Richard Honey KC is the General Editor of the 5th Edition of The Law of Compulsory Purchase.
This will be included in our Planning Law and Local Government Law online services.
It was my experience during pupillage in 2003/2004. As a pupil, I worked on compensation claims, including one in the Court of Appeal, and on some really interesting compulsory purchase cases. In one of the compensation claims, I was subsequently instructed as junior and then worked on the case for another six years before it settled during the final hearing. I also appeared during pupillage at a Transport and Works Act Order inquiry in Liverpool, representing three OAPs whose houses were being compulsorily acquired for a new tram scheme.
What really drew me to this work is how interesting and challenging it is: it engages a raft of legal issues, including human rights; it gives rise to important policy issues about how the state uses its powers against citizens in the overall public interest; and it covers all you could want as an advocate, from submissions advocacy on legal questions through to cross-examination of experts on a wide range of subjects. Work in this field has taken me to inquiries all over England, to Upper Tribunal Lands Chamber hearings in places like Liverpool and Port Talbot as well as the RCJ, and to courts all the way up to the Supreme Court.
The single most interesting development is probably the introduction of a new section 14A into the Land Compensation Act 1961, added by section 190 of the Levelling-up and Regeneration Act 2023. This took effect from 30 April 2024. It means that, where the Secretary of State is satisfied that it is justified in the public interest, it can be directed that part of the open market value of land is to be disregarded in assessing compensation. It works by requiring the prospect of planning permission being granted to be ignored in the assessment of compensation. It currently applies for housing, NHS or education acquisitions. The result is that the prospects of planning permission, including for development which would have obtained permission but for the threat of compulsory purchase, are to be ignored in assessing the value of the land acquired. The Planning and Environment Bar Association has said that this creates substantial and unjustified unfairness in the operation of compulsory purchase.
The main trend – which started under the previous government and is now continuing under the current government – is to re-balance compulsory purchase and compensation in favour of the state. There is increasing encouragement for public authorities to use compulsory purchase powers to bring about development considered to be merited in the wider public interest. That has been accompanied by changes to legislation and guidance which makes it more likely that compulsory purchase powers will be confirmed and which, in some respects, reduces the protections for citizens whose land is being taken. More changes in this respect are in the pipeline.
It will be interesting to see how this unfolds, and how it then works out in practice. There’s a question whether the changes are going to be effective at achieving the policy aims underlying them. Reducing safeguards, and the compensation payable where land is taken, might leave decision-makers less comfortable in authorising the use of compulsory purchase powers, leading to the opposite effect to that intended.
The most challenging aspect is probably reconciling the legal position with pragmatic advice to clients on strategy for compulsory purchase and compensation cases. Reliance on legal rules – especially where you are acting for an acquiring authority – can sometimes lead to unattractive results. Decision-makers in this field may sometimes be reluctant to apply rules strictly where they lead to unfair results, especially where the state is appropriating property from someone against their will, but public authorities need to account for their expenditure of taxpayers’ money. Often the law is also unclear or there’s no direct precedent. The law is complex and often there are legal principles pulling in different directions. Advising on tactics and strategy in this context, and on managing legal risk, can be really challenging.
