Rural view: Time for a charm offensive

Gaps in knowledge, communication and timeliness often leave affected parties dissatisfied with the compulsory purchase process. Is there room for improvement? The government announced in July that Sir Mark Worthington had been appointed as the new independent construction commissioner for the HS2 rail project, taking over from interim commissioner Gareth Epps. Sadly, Worthington’s brief does not extend to property compensation issues, and indeed the commissioner’s fifth report noted that two complaints had been rejected as invalid because they related to property and access matters. This highlights the gaping hole that continues to exist in our compulsory purchase code: the lack of an accessible independent review and dispute mechanism.  Case for an independent commissioner I have argued before in this column for the creation of an independent commissioner or adjudicator to oversee the use of compulsory purchase powers; the role to be concerned with creating and maintaining a code of practice for promoters and their agents and contractors, holding a public register on which promoters must appear before they can use their compulsory powers, undertaking systematic review of the use of compulsory purchase powers and dealing with complaints and disputes between promoters and property owners and occupiers who are affected by their activities. The case for such a role is gradually building. Jonathan Loescher gave evidence to the HS2 Select Committee earlier this year which highlighted the mental stress of living through the early stages of a giant infrastructure project. The committee seemed nonplussed to learn that the health impact assessments of a major scheme were not concerned with these points. Loescher runs his accountancy business from home and the impact of the preparatory works for HS2 on the Loeschers and their neighbours have been well-documented in a series of official reports, including a review by the House of Commons Public Administration and Constitutional Affairs Committee following a report by the Parliamentary and Health Service Ombudsman. Loescher emphasised the need for an independent commissioner or ombudsman in his evidence as none of the mechanisms he had encountered could understand the workings of the compensation code. The experience of the Loeschers reflects the challenges faced by Lance Forman in the relocation of his family salmon smoking business in east London for the Olympic Games, documented extensively in his book: Forman’s Games. This should be on the reading list for every compulsory purchase syllabus, if for no other reason than some clear guidance to promoters on how not to do compulsory purchase. The Welsh Assembly is also starting to take an interest in these matters with the prospect of some devolution of compulsory purchase to the Welsh government. The Senedd select committee reviewing this heard in October from a panel which included RICS dispute resolution chair Philip Meade, who drew on his extensive experience throughout Wales to highlight the differences between the undertakings given at public inquiries and subsequent experience on the ground as construction difficulties start to emerge. Meade highlighted the prohibitive cost of using the only formal dispute mechanism for compensation matters, the Upper Tribunal (Lands Chamber), quoting Barry Denyer-Green’s view that at least £250,000 must be in dispute between the parties before you even contemplate going there. He also called for an independent adjudicator to oversee problems between promoters and claimants. Emerging evidence Survey evidence about the quality of professional practice in compulsory purchase and utility work is now beginning to emerge. Nearly 60 professionals working in the field have already responded to an ongoing survey. They are roughly equally divided between agents acting for promoters and for claimants, and are involved in a range of schemes throughout Britain at all stages, from inception to final settlement. What are the results starting to tell us?  Knowledge of compulsory purchase law and procedure and valuation are less of a problem than basic skills of communication, timeliness, helpfulness and consistency. Nevertheless, there is scope for improvement on knowledge of basic areas of the law and valuation practice. Claimants continue to be more dissatisfied with the procedures they must suffer than the compensation they receive at the end of it all. There is some evidence that promoters’ valuers outdo claimants’ valuers in their understanding of compulsory purchase itself and valuation, but conversely claimants’ valuers run ahead on the more general elements of communication and helpfulness. At this stage the numbers are too small and too close to make any more than a tentative suggestion of this difference. The value of claims ranges from a low of £1,400 to £7m and more. Respondents are asked to score individual claims for knowledge of compulsory law and procedure, communication, timeliness, valuation technical ability, helpfulness and consistency. For each of these elements they are asked to score on a five-level scale, from “significant failings or gaps which were rarely if ever acknowledged” (scored 1) up to “exemplary, any scope for improvement was no more than marginal” (scored 5). Average scores for each element out of five were: Technical and legal understanding of compulsory purchase: 3.14 Timeliness: 2.65 Consistency: 2.75 Helpfulness: 2.73 Valuation Technical ability: 3 Communication 2.8 It was also notable that in only 52% of responses had a code of practice been issued to claimants. Room for improvement Considerable scope for improvement then, in all aspects. The survey is still running and practitioners – particularly valuers – are strongly encouraged to respond by going to the survey. Some powerful messages are already emerging from this survey; with more responses from valuers acting for promoters and claimants we will be able to extend our analysis and strengthen the evidence base for future improvements in the way we use the compulsory purchase code. Meanwhile, it is also high time the Treasury stopped sitting on its hands concerning the powers in the Neighbourhood Planning Act 2017 to make regulations for more sensible interest payments on late payments of compensation. We don’t need any more evidence to promote this point. Charles Cowap is a rural practice chartered surveyor