Viscount Younger of Leckie
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Housing and Planning Bill
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“No general vesting declaration after notice to treat
In section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 (execution of declaration), after subsection (1) insert—“(1A) But an acquiring authority may not execute a declaration in respect of land if they have served a notice to treat in respect of that land and have not withdrawn it. (1B) In subsection (1A) the reference to an authority having “served” a notice does not include cases in which the authority is deemed to have served a notice.””
Viscount Younger of Leckie (Con)
My Lords, this is the first of three groups of government amendments on compulsory purchase. Although there are 90 government amendments altogether, noble Lords will be relieved to hear that I do not plan to cover all these individually. However, many are consequential and some repetition will be necessary. I shall therefore speak to them in batches, within the group.
Government Amendments 128A to 128S, from after Clause 164 to Clause 168, deal with refinements to the various methods of entry and taking possession of land, once a compulsory purchase order has been confirmed. Amendment 128A confirms in statute what practitioners have assumed the law already means: if a normal notice to treat has been served, an acquiring authority may not then execute a general vesting declaration in respect of that land. Continuing with Amendments 128B and 128C, these address the issues raised by Committee Amendment 103BAA, tabled by the noble Earl, Lord Lytton, and spoken to then by the noble Duke, the Duke of Somerset.
Amendment 128C deals with the issue of a new interest in land emerging after a notice of entry has been served. The noble Duke, the Duke of Somerset, told us, on 23 March at cols. 2447 and 2448 of Hansard of three issues that were of concern to the Compulsory Purchase Association: delay when new notices must be served; reliance on poor quality information; and the potential for the creation of ransom interests. I believe that revised new Section 11A of the Compulsory Purchase Act 1965 deals with all of these. New subsections (2) and (4) suspend any existing notices of entry until notices have been served on the newly discovered interest, but the new normal minimum notice period of three months is replaced by the later of 14 days or the date specified in any previous notice of entry. The proviso in new subsection (3) is that this truncated notice period applies only if the acquiring authority was not aware of the person because it was given misleading information when carrying out inquiries, or the land is unoccupied.
The Government believe that ransom interests will be prevented by the qualifying provision in new subsection (1)(b). This ensures that new Section 11A applies only where an authority becomes aware of an owner, lessee or occupier to whom it,
“ought to have … given a notice to treat”,
under Section 5 of the Compulsory Purchase Act 1965. Interests created after a notice to treat on the land in question has been served are not entitled to notices of their own, so they need not hinder the acquiring authority.
I turn to Amendments 128D to 128J inclusive. Clause 166 provides for a counternotice to a notice of entry to require possession to be taken on a specified date. Amendments 128D to 128J, except for Amendment 128G, are technical amendments changing the description of the person who can serve such a notice from,
“a person who is in possession”,
to,
“an occupier with an interest in”,
the relevant land. The reason for this is that the date of entry is of particular interest to the occupier, who should be in control of the process. A person, such as a freeholder, can be “in possession” without being in occupation of land.
Amendment 128G sets out circumstances in which the counternotice requiring possession to be taken will have no effect, either because the notice to treat has been withdrawn or ceases to have effect, or where the authority is prohibited from taking possession by other provisions of the Compulsory Purchase Act 1965. In the latter case, the claimant can serve a further counternotice once the prohibition ceases. Amendments 128K to 128S make changes to the New Towns Act 1981, as amended in Clause 168, corresponding to those in Amendments 128B to 128J.
Government Amendments 128T to 128V, 128Y, 128YAA, 128YAB and 142 concern the compensation provisions from Clauses 171 to after Clause 175 and mainly cater for some of the less-frequent situations that could arise following the making of an advance payment of compensation.
I will now talk to a series of amendments that protect the position of the Welsh Ministers, who have executive functions under the Land Compensation Acts. Clause 171 amends the Land Compensation Act 1961 to give the Secretary of State the power to impose further requirements about the form and content of a claim for compensation by a person whose land has been compulsorily purchased. The Welsh Ministers have executive functions under this Act, so Amendments 128T, 128U and 128V also confer this power on the Welsh Ministers. Amendments 128Y, 128YAA and 128YAB do the same thing in Clause 172, which gives the Secretary of State the power to impose requirements about the form and content of a request for an advance payment.
In this context, it is convenient to mention Amendment 142, which provides for Clause 161, confirmation by inspector, and Clause 163 with Schedule 15, notice of general vesting declaration procedure, to be commenced on different days for different areas. These provisions may need to be commenced on different days in England and Wales, as both will require amendments to existing secondary legislation, some of which is a function of the Welsh Ministers in Wales.
The remaining amendments in the group are mainly to do with advance payments of compensation. The first is Amendment 128W, which relates to compensation for losses or expenses incurred by a person as a result of a notice to treat being withdrawn. The proposed new clause in the amendment extends the entitlement to compensation to a person who has acquired the property to which the notice relates—perhaps by inheritance—before the withdrawal of the notice. This is a clarifying measure for the avoidance of doubt.
