Compulsory Purchase | Condemnation Eminent Domain

Compulsory Purchase

This is the right that every State has to acquire property, against the wishes of the individual in the interest of the community, generally referred to as for a “public purpose” or for “public use”. In most democratic states this right can only be exercised subject to the payment of proper, fair or just compensation. In particular, the purchase of an interest in land for public purposes by a body possessing statutory powers, e.g. a local authority; Highway Agency; infrastructure company; government department; or a statutory undertaking or major utilities company. Compulsory purchase is initiated by the service of a notice to treat (or the issue of a general vesting declaration), following authorisation obtained under a compulsory purchase order, and is completed when compensation is settled and the interest in land transferred to the acquiring authority. However, in common usage and in certain statutes, the term is used to refer to any acquisition (whether by compulsion or agreement) made by an authority possessing compulsory purchase powers.

Compulsory Purchase in England and WalesDenyer Green Compulsory Purchase

In England and Wales, the land acquisition powers of public authorities are wide ranging; although they must be authorised by the Secretary of State in accordance with statute. For example, land may be acquired not only for a specific statutory purpose, such as for the construction of a new highway, but merely for “the proper planning of an area”, Local Government, Planning and Land Act 1980, s. 91; or, in the case of the compulsory acquisition of land for development or other planning purposes, the authority may acquire land “if the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land”, or if the land is required for a purpose that is “in the interests the proper planning of the area …”, Town and Country Planning Act 1990, s. 226(1A), as inserted by Planning and Compulsory Purchase Act 2004, s. 99, which requires that the development, re-development or improvement will contribute to the economic, social or environmental “well-being” of the area) (R (Sainsbury’s Supermarket Ltd) v Wolverhampton City Council [2010] UKSC 20, [2010] 20 EG 144 (SC)&mdash;amended provision of TCPA 1990 does not allow the acquiring authority to take into account a commitment by the developer to carry out work on an unconnected site; in a divided opinion the Supreme Court in effect adopted similar principles to the “material considerations” relevant to imposition of a planning condition). (viz.: DOE Circular 06/04, Appendix A “The well-being power”). Moreover, “it is clear that no minister or public authority can acquire any land compulsorily except the power to do so be given by Parliament; and Parliament only grants it, or should only grant it, when it is necessary in the public interest. In any case, therefore, where the scales are evenly balanced – for or against compulsory acquisition – the decision – by whomsoever it is made – should come down against compulsory acquisition. I [Lord Denning] regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands; and then only on the condition that proper compensation is paid – See A-G v De Keyser’s Royal Hotel [1920] 1 AC 508 (HL). If there is any doubt on the matter, the balance must be resolved in favour of the citizen”, Prest v Secretary of State for Wales (1983) 266 EG 527, 528 (R (on the application of Barnsley Metropolitan Borough Council v Secretary of State [2012] EWHC [Admin] 1366, [2012] 34 EG 48—local authority power to “do anything” which they consider will promote or improve the “economic, social or environmental well-being” of the local area (Local Government Act 2000, s. 2) did not extend to compulsory purchase; its objective could only be achieved by an acquisition of land “by agreement” (Local Government Act 1972, s. 121). On the other hand, although the European Convention on Human Rights provides that “[n]o one can be deprived of his possessions except in the public interest and subject to conditions provided by law &hellip:”, that provision should not “in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”, Article 1 of Protocol No. 1 “All democratic societies recognise that while there are certain basic rights which attach to the ownership of property, they are heavily qualified by considerations of the public interest. Thus … property may be taken by the state, on payment of compensation, if the public interest so requires … and the use of property may be restricted on similar grounds”, R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 325, [2001] 2 All ER 929, 981 (HL) (R (James Powell) v Secretary of State for Communities and Local Government and Sefton Metropolitan Borough Council [2007] EWHC 2051). Compulsory purchase requires an authorising statute and an authority is only “permitted to acquire land compulsorily if it does so for the purposes for which it has been granted compulsory powers”, Galloway v London Corporation (1986) LR 1 HL 34 (HL). In most cases, the acquisition is made in accordance with the provisions of the Compulsory Purchase Act 1965; and compensation is paid upon the basis laid down primarily in the Land Compensation Act 1961. In particular, although a purchase is made against the will of the individual, compensation is payable based on the presumption of a willing seller. In the US, compulsory purchase is referred to as the exercise of the power of eminent domain, or condemnation proceedings (the term eminent domain is hardly ever used in English law, although it may be used to refer to the right of the Sovereign to acquire land, as distinguished from compulsory acquisition which comprehends such a right being obtained with the consent of Parliament). Also referred to as ‘compulsory acquisition’.  See also blight notice, compulsory purchase compensation, expropriation, leasehold enfranchisement, purchase notice, ultra vires. UK Government Planning Portal. Compulsory purchase and compensation booklets (ODPM Publications, 2004). <http://www.planningportal.gov.uk/planning/planningpolicyandlegislation/currentenglishpolicy/goodpracticeguides/comppurchase target>.

Bibliographical references for Compulsory Purchase:

Boynton’s Guide to Compulsory Purchase and Compensation (7th ed. London: 1994). D. Brown. Land Acquisition: An examination of the principles of law governing the compulsory acquisition or resumption of land in Australia (6th ed. Sydney: 2009). 22 Halsbury’s Laws of Australia, Real Property, Sec. 6 ‘Compulsory Purchase.

Cheshire and Burn’s Modern Law of Real Property (17th ed. Oxford: 2006), Ch. 30 ‘Compulsory Purchase and Compensation’. K. Davies. Law of Compulsory Purchase and Compensation (5th ed. London: 1994), Part I ‘Compulsory Purchase Procedure’. B. Denyer-Green. Compulsory Purchase and Compensation (9th ed. London: 2009), Ch. 3 ‘The Sources of Compulsory Purchase Powers’. G. Roots et al. The Law of Compulsory Purchase (2nd ed. Haywards Heath, West Sussex: 2011).

G. Roots (gen. ed.). Compulsory Purchase and Compensation Service (Haywards Heath, West Sussex: Loose-leaf). 8(1) Halsbury’s Laws of England, Compulsory Acquisition of Land (4th ed. 2003 Reissue), §§ 1–193.

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Read all about the Compulsory Purchase, Condemnation and Eminent Domain (incl. condemnation(F), with multiple cross references and other sources for further research, in Real Estate Defined.

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