Empty Property Procedure Note

Transcription

1 Empty Property Procedure Note No. Action Target 1 Identify empty properties. The existing database lists all empty properties that we already know of. Information has come from Council tax records, Environmental Health, Members of the public, and the English Heritage At Risk Register. All new properties reported to us must be inputted with as much information as possible, in particular owners details (carry out land registry), how long it has been empty (from council tax records), whether it is leasehold or freehold and what type of property it is. Assign it to a case officer and mark it as either pending or active, depending on its priority level. I month Carry out annual survey in May:- check every property is still vacant, take a photo of each. In April ask Council Tax for a list of all properties that have been vacant for over a year ask them to send in a format compatible with LLPG. Get Core Data Team in IT to transfer all new addresses onto the database make sure they put case status as pending and put in the field for how long empty, also put in owner as not known and current owner as yes. Check all new address supplied from council tax are not already on the database as it will produce a duplicate if they are. 2 Prioritise properties on the database according to: how long they have been vacant, how bad a condition they are in, the number of complaints received, lack of response from owner history of non-compliance. Once a property has been prioritised for action, visit to make an external inspection, confirm the property is vacant, and take a digital photo. Update the database accordingly. 3 Enable Try to contact the owner, using Land registry and council tax information. Also try to find phone number for the owner. 4 The aim is to ascertain from the owner: if they wish to retain the ownership of the property? is it to be renovated, or converted? is it ready for letting? And to give information on: methods of disposal i.e. selling through estate agents or auctions or direct to housing associations. grants, the rent deposit scheme, and other leasing schemes. 5 Send letter with information pack. The pack should include details on the grant, the rent deposit scheme, the landlords accreditation scheme and any other lease schemes. 6 Send letter one if no response received from owner and enclose s.16 notice served under the Local Government (Miscellaneous) Provisions Act This letter asks the owner their intentions and asks them to telephone us so that we can advise on the options available to them. 7 If the owner is interested in bringing the property back into use send them the grant application form. 8 Arrange to visit. Discuss options and identify works, and advise on standards required for letting. Assess possible need for planning permission and building control approval. If in doubt consult with planning. Encourage owners to speak to local estate agents for advice. Advise on finding architects and builders etc. Supply info on planning consultants if required, and on Planning Aid, a charity which provides free advice on planning matters (Planning Aid ). 9 If grant application is made, pass the case to grant officer to deal with. Liaise with grant officer to arrange tenants through Rent Deposit Scheme. 1 day 2 weeks 1 day 10 Enforce An owner should be given every opportunity to present proposals for voluntary

2 improvement. A minimum of 3 letters should be sent by the empty property officer over a 10 week period. Each letter should increase the threat of CPO. These letters may need to be varied to fit individual circumstances. If the property is detrimental to the amenity of the area refer the case to planning enforcement (for the service of a s.215 notice), if it has category 1 hazards refer it to Environmental Health, if it is a listed building refer to Conservation Team. 10 weeks 11 Letter 3 4 weeks after letter 1 sent 12 Refer non-return of s.16 Requisition for Information form to legal department, if applicable. 7 days after letter 3 sent 13 Letter 4 4 weeks after letter 3 sent 14 If a positive reply is received to any of the letters, a meeting should be undertaken with the owner and a time scale for action agreed and confirmed in writing by the empty property officer. The owner should be advised of the criteria for obtaining a grant, and the letter should also advise the owner that CPO action will be deferred until after the agreed time scale. Once the agreed time scale has expired if little or no progress has been made the owner should be advised that CPO action will not be delayed further. All arrangements, agreements or ultimatums must be in writing. 2 weeks 15 Compulsory Purchase Orders should be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected. This is the ultimate sanction and their threat can often persuade owners to bring their properties back into use. When you decide to proceed with CPO, contact the Borough Treasurer, the Chief Valuer, the Legal Department and the Planning Department. They will be required to make comments on the Cabinet Report. 2 weeks 16 Ask the valuer to provide an estimate of the cost of acquisition including legal fees and costs. A location map showing the subject property and the net and gross areas of land is also required. 17 Consult the Planning department on whether, in principal, planning consent is likely to be available for residential use or conversion into more appropriate residential use and whether it is listed or in a conservation area. 18 Prepare a report for Cabinet and include the following main details: Description of property and its condition (including details of complaints if relevant) Details of attempts made to encourage voluntary improvement The Council s proposals if a CPO is confirmed including the method to be used for marketing the property for sale The financial implications A recommendation that the Council resolve to make a CPO and that officers are instructed to take all necessary action to implement the resolution. 20 days 20 days Within 20 days from the receipt of all info 19 Once the Council has resolved to make a CPO the case is referred to the legal department. It is necessary to prepare the following documents to support the Council s application to the Secretary of State for confirmation of the CPO: A schedule identifying and describing all the interests in the buildings and/or land; A map showing the subject property (known as the Order map); and

