriate landscaping. further 3,600 homes, resulting in a combined total of over 11,000 empty homes will have been renovated homes being brought back into use through housing private finance by March 2015. initiative schemes.

In November, we launched a second As outlined in the written ministerial bidding round to bring up to a further statement of 9 May 2013, Official Report, 5,000 empty homes back into use using column 4WS, we have introduced a a further £75 million of funding, with a series of planning reforms to facilitate particular emphasis on refurbishing change of use; this includes making it former commercial and high street easier to convert empty offices into properties. Combined with existing homes. Further changes will be empty homes commitments, this funding implemented to help convert redundant will take our overall target to over 15,000 agricultural buildings into new homes. empty properties being brought back into use as housing by March 2015.

32 Compulsory purchase order: 2017 update womblebonddickinson.com Our new community right to reclaim land (c) encourage persons who will help communities to improve their Appendix H share a relevant protected local area by making information about characteristic to participate land and empty properties owned by Human Rights and Equality in public life or in any other public bodies more easily available. It will activity in which participation 1. Section 149 – The Equality Act also help to ensure that underused or 2010 - Public Sector Equality Duty by such persons is unused land and buildings owned by disproportionately low. public bodies can be brought back into (1) A public authority must, in the beneficial use. exercise of its functions, have (4) The steps involved in meeting due regard to the need to— the needs of disabled persons The last Administration’s programme that are different from the needs created large-scale Whitehall targets for (a) eliminate discrimination, of persons who are not disabled demolition and clearance across the harassment, victimisation and include, in particular, steps to midlands and the north of England. The any other conduct that is take account of disabled National Audit Office previously prohibited by or under this Act persons’ disabilities. estimated that there were plans for a total of 57,100 properties to be demolished (b) advance equality of (5) Having due regard to the need under the scheme. This Government opportunity between persons to foster good relations between have cancelled the pathfinder who share a relevant persons who share a relevant programme. protected characteristic and protected characteristic and persons who do not share it persons who do not share it Last year, SAVE Britain’s Heritage involves having due regard, challenged the Government’s decision to (c) foster good relations between in particular, to the need to— award transition funding, to help councils persons who share a relevant exit the pathfinder scheme; in doing so, protected characteristic and (a) tackle prejudice we needed to balance ending the persons who do not share it. (b) promote understanding. scheme with not leaving councils in the lurch with unfinished building sites. We (2) A person who is not a public authority but who exercises public (6) Compliance with the duties in have now agreed terms with SAVE to this section may involve treating settle that case. Local authorities are now functions must, in the exercise of those functions, have due regard some persons more favourably working to align their regeneration than others; but that is not to be priorities more closely to refurbishment. to the matters mentioned in subsection (1). taken as permitting conduct that Liverpool remain committed to would otherwise be prohibited refurbishing 40 houses on the Welsh (3) Having due regard to the need to by or under this Act. Streets, including the former home of advance equality of opportunity Ringo Starr, with strong community between persons who share a (7) The relevant protected involvement and all local authorities that relevant protected characteristic characteristics are— received transitional funding will now and persons who do not share it (a) age undertake the refurbishment of over involves having due regard, in 2,000 empty houses. particular, to the need to— (b) disability We are reviewing what further steps can (a) remove or minimise (c) gender reassignment be taken to end the bias for demolition in disadvantages suffered by the state sector. This will include revising persons who share a relevant (d) pregnancy and maternity out-dated Office of the Deputy Prime protected characteristic that Minister guidance, stating in housing fund are connected to that (e) race bidding documents that demolitions are characteristic not appropriate, and working with our (f) religion or belief independent adviser George Clarke to (b) take steps to meet the (g) sex take forward his best practice needs of persons who share a recommendations on empty homes. relevant protected (h) sexual orientation. characteristic that are different The number of long-term empty homes from the needs of persons has already fallen by 20,000 between who do not share it 2011 and 2012 and by over 40,800 since 2010. Ministers will keep the House updated with progress.

