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Advice to Henry Adams

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Enquiry

From
Henry Adams
Date advice given
8 December 2010
Enquiry type
Email 
  1.    If the IPC grant consent for the scheme, will the consent always include the necessary compulsory purchase powers to the applicant, or can the IPC insist that EON obtain the easements by agreement?

  2.   If the compulsory purchase rights are granted, are the usual procedures followed with regards to acquisition, payment of compensation etc in the same way as for example a road scheme, or would different legislation apply as to how compensation is assessed and paid?

  3.   Would the affected landowners be consultees in the application for consent and would their concerns over disturbance/lack of adequate compensation etc be valid grounds for the IPC refusing consent?

  4.   In deciding whether or not to grant consent, I assume the principal consideration for the IPC is whether or not the scheme can be justified in terms of public benefit, but please confirm this is correct

Advice given

  1. If the IPC grant consent for the scheme, will the consent always include the necessary compulsory purchase powers to the applicant, or can the IPC insist that EON obtain the easements by agreement?

A development consent order (DCO) may include provisions authorising the compulsory acquisition of land or an interest in or a right over land. An applicant must be able to make a case for the inclusion of compulsory acquisition powers in a DCO by showing how they have met the statutory conditions in s.122 of the Planning Act 2008 (the 2008 Act). These conditions include that the land is required for the development for which development consent is sought and there is a compelling case in the public interest for the land to be acquired compulsorily. Para. 29 of the CLG Guidance on Procedures for Compulsory Acquisition issued under s.124 of the 2008 Act (the CLG Guidance) advises that ?Whatever the case for allowing a nationally significant infrastructure project to go ahead, any compulsory acquisition provisions must be fully justified in their own right against the conditions in section 122?.

Paragraph 39 of the CLG Guidance advises that applicants should seek to acquire land by negotiation wherever practicable. The applicant must show all reasonable alternatives to compulsory acquisition (including modifications to the scheme) have been explored and that the proposed interference with the rights of those with an interest in the land is for a legitimate purpose and is necessary and proportionate. The CLG Guidance also advises that applicants should, even where compulsory acquisition powers are being sought in the DCO, continue negotiating in parallel to acquire the land by agreement so that by the time examination of the application starts they are only dealing with the minimum number of objectors (para.39).

If the power to acquire land or rights over land compulsorily is being sought, the Examining authority (usually a Single Commissioner or a Panel of three or more Commissioners) and the decision-maker need to be satisfied that the applicant has considered rights under the European Convention on Human Rights, as incorporated into UK Law by the Human Rights Act 1998, and the reasons why interference with them is justified. Interferences are permissible so long as they are proportionate.

2.If the compulsory purchase rights are granted, are the usual procedures followed with regards to acquisition, payment of compensation etc in the same way as for example a road scheme, or would different legislation apply as to how compensation is assessed and paid?

If a DCO is granted including compulsory acquisition powers then, broadly, the same legislation applies in respect of procedural matters and how compensation is assessed and paid under the 2008 Act regime as for compulsory purchase under other regimes. Section 125 of the 2008 Act applies (with suitable modifications and omissions) the provisions of Part 1 of the Compulsory Purchase Act (CPA) 1965 to all development consent orders which authorise the compulsory acquisition of land. These provisions of the CPA 1965 govern the procedures to be followed once the compulsory acquisition of land has been authorised under the 2008 Act. s.126 of the 2008 Act provides inter alia that any legislative provision relating to compensation for the compulsory acquisition of land cannot be excluded by a DCO.

It should also be noted that under the 2008 Act compulsory acquisition powers are, unlike other regimes, vested in a non public body (i.e. the applicant) including liability for compensation payments. Any application for a development consent order authorising compulsory acquisition must be accompanied by a statement explaining how it will be funded, including any compensation payments. The ODPM circular 06/2004 Compulsory Purchase and the Crichel Down Rules contains further general guidance on matters related to compulsory acquisition, including serving a ?notice to treat?, making a general vesting declaration, and compensation and other matters.

3.Would the affected landowners be consultees in the application for consent and would their concerns over disturbance/lack of adequate compensation etc be valid grounds for the IPC refusing consent?

