Compulsory purchase orders and acquiring authorities: guidance on preparing a CPO

3. Considerations

3.1. It is worth reiterating that the Acquiring Authority must be able to clearly set out why an order is in the public interest and that there is clear justification for interfering with the legal rights of those affected by an Order. Acquiring authorities should be able to explain why they consider that:

(a) The purposes for which land is to be acquired are sufficiently important to justify the deprivation of property or interference with possession which the compulsory purchase entails;

(b) All of the land in question is directly needed for the proper delivery of those purposes;

(c) A less intrusive measure could not have been used for those purposes; and

(d) A fair balance has been struck between the rights of the individuals affected and the interests of the community.

3.2. Authorities should be able to clearly evidence and justify the following when setting out the reasons for the compulsory purchase of land or property:

a) Powers it intends to use

• It should set out which powers for the compulsory purchase of the land it intends to use and why it is considered that those powers are the most appropriate in the circumstances.

b) Public Benefit

• It should set out the public benefit of the proposal versus what would happen if the project did not go ahead.
  • Any direct and immediate benefits to the population such as flood prevention, public health facilities (such as hospitals or doctor surgeries or new recreation facilities) new sewer systems, or provision of utilities;
  • Wider public benefits such as the increase in road capacity, alleviation of congestion, reduction in air pollution;
  • Economic benefits, such as job creation or promotion of sustainable economic growth;
  • New housing and the provision of any new infrastructure to support this, such as new education and healthcare facilities or services;
  • Provision of infrastructure to support area regeneration, including:
    • Improved access;
    • Environmental benefits, such as removal of dereliction;
    • General provision of land improvement and local amenity;
    • New railway facilities or network;
  • Social benefits, such as providing a public service or addressing social problems (for example, crime reduction or skills development and employment opportunities).

c) Priorities

• The Acquiring Authority should set out clearly how the compulsory purchase will enable it to deliver its own and other organisations priorities, such as:
  • Projects and policies adopted in its development plan, housing plans and strategies (including Strategic Housing Investment Plans), locality plans, community plans or other strategic or planning documents, including supplementary planning guidance, master plans and design briefs and any extant planning permissions;
  • Directions issued by Scottish Ministers for any investment priorities, such as those given to Transport Scotland and Scottish Water;
  • 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;
  • Statutory plans of national bodies and agencies and regional bodies such as Regional Transport Partnerships;
  • Government priorities as outlined in any 'City Deal';
  • Priorities identified in a Community Empowerment Plan (see http://www.gov.scot/Publications/2009/03/20155113/0 for details);
  • Links to wider Strategies or Development Plans:
    • If the Acquiring Authority intends to use powers relating to Planning legislation then the proposal should generally adhere to current planning policy and an adopted or approved Development Plan. Referring to the National Planning Framework or non-statutory planning guidance or a master plan that has been consulted upon and adopted for development management purposes may also assist. If it cannot provide any specific policy or proposal in a plan (for example, the proposal is intended to help the area adapt to changing circumstances or as part of a longer-term strategy) it will need to justify the case for acquisition in advance of resolving the uncertainties around the development;
    • If the Acquiring Authority intends to use housing legislation it should be satisfied of the need for additional housing as established through a Housing Need and Demand Assessment ( HNDA) and reflected in the Local Housing Strategy and how the proposal will help meet that need.

d) Land Requirement

• Full details of the land required, and justification for why all the land it seeks to acquire compulsorily will be necessary to deliver the public work/complete the scheme. Various factors, including safety, or final technical plans may mean that the footprint of the land that needs to be purchased may be bigger than that of the final development. Where this is known to be the case the Acquiring Authority should make this clear in its proposal.
• Where there is surplus land following the development which was acquired by, or under a threat of, compulsion then the former owners will, as a general principle, be given a first opportunity to repurchase the land previously in their ownership, provided that it has not been materially changed in character since acquisition. This is referred to as the Crichel Down rules. See https://elb.beta.gov.scot/publications/compulsory-purchase-orders-introduction/ for more information.

e) Financial Plans

• The financial plan supporting the proposal should include details on:
  • How the Acquiring Authority intends to fund the purchase of the land and any relevant compensation claims within the statutory three year period;
  • How it is planned to develop the land acquired within a reasonable timescale;
  • How it has arrived at its estimations of the likely levels of compensation that it will need to pay; and
  • How it could make enough funding available immediately to cope with any acquisition resulting from a successful blight notice.

f) Barriers

• Whether or not there are any barriers likely to prevent it completing the development. 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;
• The Acquiring Authority should be satisfied (and be able to demonstrate) that there is a reasonable prospect of carrying out any work required or securing any such permission, consent or licence.

g) Planning or Other Permissions

• It is worth noting that a CPO can be justified and confirmed, even where full planning permission has yet to be granted for the project underpinning the scheme;
• However, in such circumstances, if planning or another permission would be required for the delivery of the scheme underlying the purchase and has not yet been secured, the Acquiring Authority will need to be able to explain why it believes that permission is likely to be granted (for example, by reference to a relevant Development Plan or Masterplan).

h) Alternative Resolution and Engagement

• The conclusions and evidence from its Alternative Resolution exercise (see CPOGNAA/002);
• The conclusions and the evidence from its engagement with those affected (see Section 4 of this guidance note).