Planning Circular 6/2011: Compulsory purchase orders

Justification For Making A Compulsory Purchase Order

9. The authority should be satisfied that the purposes for which it is making a compulsory purchase order justify interfering with the rights of the people affected. The justification for making a compulsory purchase order will, subject to the requirements of the law, be a matter of fact and circumstance in each case. This circular does not attempt to list all circumstances where compulsory purchase might be justified.

10. In deciding whether to confirm a compulsory purchase order Scottish Ministers will weigh up the public benefit in the authority's proposals against the interests of the people affected. The authority should be able to justify its proposals at any inquiry and, if necessary, in the courts. The clearer and more comprehensive a justification that the authority puts together, the stronger its case is likely to be.

Assessing other ways to realise the authority's purpose

11. The authority should assess whether there is a suitable alternative way for it to realise its aims. It should also properly consider whether any alternative proposals put forward by other people would be appropriate. In some cases the authority may be able to serve statutory notices or use some other legal powers or it may be possible to use a management agreement or some other binding contract. In some cases, the authority may not need to acquire ownership of the land itself. For example, if all that it needs is a right of access over the land, it may be sufficient (if legislation allows) to obtain a servitude right instead ⁸ .

12. Where there is more than one site on which the scheme could be located, the authority should be satisfied that it has properly assessed the suitability of any alternative sites.

Assessing the public interest

13. The authority should properly assess the public benefit in its proposals and the impact on the people affected. Where appropriate, it should engage with the wider community, key agencies, community councils and community planning partnerships as part of this process ⁹ .

14. There are a wide range of projects for which it may be possible for the authority to put forward a sufficiently strong case to justify compulsory purchase. These may range in size from a major scheme to regenerate a large area to a small individual scheme to bring a single derelict property or empty home back into use. In some cases the scheme might benefit the immediate population, whereas in others the scheme may benefit the wider public. 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.

15. In assessing the public benefit a local authority may wish to consider, amongst other things, priorities that it has adopted in its single outcome agreement or proposals, projects and policies adopted in its development plan, housing plans, community plans or other strategic or planning documents, including supplementary planning guidance such as masterplans. The authority may also wish to consider priorities in the strategic documents approved by the boards of urban regeneration companies or other bodies set up by Scottish Ministers to deliver regeneration and renewal. It may also wish to consider the statutory plans of national bodies and agencies and regional bodies such as regional transport partnerships.

16. The authority should be satisfied that all of the land it seeks to acquire compulsorily is needed to complete its scheme.

Human rights

17. Compulsory purchase will not breach the European Convention on Human Rights where it is authorised by law, is proportionate and where it can be demonstrated to be in the public interest. This reinforces the requirement that the authority should use compulsory purchase only where it is a proportionate response in the circumstances and there is a strong enough case for this in the public interest.

The authority should therefore properly assess the public benefit in what it proposes against the impact on the people likely to be affected. It should also properly assess any reasonable alternative ways that it might realise its aims.

Using the appropriate compulsory purchase power

18. Various Acts of Parliament (known as 'enabling acts') give authorities powers to compulsorily purchase land for specific purposes ¹⁰ . The purpose for which the authority seeks to acquire land is therefore vitally important, as this will determine whether it has relevant powers and which power is most appropriate.

19. The authority should use the most specific power available for the purpose for which it intends to acquire the land. The purpose must relate to the powers in the enabling act. If (before Scottish Ministers decide whether or not to confirm an order) the authority changes its plans for the land, it should make sure that the powers it is using still relate to the purpose for which it seeks to acquire the land.

20. For some purposes there may be no specific power available, or the authority might seek to acquire the land for more than one purpose. In this situation it may have the option of using a more general power ¹¹ . However, it should not use a general power where a more specific and appropriate power is available ¹² . The authority should not attempt to use more than one power for the same purpose.

21. A power to acquire land compulsorily does not necessarily allow the authority to create rights short of ownership over that land (such as a right of access). If the authority seeks to acquire rights short of ownership it must identify specific enabling legislation that authorises it to create the rights that it seeks.

Compulsory purchase under planning powers ¹³

22. A planning authority has compulsory purchase powers that it may use to assemble land where this is necessary to carry out the proposals in its development plan or other strategic planning documents. It can use these powers to assemble land for regeneration and other schemes where the range of activities it proposes means that no other single specific compulsory purchase power would be appropriate. It can also use them to provide infrastructure and/or assemble and prepare sites to make them available for the private sector to develop or to acquire an individual property that needs redevelopment or improvement, such as a derelict or abandoned property or empty home.

Planning policy

23. The authority should be satisfied that its proposals generally accord with prevailing planning policy. It may be possible for the authority to show this by referring to the adopted or approved development plan or National Planning Framework. It may also refer to non-statutory planning guidance or a masterplan that has been consulted upon and adopted for development management purposes.

24. It may not always be possible or appropriate for the authority to wait until the full details of its proposals have been developed, and planning permission obtained, before it proceeds with an order. In some cases the order might form part of a longer-term strategy which needs to be able to adapt to changing circumstances. As a result, it may not be possible for the authority to show with certainty exactly how some or all of the land in the order will be used after acquisition in implement of that strategy. If this is the case the authority should be satisfied that it can justify the case for acquisition in advance of resolving the uncertainties.

25. If planning permission will be required, and has not yet been granted, the authority should be satisfied that there is no obvious reason why planning permission might not be granted. In particular, it should be satisfied that the proposals that are the subject of the planning application are broadly in accordance with, or not obviously in conflict with, the development plan for the area. ¹⁴

Compulsory purchase under housing powers ¹⁵

26. A local authority has compulsory purchase powers that it may use to assemble land for housing and ancillary development (such as access roads, shops and recreation grounds) ¹⁶ . It may also use these powers to acquire land to make it available for private development or to bring empty or derelict homes back into use.

