CPOs set to rise to meet development needs

The Law Commission described the law around compulsory purchase orders as “an unwieldy and lumbering creature” in its Towards a Compulsory Purchase Code report.

In truth, part of the reason why the law is challenging is the schizophrenic nature of the approach the Courts have taken to compulsory acquisition.

So in one case the Court of Appeal referred to the “draconian” nature of the exercise of compulsory purchase power, whereas the House of Lords described the power as: “an essential tool in a modern democratic society [that] facilitates planned and orderly development.”

It is strange then that despite the nature of the creature, the powers available to Local Authorities are increasingly being used as a vehicle to secure development and regeneration.

The use of compulsory purchase powers is being encouraged by the Government to assist Local Authorities in speeding up housing delivery and securing regeneration of town centres. There is a bewildering array of powers that Local Authorities can call upon to facilitate the exercise of compulsion. These include:

• Regeneration schemes brought under Section 226(1) of the Town and Country Planning Act 1990 which allow a Local Authority to acquire land to facilitate the carrying out of development, redevelopment or improvement of the area
• Housing CPOs can be made under Section 9 of the Housing and Regeneration Act 2008 by Homes England to support Local Authorities in improving the supply of housing by securing regeneration or development of land and infrastructure
• Highways CPOs can be made under the Highways Act 1980 to acquire land for road infrastructure developments and improvements that are in the public interest

The CPO case discussed here is the Preston Western Distributor (“PWD”) promoted by the Highway Authority: Lancashire County Council under the Highways Act 1980. It involves three schemes:

• The PWD linking a new junction on the M55 and the A583 Blackpool Road – 4.3km long and 30m wide, with a 70mph limit
• An East-West Link Road (EWLR) – 3.4 km long and 15m wide
• The Cottam Link Road (CLR) – 0.8km long and 15m wide

The scheme was promoted on the basis that there would be a significant reduction in traffic flows on the currently congested network across North West Preston in the vicinity of the M55 together with reductions on the A6.

Importantly in this context, the scheme represented a critical piece of transport infrastructure that was necessary in order to deliver the strategic housing site in the North West Preston Masterplan. A large part of the justification for the acquisition of land was to facilitate further residential development. The Preston, South Ribble and Lancashire City Deal of September 2013 set out a 10 year programme to address strategic infrastructure challenges. The Local Authorities including the County Council were driving the delivery of new housing, new jobs and seeking to boost to economic growth in the area by being pro-active in unlocking constraints to development (in the form of road congestion) and delivering infrastructure that facilitated development.

The total cost of the schemes of nearly £200m is funded by the City Deal and Highways England (providing the junction to the M55) and Growth Deal funding.

I, together with Constanze Bell at Kings Chambers, represented Lancashire County Council at the public inquiry at held at County Hall in Preston into the objections to the CPO. Inspector Philip Asquith reported to the Secretary of State that he was satisfied that the compulsory acquisition was justified in his report in 2019. The Secretary of State for Transport formally confirmed the Order in April 2019.

It’s important for investors, developers and the public to see that the commitments to the delivery timetable are being kept to. Construction commenced in late 2019 and the target date for opening to traffic of early 2023 is likely to be met, despite the best efforts of the North West weather and a Covid pandemic.

The physical presence of PWD and EWLR being built out has enabled the developers to move forward with more confidence to make applications and commence development on the allocated areas in North West Preston. Housebuilding and occupation continues at pace.

So, in short, the PWD and associated schemes are being seen to achieve the challenging objectives that were set for them. The use of CPOs for the timely delivery of essential infrastructure and land assembly is set to increase for sure.

John Barrett is a leading Junior specialising in Planning Law. He advises and acts for developers and local authorities in relation to major developments nationally. He is also known for his expertise in Compulsory Purchase Order cases. He has spent the last four weeks in the Parkside call in inquiry in St Helens.