Compulsory purchase orders and acquiring authorities: guidance on CPO use

3. General Considerations

3.1. There are a wide range of purposes for which it may be possible for the Acquiring Authority to put forward a sufficiently strong case to justify compulsory purchase. Projects may range in size from a major scheme to regenerate a large area or a city, to a small scheme to bring a single derelict property or empty home back into use.

3.2. In some cases the scheme might benefit the immediate locality, whereas in others the scheme may benefit the wider area.

3.3. In some cases the public benefit in a scheme may be economic – for example it may create jobs, encourage investment or promote sustainable economic growth. In other cases the public benefit might be environmental or social, such as providing a public service, improving the amenity of an area, providing infrastructure to facilitate regeneration or delivering a network of paths to enable access.

3.4. Compulsory purchase should be used in instances where it is either impossible or impractical to buy the land or buildings by agreement and where the public interest in doing so out-weighs the rights of those people affected. It should be recognised that, in some circumstances, there may be no realistic alternative to compulsory purchase.

3.5. It is for an Acquiring Authority to ultimately satisfy itself that it has the necessary powers to promote a CPO. However, the Acquiring Authority will need to be able to satisfy Scottish Ministers that there is a clear public interest case, supported by strong evidence and the necessary funds to compensate owners for the purchase of the land and to finance any subsequent development for them to confirm an Order.

3.6. In some instances Acquiring Authorities may not intend the project to be independently financially viable, or may be unable to finalise details until it has assembled the land. In such cases it will need to demonstrate satisfactorily that there is a reasonable prospect that it can meet any potential shortfalls (for example, through third party contributions or any underwriting of the project). Acquiring Authorities considering using compulsory purchase will need to ensure that they have considered all the potential costs associated with any proposed Order, including the market value of the property, reasonable professional fees for those affected, and any relevant claims for compensation ^[1] .

3.7. Acquiring Authorities should not use their CPO powers speculatively as there is a need to demonstrate there is a reasonable prospect of being able to meet any potential shortfalls in funding.

3.8. Where funding is not fully committed prior to the CPO being made, the minimum the Acquiring Authority should be able to show is that it will be able to make funding available to meet the likely compensation claims.

3.9. An Acquiring Authority has three years from the date on which it publishes notice of the confirmation of a CPO in which to implement the Order (i.e. take title to the land). Thereafter, there is no specified time limit within which the land must be developed. However, in the interest of fairness and to reduce uncertainty, Scottish Ministers expect land which is compulsorily acquired to be developed as soon as practicable thereafter.

3.10. Where an Acquiring Authority does not implement the Compulsory Purchase Order within that 3 year period, the Compulsory Purchase Order will fall and will no longer authorise the compulsory acquisition of land. If an Acquiring Authority still wishes to proceed with the underlying project it will need to start the CPO process again.

3.11. Where land has been purchased compulsorily and the public work completed but some or all of the land is considered surplus to requirements and is available for disposal the Acquiring Authority is expected, in the first instance, to offer the land for sale back to the original owner(s) from whom it was acquired, or their successors in title in accordance with the, so called, Crichel Down Rules (see CPOGNAA/003 for further details).

3.12. A relatively straight forward CPO, which requires a Public Local Inquiry or Hearing, will likely take between 12 and 18 months to be determined, following submission to Ministers. More complex cases, with higher numbers of objectors can take longer. Where cases face no objections these may be processed in less than 6 months. Schedule 1 provides a process chart which illustrates steps and timescales. The CPO register on the Scottish Government website can provide a useful reference point for timescales of recent CPOs which may help an Acquiring Authority plan (see /publications/compulsory-purchase-order-register/).

3.13. Acquiring Authorities thinking about compulsory purchase, should ask themselves the following questions:

• Why do we need to compulsorily purchase the land and what are the benefits? What evidence exists to support our case for the purchase?
• What other options have been considered, and why are these not suitable?
• What would happen (likely impact) if we did not compulsorily purchase the land?
• What are the benefits of avoiding compulsory purchase, and how do these weigh up against the need for compulsory purchase? Are costs likely to increase if we delay compulsory purchase?
• Is the necessary finance available to fully compensate landowners (including not just the land acquisition cost, but compensation for severance, injurious affection, disturbance and reasonable professional fees where applicable)?
• Do we have sufficient powers to compulsorily purchase all of the land or interests in the land needed to enable the project to proceed?
• Is our proposed project included in a relevant plan or strategy, such as a Local Development Plan, housing plan, or community plan? If not why not?
• Has there been engagement with land owners to find alternative resolution? If not why not?

If any of these points cannot be answered to the Acquiring Authority’s satisfaction, then it is likely that it is not yet in a position to commence the CPO process.

3.14. The subsequent sections in this guidance note aim to assist Acquiring Authorities consider some of these points further.