Clause 172 enables an acquiring authority to request further information from a person who has made a claim for an advance payment of compensation within 28 days of receipt of the claim. Amendment 128X completes the picture by ensuring that this provision also applies when the advance payment is to be made to a mortgagee.
Amendments 128YAC and 128YAD, and Amendments 128YAF to 128YAJ in Clause 173, amend the earliest date on which an advance payment of compensation must be made from the date of the notice to treat to the date the notice of entry is served. In many cases this will make no practical difference, because the notice to treat and notice of entry are served on the same day.
(i) in the words before paragraph (a), after “every owner of that land” insert “so far as known to the acquiring authority after making diligent inquiry in accordance with section 5(1) of the Compulsory Purchase Act 1965”;(ii) in the words after paragraph (b),”
“Compensation after withdrawal of notice to treat
(1) Section 31 of the Land Compensation Act 1961 (withdrawal of notices to treat) is amended in accordance with subsections (2) and (3).(2) After subsection (3) insert—“(3A) Where the acquiring authority withdraw a notice to treat under this section, the authority shall also be liable to pay a person compensation for any loss or expenses occasioned by the person as a result of the giving and withdrawal of the notice to treat if the person—(a) acquired the interest to which the notice to treat relates before its withdrawal, and(b) has not subsequently been given a notice to treat in relation to that interest.”(3) In subsection (4), after “(3)” insert “or (3A)”.(4) In Schedule 18 to the Planning and Compensation Act 1991 (provisions under which compensation is payable with interest), in Part 1, in the entry relating to the Land Compensation Act 1961, after “section 31(3)” insert “or (3A)”.”
“(2A) In section 52ZC (land subject to mortgage: supplementary), for subsection (2) substitute— “(2) Within 28 days of receiving a request for a payment under section 52ZA or 52ZB, the acquiring authority must—(a) determine whether they have enough information to give effect to section 52ZA or, as the case may be, 52ZB, and(b) if they need more information, require the claimant to provide it.””
“(1A) In subsection (1) “appropriate national authority” means— (a) in relation to a request relating to the compulsory acquisition of land in England, the Secretary of State;(b) in relation to a request relating to the compulsory acquisition of land in Wales, the Welsh Ministers.”
“(1A) In a case where the compulsory acquisition is one to which the Lands Clauses Consolidation Act 1845 applies, the acquiring authority may not make an advance payment if they have not taken possession of the land, but must do so if they have.(1B) In all other cases, an acquiring authority must make an advance payment under subsection (1) if, before or after the request is made, the authority—(a) give a notice of entry under section 11(1) of the Compulsory Purchase Act 1965, or(b) execute a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 in respect of that land.”;”
“(2) Section 52 (right to advance payment of compensation) is amended in accordance with subsections (2A) and (2B).(2A) Omit subsection (5).(2B) In subsection (9), for the words from “he disposes” to the end substitute— “(a) the claimant’s interest in some or all of the land is acquired by another person, or(b) the claimant creates an interest in some or all of the land in favour of a person other than the acquiring authority,the amount of the advance payment together with any amount paid under section 52A shall be set off against any sum payable by the authority to that other person in respect of the compulsory acquisition of the interest acquired or the compulsory acquisition or release of the interest created.””
“Repayment of payment to mortgagee if land not acquired
In the Land Compensation Act 1973, after section 52ZD (inserted by section 172 above) insert—“52ZE Payment to mortgagee recoverable if notice to treat withdrawn(1) Where an acquiring authority have made a payment to a mortgagee under section 52ZA or 52ZB in relation to an interest in land and notify the claimant that the notice to treat relating to the interest is withdrawn or has ceased to have effect before the authority take possession of the land, the authority may by notice require the claimant to pay them an amount equal to the amount of the payment, unless another person has acquired the whole of the claimant’s interest in the land.(2) Subsection (3) applies where—(a) a payment under section 52ZA or 52ZB has been registered as a local land charge in accordance with section 52(8A),(b) the whole of a claimant’s interest in land has subsequently been acquired by another person (a “successor”),(c) any notice to treat given in relation to the interest is withdrawn or ceases to have effect before the authority take possession of the land, and(d) the acquiring authority notify the successor that they are not going to give the successor a notice to treat (or a further notice to treat) in relation to the interest.(3) The authority may by notice require the successor to pay them an amount equal to the amount of the payment.(4) A notice under subsection (1) or (3) must specify the date by which the claimant or successor must pay the amount.(5) The date mentioned in subsection (4) must be after the period of two months beginning with the day on which the authority give the notice under subsection (1) or (3).(6) Neither subsection (1) nor subsection (3) affects a right to compensation under section 31(3) or (3A) of the Land Compensation Act 1961 or section 5(2C)(b) of the Compulsory Purchase Act 1965.””
