Compulsory purchase orders

12 Pages·2017·1.22 MB·English

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Compulsory purchase orders:
2017 update
Planning and housing CPOs 2003-2016 summary
Foreword
“Compulsory purchase can be incredibly helpful to investment and
community building, when used appropriately by local autho rities, helping
them bring forward much-needed housing and package parcels of land in

ways that support regeneration. Despite its benefits, this report confirms that

CPO remains an under-used process – particularly when compared to the
frequency of applications during the pre-recession perio d.

With the country facing a housing crisis, proposals for Garden Towns/Villages
and more development on complex urban sites will likely gather pace and
local authorities therefore need to be supported in the understanding of the

tools at their disposal. Increased use of CPOs will not act as a silver bullet to

addressing these challenges, and there are other means of supporting the
development of new housing and regener ation – better resourcing of
planning departments; improved and more transparent engagement between

the public and private sector; and innovative thinking around infrastructure

funding, for example. However, even if we are to accept these relatively low
levels of use as the “new normal”, it is clear that increasing its use could still
go a long way to unlocking more sites and more housing.
This report finds that CPO remains a complicated and expensive process.
Reforms proposed in the previous Parliament would help simplify this process,
but are yet to come into force, and we would urge Government to bring these
forward and consider how to go further in their reform. Empowering and
encouraging local authorities to be more proactive with the use of CPOs
will likely go a long way.
Legislative change will no doubt prove difficult within the current
parliamentary constraints, and Government will look to the industry to
come forward with ideas, and evidence, to help support its agenda.
The BPF therefore welcomes the findings and recommendations of this
excellent report as it adds to a helpful body of evidence, and looks forward
to working with Womble Bond Dickinson, Government and all our members
to bring forward much-needed reform and regeneration.”
Melanie Leech,
Chief Executive,
British Property Federation
Introduction
This is the fourth in our In large part, this report echoes many of • In terms of the time taken to
series of reports looking the key messages of previous reports: determine CPOs, there is continuity
for unopposed Orders. For example,
at the usage and success • CPOs are a vital tool for regeneration unopposed Housing CPOs were

rates of Compulsory Purchase • Success rates for both Planning and determined on average in 70 days
Orders (CPOs), principally Housing CPOs remain high as compared with an average 63 days
in 2013, the last year for which
those made under the Town • There are a range of reasons, from
comparative figures are available.
and Country Planning Act 1990 technical to evidential, why some
Similarly the figures for unopposed
CPOs were not confirmed
s226 (1)(a) (ie Planning CPOs) Planning CPOs would suggest
and those made under • A significant number of local authorities (subject to the adjustments noted
make use of compulsory purchase below) that the average is 98 days,
the Housing Act 1985 s17
powers but generally do so sparingly. identical to the 2013 figure.
(ie Housing CPOs).
• In short, it takes on average two
However, this report additionally makes
months for an unopposed Housing
In our previous reports we have the following findings.
CPO to be determined once it is
assessed Housing and Planning CPOs
both quantitatively and qualitatively. As regards the statistical assessment: submitted to the Secretary of State
for confirmation and three months
Our first report in 2010 contained a • In 2015, 57 Planning CPOs and 54 for an unopposed Planning CPO.

