It’s important to recognise that, whilst the Planning Act 2008 (Planning Act) introduced the concept of the development consent order (DCO) as the means of obtaining consent for nationally significant infrastructure projects (NSIPs), it also deals with compulsory acquisition. In the Court of Appeal case of R. (on the application of FCC Environment (UK) Ltd) v Secretary of State for Energy and Climate Change,1 the Court recognised that DCOs embrace both a planning function and a compulsory acquisition function, the tests for which are separate.
As part of the Planning Act regime, sections 122 to 134 of the Planning Act both provide for the inclusion within a DCO of powers of compulsory acquisition and specify the conditions that must be met when seeking such powers. Provided these conditions can be met, the availability of compulsory acquisition powers as part of a DCO application serves to streamline the consenting process, avoiding the need to seek a separate compulsory purchase order. Once granted, this interacts with the planning function and the two can be seen as symbiotic.
In this article we set out the key conditions and considerations for the inclusion of compulsory acquisition powers in a DCO, focusing on the tests under the Planning Act, the considerations under the Guidance (Planning Act 2008: Guidance related to procedures for the compulsory acquisition of land, 2013) and Human Rights factors.
Section 122 of the Planning Act provides that a DCO may include provisions authorising the compulsory acquisition of land. However, section 122 states that, where these powers are sought, the decision maker must be satisfied that the land in question:
- is required for the development;
- is required to facilitate or is incidental to the development; or
- is replacement land which is to be given in exchange for the order land under section 131 or section 132 of the Planning Act (eg commons, open space or fuel/field garden allotment).
In addition, the decision maker must be satisfied that there is a compelling case in the public interest for the inclusion of powers of compulsory acquisition.
While section 122 specifies the relevant tests, the Guidance describes the considerations which the Secretary of State will take into account in determining whether the tests have been satisfied.
Required for the development
The Guidance clarifies that the applicant should be able to demonstrate that the land in question is needed for the development. In practice, this requires every area of every parcel to be justified for inclusion in the powers under this or the following provisions. Achieving this relies upon clients and engineers expressing the need for land as required.
Required to facilitate or is incidental to the development
Where an applicant proposes that land is required to facilitate or is incidental to the proposed development, the Guidance states that the development should only be carried out to a satisfactory standard if the land in question were to be compulsorily acquired. In addition, the land should be both proportionate and necessary for the specified purpose.
The Guidance provides that compulsory acquisition is required for replacement land, with the land being both proportionate and necessary for that purpose.
Compelling case in the public interest
According to the Guidance, the Secretary of State will need to see compelling evidence that the public benefits derived from the compulsory acquisition would outweigh the private loss suffered by those whose land is to be acquired. This balancing exercise tends to favour the homeowner over other land users faced with compulsory acquisition.
In addition to detailing the considerations in respect of each of the section 122 conditions, the Guidance also sets out a number of general points to be demonstrated by applicants, including:
- all reasonable alternatives to compulsory acquisition have been explored, including modifications to the scheme;
- the applicant is clear on how they intend to use the land;
- there’s a reasonable prospect of the funds required for acquisition being available; and
- the purposes for the inclusion of compulsory acquisition powers are legitimate and sufficiently justify any interferences with human rights.
Acknowledging the approach taken by applicants in practice, applicants should seek to acquire land by negotiation wherever practicable. This, and the potential availability of other alternatives, are often critical in considering whether compulsory acquisition is proposed. It’s important to note, however, that the need to negotiate does not preclude the inclusion of compulsory acquisition powers as a ‘fall back’ position or preclude them being pursued in parallel with negotiations.
When considering powers of compulsory acquisition under the Planning Act, examining authorities and Secretaries of State will be mindful of challenge risk, including those relating to the Human Rights Act 1998.
The relevant Articles of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998, need to be addressed when seeking powers in a statement of reasons. These are:
- Article 1 – peaceful enjoyment of possessions, with no deprivation except in the public interest;
- Article 6 – those affected by compulsory powers are entitled to a fair and public hearing; and
- Article 8 – respect for private and family life, home and correspondence, with interference justified if it’s in accordance with law and necessary in the interests of (most commonly in the context of a DCO) national security, public safety or the country’s economic wellbeing.
The Guidance makes particular reference to Articles 1 and 8, highlighting that the purposes for the compulsory acquisition should be both legitimate and sufficiently justify any interference with human rights. Due to the nature of powers of compulsory acquisition, their inclusion in a DCO and subsequent use may infringe the human rights of persons with an interest in the land to be acquired. However, such an infringement is authorised by law provided that the appropriate procedure is followed and there’s a compelling case in the public interest for the powers. Justifying the inclusion of compulsory acquisition powers in the context of the section 122 tests, the Guidance and human rights will form a key focus in any DCO examination where such powers are sought.
All of these points will be of key importance in formulating an application for powers under the Planning Act. They will need to be carefully considered and expressed in any statement of reasons accompanying the application. The justifications will then be considered in the examination of the application, so care is required in formulating them with legal, engineering and property professionals working closely alongside clients to justify the powers sought.
Look out for our next article in this CPO series which looks into the scope of planning blight, who is eligible to make a claim and what claimants need to show in order to benefit from the statutory compensation scheme under the Town and Country Planning Act 1990.
If you have any questions about the compulsory acquisition regime under the Planning Act, please contact Howard Bassford, Partner or Henry Jeffreys, Associate, in our Planning and Land Use team / Infrastructure, Construction and Transport Sector.
1  EWCA Civ 55