A few crumbs more

The Property & Compensation Consultation, part 4

In my blog Crumbs of comfort (posted 4 Jan 2013) I described the way that the compensation due to a householder whose property is subject to a compulsory purchase order is calculated. In this blog I will look at a way that statute provides to pre-empt such an order and the compensation provisions available to a householder living near to a development, but whose property is not required to be compulsorily purchased.

The Law recognises that proposals for development may cause the property market to be blighted in the concept of “statutory blight”. However, the Law appears to have a very limited perception of the geographical extent that such blight may have, and leaves many properties that may be reasonably regarded as blighted outside of the protection of statutory blight. The provisions covering statutory blight are set out in Chapter II of Part VI of the Town and Country Planning Act 1990 (in sections 149-171).

The statutory blight provisions allow the owner of a property that is, in whole or in part, in “blighted land” to serve a written “blight notice” to the “appropriate authority”, subject to meeting certain qualifying conditions. A blight notice is a request for the appropriate authority (developer) to purchase the property then, rather than waiting for when it might be needed for construction.

What constitutes blighted land is defined by Schedule 13 of the Act. Of particular relevance to the HS2 proposals is that this Schedule regards land within a safeguarded area as blighted land.

However, section 151 of the Act allows the appropriate authority to refuse the purchase by issuing a “counter notice” within two months of being served with the blight notice. If a dispute then follows, the Act allows for the matter to be referred to the Lands Tribunal for resolution; this function has now been transferred to the Upper Tribunal (Lands Chamber).

The grounds upon which an appropriate authority may issue a counter notice include that the property will not be required to be compulsorily purchased or that only a part of the property will be required to be compulsorily purchased. It is normal practice for developers to issue a counter notice in such circumstances.

The Law also requires for compensation to be paid in cases where a property has not been required to be acquired for a development but suffers the impacts of the operation or use of that development. There are two pieces of legislation that govern the payment of such compensation.

The first is one that we have already met in previous blogs; the Noise Insulation (Railways and Other Guided Transport Systems) Regulations 1996 requires the developer to “carry out, or make a grant in respect of the cost of carrying out” sound insulation for any property where the resulting noise level from a new railway scheme is assessed to exceed a specified threshold. The grant will normally be payable some time after the scheme is operational, but in some circumstances an earlier grant may be made if the construction activities are causing excessive noise levels. In order to qualify a property must be “not more than 300 metres from the nearest point of the nearest running rail”.

The second piece of legislation that provides for compensation to be paid is Part I of the Land Compensation Act 1973. This Act provides for property owners to be compensated “where the value of an interest in land is depreciated by physical factors caused by the use of public works”, subject to meeting qualifying conditions.

The physical factors that may be taken into account are limited to “noise, vibration, smell, fumes, smoke and artificial lighting and the discharge on to the land in respect of which the claim is made of any solid or liquid substance”. It is important to note that visual impact is not taken into account.

Since it is necessary for the actual impact of the development to be assessed in order to determine the appropriate level of compensation, such determination is not normally made until the development has been in operation for a year and claims may be made for six years after.

The compensation will be 100% of the loss in value of the property due to the impacts of the physical factors alone, including any foreseen increase in these impacts, as assessed by a valuer appointed by the developer, plus reimbursement of “any reasonable valuation or legal expenses incurred by the claimant for the purposes of the preparation and prosecution of the claim”. Any benefits that accrue, or will accrue, from a sound insulation grant made under the provisions of the Noise Insulation (Railways and Other Guided Transport Systems) Regulations 1996 will be offset against the assessed depreciation. Likewise any benefits that the development bestows upon the value of the property may reduce the value of the compensation.

Ultimately the onus is on the claimant to prove their claim. Disputes may be referred to the Upper Tribunal (Lands Chamber).

And that is the sum total of what the Law allows.

Important note: This blog is, of necessity, only a very brief overview of compensation law and I am not legally qualified. You should not therefore rely legally on anything in this blog.

If you think that you may be in a position to benefit from compensation under any of the statutes mentioned in this blog I recommend that you give serious consideration to the advice in the Foreword to the booklet Compulsory Purchase and Compensation: Compensation to Residential Owners and Occupiers:

“… you should seek advice from a professionally qualified person such as a surveyor or solicitor, who can advise you on your rights and act on your behalf if appropriate. The reasonable professional fees incurred in preparing and negotiating your compensation claim may be met by the acquiring authority.”

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One response to this post.

  1. Posted by chriseaglen on January 6, 2013 at 10:56 am

    Suggest you include how the HIAs Health Impact Assessments may assist people and communities to characterise the impacts. The http://www.apho.org.uk website may assist. It may be questioned if HS2 and its consultants overlooked this and the corresponding risk assessements with both the rail and consequential work on roads and bridges and congestion during construction.

    Public Health Observatories – HIA Gateway

    http://www.apho.org.uk
    Assessment of the Health Impact of Plans for the …To put a health-focused paper into or with an Environmental Impact Assessment and also SEA. It is possible the local authorities could claim to have to carry out their SEA and/or EIA and/or HIA on the roads and additional works and whether alternatives and options should have been undertaken.

    Reply

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