The Neighbourhood Planning Act 2017: Second commencement regulations

The second commencement regulations relating to the Neighbourhood Planning Act 2017 were published last Thursday, bringing various provisions of the Act in to force on Friday 22 September.

The provisions brought in to force are:

  • Section 26(8)(b) – A consequential amendment to the Housing and Planning Act 2016 to take account of the fact that land may be included in CPOs to be used temporarily, whereby the definition of ‘acquiring authority’ needed to be extended and clarified.
  • Section 32 – Bringing much-needed clarification to what is meant by the ‘no-scheme principle’. Back in 2003 the Law Commission stated, in its report ‘Towards a Compulsory Purchase Code’, “the most difficult subject we have had to address in this project is the complex and intractable problems arising from the so called Pointe Gourde (or “no-scheme”) rule”. So, 14 years on, it’s fair to say it’s about time this principle is clarified. Section 32 codifies the principle in the following 5 rules:
  1. It is to be assumed that the scheme was cancelled on the relevant valuation date.
  2. It is to be assumed that no action has been taken (including acquisition of any land, and any development or works) by the acquiring authority wholly or mainly for the purposes of the scheme.
  3. It is to be assumed that there is no prospect of the same scheme, or any other project to meet the same or substantially the same need, being carried out in the exercise of a statutory function or by the exercise of compulsory purchase powers.
  4. It is to be assumed that no other projects would have been carried out in the exercise of a statutory function or by the exercise of compulsory purchase powers if the scheme had been cancelled on the relevant valuation date.
  5. If there was a reduction in the value of land as a result of—

(a) the prospect of the scheme (including before the scheme or the compulsory acquisition in question was authorised), or

(b) the fact that the land was blighted land as a result of the scheme,

that reduction is to be disregarded.

  • Section 33 – Repeals Part 4 of the Land Compensation Act 1961. Part 4 had provided for compensation to be paid if the acquiring authority obtains a more valuable planning permission on the land taken within 10 years of the valuation date than was envisaged by the scheme and which could have been obtained by the claimant. The reason for repealing this seldom-used part of the Code is because the prospects for obtaining planning permission in the future should already be taken into account in the statutory planning assumptions underlying the assessment of compensation.
  • Section 34 – Requires that acquiring authorities must serve and publish notices of the confirmation of their Order within six weeks of the Order being confirmed. If they don’t, the confirming authority will do so, and recover the associated costs from the acquiring authority. This avoids tactical (or sloppy) delays between the Order being confirmed and the action that triggers the clock ticking on the three-year period for the powers to be exercised.
  • Section 35 – Deals with the nonsensical misapplication of the Bishopsgate principle. It does so by requiring that, in the assessment of disturbance compensation for commercial tenants outside the 1954 L&T Act or with less than a year to run, regard is hard for what would likely have happened in the no-scheme-world, as opposed to assuming that the landlord would bring the tenancy to an end at the first available opportunity following notice to treat. Specifically, the Act states that regard must be had to—

(a) the likelihood of the continuation or renewal of the tenancy,

(b) in the case of a tenancy to which Part 2 of the Landlord and Tenant Act 1954 (security of tenure for business tenants) applies, the right of the tenant to apply for the grant of a new tenancy,

(c) the total period for which the tenancy may reasonably have been expected to continue, including after any renewal, and

(d) the terms and conditions on which a tenancy may reasonably have been expected to be renewed or continued.

The wording gives rise to the likelihood of protracted negotiations about what might have actually happened, but it should at least put a stop to acquiring authorities seeking to avoid paying reasonable disturbance costs by claiming that they are only bringing forward costs that would have shortly (and not so shortly in some cases) been incurred in any event.

  • Section 36 – Amends the Greater London Authority Act 1999 to enable the GLA and TfL to agree that one of them may acquire land under a CPO for the other, rather than continuing as has been the case whereby GLA may only acquire land for housing and regeneration purposes and TfL may only acquire for transport and highway purposes.

It is worth noting that the transitional provisions of the Regulations confirm that sections 32 and 35 will only apply in cases where CPOs are confirmed on or after 22nd September 2017. Rather oddly (in my view, at least) that means that the provisions will not apply to land acquired for Phase 1 of High Speed 2.

Section 34 only applies to CPOs confirmed on or after 22nd September too.

It may be happening very slowly, but one small step at a time the Government is making good on its intention to make CPO ‘clearer, fairer and faster’ for all.

– Jonathan Stott, Managing Director, Gateley Hamer