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Towards a Compulsory Purchase Code: (2) Procedure

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Towards a Compulsory Purchase Code: (2) Procedure The Law Commission Consultation Paper No 169 TOWARDS A COMPULSORY PURCHASE CODE: (2) PROCEDURE A Consultative Report London: TSO The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman Professor Hugh Beale, QC Mr Stuart Bridge Professor Martin Partington, CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Consultative Report, completed on 18 November 2002, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultative Report before 18 February 2003. Comments may be sent either – By post to: Jonathan Teasdale Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1214 Fax: 020-7453-1297 By email to: [email protected] It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. It may be helpful, either in discussion with others concerned or in any subsequent recommendations, for the Law Commission to be able to refer to and attribute comments submitted in response to this Consultative Report. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The text of this Consultative Report is available on the Internet at: http://www.lawcom.gov.uk 93-244-05 THE LAW COMMISSION TOWARDS A COMPULSORY PURCHASE CODE: (2) PROCEDURE CONTENTS Paragraph Page PART I: INTRODUCTION 1 Terms of reference 1.1 1 Scope of the project 1.2 1 Government policy 1.4 2 CPPRAG Review 1.4 2 Law Commission Scoping Paper 1.7 2 The DTLR Policy Statement 1.8 3 ODPM Policy Response Document 1.11 3 Content of the Report 1.12 5 Omissions 1.20 6 Summary of Contents and Main Recommendations 1.34 10 PART II: THE EXISTING LAW 15 Introduction 2.1 15 The Law Today 2.2 15 Sources of the current law 2.4 15 (1) Powers of compulsory purchase 2.5 16 (2) Making and authorisation 2.8 16 (3) Implementation 2.10 18 (4) Determination of compensation 2.13 19 (5) Compensation rules 2.14 20 PART III: GENERAL ISSUES 21 Introduction 3.1 21 (1) Application of the Procedural Statutes 3.3 21 (2) Basic Definitions 3.7 22 (3) Service of Documents 3.13 24 Proposal 1 – Service of documents 3.24 28 Consultation issue (A) – Service of documents 3.24 28 iii Paragraph Page (4) Entry for survey 3.25 28 Consultation issue (B) – Entry for survey 3.28 29 PART IV: AUTHORISATION OF COMPULSORY PURCHASE 30 Introduction 4.1 30 (1) Ministerial and non-Ministerial orders 4.3 30 Consultation issue (C) – Ministerial and non-Ministerial orders 4.5 31 (2) Making and Confirming 4.6 31 Existing law 4.6 31 Government proposals 4.7 33 Proposal 2 – Statutory objector 4.8 34 Service of notices 4.9 34 Confirmation of unopposed orders 4.12 34 Confirmation in stages 4.14 35 Conclusion on authorisation procedure 4.15 35 Consultation issue (D) – Making and confirming 4.15 36 (3) Legal Challenge 4.16 36 Who may make the challenge? 4.18 36 What can be challenged? 4.21 37 Powers of the Court 4.23 38 Proposal 3 – Legal challenge 4.24 39 Consultation issue (E) – Legal challenge 4.24 39 PART V: IMPLEMENTATION PROCEDURES 40 Introduction 5.1 40 (1) Alternative Procedures 5.4 40 Proposal 4 – Alternative procedures 5.5 42 Consultation issue (F) – Alternative procedures 5.5 42 (2) Time Limits 5.6 42 Notice to treat procedure 5.6 42 Vesting declaration procedure 5.9 43 Reform proposals 5.12 43 Proposal 5 – Time limits 5.15 45 Consultation issue (G) – Time limits 5.15 46 (3) Notice to Treat Procedure 5.16 46 (a) Formalities for notice to treat 5.17 46 Proposal 6 – Notice to treat 5.22 48 Consultation issue (H) – Notice to treat 5.22 48 (b) Notice of entry 5.23 49 Consultation issue (I) – Notice of entry 5.28 50 iv Paragraph Page (c) Completion of purchase 5.29 50 Consultation issue (J) – Completion of purchase 5.33 52 (d) Deed poll procedure 5.34 52 Proposal 7 – Deed poll procedure 5.37 54 Consultation issue (K) –Deed poll procedure 5.37 55 (e) Missing interests 5.38 55 Proposal 8 – Owner untraced, or unable or unwilling to act 5.41 56 Consultation issue (L) – Owners untraced etc 5.41 57 (f) Persons with unlimited powers 5.42 58 Consultation issue (M) – Persons with limited powers 5.46 59 (4) Vesting Declaration Procedure 5.47 59 Procedure 5.48 59 Discussion 5.51 61 Consultation issue (N) – Vesting declaration procedure 5.51 61 PART VI: PARTICULAR INTERESTS 62 Introduction 6.1 62 (1) Lesser Interests 6.2 63 (a) Minor tenancies 6.3 63 Proposal 9 – Minor tenancies 6.8 65 (b) Easements and other private rights 6.9 65 Proposal 10 – Easements and other rights 6.25 70 Consultation issue (P) – Easements and other rights 