H&H talk government infrastructure and compulsory purchase

"During many of the news broadcasts in recent months you will have inevitably heard the phrases 'Building back Better', 'Levelling Up' and the 'Northern Powerhouse'. These are all tag lines which broadly cover the Government’s intent on investing in public infrastructure and connectivity and thus the economy, particularly in the North of England, but also nationwide. There are then local initiatives flowing from these strategic policy announcements such as the Northern Infrastructure Pipeline adopted by Transport for the North which encompasses road, rail and strategic connectivity and development across the North of England.

The Government see investment in public infrastructure as a way of boosting the economy and economic growth especially post pandemic, but it also builds on the Conservative election pledges where Boris Johnson needs to be seen to deliver in the North to keep the support of previous labour voters.

We are already seeing projects getting underway locally and the impetus increasing with examples such as the investment in the Garden Village in Carlisle and the associated Carlisle Southern Link Road, upgrading of the rail network both east and west and the proposed dualling of the A66 from Penrith to Scotch Corner. This A66 scheme shows the Government’s determination to deliver, with Grant Shapps (Transport Secretary) accelerating the project from a 10-year program to one where construction is aimed at now starting in 2024. Here at H&H Land and Estates, we are representing numerous clients on the A66 scheme, and the accelerated timescale is now being seen on the ground in terms of the 'rush' from National Highways (previously Highways England) to progress.

Where national, regional, or local infrastructure projects take place, they often involve government backed bodies, who rely on using Compulsory Purchase powers to ensure that schemes can progress 'in the public interest'. Compulsory purchase powers inevitably affect rural landowners, especially for the larger and more rural road or rail projects. Compulsory purchase legislation has its roots in Victorian times, updated in the 1960’s and 70’s but with more recent changes from the traditional Compulsory Purchase Orders. There is an increasing use of what are called Development Consent Orders for Nationally Significant Infrastructure Projects (NSIP’s). Using these the relevant authority applies for all its planning consents and compulsory purchase powers in one process, with the aim of making the scheme delivery quicker.

This is how the A66 Dualling Scheme, is being promoted, and that increased pace is reflected in the interaction with landowners. This method of delivery means that there is significantly more early engagement with landowners and interested parties in the design and development of a scheme than was perhaps the case under the traditional separate planning and compulsory purchase procedures.

So, what should landowners do when faced with a public scheme that may involve compulsory powers?

The key thing is to engage early with the relevant authority. Discussing key issues early in the design and development process allows the authority to adapt their scheme. For landowning clients getting the authority to understand farm practices, rotations, farming systems and logistics is key. This is the point to raise anything that you think may be affected by the scheme and how that might be resolved practically rather than having to revert solely to compensation. If representations are left till later in the process getting practical changes agreed is so much harder although there are opportunities for landowners to make representations to the Planning Inspector, when the scheme is publicly examined, but this can be highly costly. The relevant authorities are required to have undertaken public consultation on their proposals so take advantage of that early.

During the construction phase of a scheme, it is essential to keep good channels of communication open with not only with the authority but also their contractors. Be wary however of deals with contractors for example for compounds, soil tips etc as you will often not have a direct contractual relationship with them and thus any arrangements will need to be properly documented in case of any issues. Contractors can go 'bust' whereas acquiring authorities do not!

In terms of compensation there has been a shift in approach by some authorities with many now trying to agree terms for at least part of the compensation early in the scheme, so that the parties have some certainty. This is opposed to the traditional approach of the authority paying 90% of their assessment of compensation. Although some of the compensation might be agreed early it is important to keep accurate records of issues that arise during the scheme construction as some elements of a claim are difficult to assess or agree until completion. It is important to engage surveyors who specialise and have experience in such claims to ensure you receive the appropriate advice and obtain the compensation you are entitled to.

So, with a government intent on spending 'big' on public schemes it is vital to seek professional advice early on if you happen to be affected by a project that involves compulsory powers."