Compulsory purchase of land in unknown ownership

An Upper Tribunal decision makes clear that a local authority acquiring, under CPO, land in unknown ownership, is not legally obliged to serve notice to treat on an unknown owner before transferring title to itself. V. Charles Ward examines the effect of the ruling.

The Upper Tribunal’s decision in The Metropolitan Borough Council of Stockport v Unknown Owners [2023] UKUT 53 (LC), which was delivered on 1 March, 2023 under UTLC Case Nos: LC2-2021-145, 146, 150,152} is of significant practical importance for any local authority dealing with the compulsory acquisition of land in unknown ownership. Dealing with unknown ownership is a common situation for any local authority involved in a large compulsory purchase order affecting multiple properties. It can arise in either of the following situations:

1. In relation to a vacant building or piece of land for which there is no registered title or reputed owner. Whilst title documentation may exist somewhere in some long-forgotten deed-packet, the local authority has no means of finding it.
2. Where there is a registered title, but the registered owner is untraceable. This might happen where a registered owner has moved abroad or into care without leaving any forwarding address. Or more commonly, where an owner has died but no one has taken out any grant of representation in respect of their estate. The fact that no one has yet taken out a grant of representation in respect of a deceased’s estate does not automatically make the land bona vacantia, unless specific conditions apply. 

Stockport Council’s situation was that it needed to acquire land at Hazel Grove (A6) to provide a new relief road linking the A6 to Manchester Airport. But it had been unable to identify ownership of five pieces of land, predominantly comprising woodland and pasture forming part of the bed and banks of Norbury Brook, south of Old Mill Lane, Hazel Grove, and varying in size from one square metre to 1,781 square metres. The acquisition was authorized by the Metropolitan Borough of Stockport (Hazel Grove (A6) to Manchester Airport A555 Classified Road) Compulsory Purchase Order 2013. The local authority had already entered on to the land and completed construction of the new road by 2018 but still needed to obtain title to the land.

The local authority had also obtained from the Upper Tribunal, a determination on what compensation was payable to each of the unknown owners. The only remaining step which the council had to take to perfect its title was to pay the assessed compensation into court and execute a Deed Poll to itself in accordance with Schedule 2 of the Compulsory Purchase Act 1965. The problem for the local authority was that the Court Funds Office refused to accept a payment into court because of perceived irregularities in the process adopted by the local authority to implement the CPO. The issue for the Court Funds Office was that the local authority had not served any Notices to Treat on the unknown owners of the land as required by Section 5 of the Compulsory Purchase Act 1965. That issue might have been avoided if, having made reasonable enquiries as to ownership, the local authority had gone through the motions of displaying Notices to Treat on the land itself. Even though no-one, other than an inquisitive passer-by, might have ever stopped to read the notices. But that is not the point. Making and enforcing a CPO is all about getting the process right.

After the Court Funds office had refused payment, the local authority had no choice but to go back to the Upper Tribunal for a further direction to allow the payments into court to take place. The Tribunal granted that declaration on 1 March 2023, five years after completion of the relief road.

Section 6 of the Acquisition of Land Act 1981 sets out the process for serving documents on unknown owners. If, after reasonable enquiry, it is not practicable to ascertain the name or address of an owner, lessee, tenant or occupier of land, relevant documents may be served by addressing it, by description, to the ‘Owner’, ‘Lessee’ or ‘occupier’ of the land and, in the case of vacant land, by leaving it or a copy of it on or near the land.  It would seem that the local authority had complied with all these service requirements, except for the Notices to Treat themselves. The issue then for the Upper Tribunal was whether the council’s failure to affix Notices to Treat to the land was fatal to the implementation of the CPO so far as those pieces of land were concerned. As it was, the Upper Tribunal ruled that, in case of unknown ownership, service of Notices to Treat was not fundamental to the process. The key statutory provision was Section 5(1) of the Compulsory Purchase Act 1965 (notice to treat and untraced owners), which states:

“(1) When the acquiring authority require to purchase any of the land subject to compulsory purchase, they shall give notice (hereinafter in this Act referred to as a “notice to treat”) to all the persons interested in, or having power to sell and convey or release, the land, so far as known to the acquiring authority after making diligent inquiry.”

The Tribunal’s decision turned on its interpretation of the last dozen words of that subsection, which are underlined. The Tribunal’s view was that there was no requirement to give notice to unknown persons after the council had made diligent inquiry. It followed that no notices to treat were required to be served on owners of land whose identity is unknown, nor need for any such notices be posted on or near the land. A Notice to Treat only needs to be given to those whose identity is known. Its purpose is to invite the owner to participate in a negotiation. If the landowner has not come forward during the CPO confirmation process, despite the steps taken to bring it to their attention, and if they had not been identified despite diligence inquiry, such an invitation would be an empty gesture.

Paragraph 1 of Schedule 2 of the 1965 Act confers jurisdiction on the Tribunal to determine compensation payable to anyone who is either absent from the United Kingdom and uncontactable or who cannot be found after diligent inquiry. In either of those situations, an application can be made to the tribunal to determine the compensation payable, for which the acquiring authority must provide a detailed list of steps taken to locate the owner of the land, including when they were taken and their outcome. Once the tribunal has made its valuation, the acquiring authority is then authorised to pay the assessed compensation into court to the credit of the persons who would be entitled to it if their identities were known. Having paid that money into court, the local authority can then execute a Deed Poll transferring title to itself. 

The tribunal decision does not list-out the detailed steps which the local authority took to try to identify ownership of the five pieces of land in question, only that these steps were sufficient to convince the Tribunal that proper inquiries had been undertaken. It is also important to point out that that diligent inquiry does not always mean exhaustive inquiry. It is not about attempting the impossible. It is doing what is reasonable and proportionate to try to identify a documented title. It is about following up obvious documented leads.

Maybe even checking the registered titles of adjoining properties to try to find a root-conveyance out of which the titles were granted. Checking any rating or other records. Putting in hand a local search.

Where there is a named owner, whose current whereabouts are unknown, due diligence inquiries would routinely include a probate search to establish whether there is any record of death or the appointment of any personal representatives. There are also legal presumptions of ownership which apply to the subsoil of a highway or to riparian rights. The Stockport case also begs the question why any acquiring authority still bothers issuing notices to treat, when it is administratively simpler to make a General Vesting Declaration.

With a GVD, title is transferred immediately on completion of legal formalities, with any compensation issues being postponed until such time as someone actually comes forward to claim compensation and evidence their entitlement. In the case of a forgotten strip of vacant land, that compensation claim may never even arise.

V. Charles Ward is a solicitor and is the author of Housing Regeneration: a Plan for Implementation, published through Routledge.