Legal Report

Making a watertight case on land assembly powers.

The UK's towns and cities are undergoing a renaissance. From Bristol to Basildon, from Sheffield to Swansea, local authorities have ambitious plans to regenerate their urban areas. Some schemes are being built, others are in the pipeline.

To deliver these schemes, land has to be assembled. The Planning and Compulsory Purchase Act 2004 widened the scope of local authorities' compulsory purchase powers to create an invaluable regeneration tool. However, the test as to whether or not a compulsory purchase order (CPO) should be confirmed remains poorly defined.

The 2004 act requires an order to contribute to the economic, social or environmental well-being of the area. Circular 06/04 advises that a CPO will only be confirmed where there is a compelling case in the public interest that justifies interference with human rights to the enjoyment of property. The circular also provides that there should be no likely impediments to implementation of the scheme to which the CPO relates.

Orders trump planning merits

There must be no obvious reasons why planning permission will not be granted. This suggests a separation between the planning decision, at which stage the planning merits of the scheme are determined, and the CPO decision. The corollary is that if the planning box is ticked, particularly if permission has already been granted, then the authority confirming the CPO need not be concerned with the planning merits.

But is this really the case? The danger is that promoters of development will rely too heavily on the fact that planning permission has been granted to back their case for a CPO. Anyone familiar with CPO inquiries will know that promoters will present detailed evidence on planning matters and focus on the fact that permission has been granted.

For retail-led schemes, studies will have been commissioned that support the need for more comparison or convenience shopping. National, regional and local planning policies will be adduced to show that the scheme meets the relevant policy tests. Promoters will make much of support from an urban regeneration company, a "visionary" masterplan or supplementary planning guidance. The permeability of the new development, the enhanced public realm and the improved transport links will all be described.

These are all arguments that would be relevant to a planning inquiry. Very often, objectors who want to stop a CPO and rebut the acquiring authority's evidence may be met with a response that their views are planning arguments and should have been made in response to the planning application. If they did not object - or if they did and permission was granted anyway - the response may be: "Tough".

Public needs to see clear case

The problem is that in seeking to satisfy the well-being test, there is a huge overlap between the justification for a CPO and the one required for planning permission. The most significant difference is the need to demonstrate that there is a compelling case in the public interest. In determining the planning application, the authority does not have to assess whether the decision may result in landowners being deprived of their interest.

There is no special "compelling case" test for planning applications involving development where a CPO will be required. Where an application is not called in, as is now often the case for town and city centre schemes, objectors miss out on the opportunity to present evidence against the scheme. So even though CPO inspectors do not determine the planning application, it must be right that they hear evidence on the planning merits.

This is essential in order to determine whether the well-being test has been met and show that a compelling case has been made in this regard. It could be argued that the planning evidence in support of a CPO needs to be even more compelling than that required to achieve permission. Given what is at stake, how can a "planning argument" from objectors be dismissed on the basis that permission is in place or is likely to be granted?

This inevitably begs the question as to whether these processes should be twin-tracked, with a single inquiry dealing with planning and CPO issues and any contested highway order. An automatic call-in of planning applications accompanying a contested CPO would make good sense too.

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