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You are here: BAILII >> Databases >> The Law Commission >> TOWARDS A COMPULSORY PURCHASE CODE: 2 PROCEDURE (A Consultative Report) [2002] EWLC 169(8) (18 November 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/169(8).html Cite as: [2002] EWLC 169(8) |
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Part VIII
Abortive orders
8.3 Under the 1845 Act, other than by agreement and subject to any special provision in the enabling statute,[1] there was no general power to withdraw a notice to treat, once served; the acquiring authority were bound to proceed with the purchase, or pay damages.[2] The Acquisition of Land (Assessment of Compensation) Act 1919, section 5(2) changed the position by setting out specific requirements for the notice of claim, and providing that after delivery of a notice of claim the acquiring authority had six weeks to withdraw any notice to treat served on the claimant. The acquiring authority would be liable to pay compensation to any claimant for any loss or expenses occasioned by the notice to treat having been given and withdrawn.
8.5 There was still no statutory time limit for the validity of the notice to treat, nor any provision for compensation if it was not pursued without being formally withdrawn. Case law established that a notice to treat could be treated as abandoned in certain circumstances, but the consequences were not spelt out.[3]
8.6 This uncertainty was left unresolved by the 1965 Act. Section 5 re-enacted the relevant parts of the 1845 Act relating to notice to treat, but made no change in relation to withdrawal or abandonment. However, amendments made by the 1991 Act clarified the position, by providing for a notice to treat to lapse if unimplemented after three years, and for the payment of compensation for consequential losses.[4]
There should be no delay between the making and submission of an order and an authority should, so far as is reasonably practicable and possible, make advertise and submit a fully documented order as soon as they have resolved to make one. Failing that, they should aim to make the order at the earliest possible date following their resolution.[5]
8.10 Once an order has been submitted to the Secretary of State for confirmation together with the required supporting documentation, the Secretary of State as confirming authority “may confirm the order either with or without modifications.”[6] There is no statutory requirement placed on the Minister to confirm or refuse the order within a set time[7].
8.11 The 1961 Act, section 31, gives the authority the right to withdraw notice to treat: (1) within 6 weeks of a properly formulated claim for compensation;[8] or (2) if no such claim is received, within 6 weeks of the determination of compensation by the Tribunal (unless the authority has entered into possession).[9]
8.12 The right to compensation is given by sub-section (3):
Where the acquiring authority withdraw a notice to treat under this section, the authority shall be liable to pay compensation to the person to whom it was given for any loss or expenses occasioned to him by the giving and withdrawal of the notice, but if the notice is withdrawn under subsection (2) of this section, not for any loss or expenses incurred by the claimant mentioned therein after the time when, in the opinion of the Lands Tribunal, a proper notice of claim should have been delivered by him.[10]
8.13 The Lands Tribunal has held that a notice to treat can be withdrawn by agreement, otherwise than under the procedures specified in sub-sections (2) and (3). It is thus open to the parties to agree to the withdrawal of a notice to treat on payment to the claimant of compensation.[11]
8.14 Cases under the 1845 Act established that, where an authority had served notice to treat in respect of part of land held by a landowner, and the landowner has served counter-notice requiring acquisition of the whole,[12] the authority was entitled to withdraw the notice.[13] That withdrawal does not seem to give rise to a right to compensation, although expense may well have been incurred. Withdrawal of a notice to treat will not of itself affect the continuing validity of the order. Thus, following a section 8 withdrawal, so long as the time limit has not expired for service, the authority may serve fresh notice.[14]
8.15 The 1965 Act provides that a notice to treat ceases to have effect three years after service, if action has not been taken to implement it (s 5(2A)),[15] unless the time is extended by agreement (s 5(2B)). Where a notice to treat ceases to have effect, compensation for any loss is payable under section 5(2C), which provides:
Where a notice to treat ceases to have effect by virtue of (2A) or (2B) of this section, the acquiring authority-
(a)shall immediately give notice of that fact to the person on whom the notice was served and any other person who, since it was served, could have made an agreement under subsection (2B) of this section, and
(b)shall be liable to pay compensation to any person entitled to such a notice for any loss or expenses occasioned to him by the giving of the notice and its ceasing to have effect.
