Compulsory purchase orders and acquiring authorities: guidance on how Scottish Ministers consider CPOs

1. Preparing to Send the Order to the Scottish Government

1.1. In preparing to send the Order to Scottish Ministers for consideration, the Acquiring Authority should fully set out its case for the compulsory purchase in a 'Statement of Reasons'.

1.2. The 'Statement of Reasons' should include all information that Scottish Ministers will need when considering whether or not to confirm the CPO and should be as clear and comprehensive as possible.

1.3. There is no prescribed format for a Statement of Reasons, but it should usually include the following:

The land to be acquired

• A brief description of the order land and buildings and their location, such as:
  • Topographical features;
  • Reference to any relevant development plan;
  • Identify within which community council area the land is located;
• The historical development of the site to understand the context of the proposal;
• Any special considerations affecting the land. For example, details of any ancient monument, listed building, conservation area, special category land, consecrated land.

The Acquiring Authority's purpose

• The Acquiring Authority's purpose in seeking to acquire the land;
• How the Acquiring Authority proposes to use or develop the land or deliver the project after acquisition including (if applicable) details of any third party who may develop the land on their behalf;
• Description of any new rights being created, such as a right of access, and an explanation of why the new rights are needed;
• Which enabling Act the Acquiring Authority intends to use to acquire the land, and why the Acquiring Authority has used this particular enabling power.

Engagement with affected parties

• How the Acquiring Authority has engaged with the people affected by the proposal and the issues or concerns raised by them. If the Acquiring Authority altered its plans to address people's concerns it should explain how. Alternatively, the Acquiring Authority should explain why it was not able to address specific concerns. It should also explain what it has done or will do to lessen the impact on people, communities and businesses and/or to help them relocate. For example, it should include any proposals for rehousing displaced residents or relocating affected businesses;
• If the Acquiring Authority has listed any of the owners as 'unknown' in the schedule to the Order, details of the steps that it took to identify the owner(s);
• A list of any documents, maps and plans explaining the proposals that the Acquiring Authority have made publicly available and/or details of where people can see these documents.

Justification

• The Acquiring Authority's justification for making the compulsory purchase, focussing on the public benefit of the authority's proposed scheme and how the Acquiring Authority weighed this against the impact on the people affected;
• Details of how the Acquiring Authority assessed whether there were any feasible alternative or less intrusive ways of achieving the purpose and/or how the Authority assessed the feasibility of any suitable alternative sites;
• The case for the proposals (with reference to relevant plans and strategies), and the planning position of the site(s);
• Relevant information specific to the Acquiring Authority's purpose ( e.g. crime reports or environmental studies).

Funding and delivery plans

• A general indication of how the Acquiring Authority intends funding the acquisition and completing its scheme (including the status of any commitments from third parties);
• Any potential barriers to completing the scheme, and how the Acquiring Authority intends to overcome them;
• Details of any related order, application or appeal which may require a coordinated decision by Scottish Ministers, such as a planning application, planning appeal or road closure;
• If the Acquiring Authority intends disposing of the land to a third party, it should submit information about the prospective purchaser and, as far as they are known, the purchaser's proposed timescales for completion; or
• If the Acquiring Authority proposes to sell the land on the open market, it should include information about its proposals to dispose of the land and why it is satisfied that there is market demand for the land.

Additional requirements for housing related CPOs

1.4. In addition, if specifically acquiring land for housing, the Statement of Reasons should make clear how the need to provide further housing accommodation in the area has been identified (referring to the Local Housing Strategy(s), Housing Needs and Demand Assessment(s), and Strategic Housing Investment Plan(s) as appropriate). Furthermore, the Acquiring Authority should explain why it is satisfied that the proposed delivery method will provide suitable housing accommodation in an appropriate timescale.

1.5. When acquiring an empty home or substandard property for housing purposes the Acquiring Authority should say how long the property has been vacant, what steps it has taken to encourage the owner to bring it back into acceptable use, what the outcome of this was and whether the owner carried out any work to re-use the property for housing purposes.

Additional requirements for listed buildings related CPOs

1.6. Section 42 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 provides powers for a local authority to acquire a listed building compulsorily if reasonable steps are not being taken for properly preserving it.

1.7. In order to use Compulsory Purchase Powers for this purpose, in addition to the usual CPO considerations, an Acquiring Authority must meet the procedural requirements of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997. This includes the authority:

a. Demonstrating that it was expedient to make provision for the preservation of the building;

b. Serving a Listed Building Repairs Notice on the owner in accordance with the 1997 Act;

c. Providing evidence through the planning history of the site that demonstrates no reasonable steps are being taken by the owner for the proper preservation of the listed building and the building fabric continues to deteriorate, despite the Authorities efforts to resolve the situation; and

d. Adequately considering the public interest and providing a proportionate response in relation to the owners' rights.

1.8. Where the CPO relates to a listed building, the Acquiring Authority should therefore also include in its Statement of Reasons details of how it has met these statutory requirements.

1.9. A helpful took kit exploring ways to tackle Scotland's historic buildings at risk can be found at: https://www.buildingsatrisk.org.uk/toolkit