Compulsory purchase: collaboration not confrontation

Colin Cottage, Partner at Glenny, Head of Regeneration & Infrastructure, and former Chairman of the Compulsory Purchase Association (2016-2017) discusses the importance of early engagement in Compulsory Purchase and Compensation with Estates Gazette. Those of us practicing in the field of compulsory purchase and compensation are aware of the increasing demand for our skills.  The use of compulsory purchase powers as a tool to assist land assembly for new housing and infrastructure improvements is growing and is set to grow further.   With HS2 having received Royal Assent, growing support from government for Crossrail 2, the endorsement of a third runway at Heathrow, promotion of the northern powerhouse and road improvements, utilities upgrades and housing regeneration projects taking place across the country; our system for acquiring land for public works quickly, fairly and in a way that minimises conflict as far as possible will be put under greater pressure than ever before.  So how can we best meet this challenge? Legislative reform is often cited as the route to improving the current system.  Compulsory purchase law is complex and is spread across a bewildering number of Acts of Parliament.  Government’s recent attempt to grasp the nettle of reform by modifying some areas of practice, while welcome, have only added to this complexity.  It is now likely to take several years for the new law to ‘bed in’ and a period of assimilation before there is further reform would be sensible.  Although consolidating the compulsory purchase system into a single piece of simplified legislation has to remain an aspiration, realistically it is a gargantuan task which is unlikely to be achievable in the short term. But legal reform is not the be all and end all in terms of improving the system.  There are other more readily achievable ways in which the implementation of compulsory purchase procedures can be improved; through an evolving change in behaviours and culture. Compulsory purchase, understandably, has the potential to become highly adversarial.  From the outset claimants are commonly advised to limit the release of information to acquiring authorities and to make tactical objections to a CPO.  At the same time acquiring authorities often fail to properly appreciate the pressures and uncertainty faced by those facing the threat of compulsory acquisition.  Genuinely founded concerns can be unreasonably dismissed and claimants can be viewed simply as an inconvenient problem to be dealt with in the most expedient way possible.  These opposing approaches create a negative ‘them and us’ mind-set, which then colours relationships throughout the whole of the acquisition process.  Rather than working to limit compensable loss, the parties’ lack of meaningful open dialogue can lead to a failure to mitigate losses which a more collaborative approach might have avoided.  When these losses then become part of a claim for compensation, further conflict is created if the acquiring authority resists payment. In contrast, while conflict can never be totally removed from a procedure that involves the expropriation of private land interests, early engagement and greater openness on the part of both acquiring authorities and claimants can assist in creating better relationships.  Ultimately, both parties should have the same overriding objective: the minimisation of cost and disruption to the claimant as far as is possible.  For acquiring authorities, whether it is a genuine attempt to discuss and understand the issues that face those threatened by compulsory acquisition, the better communication of timetables, providing assistance with relocation, agreeing to undertake works that minimise the impact of a scheme or giving early assurances for the payment of fees for professional advice, initiating early engagement is vital if the overall cost of a CPO is to be minimised.  From the claimant’s perspective it needs to be understood that launching into battle with the Acquiring Authority is not necessarily the best approach.  Indeed, more often than not, it can be the worst approach.  Sharing information with an Acquiring Authority in an effort to help it understand the problems that compulsory acquisition will cause should, in virtually all cases, end up being to the claimant’s overall advantage.  As will providing transparency over its decision-making process.  The reality is that most experienced compulsory purchase practitioners know that early, open engagement is sensible and over the twenty years of my involvement, this understanding has gained momentum.  A lot of good work does go on.  However, the implementation of good practice is far from uniform and examples of bad practice are far more common than they should be. The law as it exists does not prevent early engagement and Government guidance on CPOs actively encourages it.  The Planning Act regime for Development Consent Orders arguably goes even further.  In relation to the promotion of good behaviours generally, the publication earlier this year of the RICS Professional Statement for surveyors undertaking compulsory purchase work is a welcome development that, if properly enforced, will help underpin best practice, including early engagement.  The Compulsory Purchase Association, which I have had the pleasure of chairing over the last twelve months, is currently consulting with the Upper Tribunal and other stakeholder organisations, including the RICS and PEBA, over a pre-reference protocol for compensation claims.  The aim of the protocol will be to further codify best practice for compulsory purchase professionals and to provide a pathway from meaningful engagement to dispute resolution. So, with an increasingly obvious route map to best practice, why is there often a failure to take part in productive early engagement and instead pay little more than lip service to the guidance?  In some cases, there may be understandable difficulties with funding until a project gains certainty.  However, just as commonly it might be inexperience and a lack of understanding that early investment of time and a little money can save more of both in the future.  It may also be just a simple matter of mistrust.  And this is where a change in culture and a certain leap of faith becomes necessary.  It is only when both sides of the compulsory purchase process can be expected to take the same positive approach to early engagement that it will become the norm.  For those of us who genuinely want the system to be quicker, fairer and less confrontational, we need the courage to follow what we know to be good practice and advise and encourage others to do the same.   To contact Colin, email [email protected] or call 020 3141 3500