3 The Statement of Reasons for making the CPO. Referencing - The process of identifying and describing all the interests in the land is known as referencing. This part of the procedure is vitally important. It is designed to flush out all those persons with an interest or possible interest in the land affected by CPO. These persons must be served with documents relating to the CPO at certain designated stages of the procedure. If a person with a legal interest as owner is not served this could cause the whole CPO case to fail. Apart from the embarrassment this would cause, a delay of up to a year can arise in getting a new CPO back to the same stage. Within 2 months Referencing is a process of its own and experience has shown that it is worth opening a separate file to hold the papers involved. If there is any reason to suspect that the property may have changed ownership since office copy entries were first obtained from the HM Land Registry, it is best to order new ones. Office copy entries will show, amongst other things, the names and addresses of the freeholder, and lessees and any mortgagees. All of these parties must be sent a letter by recorded delivery asking them to declare their interest on a standard form. The same letter and form should be sent to any one living in the building. All parties are required to declare their interest within one month. If no reply is received another letter enclosing a copy of the first should be send again by recorded delivery, requesting a response within 21 days. It is generally accepted that if the Council has sent two letters giving a total of 7 weeks for parties to declare their interest, it cannot be criticised if no response is received. Order Map - The Order map showing the land to be acquired is also a crucial document and accuracy is essential. The map should normally be scale 1:500. IT should be given an appropriate title and an attestation clause (a statement confirming its authenticity). The map must show the extent of the land to be acquired by a broken black verge and numbered where appropriate. Street names in the immediate vicinity should be marked and a North Point shown. In a typical case 20 copies of the map should be ordered (16 on paper and 4 on linen). More paper copies are required if there are more than 10 interests. 3 It is essential to ensure that the Order map is 100% accurate. If it appears from an external inspection of the property that there is a discrepancy with the ordnance survey map / or the map attached to the office copy entries, the procedure for obtaining access for the purpose of an internal survey should be followed. This involves seeking a Court Order requiring the owner to facilitate access to the property. The Order map is then prepared to show the extent of the property. Statement of Reasons - The Statement of Reasons is self-explanatory. It is a statement explaining why the Council has decided to make and pursue a CPO. Much of the detail needed to be included in the Statement of Reasons will be readily available from the information that was contained in the report to the relevant Council Committee recommending CPO. The Statement of Reasons need not be overlong, perhaps 4-5 pages of double spaced typing. This will be sufficient for the Secretary of State to make a decision on the CPO if no objections are received. 20 When the schedule of interest, Order maps and Statement of Reasons have been finalised, the following legal formalities should be followed: This stage involves the making, serving and advertising of the CPO and its submission to the Secretary of State and includes a number of legal processes, which are dealt with by the Council s legal advisers. In summary, the following steps take place: engrossments of the Order and 4 linen copies of the map are prepared along with the Statement of Reasons. 14 paper copies of the Order and map are also prepared; the Order is sealed (all 4 engrossments of the Order and all 4 linen copies of the map) and then made; Notice of the making of the Order along with the Statement of Reasons is served by hand or recorded delivery on the owners, lessees and occupiers giving not less than 21 days for objections to be made to the Secretary of State. A copy of the Order and Map is placed on deposit for public viewing at one or more appropriate public places.