8.16 The Vesting Declarations Act confers power on an acquiring authority to elect to execute a general vesting declaration, rather than proceed by service of notice to treat under the 1965 Act. This replaces the notice to treat and the conveyance with one procedure which, on a fixed date, automatically vests title in the land with the acquiring authority, except in relation to certain minor interests. There is no provision for withdrawing a deemed notice to treat under a vesting declaration; the Act expressly provides that the 1961 Act power is not exercisable.[16] However, where in the case of divided land notice of objection to severance has been served, the authority does then have the right to withdraw the deemed notice.[17]
8.17 Provision for the advance payment of compensation, where possession is taken before compensation is settled, is made by section 52 of the 1973 Act. The advance payment is equal to 90% of the authority’s estimate of compensation, if no amount has been agreed.[18] Provision is made for repayment, if the authority’s estimate exceeds the compensation as finally determined or agreed (subs (5)):
(5) Where the amount, or aggregate amount, of any payment under this section made on the basis of the acquiring authority’s estimate of the compensation exceeds the compensation as finally determined or agreed, the excess shall be repaid; and if after any payment under this section has been made to any person it is discovered that he was not entitled to it, the amount of payment shall be recoverable by the acquiring authority.
Looking at [subsection (5)] as a whole, the obvious purpose is to contrast the position at the time of the advance payment with the position when compensation is finally determined or agreed. If at the time it is found that there is either an excess or no entitlement, then I think the right to payment arises. If this were wrong, then…the principles of restitution are broad enough to provide an appropriate remedy.[19]
8.19 Failure to complete CPO procedures within a reasonable time may be a breach of the European Convention of Human Rights (under either Article 6 or Article 1 of the First Protocol). Damages may be awarded, including non-pecuniary loss.[20] Remedies for such breaches are now available in the English courts under the Human Rights Act 1998.[21]
There is clearly a case in equity for a landowner to be compensated for any costs (other than those directly attributable to his opposition to the proposal) or other losses incurred which are directly attributable to the acquiring authority’s decision to make the compulsory purchase order, irrespective of whether the land is ultimately acquired from him or not.[22]
8.21 The Review also recommended that such costs or losses should be claimable from:
…the later of the date when the order became operative or the date when a specific cost was incurred or loss arose.[23]
8.22 As has been seen,[24] the Policy Statement proposed to extend the categories of “statutory objectors” entitled to notice of the proposals to: [25]
… all persons who have any private interest in any of the land included in the relevant compulsory purchase order, or have (apart from the order) a right to occupy any of that land, or are entitled to any right restrictive of the use of any of that land.[26]
… [T]he date on which the acquiring authority notify those directly affected of the making of the compulsory purchase order should be defined as the date from which appropriate losses can be reimbursed and as the date from which such claimants have a duty to mitigate their losses. This should apply in relation to any actual and justifiable loss or expense irrespective of whether the relevant compulsory purchase order is subsequently confirmed or implemented. However, the defined date should be regarded as a baseline and, as CPPRAG pointed out, any particular loss should only be reimbursable from the date, thereafter, on which it is first incurred.[27]
… It should apply uniformly irrespective of the reasons for not proceeding with the order and in respect of all costs reasonably incurred up to the date on which the acquiring authority notifies the claimant that the scheme has been abandoned, as well as any unavoidable costs arising beyond that date.[28]
8.24 The Government’s legislative intent was expressed as twofold:
(1) Procedural:
to provide a notification procedure for the withdrawal of compulsory purchase orders; and
to require (within a stated period), registration as a local land charge of information relating to the making, withdrawal, confirmation, cancellation or refusal to confirm a compulsory purchase order;[29] and
(2) Compensatory:
