Representation by Ei Group Limited (Ei Group Limited)
- Date submitted
- 22 March 2024
- Submitted by
- Members of the public/businesses
Gateley Hamer are instructed by Ei Group Limited (‘Ei Group’), who are the freehold landowner of House in the Tree Public House, to submit representation objecting to the Compulsory Acquisition (‘CA’) and Temporary Possession (‘TP’) powers contained in the draft Development Consent Order (‘dDCO’). Ei Group’s objection concerns the general satisfaction of the fundamental tests applicable to any Compulsory Purchase Order (‘CPO’), namely: 1) there must be a compelling case in the public interest for the CPO, 2) there are no material impediments, and 3) compulsory purchase must be the method of last resort. Compelling Case in the Public Interest Test: The purposes of acquiring slithers of land from Ei Group is explained in the Statement of Reasons to be to enable improvements to be undertaken east along the B4634 to provide a shared use path for future continuation of cycling and pedestrian routes in the West Cheltenham Golden Valley Development. Justification on this basis might be reasonable if there were no impediments to the West Cheltenham Golden Valley Development but this scheme is yet to secure outline planning permission and there could be a multitude of other impediments before it is a deliverable scheme. The grant of CA and TP powers on the basis of a scheme that might not come forward is not a compelling reason to interfere with the right of a landowner to enjoy their property right free from interference from the state. Last Resort Test: This test has not been satisfied. The Applicant and its representatives have completely failed to enter into any sort of meaningful negotiations with Ei Group to try and secure the land and rights required to deliver the scheme without recourse to compulsory acquisition powers, and therefore powers cannot reasonably be seen as last resort. Ei Group were first made aware of the M5 Junction 10 Improvements Scheme in August 2020 or thereabouts and since then have repeatedly invited the Applicant and its representatives to set out what land and rights are required in the hope that the parties can negotiate appropriate voluntary arrangements that negate the need to implement CA and TP powers. Unfortunately, the Applicant and its representatives have not done this and have also not made any efforts whatsoever to secure the land and rights said to be required by agreement – no offer has ever been made to acquire the permanent acquisition land and / or terms proposed for a licence agreement to undertake scheme works. The Applicant even acknowledges this deficiency in the Statement of Reasons (‘SoR’) where at Appendix B it says (see page 153): “The Applicant will shortly be issuing Heads of Terms to the landowner to acquire the land and rights required on a permanent and temporary basis by way of an option agreement.” This status update is unsatisfactory and non-committal. The word “shortly” gives the impression that the Applicant is about to actively pursuing voluntary agreements, but the reality is that it has simply decided to submit the dDCO and leave negotiations to some later date at its convenience. Unhelpfully this status update is also undated, but it is at least three months since the update was recorded (the SoR is dated December 2023) and Ei Group are still waiting to receive Heads of Terms that were supposed to be issued “shortly”. The back to front approach being taken to negotiations is grossly unfair and should not be allowed to continue. A direct consequence of the Applicant’s actions is that Ei Group are now left incurring costs objecting to the Applicant’s scheme when they would potentially have been content to agree voluntary arrangements before the dDCO was submitted. The Applicant should therefore be required to reimburse all costs (including those incurred objecting) by the landowner. Conclusion: CA and TP powers should not be confirmed for the slithers of land surrounding the House in the Tree Public House held in the freehold ownership of Ei Group until such time as there is both greater certainty regarding the West Cheltenham Golden Valley Development and private treaty negotiations have failed. Ei Group remain willing to engage in negotiations with the Applicant and its representatives so as to avoid the need to implement CA and TP powers, but there needs to be a similar level of commitment shown to such negotiations from the Applicant.