Guidance

Practice guide 54: acquisition of land by general vesting declaration under the Compulsory Purchase (Vesting Declarations) Act 1981

Updated 15 May 2017

Contents

• Introduction
• Preliminary investigations
• Application to register an authority as proprietor of registered land
• Application for first registration of an acquiring authority's title
• Highway land and stopping-up orders
• Things to remember

1.Introduction

Under section 1 of the Compulsory Purchase (Vesting Declarations) Act 1981 a local authority or other public body (‘the authority’) can acquire land by means of a general vesting declaration. The detailed provisions governing this procedure are set out in Parts II and IV and Schedule 1 of the Compulsory Purchase (Vesting Declarations) Act 1981, and, subject to the transitional provisions where previous regulations might be relevant, the Compulsory Purchase of Land (Vesting Declarations) (England) Regulations 2017 and the Compulsory Purchase of Land (Vesting Declarations) (Wales) Regulations 2017. These provisions apply equally to registered and unregistered land.

Changes were made to the compulsory purchase and compensation regime by Part 7 of the Housing and Planning Act 2016. The declared aim of that Act is to make the system ‘clearer, fairer and faster’ whilst retaining protections for land owners.

Where the authority makes a compulsory purchase order, but acquires the land by means of notice to treat followed by a conveyance or transfer, then the disposition to the authority should be registered in the same way as a transfer on sale.

The authority’s powers of acquisition will be contained in the relevant enabling legislation, which may have been passed specifically for the development or project in question. It will be important to consider the particular provisions of the legislation, particularly in relation to extinguishment and overriding of easements and covenants affecting the land acquired.

2.Preliminary investigations

2.1Checking whether the land is registered

There are currently two options available in order to find out whether freehold or leasehold land or a rentcharge is registered and whether any cautions against first registration have been entered.

2.1.1 MapSearch

MapSearch is a free-to-use digital service for customers using our business e-services. With MapSearch you can:

• quickly establish whether land and property in England and Wales is registered
• view the location of registered land and property
• obtain title numbers, details of freehold or leasehold tenure and other registered interests
• save a PDF of any MapSearch result with our Snapshot feature (this is for reference purposes only and is subject to copyright)

See MapSearch for more information.

2.1.2 Search of the index map

MapSearch does not provide indemnity provisions for the information supplied. If you require the benefit of the indemnity provisions, you will need to carry out a search using our search of the index map. See practice guide 10: index map – official search for more information.

2.2Inspection of the register

To apply for an official copy of the register, either apply online through Business e-services or use a paper form OC1. The fee payable is prescribed in the current Land Registration Fee Order. If you use a paper OC1 then, to find out where to send your completed application, see HM Land Registry address for applications.

To find out whether any further entries have been made in the register since a given date, such as the date of issue of a recent official copy of the register, you may apply for an official search without priority using form OS3. The fee payable is prescribed in the current Land Registration Fee Order.

3.Application to register an authority as proprietor of registered land

3.1How to make the application

An authority that has acquired registered land by means of a general vesting declaration should apply in form AP1 to be registered as proprietor together with:

• a certified copy of the original general vesting declaration. In the case of land in England, this should be in the form prescribed by the Compulsory Purchase of Land (Vesting Declarations) (England) Regulations 2017. In the case of land in Wales, this should be in the form prescribed by the Compulsory Purchase of Land (Vesting Declarations) (Wales) Regulations 2017. Prior to 3 February 2017 (in the case of land that is situated in England) and 6 April 2017 (in the case of land that is situated in Wales) the form of general vesting declaration was as set out in Schedule 1 to The Compulsory Purchase of Land (Vesting Declarations) Regulations 1990 (the form may still be relevant where a compulsory purchase order was “authorized” – a term which is used in the regulations mentioned above - prior to those dates.
• confirmation certificate by the authority’s Chief Executive Officer or their conveyancer that the necessary notices under section 6 of Part II of the Compulsory Purchase (Vesting Declarations) Act 1981 were served on a specified date (the date should be stated)
• the applicant must also confirm that:
  • the acquiring authority has not served any notice to treat in respect of any property comprised in the general vesting declaration that was not withdrawn prior to the execution of the general vesting declaration; and
  • the acquiring authority has not received:
    • (1) a notice of objection to severance (see Schedule 1 of the Compulsory Purchase (Vesting Declarations) Act 1981), or
    • (2) “counter-notice” requiring the acquiring authority to purchase an owner’s interest in the whole of their land (see Schedule A1 of the Compulsory Purchase (Vesting Declarations) Act 1981)
    • in respect of any land comprised in the general vesting declaration.
• a fee under Scale 2 of the current Land Registration Fee Order based on the value of the land in each registered title (see also HM Land Registry fee)

If all or part of the land acquired is unregistered, then the acquiring authority may apply for first registration of title as described at Application for first registration of an acquiring authority’s title.

