CPO/DCO Scheme Representations

It is typical, if not expected, for an acquiring authority to undertake non-statutory consultation regarding their proposals – that being with a view to consult and engage which relevant parties which may result in changes to the scheme or project. Examples of this may include large linear schemes (road, rail or pylon) in which there are various “route options” and consultation is undertaken to ascertain which is, or would be, the most appropriate route. So following consultation the scheme may be moved or revised and/or the amount of land that is required may change or reduce.

That of itself may be good cause to make representations and seek to shape a scheme or project at an early stage.

We offer fixed fee review package to help guide affected parties at an early stage, and more information can be found on specific scheme pages or by contacting the team.

The answer to this is “no”.

In the first instance it is true that landowners will be formally notified and consulted – this is a procedural requirement. In many cases, landowners will be approached before the project is widely publicised or known about and may even agree to a voluntary sale of land or binding contract to secure land that may be required for the scheme/project.

But tenants and occupiers of relevant land and/or property are also notified and their views sought.

In addition, there are a number of statutory bodies that are consulted about in prescribed circumstances, which may include the Environment Agency, Historic England, Natural England, Sport England as well as statutory undertakers (i.e. i.e. utilities providers but also if operational land, road, rail etc., is affected). It is also the case that the Local Planning Authority is routinely consulted and will engage with the project, along with Town and Parish Councils.

There is a further category that make representations which includes local interest groups or action groups. Some of these come in the guise of national to international organisations, such as Friends of the Earth or the Ramblers Association, but it is no uncommon for a group of local residents to “club together” and object as a group (whether formally constituted or not). Group representation can typically be an effective way of making representations and give rise to efficiency gains in terms of time and financial resources but also knowledge base.

Holmes & Hills specialist team has acted for Councils and Action Groups. More information about this can be found here.

Note that in each case there is an intervening procedural stage.

For a CPO, the Order is made and a statutory period (at least 21 days, and typically longer) to object is set. If there are no objections then the confirming authority (Secretary of State) can confirm the CPO with or without modifications. In prescribed circumstances a “written representations” procedure can be used. But where there are objections an Inquiry will typically be held at which representations (i.e. objections) are heard, considered and assessed before deciding whether the CPO should be confirmed.

For a DCO, once the application is made there is a procedure to determine whether that application is accepted and so can continue. Acceptance means that required standards (to include pre-application consultation) have been met, it does not mean that a DCO will be made. If accepted then an Examination will be held, however those wishing to make representations (i.e. object) need to submit a “relevant representation” but also register to take part in the Examination.

Representations at Inquiry/Examination can and many times do make a difference.

Fertile high-level grounds of objection typically have robust/defensible evidence to support the point being made, and will typically concern issues of disproportionate impact, land not being required, inadequate consideration of alternatives and/or issues of the proposed scheme not being deliverable or viable.

However, representations can also be more localised or practical in nature. For example, commons along the lines of: a new road or building should not be put that close to [x] listed building, a pylon should be moved to the edge of a field or park rather than right in the middle, or to put a new access or estate road in [y] location is preferable to that proposed because [z], may be highly material to the outcome. We have been involved in chases whereby schemes/projects have been changed or tweaked to accommodate our clients’ working practices and/or lived experience all with the outcome of improving the scheme/project in some way and/or reducing/mitigating its impact on neighbours or the community at large.

But any representations must be “relevant” – there are rules as to the class of persons who can make a relevant objection but also the content of the representations/objections made. For example, if the objection is on matters of compensation this can be disregarded in deciding whether (or not) to make or confirm the CPO/DCO.

The team here at Holmes & Hills can help ensure that any representations are “relevant” and framed in such a way so as to have maximum impact. We offer fixed fee packages for assistance in clients wishing to make representations (objections). We can also assist in providing representation (Advocacy) at Inquiry or Examination.

All of this being with the purpose of securing best outcomes for our clients and with certainty of cost.

The circumstances in which costs of representations (objections) can be recovered from the acquiring authority or scheme promoter is limited. As an approximation, your land needs to be removed from the Order, in whole or part, and/or unreasonable conduct on the part of the other party needs to be shown in order for a costs claim to arise.

Therefore, the starting presumption is that, when it comes to representations, each party bears their own costs. And logically that makes sense because otherwise a body wishing to promote a CPO or DCO would be liable to pay not only its costs in promoting it, but also any costs of a party opposing it – likely rendering any scheme or project unviable, if not practically impossible, to deliver.

So, a party wishing to object does so in order to secure an improved outcome – perhaps the scheme being stopped or moved away, perhaps more noise mitigation and/or visual improvements or perhaps less land being taken – meaning that they bear the cost of securing that improvement, unless unreasonable conduct can be shown and/or the land take position is changed.

Again, if instructed, the team here will strive to understand your key objectives, making sure that the cost of making representations (objections) is proportionate to your aims and desired outcomes.

If the CPO/DCO is made, notwithstanding any representations made, the relevant CPO/DCO is secured by the acquiring authority and is likely to be acted upon. The only potential remedy to an objector at that stage being to seek to formally challenge the CPO/DCO by court proceedings. More information regarding these challenges can be found here.