Advice to Karen Howard

Enquiry

• From: Karen Howard
• Date advice given: 15 November 2010
• Enquiry type: Email

Q1: Can CPO powers necessary for an NSIP be sought in parallel to an application under alternative legislation? (The query related to managing likely CPO powers as part of a project timetable- i.e. would an alternative route need to be taken if discussion around voluntary transfer broke down after the after the application had been submitted.

Q2: How will we timetable for the use of alternative resolution techniques (cf. Guidance related to procedures for compulsory acquisition para.42) as opposed to a compulsory acquisition hearing? If the latter were to come too soon at the expense of the former due to timetabling pressures, would there be scope for JR?

Advice given

A1: It is for applicants to determine which consents and powers they may need to apply for as part of their DCO application made under s.37 of the Planning Act 2008 (the Act). Advising on what CPO powers may be available to an applicant under other legislation is outside the IPC's powers under s.51 of the Act.

An applicant must be able to make a case for the inclusion of compulsory acquisition powers in a DCO. If compulsory acquisition provisions are excluded from a DCO then that will be because the applicant was unable to meet the statutory tests in the Act (see in particular sections 122 and 123).

CLG Guidance on Procedures for Compulsory Acquisition issued under s.124 of the Act (the CLG Guidance), which you should take into account, advises that '..under the Act authorisation for compulsory acquisition should be applied for, and decided as part of the development consent order'.(para. 3) and 'Under the Act compulsory acquisition will be authorised as part of the development consent order granted by the IPC or the Secretary of State, whichever is the decision-maker' (para. 6).

Paragraphs 38 to 41 of the CLG Guidance make it clear that applicants should seek to acquire land by negotiation wherever practicable, but should give early consideration in preparing their schemes to whether compulsory acquisition powers might be required. Para. 40 of the CLG Guidance advises that applicants should make it clear during their pre-application consultation that compulsory acquisition powers will, if necessary, be sought (as part of their DCO application) in order to make the seriousness of their intentions clear from the outset.

Before a DCO application is made to the IPC, promoters need to comply with the pre-application requirements set out in Chapter 2 of Part 5 of the Act, including sections 42 to 44, s.47 and s.49. They also need to prepare a consultation report, which must accompany a DCO application, describing (inter alia) the account taken of any relevant responses to consultation (s.37). Para. 8 of the CLG Guidance sets out advice on these re-application requirements. You should give consideration to how these pre-application obligations might be complied with if CPO powers were to be sought separately from the development consent order.

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). This would also assist the Examining authority in progressing the examination of an application within the statutory timetable.

A2: The statutory procedure for examination of DCO applications under the Act and related secondary legislation does not provide for Alternative Dispute Resolution techniques (ADR) as part of the examination process, but clearly employing any method for avoiding the need for compulsory acquisition powers to be exercised would be advisable at an appropriate stage. Whether there would be scope for a judicial review challenge under s.118 of the Act (successful or not) will inter alia, of course, depend on the particular facts of a given case.

At or shortly after the preliminary meeting, a timetable for the examination of the application will be set by the Examining authority. If a DCO application includes a request for an order authorising compulsory acquisition powers and an affected person requests a compulsory acquisition hearing, then the Examining authority must hold one. There is scope for the timetable to be amended during the examination at the discretion of the Examining authority. All interested parties, and any other person invited to the preliminary meeting by the Examining authority, will be informed of any such change.

The IPC is under a duty to complete the examination of an application within 6 months (s.98). Therefore, if a promoter proposes to employ ADR techniques whilst an application is being examined, then we would suggest that they should make representations to the Examining authority, preferably prior to or at the preliminary meeting, to schedule any compulsory acquisition hearing towards the end of the examination process in the hope that agreement can be reached in the meantime and the need for such a hearing, and for compulsory acquisition powers to be exercised, can be avoided.

The CLG Guidance advises that ADR techniques, such as mediation and arbitration, should be made available wherever appropriate throughout the whole of the compulsory acquisition process so that any outstanding issues and concerns can, if possible, be resolved relatively quickly and informally.

As noted above, any ADR techniques made available by an applicant would be outside the formal examination process under the Act and related secondary legislation. Such techniques may though be subject to separate procedural requirements prescribed, for example, under the Arbitration Acts, which would need to be complied with by the promoter and other parties to those ADR proceedings.