Unless it is apparent from the documents lodged, you should confirm in the application or related correspondence which statutory provisions are relied upon for the acquisition of the land. If this is not clear, we may raise a requisition.

3.2Evidence of vesting

You must prove, by including the details prescribed by statute in the general vesting declaration and the Chief Executive Officer’s certificate, that the declaration has come into operation and that the land has vested in the authority. The declaration must identify the land by reference to its title number. If the vesting is of the whole of the land in a registered title, reference to the title number is all that is required.

If the declaration relates only to a part of the land in a title, it must be accompanied by a plan, based on the OS map. This plan should be drawn to a scale of not less than 1/2500, show its orientation (for example, north point) and, where necessary, relate by means of figured dimensions the position of the part transferred to those existing physical features on the ground (such as road junctions or walls or fences) which are also shown by firm black lines on the title plan.

3.3HM Land Registry fee

If compensation has been fixed or the value of the land agreed so that the HM Land Registry fee can be assessed, then you must pay a Scale 2 fee, based on that value, on delivery of the application.

If compensation has not been fixed so that the HM Land Registry fee cannot be assessed, you must pay a minimum sum (as specified in the current Land Registration Fee Order – currently £40) on account of the fee when you lodge the application and at the same time lodge an undertaking to pay the balance, if any, on demand. If the area of land acquired is such that it would constitute a large scale application you should initially discuss the matter with your customer team (if you have a customer team agreement) or a bulk application contact – see practice guide 33: large scale applications and calculation of fees.

4.Application for first registration of an acquiring authority’s title

4.1General consideration

The acquisition of land under the general vesting declaration procedure is not a transfer of a qualifying estate under section 4(1)(a) of the Land Registration Act 2002. There is therefore no duty to apply for first registration of the title to such land, although you may apply for voluntary first registration (and the reduced Scale 1 fee for voluntary first registration will apply).

Note: Acquisition of unregistered land under a notice to treat followed by a conveyance or transfer of the land to the authority expressed to be for valuable or other consideration will be compulsorily registrable by virtue of section 4(1)(a) of the Land Registration Act 2002, and the provisions of sections 6 – 8 of the Land Registration Act 2002 will also apply.

A caution against first registration cannot be used to protect a general vesting declaration.

4.2How to make the application

An application by an acquiring authority for the first registration of title to freehold land acquired by a general vesting declaration must be made to HM Land Registry in form FR1 (to find out where to send your completed application, see HM Land Registry address for applications) together with form DL in duplicate accompanied by:

• a certified copy of the general vesting declaration in the prescribed form (see How to make the application)
• confirmation certificate by the authority’s Chief Executive Officer, or conveyancer that the necessary notices under section 6 of Part II of the Compulsory Purchase (Vesting Declarations) Act 1981 were served on a specified date (the date should be stated)
• the applicant must also confirm that:
  • the acquiring authority has not served any notice to treat in respect of any property comprised in the general vesting declaration that was not withdrawn prior to the execution of the general vesting declaration; and
  • the acquiring authority has not received:
    • (1) a notice of objection to severance (see Schedule 1 of the Compulsory Purchase (Vesting Declarations) Act 1981), or
    • (2) “counter-notice” requiring the acquiring authority to purchase an owner’s interest in the whole of their land (see Schedule A1 of the Compulsory Purchase (Vesting Declarations) Act 1981)
    • in respect of any land comprised in the general vesting declaration.
• a reduced fee under Scale 1 of the current Land Registration Fee Order (see also HM Land Registry fee)
• all the deeds and documents relating to the title which the authority has in its possession or under its control (see also Absence of title deeds)
• sufficient details, by plan or otherwise, to identify the land clearly on the Ordnance Survey map

Unless it is apparent from the documents lodged, you should confirm in the application or related correspondence which statutory provisions are relied upon for the acquisition of the land. If this is not clear, we may raise a requisition.

