Trevor Ivory, Partner and UK Head of Development & Infrastructure Planning, DLA Piper talks about Compulsory Purchase Orders
Compulsory purchase order powers (“CPO powers”) have existed for centuries in one form or another: much of our modern legislation has its origins in the ‘railway mania’ of the mid-19th century when the UK’s railway network was built by private companies. Those private companies were empowered to acquire land compulsorily by private acts of parliament.
Since then, the appetite to use CPO powers has waxed and waned in response to political and economic changes.
The Millennial Regeneration Boom
The last peak in the use of CPO powers was probably in the decade before the economic collapse of 2008/9. The election of a new government in 1997 pushed urban regeneration higher up the agenda, and almost all of the UK’s major towns and cities saw regeneration schemes of one form or another at some time in the following ten years.
Town centre regeneration schemes were perhaps the classic example of this trend, with tired and dated centres redeveloped into new shopping malls alongside multiplex cinemas, bowling alleys and restaurants, all intended to attract customers who had drifted away to out-of-town retail and leisure parks during the 1980s and 1990s.
Such schemes invariably required the use of CPO powers to assemble the land needed because of fragmented ownership patterns and competing interests. One man’s regeneration opportunity is, after all, another man’s valuable investment property.
Councils, English Partnerships (soon to become the Homes and Communities Agency) and the newly formed Regional Development Agencies (“RDAs”) were all using their CPO powers to deliver the regeneration agenda. While many projects were relatively small scale, others are part of the political history of the time; from the redevelopment of the Greenwich Peninsular to build the Millennium Dome and the legacy-inspired development of the 2012 Olympic Park in Stratford, to the rebirth of the former Rover car plant at Longbridge in Birmingham. These all required CPO powers.
The economic crisis ended the party. The collapse of the banks and the public sector’s focus on austerity resulted in these ambitious (and expensive) projects no longer being fundable. Councils had to focus on dealing with funding cuts, and the government abolished RDAs; more immediate priorities pushed out regeneration.
While regeneration fell out of fashion, central government was increasingly seeing infrastructure investment as a means of keeping UK plc afloat. Improvements to the motorway network, HS2, a new generation of nuclear power plants and a new runway in the South East are just some of the most headline-grabbing projects that have moved forward after years (and sometimes decades) of procrastination. This support for infrastructure spending shows no signs of abating and is beginning to deliver a new boom in the use of CPO powers.
Many of these projects are land hungry and require the use of CPO powers to be realised. Such projects, especially those that are linear in nature (roads, rail, power lines, etc.) have an impact on a larger number of landowners across a wider area than more traditional regeneration schemes. It may be this greater impact that has pushed reform of the legislative framework back onto the agenda.
The legislation governing the use of the CPO powers has developed piecemeal over time, and it is common (especially in relation to railways) for acquiring authorities to derive their CPO powers from 19th-century legislation. While Parliament has had several attempts at codifying the law since the 1960s, the Law Commission has been recommending wholesale reform for almost two decades. Perhaps because there are not many votes in reforming such an esoteric area of the law, successive governments have failed to allocate parliamentary time to the subject and instead we continue to see piecemeal reform.
Even before the ink was dry on the Housing and Planning Act 2016 (“the 2016 Act”) and the changes it made to compulsory purchase law, the government published the Neighbourhood Planning Bill, which looks set to become law in 2017. The Bill includes a number of amendments to CPO legislation; including clarifying the statutory framework for compensation, introducing a general power to obtain temporary possession of land and imposing a set period for implementing CPO powers. Some of the changes amend the changes introduced in the 2016 Act and so the Law Commissioners are entitled to smugly point to their recommendation of the need for wholesale codification as they watch the government asking Parliament to amend their own amendments to the law enacted just months previously.
A New Dawn for Regeneration?
Alongside a continuing appetite for infrastructure projects, regeneration schemes are also coming back into fashion, with Council’s looking to use regeneration and development more generally as a catalyst for economic growth. The use of CPO powers, therefore, looks set to increase – although this will happen within the existing complicated legislative framework, adding to the uncertainty for both those exercising CPO powers and those affected by them.
Partner and UK Head of Development & Infrastructure Planning