statistical analysis of the outcomes of Housing CPOs were submitted
• For both opposed Housing and
CPOs, analysing how many were respectively. In 2016, 40 Planning CPOs Planning CPOs it appears to be taking
confirmed (with or without modifications), and 39 Housing CPOs were submitted.
longer to determine these. Most
how many were not confirmed and how These figures are toward the lower end
significantly, opposed Housing CPOs
many were treated as withdrawn. The of the range of CPOs submitted
would appear to be taking three times
report also reviewed Secretary of State annually in the years 2003-16 covered
as long to determine as they did in
decisions and case law. by our previous research. Moreover, the
2013, notwithstanding that it may be
range of 40-60 CPOs per year for both
assumed that most were determined
Our second report in 2012 contained a Planning and Housing CPOs reflects the
by way of written representations.
purely statistical update of the figures “new normal”.
through to the end of 2011. • We have collated all Planning and
• Both Planning CPOs and Housing
Housing CPOs submitted between
CPOs continue to demonstrate high
Our third report in 2015 was a more 2003 – 2016 by region. As previously
levels of success.
extensive review containing both a reported, the North West of England
statistical update and a detailed review • The figures indicate that: and London regions predominate in
of Secretary of State decisions through - for Planning CPOs at least 87% in terms of totals of CPOs submitted.
to the end of 2014. The report also
2015 and 82% in 2016 succeeded. • Within the regional figures, however,
included details of levels of
This may be even higher when there is a wide range of usage.
implementation of confirmed Orders
considering withdrawn CPOs The data supports our previous
based on information collated from
due to aquisition by agreement conclusions that:
Acquiring Authorities.
- for Housing CPOs the equivalent - Many authorities have used their
This fourth report in our series continues figures are at least 79% in 2015 compulsory purchase powers but
the statistical assessment through to the and 88% in 2016. do so sparingly
end of 2016 and looks at Secretary of
State “not confirmed” decisions in • This level of success is consistent with - A relatively small number of
2015-2016; ie it seeks to identify why previous years and demonstrates an authorities account for a significant
some CPOs were not confirmed. established, long-term trend. proportion of CPOs made.
1. Public Sector Equality Duty
2. European Court of Human Rights
Compulsory purchase order: 2017 update womblebonddickinson.com 1
Introduction continued
We have reviewed the reasons why this approach is not limited to the Housing CPOs that were not confirmed.
the Secretary of State has not Aylesbury Estate Planning CPO decision Moreover, each of those Housing CPOs
confirmed Housing and Planning (a large phased regeneration scheme took over a year to determine.
CPOs in 2015-2016. which attracted the media headlines) but
has also been applied to much smaller, Our impression is that more
• The reasons for non-confirmation of single property Housing CPOs in which CPOs are being determined by written
Housing CPOs include: the individual circumstances of the representations rather than by way of
- Whether the property is vacant or in respective owners have been public inquiry. Given that wider use of
limited use – assessment of extent of considered in detail. written representations was intended
to produce time-savings it is striking
actual use of the property
The application of PSED and human that the opposite, in fact, appears to
- Individual circumstances of the rights considerations, on a fine-grained have happened albeit the sample is
owner basis, represents a greater focus in relatively small.
- Degree of harm caused by the approach and requires consideration by
CPO and insufficient to warrant an acquiring authority of PSED and The written representations process
confirmation human rights both at an early stage of is front-loaded in that it imposes
the process of intended acquisition and relatively short deadlines on the
- Engagement of PSED1 and on an on-going basis; as well as a acquiring authority to make additional
ECHR2 – including a failure to greater understanding of affected representations and thereafter for
accommodate disabilities parties’ needs and therefore a greater additional submissions by both the
- Failure to show CPO was level of engagement. Omissions cannot objector and acquiring authority.
being used as a “last resort”, readily be rectified at inquiry or written Thereafter however, there is no fixed