4.3Absence of title deeds

The general vesting declaration will never of itself extinguish easements or restrictive covenants which may bind the land in the hands of persons other than the authority. Therefore, if you do not produce the title deeds when applying for the grant of an absolute title, we will normally make an entry in the register in respect of the possible existence of undisclosed interests of this nature. The entry will state that the land is subject to such easements and restrictive covenants as may have been created or imposed prior to the date of the general vesting declaration and are still subsisting and enforceable.

4.4Restrictive covenants and easements

With every application for first registration, you should supply full particulars of all incumbrances affecting the land. This includes any restrictive covenants and easements subsisting at the date of the acquisition, even where the purchaser is a body with powers of compulsory acquisition. We must note the existence of such third party rights in the register because, even if planning law authorises development and use of the land in breach of them, they are not normally extinguished and may become enforceable if the land ceases to be used for the purpose for which the purchaser had the power to acquire it. We will omit restrictive covenants and easements from the register only if:

• they are permanently extinguished by statute
• there is evidence that they have merged on unity of seisin as a result of the acquisition of the whole of the benefiting and burdened land. In the case of restrictive covenants, this is often difficult to establish
• the restrictive covenants can be demonstrated to have been void for want of registration as a land charge

4.4.1 Cancellation of restrictive covenant and easement entry

You should bear in mind that where restrictive covenants and easements are the subject of a notice entry in the register, the notice does not operate to confer validity on the noted interest (section 32(3) of the Land Registration Act 2002). If the interest is not valid then the presence of the notice has no legal significance. However, if the interest is valid then the notice will protect whatever priority (if any) the interest had in equity before it was noted in the register.

Some statutes specifically provide that the exercise of compulsory purchase by an authority will operate to extinguish restrictive covenants and easements. This has been a feature of legislation passed for some large public infrastructure projects (for example, the London 2012 Olympic site and Crossrail). However, depending on the exact statutory provisions, it may still not be possible to remove entries relating to third party interests, restrictive covenants and easements. An entry may instead be made in the register to refer to the land having been acquired under the relevant legislation and any order made pursuant to it and that any easements or restrictive covenants not otherwise set out on the title affecting the land at the date of commencement of the legislation or relevant order have been extinguished to the extent provided for in that legislation. Where certain interests are excepted from vesting, a further entry may be made to indicate that the land is subject to any interest of the persons named in the general vesting declaration as excepted by the general vesting declaration.

4.5Certificates of title

HM Land Registry has agreed with many of the larger local authorities that we will, under prescribed conditions, accept a certificate from their Chief Executive Officer instead of the normal deduction of title where the land is first registered. In the case of an acquisition under the Compulsory Purchase (Vesting Declarations) Act 1981, an authority cannot usually give such a certificate unless it has been able to obtain the title deeds and conduct a normal examination of title, which it has approved after sufficient investigation.

5.Highway land and stopping-up orders

The red edging on a registered title plan does not normally include the extent of any highway which may be included in the legal title to adjoining land. Land is registered with general boundaries only (section 60 of the Land Registration Act 2002) and the registered extent is silent as to the exact line of the legal boundary. The owner of land adjoining a highway may or may not also own the subsoil of the highway, depending upon whether the ad medium filum presumption applies or has been rebutted by contrary evidence (for example, a statement in an earlier conveyance that the conveyance does not include the highway).

Where an authority has acquired land on either one or both sides of a road or way and wishes to have the portion of the highway included in the title, it should apply in form AP1 for alteration of the registered title to include the adjoining portion of the highway in the registered extent – in effect, to show the general boundary of the registered title in a more accurate position. Evidence of documentary title to the subsoil of the highway will be required, together with a certificate that the ad medium filum presumption has not been rebutted. Depending on the circumstances, an entry may be made that the affected land is or may be subject to highway rights.

Where land is acquired on both sides of a road or way that is subject to a stopping-up order and both the land and the site of road or way are included in the same general vesting declaration then you should include the road or way in the application for registration, accompanied by a certified copy of the stopping-up order (including any plan annexed to it). We will retain the copy order. Where only the site of the road or way is included in a general vesting declaration and the acquiring authority wishes to include the road or way in one or more registered titles, then an application must be made in form AP1 for alteration of the relevant title(s) to show the registered title boundary in a more accurate position, accompanied by the prescribed fee for alteration and a certified copy of the stopping-up order (including any plan annexed). Again, we will retain the copy order.