Constraints on selling public land - the Crichel Down Rules

Land iStock 000000070770XSmall 146x219The Crichel Down Rules can constrain the sale of public land. Gary Philpott looks at the key issues they raise.

It is important to assess the obstacles to selling land before it is placed on the market. As part of this, public bodies in particular need to identify the basis on which land was acquired or is held, and consider if there are any constraints. There can be a number of statutory constraints, for instance, if it is allotment land or public open space.

The disposal of public land can also be constrained by the application of the Crichel Down Rules (the Rules).

The Crichel Down Rules

These came out of a political scandal in 1954 regarding the extent of the Government's obligations to return land to a former owner and which had been requisitioned compulsorily.

The present version of the Rules were issued in 2004 and are contained in the 'ODM Circular 06/04 - Compulsory Purchase and The Crichel Down Rules'.

When do the Rules apply?

They apply to land acquired by or under threat of compulsion. A threat of compulsion is assumed if the power to acquire the land compulsorily existed at the time, but does not apply to land publicly or privately offered for sale.

The Rules also apply to land acquired under the statutory blight provisions.

The Rules are classed as non statutory guidance. However, compliance with them is mandatory for all Government Departments & Executive Agencies and is recommended for local authorities and statutory bodies in England. There are similar rules for land in Wales and Scotland.

The Rules apply to certain types of land acquired within certain time horizons. The general obligation to offer back in Rule 10 is subject to a number of exceptions set out in Rule 15.

The General Rule

The general rule set out in Rule 10 states that if land is surplus and is to be sold, it must first be offered to the former owner of the land at its current market value. This is provided that its character has not materially changed since acquisition.

However, if the obligation to offer back does not apply, for instance if there has been material change to the land, the former owner will still have to be notified of the decision.

This means there are obligations with which the disposing body must comply in any event.

What happens if the Rules apply?

If the Rules apply then the disposing body follows a specific procedure set out in the detail of the Rules. If the former owners address is unknown, the disposing body may need to place a series of newspaper and site advertisements inviting the former owner (if any) to come forward.

If the former owner's address is known, the former owner must be contacted and invited to buy the property at its market value.

The former owner has two months to indicate if they wish to buy back the land. If the former owner does not indicate an intention to purchase within two months (of either the letter or the advertisement) then the land can be sold on the open market and on the basis of compliance with the Rules.

What happens if the Rules are not followed?

If the Rules are not followed, there is a risk that the decision to dispose of the land may be challenged by any former owners by way of judicial review. This will create delay and uncertainty to both the disposing body and any prospective buyer.

Conclusion

As public land is being rationalised and transferred between different public bodies, and with the increasing use of compulsory purchase powers to implement policy, the basis on which land was acquired may require careful investigation to ascertain if there are constraints under the Rules to a proposed disposal.

Gary Philpott is a partner at Veale Wasbrough Vizards. He can be contacted on 0117 314 5283 or This email address is being protected from spambots. You need JavaScript enabled to view it..