6.25 71 (2) Divided Interests 6.26 71 Outline of the existing law 6.28 72 Government proposals 6.42 76 Proposals 6.49 77 Proposal 11 – Divided interests (unified procedure) 6.56 79 Consultation issue (Q) – Divided interests (unified procedure) 6.56 81 (3) Mortgages and Rentcharges 6.57 82 Existing law 6.57 82 Discussion 6.70 85 Consultation issue (R) – Mortgages and rentcharges 6.71 85 (4) Public rights of way 6.72 86 Existing law 6.72 86 Discussion 6.77 87 Consultation issue (S) – Public rights of way 6.77 87 PART VII: SUPPLEMENTARY PROVISIONSS 88 Introduction 7.1 88 (1) Limitation 7.2 88 The existing law 7.2 88 v Paragraph Page Law Commission Report on the Law of Limitations 7.8 89 Proposals 7.11 90 Proposal 12 – Limitation periods 7.17 92 Consultation issue (T) – Limitation periods 7.17 93 (2) Unauthorised Entry and Omitted Interests 7.18 93 Existing law 7.18 93 Discussion 7.22 94 Consultation issue (U) – Unauthorised entry and omitted interests7.26 95 (3) Refusal to Give Possession 7.27 95 Proposal 13 – Refusal of entry 7.29 96 Consultation issue (V) – Refusal of entry 7.29 96 (4) Distress 7.30 96 Proposal 14 – Distress 7.31 97 Consultation issue (W) – Distress 7.31 97 (5) Payments Into and Out of Court 7.32 97 Payments into court 7.32 97 Payments out of court 7.36 98 Discussion 7.39 99 Proposal 15 – Payments into court 7.40 100 Consultation issue (X) – Payments into and out of court 7.40 100 (6) Costs of Completion 7.41 100 Proposal 16 – Costs of completion 7.43 101 Consultation issue (Y) – Costs of completion 7.43 102 (7) Local Land Charges 7.44 102 Existing law 7.44 102 Proposals for change 7.51 104 Discussion 7.52 105 Proposal 17 – Local land charges 7.56 106 Consultation issue (Z) – Local land charges 7.56 106 PART VIII: ABORTIVE ORDERS 107 Existing Law 8.1 107 Introduction 8.1 107 Historical Background 8.3 107 Outline of existing law 8.8 108 Human Rights Act 1998 8.19 111 Proposals for Change 8.20 111 The CPPRAG Review 8.20 111 Policy Statement 8.22 112 Commonwealth Comparisons 8.26 113 Main Issues 8.32 116 When should the entitlement begin? 8.33 116 Who may claim? 8.34 116 vi Paragraph Page In what circumstances should the entitlement arise? 8.38 117 What should be the basis of compensation? 8.47 119 Acquisitions for Enforcement Purposes 8.48 120 Dispute Resolution 8.53 121 Proposal 18 – Abortive Orders 8.53 121 Consultation Issue (AA) – Abortive Orders 8.53 123 PART IX: TREATMENT OF EXISTING PROVISIONS 125 Making and Authorisation of Compulsory Purchase Orders 125 Acquisition of Land Act 1981 125 Implementation of Compulsory Purchase 127 Compulsory Purchase Act 1965 127 Compulsory Purchase (Vesting Declarations) Act 1981 131 Other Statutes 131 Land Compensation Act 1973 131 Local Land Charges Act 1975 131 Local Government (Miscellaneous Provisions) Act 1976 131 PART X: PROPOSALS AND CONSULTATION ISSUES 132 Part III – General Issues 132 Proposal 1 – Service of documents 132 Consultation issue (A) – Service of documents 132 Consultation issue (B) – Entry for survey 133 Part IV – Authorisation of Compulsory Purchase 133 Consultation issue (C) – Ministerial and non-Ministerial orders 133 Proposal 2 – Statutory Objector 133 Consultation issue (D) – Making and confirming 133 Proposal 3 – Legal challenge 133 Consultation issue (E) – Legal challenge 134 Part V – Implementation Procedures 134 Proposal 4 – Alternative procedures 134 Consultation issue (F) – Alternative Procedures 134 Proposal 5 – Time limits 134 Consultation issue (G) – Time limits 135 Proposal 6 – Notice to treat 135 Consultation issue (H) – Notice to treat 135 Consultation issue (I) – Notice of entry 135 Consultation issue (J) – Completion of purchase 136 Proposal 7 – Deed poll procedure 136 Consultation issue (K) – Deed poll procedure 137 Proposal 8 – Owner untraced, or unable or unwilling to act 137 Consultation issue (L) – Owners untraced, or unable or unwilling to act 138 Consultation issue (M) – Persons with limited powers 139 Consultation issue (N) – Vesting declaration procedure 139 vii Paragraph Page Part VI – Particular Interests 139 Proposal 9 – Minor tenancies 139 Consultation issue (O) – Minor tenancies 139 Proposal 10 – Easements and other rights 139 Consultation issue (P) – Easements and other rights 140 Proposal 11 – Divided interests (Unified procedure) 141 Consultation issue (Q) – Divided interests (Unified procedure) 143 Consultation issue (R) – Mortgages and rentcharges 143 Consultation issue (S) – Public rights of way 143 Part VII – Supplementary Provisions
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