to confirm that compensation is payable where the threat of compulsory purchase subsequently fails to materialise because the compulsory purchase order is not confirmed, is withdrawn, is quashed or is not implemented within the appropriate time limits after confirmation (Law Commission).[30]
8.25 The ODPM in its Policy Response Document more recently indicated that the Law Commission is considering, amongst other matters, “compensation for actual losses if a scheme does not proceed.”[31]
To require government to underwrite losses sustained by people who buy and sell on the basis of mere expectation seems both wrong in principle (the government has not caused those losses) and impracticable (the task of causally relating loss to expectation would be great). If on the other hand, there has been a formal government proposal for the use of the land it is unreasonable that losses caused by such a proposal should be uncompensated simply because no formal acquisition step has been taken.[32]
It recommended accordingly that, where a declaration is revoked, any person who had an interest in the land to which the declaration relates should have a right to recover as compensation:
Such amount as will justly compensate him in respect of any loss or damage suffered, or expense reasonably incurred by him as a result of the making of the declaration for the acquisition of land pursuant to that declaration.[33]
8.27 This proposal was given effect by LAA (Cth), section 96, which applies where a “pre-acquisition declaration” [34] is revoked or ceases to have effect.[35] In such a case, where:
(b) a person who, when the declaration was in force, was an owner of an interest affected by the declaration, suffers loss as a direct, natural and reasonable consequence of the making of the declaration; and
(c) within 3 years after the declaration is revoked or ceases to have effect, the person claims compensation in accordance with section 97;[36]
the Commonwealth is liable to pay to the person as compensation such amount as will justly compensate him or her for the loss.[37]
8.28 Similar provisions are found in recent state legislation. For example, the Lands Acquisition and Compensation Act 1986 (Victoria), (“LACA (Vic)”) provides for the cancellation of the proposal or its lapse after a specified period from the notice of intention to acquire.[38] It gives a right to compensation for pecuniary loss or expenses suffered in consequence of a notice of intention to acquire, where the authority determines not to proceed, or does not proceed within the time prescribed. Compensation is limited to losses in the period between the giving of notice to acquire and the time of the notice to proceed or of the lapsing of the notice to acquire.[39] There is a separate right to compensation for loss caused by temporary occupation by the authority.[40]
As soon as practicable after the expiration of the minimum period of notice of a proposed compulsory acquisition, the authority of the State must:
(a) acquire the land by compulsory process or by agreement; or
(b) withdraw the proposed acquisition notice. [41]
The acquisition notice is to be taken as withdrawn if the land is not acquired within the 120 days from the notice of intention to acquire, or any agreed extension. [42]
8.30 This provides the trigger for a right to compensation:
(1) If a proposed acquisition notice is withdrawn (or taken to be withdrawn) under this Act, an owner of the land concerned is entitled to be compensated by the authority of the State who gave the notice for any financial costs or any damage actually incurred or suffered by the owner as direct consequence of the giving of the notice and its later withdrawal.
(2) Compensation is not payable under this section in respect of any change in the value of the land.[43]
The purpose of subsection (2) presumably is to exclude a claim for alleged losses due to a fall in the market during the life of the CPO proposal. It is probably unnecessary, since it seems unlikely in any event that such a loss would be regarded as a “direct consequence” of the giving of the notice and its withdrawal.[44]
(2) Where an intention to expropriate an interest or remainder of an interest in land has been abandoned, the compensation payable by the Crown to the owner thereof is the amount of any actual loss sustained by the owner, after the time when the notice of intention was registered and before the time when the abandonment of the intention, or the intention to expropriate a more limited interest, as the case may be, was confirmed, in consequence of the registration:
(a) of the notice of intention, where the intention to expropriate the interest has been abandoned; or
(b) of the notice of intention in so far as that notice relates to the remainder of the interest, where the intention to expropriate the remainder has been abandoned.[45]
8.32 The main issues are:
(1) When should the entitlement begin?
