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Housing and Planning Bill - Report (5th Day) (Continued)

Part of the debate – in the House of Lords at 9:45 pm on 25th April 2016.

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Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip) 9:45 pm, 25th April 2016

My Lords, this is the first of three groups of government amendments on compulsory purchase. Although there are 90 government amendments altogether, noble Lords will be relieved to hear that I do not plan to cover all these individually. However, many are consequential and some repetition will be necessary. I shall therefore speak to them in batches, within the group.

Government Amendments 128A to 128S, from after Clause 164 to Clause 168, deal with refinements to the various methods of entry and taking possession of land, once a compulsory purchase order has been confirmed. Amendment 128A confirms in statute what practitioners have assumed the law already means: if a normal notice to treat has been served, an acquiring authority may not then execute a general vesting declaration in respect of that land. Continuing with Amendments 128B and 128C, these address the issues raised by Committee Amendment 103BAA, tabled by the noble Earl, Lord Lytton, and spoken to then by the noble Duke, the Duke of Somerset.

Amendment 128C deals with the issue of a new interest in land emerging after a notice of entry has been served. The noble Duke, the Duke of Somerset, told us, on 23 March at cols. 2447 and 2448 of Hansard of three issues that were of concern to the Compulsory Purchase Association: delay when new notices must be served; reliance on poor quality information; and the potential for the creation of ransom interests. I believe that revised new Section 11A of the Compulsory Purchase Act 1965 deals with all of these. New subsections (2) and (4) suspend any existing notices of entry until notices have been served on the newly discovered interest, but the new normal minimum notice period of three months is replaced by the later of 14 days or the date specified in any previous notice of entry. The proviso in new subsection (3) is that this truncated notice period applies only if the acquiring authority was not aware of the person because it was given misleading information when carrying out inquiries, or the land is unoccupied.

The Government believe that ransom interests will be prevented by the qualifying provision in new subsection (1)(b). This ensures that new Section 11A applies only where an authority becomes aware of an owner, lessee or occupier to whom it,

“ought to have … given a notice to treat”,

under Section 5 of the Compulsory Purchase Act 1965. Interests created after a notice to treat on the land in question has been served are not entitled to notices of their own, so they need not hinder the acquiring authority.

I turn to Amendments 128D to 128J inclusive. Clause 166 provides for a counternotice to a notice of entry to require possession to be taken on a specified date. Amendments 128D to 128J, except for Amendment 128G, are technical amendments changing the description of the person who can serve such a notice from,

“a person who is in possession”,


“an occupier with an interest in”,

the relevant land. The reason for this is that the date of entry is of particular interest to the occupier, who should be in control of the process. A person, such as a freeholder, can be “in possession” without being in occupation of land.

Amendment 128G sets out circumstances in which the counternotice requiring possession to be taken will have no effect, either because the notice to treat has been withdrawn or ceases to have effect, or where the authority is prohibited from taking possession by other provisions of the Compulsory Purchase Act 1965. In the latter case, the claimant can serve a further counternotice once the prohibition ceases. Amendments 128K to 128S make changes to the New Towns Act 1981, as amended in Clause 168, corresponding to those in Amendments 128B to 128J.

Government Amendments 128T to 128V, 128Y, 128YAA, 128YAB and 142 concern the compensation provisions from Clauses 171 to after Clause 175 and mainly cater for some of the less-frequent situations that could arise following the making of an advance payment of compensation.

I will now talk to a series of amendments that protect the position of the Welsh Ministers, who have executive functions under the Land Compensation Acts. Clause 171 amends the Land Compensation Act 1961 to give the Secretary of State the power to impose further requirements about the form and content of a claim for compensation by a person whose land has been compulsorily purchased. The Welsh Ministers have executive functions under this Act, so Amendments 128T, 128U and 128V also confer this power on the Welsh Ministers. Amendments 128Y, 128YAA and 128YAB do the same thing in Clause 172, which gives the Secretary of State the power to impose requirements about the form and content of a request for an advance payment.

In this context, it is convenient to mention Amendment 142, which provides for Clause 161, confirmation by inspector, and Clause 163 with Schedule 15, notice of general vesting declaration procedure, to be commenced on different days for different areas. These provisions may need to be commenced on different days in England and Wales, as both will require amendments to existing secondary legislation, some of which is a function of the Welsh Ministers in Wales.

The remaining amendments in the group are mainly to do with advance payments of compensation. The first is Amendment 128W, which relates to compensation for losses or expenses incurred by a person as a result of a notice to treat being withdrawn. The proposed new clause in the amendment extends the entitlement to compensation to a person who has acquired the property to which the notice relates—perhaps by inheritance—before the withdrawal of the notice. This is a clarifying measure for the avoidance of doubt.

Clause 172 enables an acquiring authority to request further information from a person who has made a claim for an advance payment of compensation within 28 days of receipt of the claim. Amendment 128X completes the picture by ensuring that this provision also applies when the advance payment is to be made to a mortgagee.

Amendments 128YAC and 128YAD, and Amendments 128YAF to 128YAJ in Clause 173, amend the earliest date on which an advance payment of compensation must be made from the date of the notice to treat to the date the notice of entry is served. In many cases this will make no practical difference, because the notice to treat and notice of entry are served on the same day.

In some cases, however, the notice of entry follows at a later date. It could be much later as a notice to treat does not cease to have effect under Section 5(2A) of the Compulsory Purchase Act 1965 until three years after it is served. The Government, therefore, think it would be better to ensure that an advance payment is not made until the acquiring authority has signified its intention to enter the land. This reduces the risk of an advance payment having to be repaid. It is unlikely that an authority will decide not to go through with its scheme once it has reached this stage.

This leads me to the remaining two batches of amendments in this group: Amendments 128YAM and 128YAN; and Amendments 128YAP and 128YAQ. Both batches deal with situations that should be very rare, but if they did occur, the parties could be left in a difficult position if there was no procedure to deal with them.

Amendment 128YAM provides that where an advance payment has been made, but the claimant’s interest in some or all of the land has been acquired by another person, whether by sale or inheritance, the advance payment will be set off against the final claim. This is a very small adjustment to the existing law. Amendment 128YAN inserts new Section 52AZA into the Land Compensation Act 1973 to expand on the procedure to be followed if any part of an advance payment must be repaid. It replaces subsection (5) of Section 52 of the 1973 Act—omitted by Amendment 128YAM—and caters for the situation that could arise under the new payment regime whereby the notice to treat ceases to have effect or is withdrawn after the advance payment is made. Amendments 128YAP and 128YAQ make similar provision for repayment where the advance payment has been made to a mortgagee.

In conclusion, I hope your Lordships’ House will agree that this group of amendments will improve the Bill by making the notice of entry-related provisions and the compensation provisions work as intended. I beg to move.

Amendment 128A agreed.

Clause 165: Extended notice period for taking possession following notice to treat