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(8) A reference to conduct that is 3. Extracts from Circular (iv) a statement of the authority’s prohibited by or under this Act 06/2004 Compulsory Purchase justification for compulsory includes a reference to— and the Crichel Down Rules purchase, including reference to (now withdrawn) how regard has been given to (a) a breach of an equality the provisions of Article 1 of the clause or rule Paragraph 17 A compulsory purchase order should only be First Protocol to the European Convention on Human rights, (b) a breach of a non- made where there is a compelling and Article 8 if appropriate (see discrimination rule. case in the public interest. An acquiring authority should be sure paragraphs 16-18 of this Part)….. (9) Schedule 18 (exceptions) that the purposes for which it is 4. Guidance on Compulsory has effect. making a compulsory purchase Purchase process and the order sufficiently justify interfering Crichel Down Rules for the 2. European Convention on with the human rights of those with disposal of surplus land acquired Human Rights Article 8 Right to by, or under threat of, compulsion respect for private and family life an interest in the land affected. Regard should be had, in particular, (October 2015) (1) Everyone has the right to respect to the provisions of Article 1 of the 2. When should compulsory for his private and family life, his First Protocol to the European purchase powers be used? home and his correspondence. Convention on Human Rights and, in the case of a dwelling, Article 8 of Acquiring authorities should use (2) There shall be no interference by the Convention. compulsory purchase powers a public authority with the where it is expedient to do so. exercise of this right except such Paragraph 19 If an acquiring However, a compulsory purchase as is in accordance with the law authority does not have a clear idea order should only be made where and is necessary in a democratic of how it intends to use the land there is a compelling case in the society in the interests of national which it is proposing to acquire, and public interest. security, public safety or the cannot show that all the necessary economic well-being of the resources are likely to be available The confirming authority will country, for the prevention of to achieve that end within a expect the acquiring authority to disorder or crime, for the reasonable time-scale, it will be demonstrate that they have taken protection of health or morals, difficult to show conclusively that the reasonable steps to acquire all of of for the protection of the rights compulsory acquisition of the land the land and rights included in the and freedoms of others. included in the order is justified in order by agreement. Where the public interest, at any rate at the acquiring authorities decide to/ Article 1, First Protocol time of its making. Parliament has arrange to acquire land by Protection of property always taken the view that land agreements, they will pay Every natural or legal person is should only be taken compulsorily compensation as if it had been entitled to the peaceful enjoyment where there is clear evidence that compulsorily purchased, unless of his possessions. No one shall be the public benefit will outweigh the the land was already on offer on deprived of his possessions except private loss. The Human Rights Act the open market. in the public interest and subject to reinforces that basic requirement. the conditions provided for by law Compulsory purchase is intended and by the general principles of Appendix R – Preparing the as a last resort to secure the international law. Statement of Reasons. The assembly of all the land needed for statement of reasons should include the implementation of projects. The proceeding provisions shall not, the following (adapted and However, if an acquiring authority however, in any way impair the right supplemented as necessary waits for negotiations to break down of a State to enforce such laws as it according to the circumstances before starting the compulsory deems necessary to control the use of the particular order): …… purchase process, valuable time of property in accordance with the will be lost. Therefore, depending general interest or to secure the on when the land is required, it may payment of taxes or other often be sensible, given the amount contributions or penalties. of time required to complete the compulsory purchase process, for the acquiring authority to:

34 Compulsory purchase order: 2017 update womblebonddickinson.com (1) plan a compulsory purchase A compulsory purchase order timetable as a contingency should only be made where there Appendix I measure; and is a compelling case in the public interest. Regulation 8 Regulation 8 (2) initiate formal procedures Compulsory Purchase of Land An acquiring authority should be (Written Representations) This will also help to make the sure that the purposes for which the seriousness of the authority’s compulsory purchase order is made Regulations 2004 intentions clear from the outset, justify interfering with the human which in turn might encourage (1) The inspector may, at any rights of those with an interest in the time, make— those whose land is affected land affected. Particular consideration to enter more readily into should be given to the provisions of (a) an unaccompanied inspection meaningful negotiations. Article 1 of the First Protocol to the without giving prior notice to European Convention on Human When making and confirming an the acquiring authority or the Rights and, in the case of a dwelling, order, acquiring authorities and remaining objectors Article 8 of the Convention. authorising authorities should be (b) an inspection in the company sure that the purposes for which the 154. What information should of a representative of the compulsory purchase order is made be included in the statement acquiring authority and each of reasons? justify interfering with the human remaining objector rights of those with an interest in the The statement of land affected. The officers’ report of land which is the subject of the reasons should include seeking authorisation for the compulsory purchase order and the following information:…. compulsory purchase order should of the surrounding area. address human rights issues. Further (iv) a statement of the (2)  In the case of an inspection under guidance on human rights issues can authority’s justification for paragraph (1)(b), the authorising be found on the Equality and Human compulsory purchase, with authority shall send notification of Rights Commission’s website. regard to Article 1 of the the date and time of the inspection First Protocol to the 12. How does an acquiring to the acquiring authority if it is not European Convention on authority justify a compulsory the authorising authority and the purchase order? Human Rights, and Article remaining objectors not later than 8 if appropriate ….. It is the acquiring authority that five working days before that date. must decide how best to justify its (3) The inspector shall not be proposal to compulsorily acquire land bound to defer an inspection under a particular act. The acquiring under paragraph (1)(b) at the authority will need to be ready to time appointed. defend the proposal at any inquiry or through written representations (4) If a request for an inspection under and, if necessary, in the courts. paragraph (1)(b) is made by the acquiring authority or a remaining There are certain fundamental objector and is received by the principles that a confirming minister authorising authority not later than should consider when deciding ten working days after the starting whether or not to confirm a date, the authorising authority must compulsory purchase order arrange for such an inspection to (see How will the confirming take place. minister consider the acquiring authority’s justification for a compulsory purchase order?). Acquiring authorities may find it useful to take account of these in preparing their justification.



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Appendix J

Planning CPOs submitted 2015 and 2016 Housing CPOs submitted 2015 and 2016 by Acquiring Authority by Acquiring Authority

2015 2016 2015 2016 Barnet (x 2) Barnet Barnet Bedford Birmingham Barnsley (x 2) Bedford (x 5) Blaby Camden Bedford Blackburn with Darwen (x 2) Bradford Derby City Birmingham Bradford (x 4) Bristol Ealing (x 2) Blaby Burnley (x 10) Burnley (x 7) Eastbourne Bradford Bury Cannock Chase Great Yarmouth Brent Cheltenham Cheshire West Hartlepool Broadland East Riding of Yorkshire Derby City (x 2) Hastings (x 3) Cheshire East Fylde East Hertfordshire Hounslow (x 2) Ealing Hartlepool East Northamptonshire Hyndburn East Riding of Yorkshire Kingston upon Hull East Riding of Yorkshire (x 2) Manchester Enfield (x 3) Lichfield Ipswich Rochdale (x 5) Exeter (x 2) Plymouth Liverpool Ryedale (x 2) Haringey Redbridge Manchester Solihull King's Lynn Southwark North East Lincolnshire (x 2) Southwark Kirklees Stockport North Somerset St Helens Leicester Swindon Salford Staffordshire Moorlands Lincoln Tamworth Stoke on Trent Stockport Manchester Weymouth and Portland Tandridge Stroud Mid Sussex Wigan (x 5) Wigan (x 5) Wandsworth Newham Wolverhampton (x 2) Warrington Nottingham Wellingborough Pendle (x 2) West Lindsey Rother Wokingham Salford Worcestershire South Tyneside Southwark Stockton on Tees Tamworth Tandridge Three Rivers Tower Hamlets (x 2) Wigan Wirral

36 Compulsory purchase order: 2017 update womblebonddickinson.com Appendix K

Planning and Housing CPOs submitted 2003-2016 by Local Authorities listed by region East

Local Authority Planning CPOs Housing CPOs 1. Babergh 1 0 2. Bedford 3 11 3. Brentwood 0 1 4. Broadland 5 9 5. Cambridge 1 6 6. Central Bedfordshire 1 0 7. Chelmsford 1 0 8. Dacorum 1 0 9. Dover 0 0 10. East Hertfordshire 0 1 11. Epping Forest 0 1 12. Fenland 1 0 13. Great Yarmouth* 27 8 14. Ipswich 0 1 15. Kings Lynn 4 0 16. Luton UA 1 4 17. Norwich 1 0 18. Rochford 2 0 19. South Bedfordshire 1 0 20. South Norfolk 1 0 21. St Albans 0 1 22. St. Edmundsbury 1 0 23. Stevenage 1 1 24. Suffolk Coast 1 0 25. Tendring 0 3 26. Three Rivers 1 0 27. Thurrock 1 0 28. Uttlesford 0 1 29. Watford 4 6 30. Waveney 2 0 31. Welwyn Hatfield 1 0

