Blog: Friday 21st June 2024 - Sharpe Pritchard, Corporate Partner

The Crichel Down Rules

The Crichel Down Rules (the “Rules”) are mandatory for central government departments, executive agencies (e.g. the Highways Agency), non-departmental public bodies (e.g. Historic England) and bodies subject to direct ministerial power (e.g. NHS trusts).

Interestingly, the Rules specify that the rules set out within the same are not mandatory, but are recommended for local authorities. However, this is to be treated with a degree of caution, as case law has determined that although not mandatory, there is a legitimate expectation that local authorities will follow the Rules.

The General Rules

The Rules state that former owners of land acquired by (or under threat of) compulsion are entitled to be given a right of first refusal to repurchase their land in the event that a public body decides to dispose of such land. The rules therefore apply where a compulsory purchase order was in place or where land was acquired by voluntary sale under ‘threat of compulsion’ if a power of compulsory purchase existed at the time in respect of the land or property to be acquired.

However, for the Rules to apply, the land must be surplus to requirement and the public body must intend to dispose of it. The fact that the land is surplus to requirement does not impose an immediate obligation on the public authority to offer the land back; it is only when a decision is made to dispose of the surplus land that the Rules are triggered.

To whom is the land offered back?

The standard position under the Rules is that a party must have a ‘qualifying interest’ in order to make a valid claim to repurchase acquired land – such parties are known as ‘former owners’. To be a ‘former owner’, a claimant must be either the former freeholder or long leaseholder of the land. Sitting tenants (i.e. residential tenants with long term security of tenure/indefinite tenure) also have a claim similar to that of ‘former owners’.

However, the Rules also allow successors to former owners to qualify as valid claimants. This means the person to whom the land or property, had it not been acquired, would clearly have devolved under the former owner’s will or intestacy. Thus, if a claimant can prove a direct devolution of succession, they would be considered a ‘former owner’ for the purposes of the Rules.

When do the Rules not apply?

The obligation to offer back land under the Rules does not apply in certain circumstances – such circumstances are the ‘exceptions’ to the Rules (e.g. if the character of the land has materially changed or if on specific ministerial authority the land is required by another public body). If any exceptions can be demonstrated, the public authority may have grounds to reject a claim in respect of the Rules and would not be expected to offer the land back to a claimant.

The Rules also have a time horizon (an equivalent to a time limitations bar) regarding the obligation to offer back acquired land. The Rules do not apply to agricultural land acquired prior to 1935 or after 1992. Furthermore, any non-agricultural land which becomes surplus and available for disposal 25 years after the date of acquisition would also have a time horizon for offer back. The date of acquisition is the date of the conveyance, transfer or vesting declaration.

Process for disposal

If a decision has been made to dispose of land and no exceptions apply, public bodies are required to follow set procedures in respect of the Rules prior to such disposal. This includes sending letters to former owners where addresses are known and, in the event that the address is not known, contacting solicitors and agents and putting advertisements in relevant newspapers.

The Rules provide for the sale of the land back to the qualifying former owner at current market value and also on other terms to be agreed between the acquiring authority and former owner. Such terms can include clawback provisions to ensure that the public authority obligation to the taxpayer to obtain best price is satisfied.

James Mallery-Nelson, Associate, Sharpe Pritchard