Planning Circular 6/2011: Compulsory purchase orders

Footnotes

1. Scottish Ministers have published general guidance on TAWS at: www.scotland.gov.uk/TAWSgeneral . Detailed technical guidance is available at: www.scotland.gov.uk/TAWStechnical
2. As set out in Part II of the First Schedule to the 1947 Act
3. www.scotland.gov.uk/TSCPOguide
4. See Appendix B for a selected list of Acts of Parliament with compulsory purchase powers, and the acquiring authorities that can use them.
5. Whether, and to what extent, this may be necessary will depend on the circumstances. For example, in many cases the authority may already have consulted and engaged about its proposals when preparing its local development plan or other strategic documents.
6. For example, it may not be practicable to purchase by agreement in the project timescale or at a reasonable cost when acquiring numerous interests, when an owner has unrealistic aspirations about the value of their land or an owner is unwilling to engage with the authority.
7. The authority can continue to negotiate with the owners over matters such as the compensation to be paid, the entry date and alterations to the scheme.
8. See also paragraphs 18 to 31.
9. In some cases the authority may have already consulted and engaged with such organisations when formulating its development plan or other strategic documents.
10. See Appendix B for a selected list of enabling acts, the authorities that can use them and the purpose for which they can be used.
11. For example, section 71 of the Local Government (Scotland) Act 1973 gives a local authority a general power to compulsorily purchase land for the purpose of any of its functions (including the general power to advance well being in section 20 of the Local Government in Scotland Act 2003).
12. Scottish Ministers may refuse to confirm an order if they consider that the authority is using a general power in a way intended to frustrate or overturn the intention of Parliament by attempting to acquire land for a purpose which has been explicitly excluded from a specific power, or by attempting to avoid a more procedurally onerous specific regime (such as found in the listed building legislation requiring service of a repairs notice before going down the CPO route ).
13. Section 189 (1) of the Town and Country Planning (Scotland) Act 1997
14. However, it may be possible to obtain planning permission for proposed development that does not accord with the development plan where material considerations indicate that the proposal is otherwise acceptable.
15. See section 10 of the Housing (Scotland) Act 1987 and Appendix B for other housing powers
16. When using housing powers the authority should carefully consider whether it proposes to do anything that is not ancillary to housing. If it has any doubt it may be more appropriate to use planning powers (see paragraphs 22 to 23 and 30 to 31).
17. For example, negotiations may be proceeding or the authority may propose to sell the land on the open market.
18. An authority may also be able to use the compulsory purchase powers in the 1987 Act in conjunction with its power to designate a Housing Renewal Area under the Housing (Scotland) Act 2006. See also Appendix B for a list of other powers.
19. Three years after the authority publishes notice of the confirmation, the compulsory purchase power will lapse if the authority has not implemented the power.
20. see paragraphs 90 to 91.
21. Usually in such a case the third party will agree to indemnify all costs that the authority incurs during the compulsory purchase process, including the costs of acquisition and any costs at an inquiry or hearing.
22. Such as the provisions in s.191 of the Town and Country Planning (Scotland) Act 1997 or s. 74 of the Local Government (Scotland) Act 1973.
23. Copies of this guide can be downloaded from www.scotland.gov.uk/cpo
24. Copies of this guide can be downloaded from www.scotland.gov.uk/cpo
25. Copies of this guide can be downloaded from www.scotland.gov.uk/cpo
26. Accommodation works are mitigating works that the authority may carry out on land retained by the owner.
27. See section 36 of the Land Compensation (Scotland) Act 1973
28. www.scotland.gov.uk/mediationinplanning
29. For example, long running disputes over compensation that had been scheduled to be heard by the Lands Tribunal for Scotland have instead been resolved by mediation.
30. This might be particularly true if resolving a dispute would avoid the need for more lengthy and expensive procedures, such as an inquiry or a referral to the Lands Tribunal for Scotland.
31. A list of Scottish Government contact points is available at www.scotland.gov.uk/cpo .
32. See Appendix K for a checklist of the documents and information that the authority should send to Scottish Ministers.
33. Examples include an order stopping up a public road or an appeal against the refusal of planning permission.
34. An objector may withdraw their objection at any time, even after the date for the inquiry has been set.
35. An inquiry session and a hearing session both involve people presenting their case in person in front of the reporter. A Hearing session takes the form of structured discussion led by a reporter. Inquiry sessions are normally more formal events where witnesses give their evidence to the reporter and can be cross examined by other parties. Generally, an inquiry may be most appropriate if there may be handling difficulties because of the complexities of a case, the objections raise complicated matters of policy or complicated legal issues or it is likely that either party will need cross-examination to test the opposing case. In other cases a hearing may be more appropriate.
