Our specialist team can guide you through the process in which your property is affected by a large infrastructure scheme.
Where your property is affected, these such schemes typically seek powers to compulsorily acquire property from you, or to unilaterally impose rights over your property.
As your trusted advisers, we strive to ensure that for clients with a qualifying statutory claim (often referred to as a “blight claim”) our involvement is ultimately cost-neutral to you.
Because we recognise that for affected owners, businesses and individuals a DCO will neither be a situation of their making or their choosing. A DCO can cause considerable concern, upset and disruption - we strive to work together with our clients to secure the best outcome that the law permits.
Where an owner, business or individual has a legal claim (i.e. they have a qualifying “blight” claim) their reasonable legal and professional costs in clarifying, confirming and concluding that statutory claim are ordinarily recoverable from/payable by the authority exercising the relevant powers of compulsory purchase. We will secure payment from the relevant third-party which, in many cases means that our fees are settled direct by the relevant authority or otherwise reimbursed to you.
If you don’t have a statutory claim then any costs incurred are not ordinarily recoverable from the party pursuing a DCO. However, our advice and input can strive to ensure the best possible outcome to you – to include potential amendments to the DCO scheme or the provision of mitigation measures – or to otherwise ensure that your energies are directed in the most effective and efficient way possible.
If you are affected by a DCO then in many cases bespoke advice will be required or otherwise can add significant value to you (as owner and/or occupier of property). We have a fixed fee package available.
In simple terms a DCO is a statutory instrument created to provide all relevant statutory consents for a large infrastructure project. If made, a DCO will include (as example) all relevant planning law, highways, habitats, environmental consents required for the development in question.
A DCO can only be made if the project in question fulfils statutory criteria to be defined as a “Nationally Significant Infrastructure Project” (‘NSIP’). NSIPS can be categorised under five broad categories:
A DCO will typically include powers to compulsorily acquire and/or occupy land. Whether permanently or temporarily, and also set out rules for the payment of compensation to any affected landowner(s).
Although the legislation for DCOs is relatively new (dating to the Planning Act 2008) our experience is that many individual land and property owners perceive a DCOs as a draconian but also overwhelming measure, often interpreted as giving rise to an unfair outcome for that individual.
Our role, as trusted advisers, is:
As above, a confirmed DCO will provide all statutory consents and powers “in one go” and so there is no need to separately apply for planning permission, highways consent and so on.
As above, the scheme has to qualify as an NSIP – only then can a DCO be sought.
It is typical for a Development Consent Order (DCO) to include CPO powers but, in some occasions, these can be limited – particularly where the scheme promoter already owns land or has acquired relevant legal and/or property interests prior to making an application for a DCO.
There are six key stages to a DCO:
The purpose of DCOs is to provide a streamlined and efficient route to consent large infrastructure projects. There are currently four deadlines/timescales of note:
Therefore, from acceptance of application a decision should ordinarily be confirmed within 12 months. But deadlines can be extended and it is not uncommon for that to occur.
If made, a DCO is a Human Rights interference which authorises the development/project – to include the compulsory acquisition of land/property in private ownership - for “the greater good”. This is even where agreement cannot be reached with relevant land and/or property owners.
A DCO can and will be a lawful interference with the rights of one or more individuals, subject to the requirement that the affected person(s) achieve “equivalence”; namely securing fair value for the interference with their rights/compulsory acquisition by reference to a collection of legal rights and statutory provisions colloquially referred to as “the compensation code”.
We can advise upon whether legal requirements have been fulfilled and “due process” followed, and as such the merits of any potential challenge to the making of a DCO.
A scheme promoter is required to give advance notice of any intention to apply for a DCO as well as demonstrating that there has been sufficient consultation prior to making any application (otherwise their application will not be/cannot be accepted).
Our specialist team can provide advice as to whether a DCO has been lawfully pursued and/or made, but also in making representations to ensure that the DCO, as best it can, causes the least interference and/or impact upon our client(s) as possible.
If a DCO is made then there is a right to challenge this but only on limited grounds. Otherwise, an affected person’s/business’ property rights are converted into a statutory claim for “equivalence” – meaning that the displaced property owner (or occupier) should be in no better or worse position as a result of the DCO and any powers of compulsory purchase arising or to be exercised thereunder.
As above, a DCO empowers the relevant Scheme Promoter the power - amongst other things - to acquire, or impose rights in or over, land and property compulsorily. But a scheme promoter will, or should, seek to resolve a claim by agreement and not by the exercise of formal statutory powers of compulsory purchase (i.e. by a Compulsory Purchase Order).
Most cases are settled amicably and typically the property owner(s), and any occupiers(s), recover a financial payment equivalent to the value of the property and/or their interest in it but also recover any losses arising in them having been disposed of that property and/or a right in it. Or “compensation ” arising from being displaced from the property.
Our role, as solicitors, is to advise you as to what “equivalence” can or does mean in lawful terms. Thereafter, working with appropriate professionals we ensure that all heads of statutory claims and losses are identified and appropriately valued, which includes the unblighted market value of the property but also any “disturbance losses”.
We strive to demystify the DCO process for our client(s) but also secure the best possible outcome in a timely and unfussy fashion.
A qualifying Claimant has a right to seek compensation in respect of the compulsory acquisition of their property. More detail about this can be found here.
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