representations stage. Moreover, timetable or deadline within which the
- Compliance with an undertaking
acquiring authorities are well advised to Secretary of State must make this
whilst not fulfilled by the owner but
remember that not only must decision. Anecdotally, it appears that
sufficient work had been undertaken
negotiations be undertaken proactively; written representation decisions simply
• The reasons for non-confirmation they must also be seen to have been join the same queue awaiting an
of Planning CPOs include: undertaken. In opposed cases, the inspector. We would recommend
- Conflict with Ministerial Statement Secretary of State will expect “chapter that this aspect of the system be
and verse” of efforts to acquire and reviewed to check whether our
- Failure to assess negotiate. In finely balanced cases observations are well-founded and,
alternative schemes
“the benefit of the doubt” may well if so, how time-savings can be achieved.
- No longer any need for be given to an owner. This is, perhaps, At the time of this report’s publication,
confirmed Order a lesson which has been taken from the provisions of the Housing and
- Late attempt to change purpose the examination of Nationally Planning Act 2016 to introduce
of Order Significant Infrastructure Projects and timetables for the determination
the approach being taken to the of CPOs, as well as the ability for
- Owner’s recent limited examination of those applications. inspectors to confirm CPOs, have
improvements being sufficient not been brought into force. Those
- Lack of detail in the Council’s It is difficult to be certain how many changes could have the effect of
case as to compliance with CPOs are dealt with by way of written speeding up the process and also
Guidance (including failure representations as against by way provide greater certainty for all involved.
to assess alternatives) of public inquiry since the National
Planning Casework Unit (NPCU) does Lastly, where a CPO is limited to a
- Planning permission not not keep its records on that basis. single property (most likely a Housing
being conclusive of need However, given the content of Guidance CPO) but nonetheless the detailed
- Where the case is finely balanced and from experience as practitioners, circumstances of individuals are
- ‘benefit of doubt” to the objector. it may reasonably be assumed that it is crucial (and possibly determinative)
the more complex CPOs that are dealt to assessing the proportionality of
There is evidence of an increasingly with by way of public inquiry. Those of State interference with rights, then it
detailed assessment being required course tend to be Planning CPOs rather may be more appropriate in some
of the individual circumstances of than Housing CPOs. It is notable that cases for some form of hearing or
landowners and occupiers when five of the eight CPOs not confirmed inquiry to take place rather than reliance
weighing the proportionality of by the Secretary of State in 2015-2016 on the basis of written representations.
interference with their rights, including were determined by way of written
the application of the PSED. Significantly representations, including all of the
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Statistics
Planning and Housing CPO To the extent that the use of Planning within the range of 40 – 60 also
Statistics 2015 – 2016 CPOs can be considered to be a proxy displayed in years 2009 – 2012
Figure 1 below indicates that: for economic and redevelopment inclusive. The figures for 2013 therefore
activity, and in particular as a barometer increasingly appear to be an outlier as
In 2015:
of economic confidence, the longer against the broad range of 40 – 60
term annual figures of Planning CPOs in Housing CPOs submitted per annum.
• Local Authorities submitted 57
the broad range of 40 – 60 represents
Planning CPOs. This is almost identical
the “new normal” at a much lower level. In previous years we have emphasised
to the 58 Planning CPOs submitted in
the more volatile pattern of Housing
the previous year, 2014.
We have previously caveated our CPO submission. That remains the case
• 54 Housing CPOs were submitted, reports to suggest that decreased to this extent. The four highest annual
representing a 19% decrease from usage of Planning CPOs continued to figures during the years covered by this
the 66 submitted in 2014. reflect subdued economic confidence in report are all for submission of Housing
previous years because of the long CPOs (2003, 2004, 2006 and 2013
In 2016: lead-in times to prepare some CPOs. respectively). From 2009 – 2016,
However, that position appears however, in six of these years, the
• 40 Planning CPOs were submitted.
