Advice to Alison Gorlov

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Enquiry

From
Alison Gorlov
Date advice given
3 February 2011
Enquiry type
Email 
  1.   Where the same person comes within both Categories 1 and 2, or is within the scope of more than one part of the book of reference, it is assumed that the person should appear in all appropriate places.  Please confirm.

  2.   Can you confirm that it is the IPC’s expectation that 1 above only applies if the capacities in which the person comes within more than one Category or Part are different?

By way of example:

(a) A mortgagee in possession is (i) an occupier (Category 1) and (ii) as mortgagee (whether or not in possession) would also appear to come within Category 2. It can nonetheless be said that the two capacities are not the same because, although both arise from the mortgage, the Category 1 status of occupier only results from the mortgagee having taken possession, while Category 2 is the result of the mortgage itself. By contrast, an owner (Category 1), by virtue of ownership is both interested in the land and has power to sell or convey it (both Category 2).

(b) A person who has a private right over land (book of reference Part 3) is interested in it (in common parlance – s.57(2)(a) does not refer to the person having to have a legal or equitable interest) within the scope of Category2/Part 1.

  1.   We are operating on the basis that  people appear only once in respect of the same status.  So, in the above examples, in 2(a), the mortgagee would appear in Part 1 as both Categories 1 and 2; and in 2(b), the person having the right would appear only in Part 3.   I note that this approach appears to have been accepted in the case of the Rookery South book of reference.

  2.   We are treating s. 57(2)(a) as capturing within Category 2 anyone -

(a) with some interest in the land other than a Category 1 interest or Category 3 right (although I can’t immediately think of who such a person might be)or

(b) who has e.g. a financial interest that is not a legal or equitable interest in the land but which makes the person “interested in the land” in ordinary parlance, as per section 57(2).

Is the above correct?

Advice given

Book of Reference

The book of reference must be prepared by reference to the categories set out in section 57. A person can be in "one or more" of the categories set out in section 57 (section 56(2)(d)). As you say, a financial institution could (depending on the particular facts) be both a category 2 person with power to sell/convey/release the land and if in possession an occupier and therefore a category 1 person. If at the time of compiling the book of reference that institution was indeed in possession it would be in part 1, identified as both a category 1 and a category 2 person.

If, on the information which you have following diligent inquiry, a person has some interest in the land such as a financial/contractual interest which does not give them a status enabling them to be categorised as an owner, lessee, tenant or occupier then that person will be a category 2 person.

Depending on the facts a person who falls within part 3 (for example a person with a private right over land) could also be considered to be interested in the land and would therefore also fall within category 2 (and shown in part 1) if that right is to be compulsorily acquired.

We appreciate that you will be looking very carefully at the results of your searches and due diligence and reaching your own view about the nature of the interests and, as you know, we are not able to give legal advice. If there is any doubt about whether a part 3 easement or private right amounts to an interest in land you may consider it prudent to include that person in part 3 and in part 1. If a person is not in part 1 of the book of reference that person would not be an "affected person" - in other words a person notified to the IPC under section 59 as prescribed in APFP Regulation 10 (2) (b) and Schedule 4, being a person within either category 1 or category 2 as defined in section 57(1) and (2). As a result, they may be deprived of the opportunity to be informed by the IPC of the deadline for notifying a wish for a compulsory acquisition hearing (see section 92 (2)).

Section 230 - service of documents

We are not aware of any regulations issued by the Secretary of State under the Planning Act 2008 which prescribes the manner in which a notice or document should be marked so that it is "plainly identifiable as an important communication". However (although not mandatory in relation to the Planning Act 2008), you may wish to follow the wording which is prescribed in Regulation 13 of the Town and Country Planning General Regulation 1992 in relation to notices/documents which under section 329 of the Town and Country Planning Act 1990 should be "plainly identifiable as a communication of importance". This wording is: Important - This Communication affects your Property.