There are three main forums for challenge to a Compulsory Purchase Order (CPO) or Development Consent Order (DCO).
As with all cases, formal proceedings is not a step to be taken lightly or frivolously; in all cases, care should be taken to ensure that any challenge is presented properly (i.e. lawfully, in time and in accordance with rules/regulations) and in appropriate fashion. Unreasonable claims can result in wasted legal and other professional costs, a well as the risk of an adverse costs order (i.e. that you pay your opponent’s costs).
The specialist team here at Holmes & Hills can and does advise on the merits of a party’s position and provide advice upon relevant legal (and tactical) issues as well as having conduct of formal proceedings. If you require our support please do contact us using the form below.
Prior to this there should have been consultation and engagement which, of itself, could or will have formed amendments to the scheme or project. But these forums are the place to put on record a parties’ concerns and/or issues with a project. Those comments may be made with a view to stopping the relevant CPO/DCO or, equally, requiring it to be modified in such a way to reduce, or perhaps remove, unwanted and unnecessary impacts on them.
Representations can and many times do make a difference.
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.
Fertile grounds of objection typically have robust/defensible evidence to support the point being made, and will 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.
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.
There are a number of key points at which a CPO/DCO may be challenged by application to the High Court. This can include the making of a CPO, the confirmation of a CPO, the acceptance of a DCO application or the making of a DCO.
Legal challenges typically arise under the following grounds of challenge:
Depending on the issue at hand, and the status of the would-be Claimant, the claim may be a Judicial Review or a Statutory Challenge to/of the relevant decision.
If the High Court dismiss the claim and/or application then the matter may be progressed to the Court of Appeal and beyond.
The team here at Holmes & Hills can help provide advice if you a complementing a formal legal challenge to a CPO or DCO. Please contact us for more information.
The Tribunal does not deal with any challenge to the principle or validity of a CPO or DCO, those are heard in the Courts (see above). The Tribunal has jurisdiction to resolve the following cases.
If a blight notice is served but is rejected following service of a counternotice, the acquiring authority’s decision can be challenged before the Tribunal. Whether a formal application has merit depends on the circumstances, to include the grounds for objection stated by the acquiring authority. Equally, it may be possible to serve a new blight notice and this may, ultimately, be a quicker and/or cheaper way to confirm blight and the statutory rights and remedies that flow from that.
In determining the property value one element is whether or not the land/property had development potential or “hope value”. If the answer is yes, this will typically add to the land value and so the amount the acquiring authority is liable to pay in statutory compensation.
The planning history of the site may be material but there is also a procedure whereby a land or property owner can apply for a CAAD to confirm the forms of development which would have been permissible on the land/property in a “no scheme world” (i.e. as if the CPO/DCO scheme/project never existed). A CAAD application can be considered akin to an application for planning permission, albeit any “appropriate development” is not implementable/”buildable” (i.e. because of the CPO/DCO) but the issue of a Certificate gives rise to a statutory valuation assumption likely to increase, in many cases substantially, the market value/unblighted value of the land or property in question.
Where a local planning authority refuse to issue a CAAD that decision can be challenged by a reference to the Tribunal and, Holmes & Hills have acted for successful CAAD claimants which in one case doubled the applicable land/property valuation – therefore dramatically increasing the compensation lawfully owed to our clients.
By their nature in assessing the merits of applying for a CAAD one needs to understand and consider issues of planning law and applicable policy. The team at Holmes & Hills is well placed for this given the strength and reputation of its planning law department.
This is by far the most typical form of reference to the Tribunal in the context of compulsory acquisition. Namely, the claimant and acquiring authority cannot agree the compensation payable;,which can include statutory loss payments and disturbance losses but more typically concerns the market value of land and/or any loss in value to retained land (i.e. the value of any severance or injurious affection claims).
We have secured favourable outcome for Tribunal claimants and comment that it is not uncommon for claims to be settled after a reference/claim to the Tribunal has been made but prior to a formal decision/judgment.
Sometimes, our advice is not to purse Tribunal proceedings; a good example being a case whereby the valuation assumptions have been wrong and therefore a party’s calculations erroneous (and substantially so), to the point of unlawfulness. In those circumstances, the cheaper/better outcome was to address that discrepancy and for a new valuation to be undertaken – that having been done the parties were able to reach an agreed settlement without the cost, risk and delay associated with Tribunal proceedings.
It is worth noting that the costs regime in the Tribunal means that, potentially, either party can claim costs against the other. Whilst the starting presumption is that ordinarily the claimant can recover costs (i.e. as the reference/claim is considered to be a consequence of the compulsory acquisition) the acquiring authority can recover costs where unreasonable conduct can be shown and/or it has made a sealed offer at or in excess of that sum awarded by the tribunal.
It is important to understand the merits and risks of Tribunal proceedings before simply “firing off” a claim. Considerations include potential costs liabilities/consequences but also will a claim/reference result in a materially improved outcome.
If you are unsure whether to pursue a CPO/DCO challenge, our specialist CPO/DCO solicitors can provide clear guidance on your options.
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