(2) Who may claim?
(3) In what circumstances does the entitlement arise?
(4) What should be the basis of compensation?
8.33 The Policy Statement proposes that the starting date for the right to compensation should be “the date on which the acquiring authority notify those directly affected of the making of the compulsory purchase order.” (We have referred to this as “the first notice date”.)[46] This is consistent with the approach of the Australian statutes.
8.35 It might seem appropriate for the right to compensation on withdrawal or abandonment of a compulsory purchase order to be extended to those who would be entitled to compensation if the order were implemented. It is the corollary of their obligation to mitigate their loss from the same date.[47] In practice, of course, those with lesser interests may find it less easy to prove any loss. For example, occupiers without compensatable interests, who under the 1973 Act have a right to compensation for business loss,[48] are unlikely in practice to be adversely affected by the mere making of the order. Nor, consistent with their obligation to act reasonably, are they likely to be able to justify running down a business before at least confirmation of the order. However, this should not affect the principle.
8.36 Those with no more than an easement or right over the subject land may well be in a different category. Their right to compensation does not arise unless and until their interests are interfered with.[49] In those cases, since even implementation of the order does not confer a right to compensation, there seems no reason to confer a right at an earlier stage. Accordingly, we would not extend the right to compensation to such interests.
8.37 We think a reasonable compromise, and a reasonably precise test, is to give the right to compensation to all those entitled to individual notice of the making of the order.[50] This, under the current proposals, will include all those with a direct interest or right of occupation, but not those entitled simply to an easement or restrictive covenant.
(1) Where the order is formally withdrawn by the acquiring authority before confirmation;
(2) Where confirmation is refused by the Secretary of State;
(3) Where the order is quashed by the High Court;
(4) Where, after the “operative date”,[51] the authority fails to implement it (by notice to treat or vesting declaration) within the statutory time limit;
(5) Where, following notice to treat or vesting declaration, a notice is served under the divided interests rules, and the authority exercises its right to withdraw;
(6) Where the authority exercises its right to withdraw the notice to treat within 6 weeks of a proper claim for compensation (or, in default of a proper claim, of determination);[52] and
(7) Where, following notice to treat, the authority fails to take possession within the statutory time limit.
8.39 As has been seen, only (4) and (6) are subject to rights to compensation under the present law.[53] We propose that there should be a right to compensation on any of the events listed in (1) to (7). The authority should be under an obligation to give notice of such an event to all those who were entitled to notice of the making of the order, with details of their right to compensation.[54]
8.41 Thus, in line with the existing law,[55] we propose that the authority be permitted to withdraw a compulsory order at any time up to implementation (by service of notice to treat or execution of vesting declaration). By contrast, a notice to treat could only be withdrawn (a) as permitted by the 1961 Act, section 31 (following notice of claim or determination), (b) by agreement, (c) under the “divided interest” provisions,[56] or (d) under any special statutory provision permitting withdrawal; (b) to (d) will also apply to a vesting declaration. We do not propose a separate provision for withdrawal of notice of entry, in view of the short time-scale now proposed.[57]
8.43 Such a scheme assumes that the order is withdrawn or ceases to have effect at a defined point in time. It does not provide a remedy for cases where, before the operative date, the order is simply not pursued, or not pursued expeditiously. The Australian statutes lay down relatively tight timetables for completion of the procedures following the initial proposal; failure to comply results in lapse of the order and triggers the right to compensation.[58] This approach would be difficult to apply to the English procedure before confirmation, because the provision for objections and public inquiries, is more protracted, and less predictable. Also, to the extent that delay is caused by the confirmation procedure, it is largely out of the control of the acquiring authority (on whom liability would fall).
