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09th November 2020

What can you do if a property highway scheme affects your property?

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If your property is included in a highway scheme it can affect its value and saleability.  But what can you do if the highway scheme is only at a provisional stage? You may still be able to serve a blight notice for its compulsory purchase as recently examined in McEvoy v Warwickshire County Council [2020]. 

What is a Blight Notice?

A blight notice is primarily governed by the provisions of sections 150-156 of the Town and Country Planning Act 1990 (“the 1990 Act”). The primary purpose of a blight notice is to bring forward the public acquisition of private land to a time which suits the owner’s wishes, rather than at the convenience of the capital programme of the acquiring public authority.  Therefore, it is commonly referred to as a compulsory purchase order in reverse.

In order to serve a blight notice you must have a qualifying interest in ‘blighted land’ and have unsuccessfully marketed the property (unless exempted). To have ‘blighted land’ the land must fall into one or more of the categories described in Schedule 13 of the 1990 Act.  It includes land that is:

  • identified in development plan documents or neighbourhood development plans for ‘public’ functions, such as those of a government department, local authority or statutory undertaker
  • indicated in a development plan as required for highway construction or improvements
  • identified for compulsory acquisition in any private Act, in the Transport and Works Act 1992, or in any other compulsory purchase order including a development consent order under the Planning Act 2008
  • safeguarded for a specific purpose (for example, for the purposes of constructing and operating the HS2 network)
  • within a location identified in a national policy statement as suitable or potentially suitable for a nationally significant infrastructure project (for example, proposed Heathrow expansion)

A person will have a ‘qualifying interest’ in blighted land provided they satisfy the following 4 criteria:

  1. The land must be either a dwelling, business premises or mixed dwelling/business premises or an agricultural unit and all or part of it is within ‘blighted land’.
  2. The person must be either the freeholder or a leaseholder with a lease period of at least three years.
  3. The person has either an eligible interest in the land as:
    • a residential owner-occupier of a private dwelling;
    • an owner-occupier of business premises, with a net annual (rateable) value not exceeding £44,200 in Greater London and £36,000 in the rest of England) and
    • an owner-occupier of an agricultural unit or part of an agricultural unit

      Or the person is:

  • a personal representative of a deceased person who, at the date of their death, would have been able to serve a blight notice; or
  • a mortgagee who has the right to sell the property can give immediate possession.

    4.The person must have occupied the land for at least 6 months or, if unoccupied for less than 12 months, then      the 6 months proceeding.            

Finally, unless the blighted land is subject to a compulsory purchase order, the owner must show that they have made reasonable endeavours to sell the land at a realistic ‘unblighted’ price and that they have been unable to do so except at a substantially lower price. There is no standard marketing requirement. If challenged by the relevant authority, then it is a matter of judgement of the Upper Tribunal (Lands Chamber). It should involve the placing of the land on the market but not necessarily in the hands of an agent.

Facts of the McEvoy Case

In McEvoy & Anor v Warwickshire County Council [2020] UKUT 276 (LC) the McEvoys were the owners of a detached bungalow known as Green Acres, Watling Street, Grenton, Warwickshire. Their property is identified in the draft North Warwickshire Local Plan (“the draft NWLP”) for the purposes of Phase 1 of the proposals to enhance the A5 by a new by-pass between Dordon and Grendon and the provision of a dual carriageway.

They argued therefore that their property is ‘blighted land’ because in accordance with paragraph 1A of Schedule 13 of the 1990 Act it is:

‘land which is identified for the purposes of relevant public functions by a development plan document for the area in which the land is situated’.

A development plan document under the 1990 Act includes that which has been submitted to the Secretary of State for independent examination (and any revisions thereto). The draft NWLP had been so submitted by North Warwickshire Borough Council.

Interestingly the draft NWLP identified the proposed highway scheme as part of key infrastructure to facilitate the development included in the local plan and overall was identified as essential in delivering a sound local plan. However, the draft NWLP fell short of determining the proposed highway scheme and allocating the land on which the highway scheme is to be constructed. This was because the plans were still conceptual and subject to change, and no decision has yet been taken on whether the county council (or Highways England) will deliver the scheme. Therefore, none of the specific, and typically used, highway categories of blighted land in Schedule 13 of the 1990 Act applied.

The question for the Tribunal was whether the identification of a proposed highway scheme without allocation but forming part of the key infrastructure essential to the delivery of a sound local plan was sufficient to satisfy paragraph 1A (described above) and cause blighted land.

The Tribunal found that the identification of the proposed highway scheme in the draft NWLP as part of the key infrastructure to its delivery was sufficient to satisfy paragraph 1A. Moreover, the Tribunal confirmed that the land for the scheme does not necessarily have to be part of an allocated site for development. It was further confirmed that it was irrelevant to the question of whether the claimant’s land is blighted land that no decision has yet been taken on whether the county council or Highways England will deliver the scheme or that the question of funding has yet to be finalised.

The McEvoys’ property was therefore blighted land and they could compel the county council to acquire it with the rights and benefits of the compensation code for compulsory purchase. This includes such things as: the unblighted market value of land taken (disregarding the proposed scheme); severance and injurious affection to land retained by the owner; disturbance for property occupiers such as removal fees; professional costs on the blight notice (ie. legal and surveyor fees); and home loss payment (10% up to £61,000).

Lesson:  The McEvoys case highlights that blighted land and the right to serve a blight notice for the property’s compulsory acquisition, can arise very early in the progress and development of a highway scheme.  It is therefore important that you have professional advice when considering your options for land suffering from ‘blight’, and the correct procedures to follow when considering the issue of a ‘blight notice’.

The Planning and Environment Team at Hewitsons LLP will be happy to guide you through all aspects to ensure your rights are protected.