Publication - Guidance

Compulsory purchase orders and acquiring authorities: guidance on CPO use

Published: 26 Apr 2018

CPOGNAA/001 First in a series of guidance notes intended to provide information for acquiring authorities with no, or limited experience of compulsory purchase on how to use CPOs.

17 page PDF

233.9 kB

17 page PDF

233.9 kB

Contents
Compulsory purchase orders and acquiring authorities: guidance on CPO use
4. Compulsory Purchase Powers

17 page PDF

233.9 kB

4. Compulsory Purchase Powers

4.1. An Acquiring Authority can only make use of its compulsory purchase powers where this has been specifically sanctioned in enabling legislation to deliver a particular purpose. Table 1 provides a list of compulsory purchase powers commonly used by Acquiring Authorities. Compulsory purchase can also be empowered for specific projects by special Acts of Parliament. Each Act specifies the purpose for which land can be acquired under that particular legislation and the Acquiring Authorities to which it applies. Recent examples of these are ‘The Edinburgh Tram (Line One) Act 2006’ and the ‘Waverley Railway (Scotland) Act 2006’.

4.2. Authorities will therefore need to satisfy themselves that they have the necessary powers to pursue the compulsory purchase of land. Schedule 2 of this guidance provides a more comprehensive, although not exhaustive, list of CPO powers available to Acquiring Authorities.

Table 1: Compulsory purchase powers commonly used by Acquiring Authorities

Purpose

Acquiring Authorities

CPO Legislation [2]

Planning & Area Regeneration

Planning authorities

  • Town & Country Planning (Scotland) Act 1997

Listed Buildings

Local Authorities

  • Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997

Housing

Local Authorities

  • The Housing (Scotland) Act 1987
  • Town & Country Planning (Scotland) Act 1997

Education

Local Authorities

  • Education (Scotland) Act 1980

Transport

Transport Scotland

  • Transport Act 1962
  • Roads (Scotland) Act 1984

Local Authorities

  • Roads (Scotland) Act 1984
  • Town & Country Planning (Scotland) Act 1997

Energy

Holders of licence to transmit electricity, and in so far as the licence provides, to distribute and generate electricity

  • Electricity Act 1989

Access and Amenity

Local Authorities

  • Land Reform (Scotland) Act 2003

Water and Sewerage

Scottish Water

  • Water Industry (Scotland) Act 2002

4.3. In some instances an Acquiring Authority may have a choice of CPO powers available to them. For example, the purchase of land for certain housing developments may be possible under planning or housing CPO powers. Conversely, a regeneration project may typically be promoted under planning powers, but may be taken under housing powers depending on the project particulars.

4.4. Acquiring Authorities should therefore use the most relevant power available for the purpose for which it intends to acquire the land. It must be able to justify the choice of power used and why this does not give rise to any prejudice (for example, circumventing more stringent procedural requirements required under another power). This information should form part of the ‘Statement of Reasons’ (see CPOGN/004). Where in doubt, the CPO policy team or one of the CPO Lead Officers may be able to advise on how to determine which power may be more appropriate. See section entitled ‘ Further Advice’ for advice on how to contact Lead Officers.

4.5. Scottish Ministers are unlikely to refuse to confirm an order solely on the grounds that the Acquiring Authority could have made the order under another power but it will strengthen the case for the purchase where a clear justification for the power used can be made.

Where no specific power exists

4.6. For some purposes there may be no specific power available or the Acquiring Authority might seek to acquire the land for more than one purpose. In this situation a general power such as Section 71 of the Local Government (Scotland) Act 1973 may be utilised. Acquiring Authorities should seek legal advice before promoting a CPO using such general powers.

4.7. As noted above, a general power should not be used where a more specific and appropriate power is available and authorities should not use more than one power for the same project/purpose. Illustrations of how CPO powers have been used in practice are available https://beta.gov.scot/publications/compulsory-purchase-order-case-studies/

Acquiring Rights in Land Less than Ownership

4.8. Some enabling Acts provide powers for the Acquiring Authority to create rights short of ownership over that land (for example, a right of access). However, many enabling Acts do not and authorities seeking to acquire rights short of ownership must therefore identify specific powers that authorise it to purchase the rights that it seeks. Where such powers do not exist the Acquiring Authority will need to purchase the land outright if it wishes to proceed with the CPO. Further details are set out in CPOGNAA/003.


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