My Lords, compulsory purchase powers are a necessary tool for any market-based but property-respecting society that wishes to progress. Progress cannot be achieved without change and very often that change involves compulsorily acquiring rights in land. I believe that in our post-Brexit world we need to focus hard on how we change and develop, and also improve our living spaces, in a way that is fair and
equitable and that can be achieved without unnecessary delays and expense. Speed will more and more be of the essence.
The principle underlying compulsory purchase is that the scheme should be for the benefit of society and that the powers used are only a last resort. In the old days, the powers were almost always only used by Government or local authorities. Rather like paying one’s taxes, that was hard to challenge and it seemed fair and reasonable. But of course nowadays it is frequently one privatised company—water, gas, electric, rail or even now telecommunications—imposing a scheme on other private businesses or owners for the benefit of their profit and loss account or balance sheet. Sometimes other private companies, such as supermarkets, are able to harness local authority compulsory purchase powers to achieve their ends for such things as car parks.
One might question whether a supermarket car park is a necessary public benefit. Indeed what a necessary public benefit is could form the basis of one question for the proposed review. In this context, as an interesting aside, in my researches I came across a case in the USA where an old lady defeated and stopped the unstoppable one, Donald Trump, because she proved that a car park for one of his proposed casinos was definitely not of public benefit—not a case relevant to us, but I thought it might amuse your Lordships.
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To return to the UK, my point is that compulsory purchase powers and their ramifications change slightly when it is one private business vying to use land owned by another. The key point here is that the no-scheme clauses need to come under much closer scrutiny when two businesses are involved. It is also why the overage amendments which were spoken to in the Commons become much more important. The moment any acquiring authority, especially if its primary purpose is to make profits for its shareholders, starts to achieve income or capital gains from land-based developments that are only tangential to the scheme, or even nothing to do with it at all, such an authority is abusing its position. Again, bottoming out the frequency and reality of these accusations would be part of the proposed review.
On another point, it is interesting to note that when a building or plot of land is threatened with a compulsory purchase order by a local authority to bring it into line with its neighbourhood, for instance, owners are often spurred on to develop, improve or restore their property themselves. That is good, but it appears that the main reason for this is that the compensation under compulsory purchase powers is thought by them to be barely minimal and acceptable only as a last resort. Does this signify a fair approach in terms of valuation? I do not know the answer. I am only asking questions and, in doing so, highlighting the need for a general review.
Are acquiring authorities overusing their compulsory purchase powers? In the case of housing development, probably not. However, a council can sometimes convince itself that its public good overrides someone else’s, such as in the case involving Lewisham Council which, with an overseas developer, is apparently using compulsory purchase powers for a housing scheme which could
threaten the existence of the Millwall Football Club. I note that the noble Lord, Lord Kennedy, has woken up at that point. I do not know the rights or wrongs of that case at all, but I believe from newspaper reports that it has caused a bit of a stink. If the use of compulsory powers to achieve increased housing is a fair use, it appears from some of the cases over the years that the same cannot always be said about their use for open spaces. One has to ask whether in these instances the acquiring authority might be better to achieve its ends by not buying such land with compulsory purchase powers, but rather trying to do a deal to acquire access to it. That would be another question for our review.
Are local authorities always proving a compelling case for public interest? Having made arguments in court, are these objectives fulfilled at the conclusion of the scheme? It seems from various cases I have looked at that the answer is not always yes. Who, for instance, checks afterwards that the scheme has progressed as originally proposed and that the land taken really was necessary for the scheme? Again, I am just asking the questions.
I am told that acquirers often take the maximum amount of land they require, not the minimum, and that they are slow to hand back any surplus. It appears that this occurred with some compulsorily purchased land on HS1. With so many schemes now getting approval when they are only part designed, I suspect this is going to be an on-going problem. Efficient use of land is important whether for the construction of infrastructure or environmental mitigation—or, on the other side of the fence, for people trying to run a business from that land.
There have been accusations that in certain instances the acquiring authority has conspired to make a compulsory purchase inevitable by not granting planning permission or a listed building consent, or by not resolving highway issues. Are these accusations well founded? Has the acquiring authority sought first to acquire by agreement, by engaging with all parties, owners and objectors? Is it the competent authority to carry out the proposed scheme or in other cases is it favouring one private sector body, say a supermarket, versus another, say a farmer—or, as in the case at Lewisham, a housing developer versus a football club? Are leasehold interests and their possible long-term marriage values being properly assessed? The answers to all these questions may be yes but they are worth asking.
What of the legislation covering compulsory purchase powers? Is that so simple? To me, as a non-lawyer, the list seems endless. There is the Compulsory Purchase Act 1965, which I gather has large chunks of the 1845 Act within its text. There is also the Land Compensation Act 1973, the Local Government (Miscellaneous Provisions) Act 1976, the Acquisition of Land Act 1981, the compulsory purchase Act of 1981, the Town and Country Planning Act 1990, the Transport and Works Act 1992, the Planning and Compulsory Purchase Act 2004, the Housing and Planning Act 2016 and, shortly, the Neighbourhood Planning Act 2017. They all seem to have something to say but without employing a lawyer, I cannot tell which of their sections are still relevant.
Then there are individual Acts, such as the Channel Tunnel Rail Link Act 1996, and there is the HS2 Bill. Is it surprising that professional institutions, which must do very well out of all this legislative chaos, are not asking for a review? They have to be called in and, more importantly, paid to advise the poor layman, householder or farmer who is vainly trying to cut his way through this impenetrable jungle. It is, to say the least, all a bit complicated and needs consolidating.
In my Second Reading speech, I indicated that we need to examine other countries’ compulsory purchase systems. How does the USA, for instance, get 81% of its land value compensation assessments agreed immediately? Or is France a good example, where an enhanced compensation scheme enables transport projects to be brought to fruition swiftly? Do the delays in our compulsory purchase system end up costing our Treasury more than if it was prepared to make concessions or give higher rewards to people who are having their property confiscated? If the Treasury would not directly benefit from swifter resolution, I am sure our economy would. Should overage clauses be included on land where development values are not part of the original scheme? My view, for what it is worth, is that if they were the whole process would be quicker and fairer. Again, questions, questions and more questions, all of which I believe a much-needed review would have to answer.
Part 2 of the Bill is a good start towards simplification and reform, but I am certain that we need a more in-depth review and a complete overhaul of our compulsory purchase regime if we are to achieve the speed of progress and development that we need in a post-Brexit UK. I beg to move.