CPO & Section 17

Specialist CPO solicitor, Melanie Francis, discusses case law around CPOs under a section 17.

Compulsory Purchase Orders (CPOs) authorise the acquisition of land without the consent of the owners. CPOs are often used in, and are an essential element of, the delivery of large-scale projects to provide local and national infrastructure. This might include new roads, railways, or airports, but can also apply to a new school, hospital or housing development.

Any CPO should only be made as a last resort where there is a compelling case to acquire the property and where the acquisition of the property is in the public interest. The onus is on the acquiring authority to seek to acquire the property through negotiations with the property owners. All reasonable steps should be taken to acquire the property by mutual agreement.

Housing Act 1985: Section 17

In terms of housing development, a CPO can lawfully provide for the acquisition of houses for the purpose of providing housing accommodation, as per Section 17 of the Housing Act 1985. This can be for larger-scale schemes, but this s17 power is typically exercised in respect of housing that is unoccupied and/or in a state of disrepair. Namely, a CPO under s17 can concern a single property or dwelling. There may be many reasons why a single property is unoccupied and/or in need of repair. Where this is the case, a Council has the power to compulsorily acquire that single property, where in doing so, it would increase the  housing stock for the area.

Once a CPO is made and confirmed, ownership of the relevant land and/or property is transferred to the acquiring authority either following the service of a Notice To Treat (NTT) or the making of a General Vesting Declaration (GVD). This article does not focus upon legal procedure concerning CPOs, NTTs or GVDs but simply to highlight that a Council may compulsorily acquire a single dwelling.

This is perhaps best-illustrated by case law examples:

Ainsdale Investments Ltd v First Secretary of State and another [2004] 2 EGLR 9

The second defendant in this case, the Council, had made a number of attempts to persuade the Claimant (the property owner) to refurbish the property on a voluntary basis, which failed. A CPO was made and confirmed by the Secretary of State. There was a challenge to the lawfulness of the CPO. The Court held that the Council's endeavours to secure voluntary improvement of the property, together with the failure of the Claimant to carry out the required works, meant that the CPO was justified. Namely, the power under section 17 of the Housing Act 1985 had been lawfully exercised.

This position can be contrasted with the case of Dawes.

R (oao of Dawes) v Birmingham City Council

A CPO was made in April 2019 under section 17 of the Housing Act 1985, in respect of 12 properties, two of which were owned by the Claimant. The CPO was made pursuant to Birmingham City Council’s Private Sector Empty Property Strategy, a policy designed to bring empty houses back into occupation. The Council required the Claimant to undertake works to both properties to ensure that they were made habitable and thus bring them back into occupation.

At various times the Council required internal inspections of the properties to check they had been made habitable and to be reassured that they were being used as main residences; this being on the basis that if they were not satisfied, then a General Vesting Declaration (GVD) would be executed, transferring ownership to the Council who could thereafter fix and sell the properties for occupation.

The Claimant stated her position. She was intending to, and in the process of, moving into that property to use as a family home for her and her disabled son. She had made the Council aware of this intention. The Claimant also confirmed that she was attempting to undertake renovation work to make the property habitable but had been facing significant difficulties due to her personal circumstances. The Council and the Claimant had been in contact regarding the condition of the property since May 2015. The CPO was made in June 2018 and confirmed on 26 April 2019. The Council’s last internal inspection of the property took place in September 2019 before contact between the Claimant and the Council effectively broke off in February 2020.

A GVD was executed in August 2020. Ms Dawes challenged the lawfulness of the GVD – noting at that time the CPO could not be lawfully challenged.

The Court found that the Council had behaved irrationally in deciding to make the GVD without recently having carried out an internal inspection of the property to check on its condition, use and occupation. The Court also found that the Council should have obtained suitable evidence/documentation as to the issue of occupation prior to executing the GVD. Noting that the last internal inspection had taken place 11 months before the execution of the General Vesting Declaration, the Court found that no rational authority could have supposed that the information it had in its possession or the enquiries it had made were sufficient for it to make the decision to exercise the powers granted to it under the CPO.

The Court’s judgment in Dawes turns very much on the particular circumstances of the case. However, it does provide useful guidance:

• for acquiring authorities looking to exercise a CPO under section 17 of the Housing Act 1985, or
• a property owner facing a potential CPO, as to the level of enquiry that is to be expected of an acquiring authority when executing a GVD.

There are perhaps three key points of note:

1. A single property in a state of disrepair and/or unoccupied may be the subject of a CPO;
2. A challenge to the use of CPO powers should come at that time, and not wait until the making of a GVD; and
3. Early and productive engagement is necessary by both parties – either to avoid entirely the making of a CPO (owner) or to justify the lawfulness of making a CPO (acquiring authority). This might include clearly identifying the points in issue/items of disrepair and an agreed schedule of works, with a recommended or desired timescale, for the works to be completed and/or amicable resolution of the case at hand.

Holmes & Hills LLP has a dedicated team of specialist compulsory purchase lawyers who are experts in supporting individuals and businesses who are impacted by compulsory purchase proposals such as those subject to a section 17 claim.

If you are affected by the powers contained in section 17 of the Housing Act 1985 – either following a CPO, GVD or because the Council are threating a compulsory acquisition, please do not hesitate to get in touch for independent advice on your options and the scope of your statutory rights and claim(s). Our expert team can help guide you through the compulsory purchase process to secure the best possible outcome for you.