8.44 There are three relevant periods:
(1) From making of the order to submission to the confirming authority This is within the control of the authority, and could be subject to a specific time limit (say two months from the first notice date). However, it is unlikely that significant loss will have occurred at this stage;
(2) From submission until confirmation This is outside the control of the acquiring authority. It is for Government to decide, as a matter of policy, whether it wants to place itself under time constraints or to put in place some form of binding default procedure. It is probably impracticable to do so, not least because each CPO differs in its nature, extent and complexity, and the weight of objection will vary from case to case, but also the time-scale within which inquiries or hearings can be established will depend on a multiplicity of factors;
(3) From confirmation to operative date This may be delayed by legal challenge, which is again outside the control of the authority.
8.46 In any event, this problem is part of the wider problem of “blight”, which is being considered separately by the Government.[59] As we have already noted, in an extreme case, there may be a remedy for unreasonable delay under the Human Rights Act 1998.[60] We make no specific proposals at this stage, but invite views, and examples of difficulties experienced in practice.
8.47 As noted above, the Policy Statement envisages that compensation should cover any loss or expense directly attributable to the proposal and its abandonment, subject to the ordinary duty of the claimant to mitigate his loss. This seems correct in principle. As has been noted, where a notice to treat lapses following the time limit under section 5 of the 1965 Act, the recipient is entitled to compensation for “any loss or expenses occasioned to him by the giving of the notice and its ceasing to have effect”. A similar form of wording could be used for loss caused by the order as a whole ceasing to have effect. We do not think it necessary to spell out the basis of compensation in any greater detail, since the circumstances may vary considerably. However, we would anticipate the right being subject to the general principles stated in the Compensation Report, including the principle of “fair compensation”, and the “duty to mitigate loss”, although this is probably implied.[61]
8.48 There remains a problem drawn to our attention by local authorities with housing and environmental health functions. Compulsory purchase orders are sometimes used to assist enforcement of repairing or maintenance obligations of owners of residential property.[62] Compulsory powers are often used as a means of final resort because other statutory powers have failed.[63] The authority may indicate that the order will be withdrawn if the owner undertakes to carry out the work himself.
8.49 This practice is supported by Government:
Some authorities have adopted a practice of offering undertakings to owners that they will not implement compulsory purchase orders if the owner improves the property and/or brings it into acceptable use within a specified period of time. Undertakings of this nature may be offered before or at the local inquiry held into the order and may be helpful in establishing that compulsory purchase will only proceed as a last resort in a case where an owner has proposals for a property but fails to carry these out. . . . Where an authority has given an undertaking it should give the owner every reasonable assistance to carry out his proposals, in the hope that implementation of the order will not be necessary.[64]
8.50 The City of Westminster is a case in point. There the authority use CPOs made under the Housing Act[65] as an integral part of their private sector housing strategy. Westminster’s CPO housing policy is (we are told):
(1) to give first priority to occupied properties where tenants are experiencing poor living conditions, or bad management of their homes, or both;
(2) to give second priority to long-term empty properties which are in poor condition and do not make a contribution to the overall housing stock in the authority’s district;
(3) but where an owner gives a time limited binding undertaking to refurbish a substandard property and return it to residential use, the CPO is not implemented (even if it is in its later stages).[66]
In such cases, CPOs are only implemented as a last resort. The Council is not anxious to acquire properties (and the liabilities attached to them); they prefer to find ways in which building owners will voluntarily refurbish and reuse their housing accommodation.
8.53 As under the existing provisions, disputes in respect of compensation will be referred to the Lands Tribunal. They will be subject to the same limitation period as other statutory rights to compensation.[67]
(1) An order will be treated as having become abortive in respect of the subject land or any part of it or interest in it:
(a) if it is withdrawn by the acquiring authority under paragraph (2) below; or
(b) in the circumstances set out in paragraph (3) below.
(2) Withdrawal of orders and notices:
(a) At any time before implementation (by service of a notice to treat or execution of a vesting order) in respect of the subject land or any part of it, the acquiring authority may formally withdraw the order in respect of the land or that part by serving notice of withdrawal in the same manner, and on the same persons, as would apply to notice of making of the order.
