While we wait for the Commons Select Committee to consider the CPO aspects of the LURB and for DLUHC’s assessment of the response to the consultation on land value capture, we thought we would fill the gap with a back-to-basics entry on CPO promotion. We’ve made a slightly tenuous analogy between promoting a Championship side to the Premiership and getting a CPO over the line (mainly so we can shoehorn a few of our favourite football photos into the blog).

Football fans will know all too well the trials and tribulations of seeking promotion. A strong squad with skilful management is essential, momentum is key, and you cannot get complacent until success is secured. Promoting a CPO is no different. The programme must be carefully managed from initiation to confirmation of the CPO, a solid well-assembled team is required from the outset, and adherence to the rules is key to success (possibly one big difference from modern day football!).

So just how can a developer needing a planning CPO to assemble land for a regeneration scheme best manage their promotion campaign to secure success?

Assembling the team

A good working relationship with the Council is essential. Both developer and local authority (at officer and member level) need to believe in the merits of the scheme and the public benefits it will bring.

The nature of the relationship will depend on the scheme. Many large housing schemes may involve the creation of a joint venture between the Council and developer with a suite of legal documents which might include a master development agreement, phase development agreements and a land assembly (or CPO indemnity) agreement. Similarly, if the CPO includes a significant number of residential properties or small businesses, the potential political sensitivities means that the Council will want to have a significant degree of control over engagement and negotiations. A regeneration scheme or edge of settlement scheme where the developer already owns some or most of the land may require only a CPO Indemnity Agreement and the Council may be content to let the developer lead on the negotiations.

The formal legal agreements are essential from both parties’ perspectives. For the Council, so that it has sufficient financial protection against the costs of promoting the CPO and in paying compensation. For the developer, so that it has a commitment from the Council to help it assemble the land required to deliver the scheme (subject to appropriate safeguards).

Just as important in the preliminary process is establishing a shared approach to engagement with affected landowners and occupiers and other stakeholders. The planning process will necessitate a significant degree of community engagement, but the effects of compulsory purchase require a sensitive approach to discussions with business owners and affected residents which seeks to mitigate the effect of the compulsory purchase on them and takes proper account of any equalities impacts and human rights considerations.

The start of the season

Much like a good start to the season, a good start to the CPO programme provides a solid foundation for maximising the prospects of success of securing confirmation of the CPO later down the line. Preparation of the CPO itself requires precision and accuracy, as well as a good knowledge of the relevant legal and policy framework and procedural requirements. Errors made during this preparatory stage can result in delays to the project programme and wasted expenditure.

During pre-season, a developer should, among other things:

• be clear what the scheme and its public benefits are;
• consider what land/ rights it needs (whether permanently or temporarily) to deliver the scheme;
• have a clear idea of how the land they wish to CPO is to be used for the purposes of the scheme;
• ensure a robust property cost estimate is undertaken with regular reviews;
• consider the extent of the CPO boundary and whether this can be justified, if necessary, at inquiry in the event of an objection;
• ensure that a robust land referencing exercise has been undertaken to identify all persons with an interest in the land affected by the proposed CPO;
• engage early with affected persons and understand what issues they face and how they can best be dealt with;
• proactively negotiate with affected parties to seek to acquire the relevant land/interests by agreement both before and in parallel with preparing and making a CPO;
• preferably ensure that planning permission for the scheme is in place or, if not, there is clear demonstrable planning policy support for the proposals (e.g. a site allocation);
• actively consider and assess the human rights and equalities impacts of the proposals; and
• be working up a strong evidence-based statement of reasons to robustly demonstrate that there is the necessary compelling case in the public interest for the acquisition of the relevant land interests.

Mid-season jitters

Preparation is key throughout the CPO process, but this does not mean that one’s eye can be taken off the ball if and when the local authority has resolved to make the CPO. Once the CPO has been made, the Council will be required to follow a number of notice requirements as detailed in sections 11 and 12 of the Acquisition of Land Act 1981. Personal, press and site notices must all be correctly served in order to meet the procedural requirements.

It is important for the developer to work closely with the Council to ensure that these various procedural obligations are met. It is only once these notices have been served that the minimum 21-day period for objections begins to run. A party who can demonstrate that they were not served in accordance with the statutory requirements may be permitted to submit a late objection which can push back the CPO programme. No promoter wants to go to extra time in this scenario.

Once the anxious 21-day objection period has passed, DLUHC will provide the Council with copies of any objections received and notify them as to whether an inquiry will be held. If there are no objections (or if objections are made but they are all subsequently withdrawn) then DLUHC may allow the Council to confirm the CPO itself, automatic promotion so to speak.

Currently, a public inquiry will however be held if there are any “remaining objections” to the CPO by landowners or other statutory objectors and they have not agreed to the written representations process although that may change once the LURB is enacted and comes into force.

It’s important to have a strategy in place to manage and respond to the objections made. This requires proactive engagement to try to deal with any practical issues which are capable of resolution to allow the objection to be withdrawn and agreeing which of the witnesses for the promoter will respond to any outstanding practical issues or objections to the principle of the CPO or the underlying development.

Crunch time

An inquiry is the equivalent of a playoff final. The CPO will only be confirmed if the developer can demonstrate that there is a compelling case in the public interest for compulsory purchase powers to be granted and that there are no material impediments to the scheme coming forward. A CPO inquiry can be lengthy and complex and the promoter’s preparation for it should reflect this with the statement of case and proofs of evidence being subjected to through testing by the promoter’s barrister and legal team.

Negotiations with objectors should continue in the lead up to the inquiry and throughout as agreements are often reached at the door of the inquiry or failing that to continue to evidence that reasonable attempts have been made to acquire by agreement.

A robust statement of case will need to be supported by the submission of well-crafted proofs of evidence by expert witnesses on behalf of the Council and the developer at the inquiry stage. The proofs should contain clear, cogent, and convincing evidence to demonstrate that the CPO is necessary in the public interest. The nature and content of the evidence required to support the CPO is case specific and will depend on the substance of the objections raised but will usually include, among other things:

• A summary of the purposes of the CPO
• A description of the CPO order lands
• Justification for the CPO including:
• The need for the scheme;
  The benefits of the scheme;
  The need for the CPO to deliver the scheme;
  The viability and deliverability of the scheme;
  The legal and policy justification for the scheme and the CPO; and
  The absence of any financial or planning impediments
  Responses to objections
  Summary of engagement with objectors

The final whistle

If the decision-making has been delegated to the inspector, then the inspector’s report will decide whether or not to confirm the CPO. If the decision has been called in, then the inspector’s report will contain a recommendation, but the final decision will fall to the Secretary of State. In reality, most CPO decisions are now being delegated to inspectors.

However, even with a confirmed CPO, the trophy cannot yet be lifted, or open top bus parade planned just yet. A prudent developer will not pop the champagne corks until the six-week legal challenge period has expired which runs from the date of the publication of the CPO confirmation notice.

Assuming the six-week JR period has passed without challenge, a developer can then turn to actioning its implementation and compensation strategy. That’s a topic or two for another blog!