*Great Yarmouth credited by (N)PCU with orders promoted on behalf of other authorities

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East Midlands

Local Authority Planning CPOs Housing CPOs 1. Amber Valley 0 1 2. Ashfield 0 3 3. Blaby 1 0 4. Bolsover 2 1 5. Charnwood 2 0 6. Corby 1 0 7. Daventry 2 0 8. Derby City UA 5 12 9. Derbyshire Co Co 2 0 10. Derbyshire Dales 0 1 11. East Lindsey 2 0 12. East Northamptonshire 0 1 13. Leicester City UA 5 36 14. Lincoln 6 0 15. Lincolnshire 1 0 16. Mansfield 5 0 17. Northampton 0 1 18. North East Derbyshire 1 0 19. North Kesteven 1 0 20. Nottingham UA 2 16 21. Peak National Park 1 0 22. South Northamptonshire 4 0 23. Wellingborough 5 6 24. West Lindsey 1 0

38 Compulsory purchase order: 2017 update womblebonddickinson.com London

Local Authority Planning CPOs Housing CPOs 1. Barking and Dagenham 8 6 2. Barnet 7 9 3. Basildon 1 0 4. Bexley 1 0 5. Brent 14 13 6. Bromley 1 1 7. Camden 3 1 8. City of Westminster 4 4 9. Croydon 5 1 10. Ealing 18 5 11. Enfield 9 16 12. Greenwich 5 2 13. Hackney 12 4 14. Hammersmith and Fulham 1 4 15. Haringey 2 4 16. Harrow 1 2 17. Havering 0 1 18. Hillingdon 1 0 19. Hounslow 9 3 20. Islington 1 1 21. Lambeth 1 14 22. Lewisham 3 6 23. Merton 0 1 24. Newham 11 79 25. Redbridge 1 1 26. Southwark 9 9 27. Sutton 2 7 28. Tower Hamlets 4 11 29. Waltham Forest 0 3 30. Wandsworth 7 8

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Noth East

Local Authority Planning CPOs Housing CPOs 1. Castle Morpeth 1 0 2. Derwentside 1 0 3. Easington 1 3 4. Gateshead UA 3 0 5. Hartlepool UA 6 3 6. Middlesbrough UA 5 1 7. Newcastle upon Tyne UA 12 2 8. North Tyneside UA 2 0 9. Redcar and Cleveland DC UA 1 0 10. Sedgefield 1 2 11. South Tyneside UA 4 0 12. Stockton-on-Tees UA 9 2 13. Sunderland UA 1 2

40 Compulsory purchase order: 2017 update womblebonddickinson.com North West

Local Authority Planning CPOs Housing CPOs 1. Allerdale 1 1 2. Barrow-in-Furness 2 2 3. Blackburn with Darwen BC 8 18 4. Bolton UA 0 3 5. Blackpool UA 3 3 6. Burnley 15 93 7. Bury UA 5 4 8. Cheshire East 2 0 9. Cheshire West 1 4 10. Chester 1 0 11. Chorley 0 1 12. Congleton 2 1 13. Fylde 0 1 14. Halton UA 1 0 15. Hyndburn 5 1 16. Lancashire CC 3 0 17. Lancaster 1 0 18. Liverpool 26 2 19. Manchester UA 18 21 20. Oldham UA 3 1 21. Pendle 6 4 22. Ribble Valley 0 2 23. Rochdale UA 12 9 24. Salford UA 13 23 25. Sefton UA 4 0 26. South Ribble 0 1 27. St Helens UA 1 9 28. Stockport UA 5 11 29. Tameside UA 7 16 30. Trafford UA 3 7 31. Warrington UA 2 1 32. Wigan UA 9 29 33. Wirral UA 3 2 34. Wyre 2 0