(b) After implementation (as above), the authority may withdraw from the purchase (with the effect that the order itself becomes abortive to the extent of the interests affected) by notice served on all those entitled to service of the relevant notice to treat or vesting declaration, in the following circumstances (and no other):
(i) by agreement;
(ii) under any special statutory provision permitting withdrawal;
(iii) as permitted by the divided interest procedures; or
(iv) (in the case of a notice to treat) within 6 weeks of a proper[68] claim for compensation, or, in default of a proper claim, within 6 weeks of determination of compensation.[69]
(3) The compulsory purchase order shall also be treated as becoming abortive in the following circumstances:
(a) Where confirmation is refused by the Secretary of State;
(b) Where the order is quashed by the High Court;
(c) Where, after the “operative date”, the authority fails to implement it in respect of that interest or right (by notice to treat or vesting declaration) within the statutory time limit; or
(d) Where, following notice to treat, the authority fails to take possession within the statutory time limit.
(4) Where an order becomes abortive under the paragraph (3), the authority shall forthwith give notice of that fact and of the right to compensation under this Proposal, to all the persons entitled to be served with individual notice of making.
(5) Where an order becomes abortive under this Proposal, any person who was entitled to be served with individual[70] notice of making of the order, or any person served with a notice which is later withdrawn, may claim from the acquiring authority compensation for any loss or expenses occasioned to him by the making of the order and its becoming abortive, or by the withdrawal of the notice.
(6) There shall be no right to compensation under this proposal where:
(a) an order is withdrawn by the authority, if the authority certified in the order that it was made wholly or mainly for the purpose of securing the improvement, maintenance or management of existing property; or
(b) where, following the service of a blight notice under the 1990 Act, s 150, notice to treat is deemed to have been withdrawn under section 156(2) of that Act.[71]
(7) Where notice is given that an order has become abortive or that an order or notice has been withdrawn, the acquiring authority shall, at the same time as giving the notice, cause the register of local land charges to be amended accordingly.[72]
(1) Do consultees agree that a right to compensation should arise in the circumstances defined in this proposal?
(2) In particular, do they agree:
(a) that the right to compensation should be defined by reference to those entitled to individual notice of the making of the order? If not, how should the right be limited, or defined?
(b) that there be an exception, as proposed, for cases where the authority certifies that the order is made for the purpose of securing the improvement, maintenance or management of existing property? If so, should the Tribunal be able to disallow the exemption where the authority has acted unreasonably?
(c) that there should be no right to compensation under this provision,[73] arising simply out of delay in completing the compulsory purchase procedures? (If consultees disagree, it would be helpful to have examples of cases where such a right might have been appropriate, and an indication as to how it could be defined.)
(d) Do consultees have any other comments on the detail of this proposal?
[1]See, e.g., Small Holdings and Allotments Act 1908, s 39(8), which allows a notice to treat to be withdrawn within 6 weeks of determination of compensation, if the amount so awarded makes the project uneconomic; on withdrawal, compensation is payable for any resulting loss or expense.
[2]Morgan v Metropolitan Railway Co (1868) LR 4 CP 97, where it was held that the authority would be liable for damages if it failed to proceed within a reasonable time following notice to treat. The only exception was where, in response to a notice relating to part only of his land, the land-owner had served a notice requiring purchase of the whole (under 1845 Act s 92; 1965 Act s 8); see Part VIII, paras 8.14-15 below.
[3]See Simpsons Motor Sales (London) v Hendon Corporation, [1964] AC 1088, where the House of Lords recognised that a notice to treat could be abandoned, but, on the facts of the case, upheld its continuing validity, notwithstanding 6 years delay since service.
[4]1965 Act, s 5(2A)-(2E) (as substituted by s 67 of the 1991 Act): see below.
[5]DoE Circular 14/94, para 8.
[6]Acquisition Act, s 13(2): an inquiry or hearing must first be held if there is any unwithdrawn properly-made objection. Similar provisions apply where the order is a ministerial one: Sched 1, para 4.