“Objection to division of land: blight notices
(1) The Town and Country Planning Act 1990 is amended as follows. (2) In section 153 (reference of objection to Upper Tribunal), after subsection (4) insert—“(4A) Where the effect of a blight notice would be a compulsory purchase to which Part 1 of the Compulsory Purchase Act 1965 applies, the Upper Tribunal may uphold an objection on the grounds mentioned in section 151(4)(c) only if it is satisfied that the part of the hereditament or affected area proposed to be acquired in the counter-notice— (a) in the case of a house, building or factory, can be taken without material detriment to the house, building or factory, or(b) in the case of a park or garden belonging to a house, can be taken without seriously affecting the amenity or convenience of the house.”(3) In section 166 (saving for claimant’s right to sell whole hereditament etc.)—(a) in subsection (1) omit paragraph (b) (and the “or” before it);(b) omit subsection (2).”
Viscount Younger of Leckie
My Lords, this is the second group of technical amendments to Part 7 of the Bill. It deals with adjustments to the regime for determining disputes about the division of land—or material detriment—where the acquiring authority wants only part of a claimant’s land. In some cases, the remainder of the land—being a house, building or factory—cannot be used without material detriment and the claimant may serve a counternotice requesting the acquiring authority to take all of the land. Disputes are referred to the Upper Tribunal.
Although this is a very large group, it includes batches of up to 11 amendments, each to deal with a single topic. As there are more than 40 very technical amendments in this group and the hour is getting on, I will, if your Lordships’ House agrees, not speak to these amendments, but will answer questions about them if noble Lords have any matter they wish to raise. I beg to move.
“1A_ This Part does not apply by virtue of a notice to treat that is deemed to have been served in respect of part only of a house, building or factory under section 154(5) of the Town and Country Planning Act 1990 (deemed notice to treat in relation to blighted land).”
“(1) On the vesting date the provisions of—(a) the Land Compensation Act 1961 (as modified by section 4 of the Acquisition of Land Act 1981),(b) the Compulsory Purchase Act 1965, and(c) Schedule A1 to this Act,shall apply as if, on the date on which the general vesting declaration was executed, a notice to treat had been served on every person on whom, under section 5 of the Compulsory Purchase Act 1965, the acquiring authority could have served such a notice, other than any person entitled to a minor tenancy or a long tenancy which is about to expire.””
“4A_ In section 12 (divided land), for “Schedule 1” substitute “Schedules A1 and 1”.”
(d) the building or maintenance work is for purposes related to the purposes for which the land was vested, acquired or appropriated as mentioned in paragraph (b).”
Viscount Younger of Leckie
My Lords, this is the final group of government amendments on compulsory purchase matters, dealing with the power to override easements and other rights. This power, which is currently available to local planning authorities and regeneration agencies such as the Homes and Communities Agency and urban development corporations, is extended, by means of Clause 179, to land acquired by “specified authorities”, being those which have compulsory purchase powers. I believe that none of the amendments is controversial, so I hope to deal with them in short order, if the House agrees.
Amendments 128YCL, 128YCN, 128YCP and 128YCR ensure that the powers in Clause 179 are only available where the development by a specified authority, or a successor in title, is related to the purpose for which the land was vested in, acquired by or appropriated by the specified authority. These amendments codify the judgment in Midtown Ltd v City of London Real Property Company Ltd. The Honourable Mr Justice Peter Smith held, at paragraph 47 of his judgment, that if a local authority or a successor in title wishes to rely upon the power to override in Section 237 of the Town and Country Planning Act 1990, the proposed development must be related to the planning purposes for which the land was acquired or appropriated.
Amendments 128YCM, 128YCQ, 128YCS and 128YCU to 128YCY clarify the transitional provisions that apply to those authorities which already have the power to override easements to ensure that they operate effectively. Amendment 128YCX clarifies the terminology for the determination of compensation disputes.
Government Amendment 128YCT—the so-called National Trust amendment—extends the protection in place for statutory undertakers from having their rights overridden to the National Trust. This amendment responds to Amendment 103C tabled in Committee by the noble Baronesses, Lady Andrews and Lady Parminter, who spoke to the amendment on that occasion. I understand that officials at the National Trust are content with this amendment, and I hope that the noble Baronesses are too.
Finally, Amendment 128YD inserts into the definition of “specified authority” a body established by an Act or Measure of the National Assembly for Wales. This is a piece of future-proofing in case an Act or Measure of the Assembly should create a new body with compulsory acquisition powers.
I conclude by thanking your Lordships’ House for its patience in hearing about 90 technical, and in places arcane, amendments about compulsory purchase. I beg to move.
page 95, line 7, at end insert—
““qualifying authority” in relation to other qualifying land means the authority in which the land was vested, or which acquired or appropriated the land, as mentioned in the definition of “other qualifying land”;”