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Neighbourhood Planning Act 2017: Temporary Possession Powers

  • United Kingdom
  • Infrastructure
  • Real estate
  • Real estate planning

05-05-2017

After much anticipation, The Neighbourhood Planning Bill received royal assent on 27th April 2017.

The new Neighbourhood Planning Act (“Act”) covers matters not obviously related to its title, including new powers of temporary possession. The powers, contained in Chapter 1 of Part 2 of the Act, will need to be brought into force by commencement order.

The ability to make provision for taking temporary possession of land was previously only available under Special Acts (such as the Crossrail Act 2008), Transport and Works Act Orders (“TWAOs”) and Development Consent Orders (“DCOs”). Section 18 of the new Act gives all those with power to acquire land (and rights over land) compulsorily (e.g. local authorities, certain agencies and statutory undertakers - known as “acquiring authorities”), the power to take temporary possession of land for connected purposes. This is an important tool in an acquiring authority’s armoury, particularly for those involved in promoting projects via means other than Hybrid Bills, TWAOs and DCOs .

Procedure for authorisation of temporary possession

An authorising instrument, similar to a compulsory purchase order, will be required. It must identify the land proposed to be subject to temporary possession; describe the purposes for which temporary possession is required; and specify the total period of time for which temporary possession will be taken.

Temporary possession can be applied for at the same time as a compulsory purchase order, and both temporary and permanent powers can be granted over the same land. Temporary possession powers can also be sought in isolation.

Once authorised to do so, an acquiring authority may use the land as if it had acquired all interests in it, provided the use accords with the purposes in the authorising instrument. In particular the acquiring authority may remove or erect buildings or other works, remove vegetation and interfere with “relevant rights” including easements. Special protections exist for National Trust land and interests belonging to statutory undertakers.

Notice Requirements

A minimum of 3 months’ notice of intended entry must be given before temporary possession can be taken. The notice must also specify the period for which temporary possession is to be taken and a further notice must be served for any subsequent periods of possession, even if there is to be no gap between the periods.

Counter-notices

The Act provides for a “counter-notice” procedure, which enables an owner (including leaseholders in occupation of the land) to serve a counter‐notice on the acquiring authority within 28 days of the notice of intended entry, limiting the period for which the authority may take temporary possession to either 12 months in the case of a dwelling or part of a dwelling; or 6 years in any other case. A leaseholder can also require the acquiring authority to not take temporary possession at all.  

The acquiring authority may then (i) accept the counter-notice and limit the period of temporary possession as requested; (ii) withdraw the notice of intended entry; or (iii) purchase the owner’s interest in the land as if the interest were subject to compulsory acquisition. The acquiring authority must give notice of its decision within 28 days of the date of the counter-notice.

Compensation

Compensation is payable to a person for any loss or injury sustained as a result of interference with an interest in land or the breach of restrictions as to the user of land. This will include business disturbance losses as a result of having to vacate the land during the temporary possession.

There is a mechanism for advance payments of compensation, and for the payment of interest on late advance payments, similar to the process in the Housing and Planning Act 2016 in respect of compensation for the acquisition of land/rights over land.

The Act also provides special protection for tenants, by ensuring that they will not be treated as being in breach of any of the terms or obligations of their tenancies, to the extent that they cannot reasonably be complied with due to the temporary possession of the land.

Interaction with other regimes

Subject to any express provision in another act, the new power to take temporary possession is the only power under which a person may take temporary possession of land compulsorily. There is no such express power to take temporary possession in either the Transport and Works Act 1992, or the Planning Act 2008, therefore the Act’s temporary possession power, and the restrictions on its use, will apply to powers of temporary possession sought in TWAOs and DCOs, and it will be necessary to adapt the form of temporary possession articles that are commonly used.

Consequential amendments will be made to the Town and County Planning Act 1990 to apply provisions relating to blighted land in circumstances where temporary possession is taken.

Keep an eye out for

  • the commencement order
  • prescribed forms of temporary possession order and associated notices
  • prescribed procedure for confirmation of a temporary possession authorising instrument
  • possible guidance on the use of the power
  • any further regulations to exclude or limit the temporary possession powers of certain acquiring authorities, such as those with Electricity Act 1989 compulsory acquisition powers
  • any further regulations to limit how the power operates.

Concluding thoughts

The extension of temporary possession powers may provide more flexibility for acquiring authorities, allowing temporary possession powers to be used in conjunction with, or in place of, compulsory acquisition powers.

The powers included in the Act are more tightly controlled than those included in DCOs and TWAOs but this will hopefully strike the right balance between enabling development and protecting the interests of owners and occupiers.

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