36. Circular 6/1990 www.Scotland.gov.uk/publications/1990/03/circular-6-1990
37. Scottish Ministers may confirm the order with modifications, but no extra land can be added to the amount of land being acquired unless everyone with an interest in that land agrees.
38. See www.scotland.gov.uk/cpo for a list of Scottish Government contact points
39. For example, if the authority intends to provide alternative accommodation for the people affected it may be in everyone's interests for the authority not to take title until the alternative accommodation is ready.
40. However, it will not get legal title to the land until it has agreed compensation with the owner and completed the conveyancing.
41. This seeks to force the authority to compulsory purchase the whole land because in the case of a house, building or factory taking part of the land causes material detriment, or in the case of a park or garden, seriously affects the amenity or convenience of the house.
42. Injurious affection is, in broad terms, the effect of acquiring part of someone's land on the value of any remaining land.
43. sections 27 to 30 of the Land Compensation (Scotland) Act 1973, as amended by the Planning and Compensation Act 1991
44. sections 31 to 33 of the Land Compensation (Scotland) Act 1973
45. See part IV of the Land Compensation (Scotland) Act 1963
46. This seeks to force the authority to compulsory purchase the whole land because in the case of a house, building or factory taking part of the land causes material detriment, or in the case of a park or garden, seriously affects the amenity or convenience of the house.
47. The method for determining the rate of interest is set out in the Acquisition of Land (rate of interest after entry) (Scotland) Regulations 1995. See also circular 36/1997. Current and previous interest rates are published on the Pubic Works Loan Board website at http://www.dmo.gov.uk/reportView.aspx?rptCode=D7A.8&rptName=74910107&reportpage=
48. Part V of the Town and Country Planning (Scotland) Act 1997
49. Principally residential owner-occupier or commercial owner-occupier with a Rateable value limitation
50. (broadly cases where compulsory purchase is foreshadowed or has begun, following formal approval of the public work by the authority)
51. The law affords certain types of land some protection against compulsory purchase. Compulsory purchase of certain land is subject to special parliamentary procedure, eg land forming part of a common or open space or land held inalienably by the National Trust for Scotland. There are also special procedure relating to land acquired by a statutory undertaker for the purposes of its undertaking, land owned by a local authority
52. Some enabling acts make particular provisions regarding crown land. Other enabling acts may not apply to the crown. The authority should take particular care when seeking to acquire abandoned land, as abandoned land may vest in the crown
53. A certificate of alternative development, in broad terms, is used for valuation purposes to determine what planning permissions might have been granted, but for the compulsory acquisition. The authority may wish to carry out a dummy CAAD assessment.
54. A notice of objection to severance seeks to oblige an authority to purchase all of a property, rather than just a part.
55. See also paragraph 42
56. The scope of the authority's proposed scheme and their purpose will normally appear in the authority's formal resolutions or documents.
57. See also paragraphs 9 to 42
58. The authority may be asked about the site selection process, including the consideration of alternative sites, at an inquiry or hearing. The site that the authority seeks to acquire does not necessarily have to be the only suitable site, but the authority should properly weigh up the benefits of alternative sites
59. See paragraphs 22 to 25
60. This is because some interests may not appear in the property registers.
61. See also Appendix F
62. As defined in section 122 of the Title Conditions (Scotland) Act 2003
63. Section 19(4) of the Acquisition of Land (Authorisation Procedures) (Scotland) Act 1947. See also Appendix F and Appendix G
64. Rights of access may not appear in the property registers.
65. Paragraph 3 of the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. See also Appendix G
66. http://www.legislation.gov.uk/ssi/2003/446/contents/made.
67. See also paragraph 21
68. The map should not generally be less than 1/1250 scale (1/2500 or, as a last resort, 1/10000 in rural areas).
69. A list of Scottish Government contact points is available at www.scotland.gov.uk/cpo . To find out how quickly Ministers are likely to comment on a particular order the authority may contact the relevant Scottish Government Directorate
70. See also Appendix F
71. See also Appendix E
72. In accordance with s.124 of the Title Conditions (Scotland) Act 2003
73. 1947 Act First Schedule para 3 (inserted by Title Conditions (Scotland) Act 2003 s.109