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South East

Local Authority Planning CPOs Housing CPOs 1. Arun 0 3 2. Buckinghamshire 1 0 3. Brighton and Hove UA 0 1 4. Canterbury 1 1 5. Cherwell 0 1 6. Dartford 2 0 7. East Sussex CC 2 0 8. Eastbourne 1 0 9. Guildford 2 0 10. Hastings 19 3 11. Horsham 1 0 12. Kent CC 6 0 13. Maidstone 4 0 14. Mid Sussex 2 0 15. Milton Keynes 0 2 16. Oxford 1 0 17. Portsmouth UA 1 0 18. Reading UA 6 0 19. Reigate and Banstead 2 0 20. Rother 2 1 21. Rotherham UA 1 0 22. Runnymede 0 2 23. Rushmoor 0 2 24. Slough UA 0 2 25. Southampton UA 6 1 26. Tandridge 1 2 27. Test Valley 1 0 28. Thanet 1 0 29. Tunbridge Wells 1 1 30. Waverley 2 0 31. West Berkshire DC UA 3 1 32. Winchester 1 1 33. Windsor and Maidenhead UA 2 0 34. Woking 0 2 35. Wokingham 1 0 36. Wycombe 2 0

42 Compulsory purchase order: 2017 update womblebonddickinson.com South West

Local Authority Planning CPOs Housing CPOs 1. Bath and North East Somerset UA 1 1 2. Bristol UA 7 19 3. Carrick 0 1 4. Cheltenham 1 1 5. Cornwall CC 2 0 6. Devon CC 3 0 7. East Devon 1 0 8. Exeter 4 0 9. Gloucester 2 1 10. Herefordshire 0 0 11. Herefordshire UA 1 1 12. Kennet 1 0 13. Mendip 1 0 14. North Somerset 0 1 15. Penwith 1 0 16. Plymouth 0 4 17. Plymouth UA 2 0 18. Restormel 1 0 19. South Hams 1 0 20. Stroud 1 0 21. Swindon BC UA 2 3 22. Taunton Deane 2 0 23. Teignbridge 6 0 24. Weymouth and Portland 0 2

womblebonddickinson.com Compulsory purchase order: 2017 update 43 Appendices continued

West Midlands

Local Authority Planning CPOs Housing CPOs 1. Birmingham 19 46 2. Cannock Chase 1 1 3. Coventry UA 4 1 4. Dudley UA 1 0 5. Herefordshire 1 0 6. Lichfield 1 1 7. Newcastle under Lyme 2 1 8. North Shropshire 1 1 9. North Warwickshire 1 0 10. Nuneaton and Bedworth 2 0 11. Oswetry 1 0 12. Redditch 0 0 13. Rugby 3 0 14. Sandwell UA 9 9 15. Shrewsbury and Atcham 3 0 16. Solihull UA 4 0 17. Stafford 3 0 18. Stoke-on-Trent UA 7 14 19. Stratford-on-Avon 2 0 20. Tamworth 1 1 21. Telford and the Wrekin DC UA 3 1 22. Walsall 0 1 23. Warwick 1 0 24. Warwickshire CC 2 0 25. West Midlands Region 1 1 26. Wolverhampton UA 9 34 27. Worcester 3 0 28. Wyehavon 1 0 29. Wyre Forest 3 1

44 Compulsory purchase order: 2017 update womblebonddickinson.com Yorkshire and Humberside

Local Authority Planning CPOs Housing CPOs 1. Barnsley 9 2 2. Calderdale UA 2 0 3. City of Bradford Metropolitan District 8 18 4. Doncaster UA 5 15 5. East Riding of Yorkshire UA 1 9 6. Hambleton 1 0 7. Harrogate DC 1 0 8. Kingston upon Hull UA 4 2 9. Kirklees UA 7 0 10. Leeds UA 7 8 11. North East Lincolnshire UA 1 9 12. North Lincolnshire 1 0 13. North Yorkshire Co Co 1 0 14. Rotherham UA 6 0 15. Ryedale 2 0 16. Sheffield UA 12 5 17. South Holland 2 0 18. Wakefield UA 2 0 19. York 0 0 © Copyright 2017 Womble Bond Dickinson (UK) LLP. All rights reserved.

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