increasingly difficult to sustain. There number of Housing CPOs fell within
This is the joint second lowest annual
does not presently appear to be any the range of 40 – 60 i.e. very similar
total in all the years covered by our
indication of a revival of Planning CPO to Planning CPOs. 2013 is the outlier
research since 2003. In 2009, 40
usage to pre-recession levels of 70 – 80 in which 92 Housing Orders were
Planning CPOs were submitted. In
per annum. submitted followed by 66 in 2014.
2013, 36, the lowest annual total
were submitted. Levels of Housing CPO usage have We would suggest that such a level
• 39 Housing CPOs were submitted. tended more to reflect access to public now reflects the default level of absent
This represents a low annual total. sector funding by local authorities, as targeted programmes with high levels
Indeed in the years covered by our opposed to general economic activity. of usage. The levels experienced in
research only 2012 (with 37 CPOs) Previous increases in annual figures 2015 and 2016 would suggest that the
saw a lower total of Housing reflected the undertaking by a small 2013 figure very much represents the
CPOs submitted. number of Councils of targeted exception to the present trend.
programmes of improvement.
As we have previously reported, in
The spike in usage in 2013, for example,
terms of the longer term trend set out
represented two or three Councils being
in figures 2 and 3, the number of
particularly active in that regard. The
Planning CPOs submitted continue
submission of 54 Housing CPOs in 2015
tobe within a range significantly lower
and 39 in 2016 respectively fall broadly
than pre-recession figures.
Figure 1
Planning and Housing CPOs submitted 2015 – 2016 totals
2015 2016
Planning CPOs submitted (including those not determined) 57 40
(23 opposed) (23 opposed)
Housing CPOs submitted (including those not determined) 54 39
(13 opposed) (4 opposed)
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Statistics continued
Planning and Housing CPOs • That decrease is however offset by an • The annual percentages for CPOs not
submitted 2003 - 2016 increase in Planning CPOs confirmed confirmed are 2% in 2015 and 6% in
The change in the numbers of Planning with modification: 29% in 2015 and 2016. Again these fall within the broad
and Housing CPOs submitted each year 30% in 2016. That contrasts with 9%, range of recent years: 3% (2012), 6.5%
for the period 2003 – 2016 is illustrated 26% and 18% in the prior three years. (2013) and 7% (2014).
in Figure 2. The figures for 2015 and
• When confirmations, both with and • As previously, there has been
2016, as noted above, are consistent
without modifications, are considered a degree of inconsistency as
with the figures for 2009 – 2012
the totals for 2012 to 2016 are: 75%, to how “not confirmed” decisions
inclusive. 2013 is an exceptional outlier
90%, 85%, 87% and 82% respectively. are recorded by NPCU3 as against
for reasons previously analysed. The
“withdrawn”. However, after checking
overall pattern from 2009 onwards • Moreover, orders categorised as
with NPCU the data has been
suggests that 40 – 60 is the range of “withdrawn” have invariably been
corrected in order that “not
Planning CPOs that can reasonably be withdrawn because acquisition by
confirmed” reflect only those CPOs
expected to be submitted each year. agreement has been achieved
actively not confirmed by the
against the background of a CPO
Similarly the level of usage of such that it is no longer necessary to Secretary of State as against Orders
Housing CPOs, after a spike in 2013 and pursue the CPO. If the figures for withdrawn by acquiring authorities
an above average figure in 2014, has “withdrawn” CPOs are added to the when acquisition by agreement has
returned to a level of usage very similar confirmations, then in 2015 94% of been achieved.
to that of Planning CPOs, in the range CPOs may be considered to have • In 2015 14% of CPOs were withdrawn.
of 40 – 60 per annum. succeeded and 91% in 2016. In 2016 that figure was 6%.
Planning and Housing CPOs Housing CPOs • Possibly the most meaningful
determined 2003 - 2016 Figure 5 indicates how Housing CPOs assessment of successful use of
Figure 3 shows the figures for Planning were determined in 2015 and 2016. The compulsory purchase is to combine
and Housing CPOs determined in any results for 2015 and 2016 continue the confirmed, confirmed with
given year broadly track the level and trend set in 2014. modifications and withdrawn figures.
pattern of submissions. That produces the following figures:
Key points to note include: 93% in 2015, 94% in 2016. These
Planning CPOs
figures are consistent with previous