27. The authority should be satisfied that the need for further housing accommodation in the area justifies making a compulsory purchase order. Where appropriate, it should refer to local housing strategies and housing needs and demand assessments.

28. The authority need not propose to undertake the activity or achieve the purpose itself. It may dispose of the land to a third party to carry out its purpose. The authority need not necessarily have identified a prospective purchaser at the time it makes a compulsory purchase order ¹⁷ . However, it should be satisfied that its proposals will provide the housing accommodation in the intended time.

29. The authority may be able to justify acquiring an empty property where there appears to be no other prospect of it being brought back into residential use. However, it should be satisfied that it has first done everything that it reasonably can to encourage the owner to restore the property to full occupation. It may also be able to justify using housing powers to acquire a sub-standard property in some cases ¹⁸ . However, it should be satisfied that it has first done everything that it reasonably can (such as serving statutory notices) to bring the property up to a standard to provide acceptable housing.

Choice between powers

30. In some cases there may be more than one appropriate compulsory purchase power and the authority may need to choose which power to use. For example, it may have a choice between using planning or housing powers. In such cases, Scottish Ministers are unlikely to refuse to confirm an order solely on the grounds that the authority could have made the order under another power, as long as the authority can justify the choice of power used and it does not give rise to any prejudice.

31. When deciding whether to confirm an order, Scottish Ministers will consider policies relevant to the authority's proposals. For example, where it seeks to assemble land under planning powers for housing development, Ministers will take planning and housing policies into account.

Funding implications of the scheme

32. The authority should be satisfied that it has a reasonable prospect of securing enough funding to acquire the land within the statutory three year period ¹⁹ and completing the scheme over a reasonable timescale. It should be satisfied that it has properly estimated the likely levels of compensation that it will need to pay. It should also be satisfied that it could make enough money available immediately to cope with any acquisition resulting from a blight notice ²⁰ .

33. However, in some cases the authority may be able to justify acquiring the land where the long term funding is not guaranteed. Scottish Ministers recognise that funding streams for projects can be unpredictable and their sources can change over time. The authority may not intend the scheme to be independently financially viable, or it may be unable to finalise details until it has assembled the land. In such cases it should be satisfied that there is a reasonable prospect that it can meet any potential shortfalls. This may include considering the degree to which other bodies (including other public bodies, the private and/or third sector) have agreed to contribute or underwrite the scheme and on what basis other bodies will contribute or underwrite. In some cases a strict time limit on the availability of funding may justify proceeding with the order before the authority finalises details of the scheme.

Barriers to completing the scheme

34. The authority should be satisfied that there are no barriers likely to prevent it completing its scheme. These might include the programming of any infrastructure work or remedial work that may be required or any permission, consent or licence that will be needed. It should be satisfied that there is a reasonable prospect of carrying out any work required or securing any such permission, consent or licence.

Compulsory purchase in partnership with a third party

35. Under many enabling acts the authority need not carry out its purpose itself. It may dispose of the land to a third party after acquisition. The authority might enter into what is commonly called a 'back to back' agreement with another public body, a private developer or other third party. The terms of these agreements vary, but generally the authority undertakes to use its compulsory purchase powers to acquire the land and dispose of it to the third party. In return, the third party undertakes to carry out the development (at the third party's expense) and indemnify the authority's costs. This can help the authority to realise a scheme in the public interest that may otherwise not be possible.

36. Conversely, a third party can approach the authority. The third party might be unable to assemble the land that it needs for a scheme that it considers to be in the public interest. In this situation the third party can ask the authority to use compulsory purchase to acquire the land. The authority should consider any such requests. If the authority considers that the public interest in the scheme justifies compulsory purchase, it may agree ²¹ .

37. In some cases, a local authority may wish to compulsorily purchase land to dispose of it to a community group or other third party to carry out the authority's purpose.

38. An authority working with a third party should remember that the authority remains ultimately responsible for the compulsory purchase. The onus is on the authority to weigh the public interest in the proposals against the interests of the people affected in the same way it would when considering making any other compulsory purchase order. It should ensure that it meets all legal requirements and that the people working on the scheme follow good practice, including the guidance in this circular. It must also comply with all relevant procurement legislation and any relevant legislation about disposing land to a third party ²² .

39. When deciding whether to confirm a compulsory purchase order involving a third party, Scottish Ministers will weigh up the public interest in the proposals against the interests of the people affected in the same way Ministers will for any other compulsory purchase order.

Local authority resolution to use compulsory purchase

40. A meeting of the full council, or a meeting of a committee with delegated powers, must pass a resolution authorising the making of a compulsory purchase order. The report to the council or committee should explain the public benefits to be delivered by the scheme and explain why these over-ride the interests of the people affected. The extent of the land to be acquired should be shown on a map attached to the council meeting papers. The resolution must refer to the acquisition of all land included in the order, for the purpose identified in the order. An authority cannot use an order to acquire more land than has been authorised in the resolution, or to acquire land for a different purpose than that authorised in the resolution.

41. The authority may find it helpful to adopt a two stage approval process (approval in principle, then approval to make the order). This can help the authority to ensure that it has fully considered the justification for the order, engaged with the people affected and drafted the order correctly, before it formally resolves to make the order.

The statement of reasons

42. The authority should set out its case for the compulsory purchase in a document called a 'statement of reasons'. This should include all information that Scottish Ministers will need when considering whether to confirm the order. The statement of reasons should be as concise, clear and comprehensive as possible. See also Appendix D.