4 A Notice of the making of the Order must be published in the local press for 2 consecutive weeks. Following the second advertisement of the Notice in the local press and service of the Notice on those with an interest in the land, the Order is submitted to the Secretary of State for confirmation. He receives: 1 sealed and 4 unsealed copies of the Order plus 2 sealed and 4 unsealed copies of the map; certificate in support of the Order stating that the Notice has been published and served; 2 copies of the Statement of Reasons; a certified copy of the Council s resolution to make the Order; if applicable, certificate stating that the property is a listed building or situated in a Conservation Area; a report on the property by the Council s appointed valuer. 21 If a CPO is unopposed, the Secretary of State will normally issue a decision within 2 months of receiving the Council s application for confirmation. However, unopposed CPOs are the exception and objections are made in most cases. This means that a Public Local Inquiry into the matter will be held Public Local Inquiry Any person with an interest in the property may make an objection to a CPO. The objection must be in writing and submitted to Communities and Local Government Department. In practice objections are usually made by owners along the following grounds: Either - the owner claims the property is not in poor condition or disputes other aspects of the Council s version of events. Or - the owner has proposals for the property and wants time to put them into effect. Normally 4 months after submission At the end of the objection period, Communities and Local Government will send copies of objections to the Council and announce that it intends to hold a Public Local Inquiry usually giving weeks notice. Once the date for the Public Local Inquiry is fixed it will only be changed in exceptional circumstances. The Inquiries Procedure Rules then apply and, amongst other things, mean that the Statement of Case and copies of all documents to be referred to by the Council at the Inquiry, must be submitted to the Secretary of State and served on the objectors either 6 weeks from the date of the Communities and Local Government s letter informing the Council of the need for a Public Local Inquiry, or 28 days before the Inquiry, whichever is the earlier. The Statement of Case is an extended and more detailed version of the Statement of Reasons prepared earlier in the procedure. It is factual statement of the Council s reasons and case for compulsory purchase. Copies of documents which the Council intends to refer to or put in evidence at the Inquiry vary depending on the case. However, only written correspondence and statutory notices, are acceptable as evidence. Internal memos, notes of telephone conversations or file notes are no used as evidence. When considering what copy correspondence to put forward as evidence there is no substitute for carrying out a detailed study of every letter on file and deciding which ones best support the Council s case. There is, however, an argument for including all copy correspondence irrespective of whether or not some letters necessarily strengthen the Council s case. This at least avoids any accusations the objector might make that the Council is trying to hide any documents from the Inquiry. The Statement of Case and all other documents to be referred to at the Inquiry should be prepared as soon as possible. Once the Statement of Case and documents to be referred to at the Inquiry are prepared, work should begin immediately on drafting the Proof of Evidence for the Council s main witness. The Proof of Evidence tends to be the most important document referred to at the Inquiry and is essentially the Council s detailed presentation and argument as to why the Secretary of State should

5 confirm the CPO. An example of the Proof of Evidence is in the appendices. The Proof of Evidence can vary enormously from case to case and, unlike the Statement of Reasons and Statement of Case, can contain opinion as well as fact. It should include: The Council s CPO policy in the context of the housing strategy as a whole; The attempts that have been made to encourage voluntary improvement of the property concerned; The Council s proposals for the property if the CPO is confirmed, and ability to meet the costs involved. It might also be relevant to refute the grounds for objection within the Proof of Evidence although this is entirely optional and is often left to be dealt with in cross examination at the Inquiry itself. Both the Council and objector are entitled to engage legal representation to act on their behalf at the Inquiry, but this is not compulsory. Tower Hamlets practice is to engage Counsel (acting as its advocate) in every case. The Proof of Evidence should be finalised at least 3 weeks before the Inquiry. The Inquiry although less formal than a Court hearing, follows a fairly rigid pattern in accordance with Inquiries Procedure Rules. The Inspector appointed by the Secretary of State formally opens the Inquiry, explains the procedure to be adopted and asks for an attendance list to be circulated. The Council s advocate reads to convening Notice and sets out the Council s case for the CPO to be confirmed. The Council s witness then reads the Proof of Evidence. The witness can then be cross examined by the objector or persons action of their behalf and the Inspector may well ask several questions of the witness based on the evidence that has been given. The Council s case is concluded at this point. The objector will then present their case and will be cross examined by the Council s by the Council s advocate and questioned by the Inspector. Finally, the Council s advocate has the right to present a summary of the Council s case. The Inspector will then announce an intention to carry out an inspection of the property before formally closing the Inquiry. Both the objector and the Council s witness are invited to join the Inspector at the site visit but are not permitted to present any further evidence. The whole Inquiry process is normally completed in a day but can spread into a second day particularly if there are more than one Council witnesses or objectors giving evidence. Sometimes the inspection of the property takes place on another day if there are not enough daylight hours left following the closure of the Inquiry. 23 The Secretary of State s decision The Secretary of State s decision is normally notified to the Council some 2-3 months after the Public Local Inquiry. The CPO will either be confirmed or not confirmed there is no middle path. 14 If the CPO is not confirmed this will be because the Secretary of State considers that: Either - a legal or technical defect exists in the CPO Or - the merits of the Council s case are not sufficient to justify compulsory purchase. The Council can apply to the High Court for judicial review of the decision on legal grounds but this would have to be guided by the Council s legal adviser. 16 In practice, and assuming after a time lapse of perhaps 2 years to get to this stage officers consider that a case for CPO still exists, if for example it is still in substandard condition, a new CPO without the defect could be made by the Council and submitted to the Secretary of State. If the Secretary of State confirms the CPO the Council s legal adviser will prepare a Notice of Confirmation for service on all parties with an interest in the land and for publication in the local press. This Notice contains provision for an aggrieved person, if they wish, to appeal to the High Court against the Secretary of State s decision to confirm the CPO. Such an appeal must be lodged