Figures 4 and 5 show how Planning • Success rates for Housing CPOs years. Success rates may therefore
and Housing CPOs respectively were remain high. safely be considered to fall within the
determined in 2015 and 2016.
• Total confirmations (ie confirmations 90-95% range.
There are relatively few surprises in both with and without modification)
those results when compared against were 79% (2015) and 88% (2016)
previous years. The pattern of respectively.
determination of CPOs remains • Figures for confirmations without
reasonably consistent. modification (70% in 2015, 72% in
2016) are similar to the 2014 figure
As indicated in Figure 4, Planning
(69%) but lower than the figures of
CPOs continue to demonstrate high
76% in 2010 and 80% in 2013.
rates of success:
However all these more recent figures
are higher than the averages for
• The percentage of CPOs confirmed
previous years for which data is
without modification (including those
available: 62% (2003 – 2009), 61%
referred back to acquiring authorities
(2010) and 68% (2011).
for determination) remains high at
58% and 52%, albeit slightly down • The figures for confirmations with
in 2012 – 14 with figures of 66%, 64% modifications (9% in 2015, 16% in 2016)
and 67% respectively. are broadly consistent with the range
of recent years (14%, 9% and 11% in
2012, 2013 and 2014 respectively).
3. National Planning Casework Unit
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Figure 2 Figure 3
Planning and Housing CPOs submitted 2003-2016 Planning and Housing CPOs determined 2003-2016
Planning Housing Planning Housing
120 120
100 100
80 80
60 60
40 40
20 20
03 04 05 06 07 08 09 10 11 12 13 14 15 16 03 04 05 06 07 08 09 10 11 12 13 14 15 16
Figure 4
How Planning CPOs were determined 2015 How Planning CPOs were determined 2016
7% 9%
6%
confirmed without modification confirmed without modification
(including referred to acquiring 9% (including referred to acquiring
authority for confirmation) authority for confirmation)
confirmed with modification confirmed with modification
not confirmed not confirmed
29% 58% withdrawn 52% withdrawn
30%
Figure 5
How Housing CPOs were determined 2015 How Housing CPOs were determined 2016
5% 6%
6%
14% confirmed without modification confirmed without modification
(including referred to acquiring (including referred to acquiring
authority for confirmation) authority for confirmation)
confirmed with modification 16% confirmed with modification
2%
not confirmed not confirmed
9% withdrawn withdrawn
other
72%
70%
Compulsory purchase order: 2017 update womblebonddickinson.com 5
Statistics continued
Timescales to determination figures of 686 and 906 days seems that written representation
Figures 6 to 8 below provide a respectively for determination of CPOs. decisions join the queue awaiting an
breakdown of the time taken by the These are 2 – 3 times higher than any Inspector. Moreover, we understand
Secretary of State to determine CPOs. other unopposed order and may from NPCU that its database does not
These figures represent the time (in reflect a mis-posting of data. If those include a filter to establish whether
days) between first receipt of a CPO by figures are excluded, an average of 98 a case went to Public Inquiry or
the Secretary of State and the CPO days results. This is in fact, more or less was dealt with by way of written
being determined (ie confirmed, not identical to the 2013 Planning representations, so it has not been
confirmed, remitted to the acquiring unopposed CPOs figure. possible to take that point further at
authority for decision or treated as this time.
• For Housing CPOs, the figure of 70
withdrawn by letter).
days for unopposed Orders is in line • It would appear from the data
Figure 6 with the last available figure of 63 days in Figure 6 that there is considerable
Planning and Housing for 2013. consistency in the time taken to
CPOs determined in 2016 determine unopposed CPOs. In broad
• The average time taken to determine
terms this amounts to around 3 months
opposed Housing Orders has, however,
for unopposed Planning CPOs and
Opposed Unopposed increased significantly. It was 420 days
(days) (days) around 2 months for unopposed
in 2016, as compared with 296 in 2012
Housing CPOs (subject to the
Planning 383 168 and 119 in 2013, the last years for which
caveat above).
figures are available, and so a significant
(98 excluding
increase in the determination period. • However, opposed Planning and
2 outlier
Housing CPOs, appear to be taking
decisions) • Looking at the time taken to determine
longer to determine. The most
the “not confirmed” Housing CPOs,
Housing 420 70 significant increase is in the time
suggests that these decisions were
taken to determine Housing CPOs –