[7]There are time limits where the Secretary of State, having decided that an inquiry should be held, must give notice of that intention to the acquiring authority and to statutory objectors (and for subsequent inquiry stages): Compulsory Purchase by Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990 SI 1990 No 512, r 4 and Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 SI 1994 No 3264, r 4.
[8]That is, a claim complying the 1961 Act, s 4(1)(b), (2), which must state “the exact nature of the interest in respect of which compensation is claimed, and give details of the compensation claimed, distinguishing the amounts under separate heads and showing how the amount claimed under each head is calculated.”
[9]Under (1), where a claim has been served, the notice to treat may be withdrawn within 6 weeks notwithstanding that the acquiring authority have entered into possession of the land: R v Northumbrian Water Ltd, ex parte Able K Ltd [1996] 2 EGLR 15.
[10]The amount of any compensation, in default of agreement, is determined by the Lands Tribunal: ibid, sub-s (4).
[11]Williams v Blaenau Gwent Borough Council (1994) 67 P&CR 393.
[12]1965 Act, s 8(1); for the right to serve such notices in respect of divided interests, see Part VI, para 6.26ff above
[13]King v Wycombe Rly Co (1860) 28 Beav 104; Ashton Vale Iron Co Ltd v Bristol Corporation [1901]1 Ch 591, CA.
[14]Ashton Vale Iron Co Ltd (ibid).
[15]The section specifies the actions which will prevent the notice ceasing to have effect: the compensation has been agreed, awarded or been paid into court; a vesting declaration has been executed; the acquiring authority has entered on and taken possession of the land; or the question of compensation has been referred to the Lands Tribunal: see Part V, paras 5.6-5.8 above.
[16] Vesting Declarations Act, s7(3). This mirrors the 1973 Act, s 54(4) provision (relating to deemed notice to treat in respect of agricultural land).
[17] Vesting Declarations Act, Sched 1 para 4(1)(a), (2). This specifically disapplies section 7(3). See Part VI, paras 6.26ff for divided interests.
[18]For discussion of the provisions for advance payments, see Compensation Report, Part VIII(3) paras 8.21-8.29 and Proposal 13.
[19]R v Northumbrian Water Ltd, ex parte Able K Ltd [1996] 2 EGLR 15, 19.
[20]See Guillemin v France 1997-VI, p 149, 25 EHRR 435 (merits), 1998-VI, p 2544 (just satisfaction): proceedings to determine compensation extended more than seven years; the award included 250,000 FF for non-pecuniary loss, including “living in a state of uncertainty and anxiety about the outcome of the proceedings.”
[21]See the Report on Damages under the Human Rights Act (2000) Law Com No 266; Scot Law Com 132.
[22]CPPRAG Review, para 188.
[23]Ibid, para 190.
[24]Part IV, paras 4.7-4.8 and Proposal 2 above.
[25]Provisions for the giving of notice, and rights of objection are set out in Acquisition Act, Sched 1 paras 2-4 (Ministerial purchases); ss 11-13 (purchases by other bodies). The term “statutory objector” is not used in the Act , but is used in the Inquiries Procedure Rules to describe those entitled with a statutory right to object following receipt of notice under those provisions: see e.g. Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 SI 1994/3264 r 2.
[26]Policy Statement, App, para 2.12.
[27]Ibid, App, para 3.8.
[28]Ibid, App, para 3.76.
[29] Policy Statement, para 3.9 Our proposals in relation to local land charges are discussed above: Part VII, paras 7.51-56.
[30]Policy Statement, para 4.21
[31]Policy Response Document (July 2002), para 12(iv)
[32]ALRC Report, para 188.
[33]Ibid,para 190.
[34]Under LAA (Cth) 1989 the compulsory acquisition procedure is initiated by a “pre-acquisition declaration” by the Minister that he is “considering the acquisition by an acquiring authority of an interest in land… for a public purpose”: ibid, s 22(1). The declaration must identify the interest to be acquired and the public purpose: s 22(2).
