Compulsory purchase orders and acquiring authorities: guidance on what to do before developing a CPO

CPOGNAA/002 Second in a series of guidance notes intended to provide information for acquiring authorities with no, or limited experience of, compulsory purchase orders (CPOs) on what to do before developing a CPO.

2. Alternative Resolution

2.1. An Acquiring Authority should always assess whether there is a suitable alternative way for it to realise the aims of the scheme. As part of this work the Acquiring Authority should consider whether:

  • Any alternative proposals put forward by other parties would be appropriate. The Acquiring Authority may find it helpful to carry out consultation to aid with this exercise;
  • It is able to serve statutory notices or use some other legal powers to avoid the need to use compulsory purchase powers. This may be particularly beneficial where there is a poor standard and quality of housing;
  • It may be possible to use a management agreement or some other legally binding contract that would avoid the need to use compulsory purchase; and
  • It actually requires ownership, e.g. 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 by CPO or obtain these rights by obtaining a Wayleave or alternative access rights instead.

2.2. Where there is more than one site on which the scheme could be located, the Acquiring Authority should be satisfied that it has properly assessed the suitability of any alternative sites and is clear on its rationale and justification for why it has chosen the site in question.

Purchasing land without compulsion

2.3. It is always preferable for land to be purchased by agreement. However, authorities should take a realistic view, depending on the circumstances, on whether it is practicable to do so. For example, it may be clear very early on in discussions with the land owners that they are not willing to sell their land voluntarily or agree to sell at an acceptable price. In assessing this, the Acquiring Authority should be mindful of the overall costs of compulsory purchase, including legal fees and the costs of holding a Public Local Inquiry or Hearing, if required, against the costs of inaction by the Acquiring Authority.

2.4. The date by which entry to the land is required to deliver the underlying project or purpose can be particularly important in determining the approach that is taken.

2.5. CPO cases and the associated assessment of financial compensation due can be complex matters and will usually take time to process. Therefore, it may be prudent for an Acquiring Authority to initiate the formal CPO procedures in parallel with ongoing negotiations with land owners. This will often provide a clear signal of the Acquiring Authority's intentions and its commitment to the acquisition of the land. This in turn may encourage those whose land is affected to enter more readily into meaningful negotiations.

2.6. Acquiring Authorities will normally be expected to attempt to purchase the land by agreement and, ideally, a resolution with the land owner would be found without the need for compulsory purchase. However, a lack of any attempt to purchase by agreement will not necessarily prevent Scottish Ministers from confirming a compulsory purchase order, as long as the Acquiring Authority can justify why it has adopted the approach used.

2.7. An Acquiring Authority should keep a detailed record of all alternative options considered and the conclusions reached. Furthermore, the Acquiring Authority should keep a record of all engagement and negotiation with affected landowners, including the results of attempts to purchase the land by agreement. The conclusions from both these actions will form an important element of the 'statement of reasons' (see CPOAAGN/003 and CPOAAGN/004).



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