taking at least a year to determine,
Figure 6 sets out the time taken in a threefold increase in the time
even though they all followed the
2016 to decide both Planning and taken since the latest available
written representations process.
Housing CPOs differentiated between figures in 2013.
• Indeed what may warrant further
those CPOs that were opposed and
investigation is the extent to which Figures 7 and 8 further differentiate the
those unopposed.
the written representations procedure time taken by the Secretary of State to
The following key points are worthy results in time savings. The process determine CPOs.
of note: is front-loaded in that it imposes
relatively short deadlines of the Those CPOs referred back to the
• The 2016 Planning CPO figures for acquiring authority to make additional acquiring authority to be able to confirm
opposed orders (383 days) compare representations and thereafter for are of course unopposed orders. These
with 323 (2012) and 281 (2013) in the last additional submissions by both the figures are, therefore, broadly consistent
years for which the figures are available. objector and acquiring authority. with the time taken to determine
• The 2016 figure for unopposed Thereafter, however, there is no fixed unopposed orders in Figure 6 above
Planning CPOs is 164. However, this timetable or deadline within which the (which includes all unopposed orders).
figure comes with a health warning Secretary of State must make this
because it includes two “outlier” decision. Anecdotally it sometimes
Figure 7
Planning CPOs determined in days 2015 – 2016
Confirmed Confirmed Referred
(by Secretary of (by Secretary of to Acquiring
State) without State) with Authority for Not Overall
modifications modifications confirmation Withdrawn Confirmed Average
2015 325 265 49 179 397 189
2016 322 329 235 133 477 304
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Planning and Housing CPOs • Many authorities have used their • In the North West, as previously
submitted 2003 – 2016 by region compulsory purchase powers but reported, the extensive use of
Figures 9 and 10 provide an overview of do so sparingly. housing compulsory purchase powers
Planning and Housing CPOs submitted by Burnley and Wigan Councils, and
• A relatively small number of
2003 – 2016 by region. of planning compulsory purchase
authorities account for a significant
powers by Liverpool and Manchester
As indicated in our previous reports proportion of CPOs. This is particularly
City Councils respectively, contribute
the greatest use of planning compulsory the case with Housing CPOs, with the
significantly to the results.
purchase powers has been in the distribution of Planning CPOs being
North West and London followed by somewhat more even. • In the West Midlands, Birmingham and
the West Midlands. • The total of CPOs submitted by Great Wolverhampton Councils have made
substantial numbers of Housing CPOs,
Yarmouth is a little misleading since
Housing CPO usage follows a similar with the former also making 19
the Council’s legal department
pattern, with the North West and London Planning CPOs.
promoted Orders on behalf of other
regions again leading the way. The West
authorities, but NPCU’s records,
Midlands as well as the Yorkshire and
particular in earlier years, lists CPOs
Humberside regions have also made
under Great Yarmouth’s name.
significant numbers of Housing CPOs.
• CPO totals in the London region
However, within the regional totals there reflect a wider and more regular use
are very significant variations between of powers. Even against that
local authorities. A full list of all of those background of broader usage the
local authorities that have submitted programme of Housing CPOs made
Planning and Housing CPOs included at by Newham stands out.
Appendix J. From that data the following
key points can be discerned:
Figure 8
Housing CPOs determined in days 2015 – 2016
Confirmed Confirmed Referred
(by Secretary of (by Secretary of to Acquiring
State) without State) with Authority for Not Overall
modifications modifications confirmation Withdrawn Confirmed Average
2015 347 66 65 367 400 170
2016 286 181 79 169 359 156
Figure 9 Figure 10
Planning CPOs submitted 2003 – 2016 by region Housing CPOs submitted 2003 – 2016 by region
265
235
175
150
123
94
73 81 72 82 78
53 49 44 58
15 30 35
East East Midlands London North East North West South East South West West Midlands Yorkshire d Humber East East Midlands London North East North West South East South West West Midlands Yorkshire d Humber
n n
a a
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Why do CPOs fail?

8 womblebonddickinson.com Compulsory purchase order: 2017 update