Jeremy's Blog 14th October 2022: Bringing Order in Compulsory Purchase

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 13th October 2022

It is a privilege to be granted compulsory purchase powers, to be given the power of the law to take property, homes and businesses from unwilling sellers at a time they did not choose. It often embroils those owners and occupiers in protracted and blighting conditions for years from the first mention of a scheme to the point of losing property and livelihood. Arguments about compensation then run on and practical difficulties inevitably continue as where farming on the remaining land is disrupted by the scheme, contractor’s operations and restoration issues. Yet, very few of those exercising the extraordinary powers of compulsory purchase have had the experience of being subject to them.

While compulsory fallback powers may be essential, granting those powers should not be a formality to be taken lightly by the prospective acquirer.

With the CAAV’s concerns to improve practice in compulsory purchase and compensation, we have repeatedly seen that the less that powers can be challenged, the more they may be used badly, in turn driving resistance, delay and cost. By contrast, apparently weaker powers can drive productive engagement with more effective and sensitive negotiations, lower costs and better outcomes, particularly for the acquiring authority.

That is the importance of the Planning Inspector’s dismissal (under delegated powers) of the CPO proposed by the Borough Council for an urban regeneration scheme of the Vicarage Field shopping centre in Barking and Dagenham for lack of proven viability and inadequate negotiations.

With £40 million said to have already been spent on the project, she accepted that:

• the scheme was wholly in accordance with the development plan
• there was “an extremely compelling case in the public interest for the development” outweighing other harms
• the centre needed redevelopment.

However and aware of the potential lost opportunity and the Council’s reputation resting on the delivery of its ambition, she found “a fundamental lack of tangible and substantive evidence of viability”. That was for the Council to demonstrate. It had not done that and so she could not be confident that the scheme would proceed. Of itself:

“This makes it difficult to show conclusively that the compulsory acquisition … is justified in the public interest”.

She further found that, even with the troubling long delays in the process, “the efforts to acquire the CPO lands by private treaty have been largely ineffective”. Of the 67 objectors at the inquiry, 65 remained at the end. Offers were said not to have been at market value and only limited efforts had been made at relocating those affected. Without a “not before date”:

“those subjected to the CPO [were] unable to fulfil business plans, living in limbo for long period of time.”

The hope has to be that this very public defeat on these grounds for a London Borough Council on a flagship project will encourage others to proceed more pragmatically and negotiate better so as to be confident of achieving their intended outcome. A simple focus on powers is not the answer when that encourages resistance. Better behaviour and better treatment of people typically gives better outcomes faster and more cheaply.