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Advice to BLP Law on behalf of Halite

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Enquiry

From
BLP Law on behalf of Halite
Date advice given
17 November 2011
Enquiry type
Email

I have considered with Leading Counsel your comments in respect of the parties listed in Part 2 of the Book of Reference (category 3 persons with a right to claim) and whether they should also appear in Part 1 of the Book of Reference (as either category 1 or category 2 persons). I set out below our thoughts on this.

Sections 44(1) and section 57(1) of the Planning Act 2008 (PA) define category 1 persons being ?an owner, lessee, tenant (whatever the tenancy period) or occupier of the land?.

Sections 44(2)/57(2) PA define a category 2 person as someone who is ?(a) ? interested in the land; or (b) has power: (i) to sell and convey the land;or (ii) to release the land."

Sections 44(3)/57(3) PA state that an expression (other than ?the land?) that appears in Section 44(2)/57(2) has the same meaning as the meaning it has in Section 5(1) of the Compulsory Purchase Act 1965 (CPA). Pursuant to section 5(1) CPA the term ?interested in land? is essentially the parties that would need to be served with a notice to treat. A right of access is not ?interested in the land? for the purposes of Section 44(2)/57(2) PA (based on the usual meaning of ?interested? applied by Section 5(1) CPA). On that basis, it seems to us that anyone with rights of access over the development consent order (DCO) Land that may be extinguished or interfered is a potential Category 3 person (if they might have a relevant claim), but, on the basis of s5(1) CPA, they cannot be a category 1 or category 2 person (and therefore should not be in Part 1 of the Book of Reference, but in Part 2 and potentially Part 3).

It seems that none of the four projects accepted to date have included Category 3 Persons in Part 1 of the Book of Reference.

As indicated, I have consulted with Leading Counsel on the this issue, who agrees with the above analysis. We would also refer you to paragraphs 306 - 307 of Guy Roots/Michael Humphries on Compulsory Purchase Law.

I therefore propose to proceed on the basis outlined above. I would be grateful if you could confirm whether you have any further views on this issue as it would be helpful to remove any uncertainty. I will briefly cover this off in the Explanatory Memorandum.

Advice given

It is noted that persons with a right of access appear in Part 2 because you have identified them as potentially having a relevant claim but not in Part 1 because it is considered that the right of access (in accordance with the meaning in section 5(1) of the Compulsory Purchase Act 1965) is not an interest in land. We have no further comments to make in relation to this approach. If it is not known at the time of making the application whether it is proposed to extinguish, suspend or interfere with any rights of access (or other easements and rights) belonging to those persons you may of course choose not to include them in Part 3 and need not include them in Part 1 if you are satisfied that the persons concerned are not interested in the land (which is subject to acquisition, rights to use the land or rights to carry out protective works) for the purposes of section 56(2)(d) of the Planning Act 2008.