The applicant has a duty to consult specified persons/bodies under s.42 of the 2008 Act including those categories of persons set out in s.44(1) and (2). These include any person(s) who the applicant knows, after making diligent inquiry, are an owner, lessee, tenant, or occupier of the land or has an interest in the land. These persons are likely to be affected by any compulsory acquisition of the land. Such persons could respond to consultation under s.42 by raising with the applicant their concerns or objections. Under s.49 the applicant is under a duty to take account of any relevant consultation responses.

The applicant must submit a consultation report with their application for development consent (s.37) which must, amongst other matters, set out what the applicant has done in relation to his s.42 consultation obligations, any relevant responses received and the account taken of these. The IPC must, amongst other matters, have regard to the consultation report when deciding whether or not to accept an application for development consent.

If an application is accepted, persons consulted under s.42 could make relevant and written representations to the Examining authority setting out their concerns or objections. Any person who the applicant knows, after making diligent inquiry, is interested in the land to which the proposed compulsory acquisition request relates (an ?affected person? ? see s.59) may call for a compulsory acquisition hearing to be held.

The Examining Authority and the decision-maker would need to consider all the evidence submitted or made, whether written or oral, in relation to compulsory acquisition matters. It would be for the decision-maker to decide whether or not to grant development consent and if they decide to do so whether or not to include compulsory acquisition powers in any DCO. As noted in reply to question 1 above, the applicant must be able to make a case for the inclusion of such powers.

It should also be noted that under s.127 statutory undertakers who wish to object to the inclusion in a DCO of a provision authorising compulsory acquisition of land which they have acquired for the purposes of their undertaking, may make representations to the IPC. If, as a result of any such representations, the decision-maker is satisfied that the land in question is used for the purposes of the statutory undertaker?s undertaking, or that an interest in the land is held for those purposes, the Order to which it relates must not authorise the compulsory acquisition unless the Secretary of State gives a certificate in accordance with s.127 (2) or s.127 (5).

s.128 applies where an applicant is seeking in a DCO to authorise the compulsory acquisition of land owned by a local authority, or which has been acquired by a statutory undertaker (other than a local authority) for the purposes of its undertaking. In the event that such an authority or undertaker makes (and does not withdraw) a representation to the IPC concerning the compulsory acquisition, the Order would be subject to special Parliamentary procedure.

You should also note the provisions in the 2008 Act relating to National Trust land (s.130) and Commons and open spaces (sections 131 and 132).

  1. In deciding whether or not to grant consent, I assume the principal consideration for the IPC is whether or not the scheme can be justified in terms of public benefit, but please confirm this is correct.

If there is a relevant designated National Policy Statement (NPS) the IPC would normally be the decision-maker, unless there was an intervention by the Secretary of State (sections 109-113). Otherwise, the decision-maker would be the Secretary of State under s.105 of the 2008 Act.

The legal basis for decisions made by a Panel or Council of the IPC is set out in s.104 of the 2008 Act. The NPSs are intended to be at the heart of the 2008 Act regime. The Panel or Council must decide an application in accordance with any relevant NPS unless one or more of s.104 (4)-(8) apply. s.104 (7) applies ?if the Panel or Council is satisfied that the adverse impact of the proposed development would outweigh its benefits?.

Para. 30 of the CLG Guidance advises that ??.the extent to which the decision-maker is satisfied that there is a need in the public interest for a project to be carried out will be an important factor in determining the justification for any compulsory acquisition provisions which are shown to be required in order for that scheme to take place. If the decision-maker is satisfied that any proposed compulsory acquisition provisions are required for a purpose described in section 122(2), it will be necessary for the decision-maker to weigh up the public benefits that a scheme will bring against any private loss to those affected by compulsory purchase, in order to determine where the balance of public interest lies?. Para. 32 of the CLG Guidance makes it clear that there may be circumstances where the decision-maker could reasonably justify granting development consent for a project while at the same time refusing to include in an order the provisions authorising the compulsory acquisition of the land or modifying these to reduce the area of land so affected.

The balance of adverse impacts and benefits of an application scheme will therefore be a relevant matter for a Panel or Council in deciding whether or not to grant development consent. The weight to be given to relevant matters would be for the decision-maker in each case and each application would have to be considered on its merits.