Some years ago, we were introduced to the Neighbourhood Planning Act 2017, which received Royal Assent in April of that year and included changes to compulsory purchase procedures. Among those changes was a new power for acquiring authorities to take temporary possession of land via compulsory acquisition.
This was something widely called for by compulsory purchase practitioners. These practitioners often would have had, and still have, to negotiate compromise agreements in the shadow of a compulsory purchase order (CPO) that provide for only temporary possession, but against a relative cliff edge for the affected party of permanent acquisition under the CPO if a deal cannot be reached. That is even where all parties recognise that only a temporary period of possession is required.
The main provisions are sections 18 to 31, which are for the most part not in force, with no date as yet known for them to take effect. It would seem there is a desire to bring them forward now, as section 18 is amended by section 112 in the Planning and Infrastructure Act 2025, such amendments to take effect when it comes into force.
This article explains the temporary possession powers in the Neighbourhood Planning Act 2017, how they would work in CPOs, and the key procedural and compensation rules involved.
Section 18 of the Neighbourhood Planning Act 2017 allows those authorities in England and Wales that have CPO powers to take temporary possession of land or create a new right over land by agreement or compulsorily. The provision is clear that this is to be the only such power unless there are express provisions included in another act.
How this is to be done is set out in section 19 of the Neighbourhood Planning Act 2017. An ‘authorising instrument’ is required, using the terminology of that section. In many cases simply be the CPO for the scheme in question, but it could be in another form. So the authorising instrument could be on the basis of:
The authorising instrument will of course have to be clear which land/rights are being secured on a temporary basis, and set out the total period of time for which the land may be the subject of temporary possession, but not necessarily the specific dates.
There is no reason though why all interests in the CPO could not be acquired on a temporary basis. A technical point, but it's worth noting that the special parliamentary procedure is disapplied in cases of temporary possession, except where National Trust land is involved.
As you would expect, before taking temporary possession the acquiring authorities must serve notice on all persons with an interest or right to occupy the land, specifying the period after which temporary possession will be taken, and for how long. The prior notice period must be at least three months, under section 20(3) of the Neighbourhood Planning Act 2017.
There are some further nuances to be aware of:
Affected parties may serve a counter notice under section 21 Neighbourhood Planning Act 2017 within 28 days of receiving their notice, and this may limit the possession period to 12 months for a dwelling, or six years for anything else. A leasehold owner has the additional option of serving a counter notice saying temporary possession may not be taken.
In either case the acquiring authority then has the option of accepting the counter notice, or proceeding as if the land were subject to compulsory acquisition. It must inform the other parties within 28 days of making that decision. If it does proceed to use compulsory purchase, then matters proceed as per usual CPOs with the acquiring authorities able to carry on as if relevant CPO notices regarding authorisation and confirmation of the CPO were served.
The headline points regarding the right to compensation for affected parties are that material detriment will apply where part of a house, building or factory is purchased. More generally, under section 23 of the Neighbourhood Planning Act 2017, compensation will include any loss or injury to the claimant. ‘Beneficial claimants’, i.e. land benefitting from a relevant right or interest or a restrictive covenant, may also claim for loss or injury.
Businesses can claim for losses arising from disturbance of trade or business as a result of them having to leave the land and section 23(5) of the Neighbourhood Planning Act 2017 sets out some detail as to what such claims might include.
In the usual way advance payment provisions apply, controlled by section 24 of the Neighbourhood Planning Act 2017, and disputes as to compensation go to the Upper Tribunal for determination.
The acquiring authorities can use the land as if they had acquired all interests in it, but subject to any limitations that may be set out in future regulations. This includes removing or erecting buildings or other works and removing vegetation.
It can use the land for any purpose the temporary possession was taken for even if that involves interference with other rights and interests or breaching contractual limitations that may affect the land. That is subject to a limited number of exceptions - a key one being that this doesn’t apply to ‘protected rights’ of statutory undertakers for example, nor where, broadly speaking, the National Trust has an interest.
Reinstatement and disputes arising, is not dealt within the sections, but one provision of the Neighbourhood Planning Act 2017 that is in force is section 29, which is a power for regulations to be brought forward dealing with that issue, among several others. None are yet to emerge however.
Whilst the Neighbourhood Planning Act 2017 provisions are not yet in force notwithstanding the substantial passage of time, there is some good news in the form of amendments made to the Highways Act 1980, that came into force on 18 February 2026, do allow temporary possession for CPOs under that Act.
This brings such CPOs into line with what can be achieved under other consenting routes such as development consent orders. This is thanks to section 35 of the Planning and Infrastructure Act 2025 coming into force, which broadens section 250 of the Highways Act 1980 regarding land acquisition powers, to include temporary possession.
For further information, please contact David Richardson, head of our planning and infrastructure consenting team.