6 within 6 weeks and can only be made on a point of law it cannot be made on the grounds that the aggrieved person does not agree with the Secretary of State s decision. A valid appeal has the effect of halting implementation of the CPO until it is ultimately dismissed. This can take up to a year. At the end of the 6 week period the Council s legal adviser will establish from the High Court whether an appeal has been made and, if not, will seek instructions on implementing the CPO. 24 Implementing a confirmed CPO If, the Council gave an undertaking during the Public Local Inquiry, not to implement the CPO for a defined period it will be necessary to monitor any refurbishment works being carried out throughout that period. If refurbishment works are satisfactorily completed the CPO can be rescinded altogether. At Tower Hamlets, the procedure for rescinding CPOs is delegated to officers. If no undertaking was given, or at the end of the undertaking period refurbishment works are not completed, the procedure for implementing the CPO and taking ownership and possession of the property can start. CPOs must be implemented within 3 years of the Notice of Confirmation being served and there are 2 routes to do this: 16 Either - the Notice to Treat and Notice of Entry procedure Or - the General Vesting Declaration procedure These procedures are not interchangeable. It is therefore important to start by carefully considering what procedure will be used and instruct the Council s legal adviser, accordingly. The main advantage of the Notice to Treat and Notice of Entry procedure is that it is quick. The Council is able to take possession of the property within 14 days of the Notice to Treat and Notice of Entry being served. This can be done simultaneously. This might be the best procedure to use if, for example, occupying tenants of the property are experiencing very poor living conditions and require re-housing as a matter of urgency. On the downside, the main disadvantage of the Notice to Treat and Notice of Entry procedure is that is does not give the Council ownership of the property. Ownership can only be transferred when compensation has been paid. If compensation is disputed and the matter is referred to the Lands Tribunal it may take up to 2 years for the Council to obtain ownership. Throughout this period it would not be possible to sell the property for refurbishment. The General Vesting Declaration (GVD) procedure gives the Council possession and ownership in 3 to 4 months. Unless the special circumstances such as that outlined in paragraph 3 of this section apply, this is the preferred route for implementing confirmed CPO s. 19 The GVD process is dealt with by the Council s legal adviser and involves the following steps: Serving a Statement concerning GVD on those with an interest in the land - the 1 st Notice ; Publication of a Statement concerning GVD in the local press; and Following a 2 month period as required by the Act the GVD is made. Notice of making the GVD is then served and published in the local press the 2 nd Notice. Serving and publishing the Notice of the GVD the 2 nd Notice has the effect of a compulsory exchange of contracts. On the 29 th day after serving this notice, the property vests in the Council entitling the Council to possession. The GVD will give good title to the land even though compensation has not been settled and may still have to be determined by the Lands Tribunal. Arrangements for the Council to take possession of a property in furtherance of a GVD should be made immediately after the 2 nd notice has been served. The arrangements must include the following elements, which should all, be confirmed in writing. A Council representative must attend the property at the time and date possession is being taken. Arrangements should also be made for a locksmith to attend tin case a forced entry is

7 necessary and to secure the property afterwards. A valuer should be engaged by the Council (often the District Valuer) to attend the property at the appointed time and date to prepare a schedule of condition recording the state of repair. The owner should be told that offices authorised by the Council will be taking possession at the appointed time and date. The owner should be invited to attend to hand over keys and agree a schedule of condition with the Council s valuer. 20 If the owner, their representatives or any other person prevents authorised Council officers from taking possession of the property, they should avoid confrontation and abandon the exercise. The Council s legal advisers must then be informed of the situation and asked to provide advice on the next steps to be taken. This normally involves obtaining a Sheriff s warrant for possession and possible Police attendance. 26 Disposal of Property following CPO Tower Hamlets policy of how to dispose of property acquired by CPO will vary according to each case. Cabinet will decide, but it may be sold privately through an estate agent, or to a RSL or private sector partners to secure maximum nomination rights for Council nominees where possible. Although discussions with housing associations and private sector partners with a view to disposal may well have taken place beforehand, once the property is owned and possessed by the Council these negotiations can be formalised and finalised. To maintain and enhance the integrity of the Council s CPO policy it is important that properties are sold, refurbished and returned to residential use as quickly as possible. Depending on individual circumstan ces Under current financial rules, provided a property acquired under CPO is resold within 3 years, 100% of the sale proceeds can be returned to the Council s capital programme. 27 Funding Issues for CPOs The threat of CPO must rely on the fact that funding is available to carry out the threat if necessary. If the Council applies to the Secretary of State for confirmation of a CPO, it must confirm that resources are available to acquire the property. This also needs to be demonstrated at any Public Local Inquiry to the Inspector and objectors. This can be by reference to approved Council documents which set out the existence of that year s CPO capital programme or evidence of a specific capital programme allocation for that property. Under current financial rules, provided a property acquired under CPO is resold within 3 years, 100% of the sale proceeds can be returned to the Council s capital programme. However, the neutral effect of this funding mechanism does not prevent the need for the relevant Council Cabinet to make an allocation for acquisition of property within its capital programme.