Managing landowner liaison in the shadow of the Vicarage Field CPO decision

A recent Compulsory Purchase Order (CPO) inquiry decision has highlighted the emphasis that inspectors are currently placing on CPO guidance, particularly in negotiations with owners impacted by the CPO. If an Acquiring Authority is contemplating Compulsory Acquisition, early attention to the relevant guidance will maximise the ability to satisfy an inspector that the guidance has been met.

The London Borough of Barking and Dagenham Council (Vicarage Field and Surrounding land) Compulsory Purchase Order 2021 promoted the acquisition of occupied property for a mixed-use redevelopment.

The Public Inquiry Order Decision found justification for bringing the CPO forward but refused the Order (October 2022) on the primary basis of viability. The inspector reported additional concerns about inadequate landowner negotiations when considering the CPO guidance.

Dalcour Maclaren was appointed as Estates Lead on the Environment Agency Oxford Flood Alleviation Scheme CPO 2023 (the scheme). This Case Study considers the evidence of landowner negotiations in the shadow of the ‘Vicarage Field’ decision.

The Challenge

A current hot topic of CPO inspectors is being satisfied by evidence that an Acquiring Authority (AA) has and is making reasonable attempts to acquire the necessary scheme land by agreement, thus meeting the CPO guidance and that the use of CPO powers will only be as a last resort.

The impact of this challenge was demonstrating in evidence that the scheme has complied with CPO guidance and ensuring that the frequency and conviction of negotiation attempts, in the run-up to the CPO and inquiry hearing and beyond, is sufficient to satisfy an inspector.

The Solution

From early on in the OFAS Scheme, extensive owner liaison was undertaken to explain the scheme and its public interest needs. It also gave the opportunity to understand owners’ concerns and requested mitigations. However, whilst this process followed the CPO guidance, the Vicarage Field decision came at the time when the CPO was being prepared. Professional advisor workshop sessions were set up to understand any challenges the Vicarage Field decision may present to the OFAS Scheme and to conclude an action plan for capturing owner negotiation evidence and ongoing liaison.

Implementation of the Solution:

Step 1: Building a workbook to capture: a) all impacted property freeholders, b) all of their tenants and occupiers, c) include columns for respective CPO plots, HMLR title numbers, property address, type of agreement offered, agreement status, owner preference, financial offer, and d) chronology of communications.

Step 2: Set timeframes for the frequency of forward communications in the lead-up to the making of the CPO and public inquiry. The frequency criteria was decided so that, for instance, a CPO objector was most frequently contacted. Create a spreadsheet to capture each party’s last contact date with an automatic alert of the next contact-by date.

Challenges During Implementation:

The complexity of managing data for some 300 property interests and 1200 CPO plots.
The complexity of managing owner contact, record keeping and frequency occurrences.
Managing the owner engagement surveyor team.

Results

DM’s Geomatics Referencing and CPO Preparation team created a live working ‘Owner Communication Table’. Owner communications were logged by DM surveyors conducting negotiations. A mail merge of this table enabled a compendium including owner details, CPO plots, and communication occurrences to be created as inquiry evidence, which ran to over 1000 pages.

Negotiation attempts to acquire the scheme land were conducted over an extended period, intensified during the public inquiry, and will continue until the exercise of the CPO.

Lessons Learned

As a safeguard, it will be advantageous at an early stage of a scheme to have a workshop, run by CPO lawyers, to review current CPO guidance and current inspector emphasis’ and set out an ‘actions’ framework that seeks to respond to these matters.

Conclusion

The Vicarage Field CPO decision has highlighted that inquiry inspectors are placing emphasis on seeing evidence that AAs are making strenuous efforts to negotiate with owners. An AA must approach a CPO, minded of the guidance and set up evidence recording that will demonstrate this at Public Inquiry.

Future Directions

The Law Commission has announced it will launch a review of the legislation governing compulsory purchase, with a view to making the law “simpler, consistent and more accessible".
The announcement comes in response to the Government’s request in November for the Commission to conduct a review of the current law as part of its commitment to updating the powers as set out in its 2022 Levelling Up White Paper.
In the new review, the law reform advisory body will examine the technical laws concerning the procedures governing the acquisition of land through compulsory purchase orders and the system for assessing the compensation awarded to parties in relation to such acquisitions.
In light of this Government Review, AAs will need to keep an eye open for changes to the CPO Guidance.