[35]The Act refers to two circumstances where the declaration “ceases to have effect”: first, where the interest is not acquired within 3 months of the owner giving notice to require acquisition (under s 44(2)); secondly, where the acquisition is disallowed under a special Parliamentary procedure relating to land in a public park (s 46(2)).
[36]Section 97 is purely procedural.
[37]This provision started life in the ALRC (1980) draft Bill cl 27 which would have provided a right to recover “such amount as will justly compensate him in respect of any loss or damage suffered, or expense incurred by him, as a natural and reasonable consequence of the making of the [revoked] declaration…” (and see supporting text at para 190).
[38]LACA (Vic), ss 15-16.
[39]Ibid, s 46.
[40]Ibid, s 47.
[41]LA(JTC)A, s 14.
[42]Ibid, s 14(2).
[43]Ibid, s 69.
[44]Cf Banque Bruxelles Lambert SA v Eagle Star [1997] AC 191: the valuer was not liable for any loss suffered by the lender as a result of a fall in the market, since such a loss was not a foreseeable consequence of the valuer’s negligence in providing inaccurate information. See per Lord Hoffmann at p 214 on the limited extent of the duty of care, distinguishing between provision of information and advising on a course of action. In Hancock v Turner [1999] Lloyd’s Rep. P.N.814, QBD, it was held that negligent advice leading to foreseeable loss of a marketing opportunity could give rise to liability for that loss (and there would be sufficient causal link).
[45]Canadian Expropriation Act 1985, s 28(2)
[46]See Compensation Report, Part III, para 3.8.
[47]This “duty to mitigate” is also proposed to run from the first notice date: Compensation Report, Part IV, para 4.34 and Proposal 4(2)(e).
[48]See Compensation Report, Part VIII, paras 8.81-82.
[49]See Compensation Report, Part VIII, paras 8.3-9 and Proposal 11(1).
[50]This would exclude those (such as owners of easements etc) who are entitled only to “special service” under Proposal 1: see paras 3.15-3.26 above.
[51]Acquisition Act, s 26(1). Subject to the power of the court to suspend operation by interim order, the operative date is that on which notice of confirmation is first published.
[52]Under 1961 Act, s 31: see para 8.11 above
[53]Time limit is specified in 1965 Act, s 5(2A) unless extended by agreement under s5(2B). Notice of withdrawal and the compensation entitlement is governed by s5(2C).
[54]Notice of withdrawal will also be recorded in the local land charges register: see Part VII, para 7.52 above.
[55]Para 8.8ff above.
[56]See Part VI para 6.48ff above.
[57]See Part V, para 5.13 above.
[58]See paras 8.26-8.31 above.
[59]Policy Statement, para 5.1.
[60]See above, para 8.19 and see also Compensation Report, Part II, para 2.23.
[61]Compensation Report, Part IV, para 4.11 (“Fair compensation”); 4.58 (“duty to mitigate”).
[62]A similar issue may arise in other areas, such as in relation to listed buildings.
[63]Guidance on the use of CPOs made under Housing powers is given in DoE Circular 5/93.
[64]DoE Circular 5/93, para 18.
[65]Housing Act 1985, s17.
[66]Letter from Housing Department, City of Westminster Council, 27 February 2002.
[67]See Part VII, paras 7.2-7.17 and Proposal 12 above.
[68]i.e. a claim complying with 1961 Act, s 4: see para 8.11 above.
[69]i.e. to the extent permitted by the 1961 Act, s 31 (or any replacement of that section).
[70]See para 8.37above.
[71]This reproduces the effect of 1990 Act, s 156(4).
[72]See Part VII, paras 7.51-7.56 and Proposal 17 for our proposals in respect of registration.
[73]As noted above, in some circumstances there may be a right to relief under the Human Rights Act 1998: para 8.19 above.
