Compulsory purchase compensation

Development Consent Orders (DCO) confer compulsory purchase powers, planning permission and other necessary consents needed for Nationally Significant Infrastructure Projects (NSIPs). NSIPs are major transport, waste, energy and water projects as defined in the Planning Act 2008.

DCO applicants must undertake statutory consultation and then apply to the Planning Inspectorate for a DCO. They make their case through a structured DCO examination process which lasts approximately 15 months. Directly affected parties can make representations through the DCO examination.

We recommend claimants engage with the consultation and DCO examination process. This can secure important protections through legal agreements and accommodation works.

DCOs can only be approved after a thorough public examination process in which affected parties can participate. However, due to the very structured legal process of the Planning Act 2008, if an affected party wants to change or influence the design of an NSIP, it is very important to submit responses to the statutory consultation which will take place prior to submission of the DCO application and the examination process. By the time the DCO application is submitted, the scheme is largely fixed, and it is challenging to achieve significant amendments (which would usually mean the applicant having to run new consultations).

Once a DCO application has been made and accepted as valid by the Planning Inspectorate, directly affected parties are invited to submit representations. There will be a period of at least 28 days after DCO acceptance to register to become an ‘interested party’ and submit a ‘relevant representation’, initially as a short summary. Interested parties are informed of the progress of the examination and are notified of the final decision by the Secretary of State. They have the opportunity to submit further, more detailed written representations and attend and speak at the preliminary meeting or hearings that take place during the DCO examination.

Representations can be made about a wide range of issues relevant to whether the DCO should be granted planning permission and compulsory purchase powers. These could include planning policy, environmental or legal issues, alternatives to the scheme applied for, and whether the applicant has made reasonable efforts to acquire land by agreement. Representations cannot refer to compensation matters. DCO applications are sometimes rejected or amended. More frequently, agreements can be reached which give additional protection to affected parties than would be the case if their land was acquired by compulsory purchase.

A TWAO is an Order used to authorise new railways and tramways (those not qualifying as NSIPs). Powers derive from the Transport and Works Act 1992 and include powers of compulsory purchase. TWAOs can also be used to authorise other types of guided transport, and construction and operation of works to inland waterways.

Following a public inquiry, a TWAO application can be authorised by the relevant Secretary of State, who can also grant planning permission for the scheme.

Directly affected ‘statutory objectors’ can object to the granting of a TWAO and make representations through the public inquiry process. This is very similar to that for a DCO (see above).

A Hybrid Bill creates new law, usually to construct and operate major infrastructure projects of national importance. They combine elements of both public bills (of relevance to the general public) and private bills (affecting specific places and people).

Hybrid Bills are reserved for the largest infrastructure projects which require their own new law. Examples which Carter Jonas are advising claimants on include Crossrail and Crossrail 2. Select Committees from both the House of Commons and the House of Lords hear the case for and against the Hybrid Bill, before it is voted on by the members of both houses.

Those who are affected ‘directly and specially’; for example, those whose property will be affected by compulsory purchase, can petition a Hybrid Bill, both when it passes through the House of Commons and through the House of Lords.

A petition must be in a specific format, setting out who the petitioners are, how the bill affects them and what changes they ask for. A petition may not object to the principle of the bill, nor compensation amounts. Petitions may be submitted by email, and there is a £20 administration fee.

Petitioners may also appear in front for the House of Commons or House of Lords Select Committees.