Compelling the sale of private land

Where a local authority seeks to acquire land to progress its policy objectives but an agreement with the owner of that land cannot be reached, the authority is empowered by statute compulsorily to acquire the land in certain circumstances. There is no requirement on the local authority to develop any such land itself, so - in addition to being of concern for private landowners – changes to the Compulsory Purchase regime will also impact on developers.

The exercise of compulsory purchase (CP) powers is controversial in nature and opaque in process, as shown in recent high-profile planning cases such as the land assembly at the Menie Estate by Trump International Golf Links. A complex body of case law has been built up around the interpretation of CP provisions but there are still many practical obstacles for local authorities in reconciling public and private interests. In applying CP powers, an authority must strike a delicate balance between protecting the rights of individual landowners and the interests of the wider community, who might benefit from the development scheme that the CP would enable.

Scottish Government Consultation – February to May 2011

Against a background of continued economic recovery and an ongoing review of CP law, the Scottish Government seeks to deliver immediate improvements to the regime pending longer-term reform. In this context, it issued a Consultation on 14 February 2001 on new guidance on the use of CP. The aim is to publish new circulars later in 2011, one of which will focus on best practice in CP by local authorities. Private and public sector alike should welcome this Consultation – the CP regime is ripe for update given that current guidance was last issued in 1976, and the legislation to which it relates originated in 1845.

In line with reforms across the UK which seek to streamline and simplify the planning system, this consultation seeks to address concerns about the operation of the CP regime whilst preserving it as a positive tool for, in the words of John Swinney MSP, ''often vital schemes that can promote economic recovery and sustainable economic growth and bring real benefits to our communities.''

Current regime 
Of the several Acts of Parliament which grant CP powers to local authorities, the Town and Country Planning (Scotland) Act 1997 is one of the more commonly used. Sections 188 – 189 of the 1997 Act empower local authorities to acquire land compulsorily where it cannot be purchased by agreement, so long as that land is "suitable for and is required in order to secure the carrying out of development, redevelopment or improvement or is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated." In deciding whether land is appropriate to be subject to CP powers, an acquiring authority must consider three statutory criteria:

  • the provisions of the development plan – the planning policy that is in force in the area;
  • whether planning permission for any development on the land is in force – broadly to determine whether the CP is necessary to bring about that development; and
  • any other considerations which would be material for the purpose of determining an application for planning permission for development on the land.

New approach to CP?

Despite arguments as to the interpretation of these criteria continuing to rage in the courts, and human rights issues looming over CP cases, the draft guidance hints that a more robust approach should be adopted to push through strategic schemes. However, this apparently more bullish attitude is tempered by requirements on authorities to be realistic in applying their powers, specifically, to ensure there is a clear purpose for the CP and that the scheme is reasonably capable of delivery.

The draft guidance highlights the following considerations in deciding whether or not to progress a CP of private land:

  • Purpose and powers - the authority should show that the purpose of its scheme falls within duties and powers conferred by the legislation under which it will make the CP;
  • Reasonable care - the authority should show that it has selected the site and prepared its proposals with reasonable care; 
  • Acquisition of necessary land - all land included in the CP must be necessary for the scheme – a larger parcel of land should not be acquired by CP "just in case" if there is no clear justification for doing so; 
  • Resource implications - the authority should assess resource implications of acquiring the land and implementing the scheme, including the timing and availability of necessary funding; 
  • Attempt to acquire the land by agreement - an authority should seek to acquire the land it needs by agreement in the first instance, using mediation where appropriate. Should agreement fail to be reached, the draft guidance acknowledges that there is little to be gained in prolonging unproductive negotiations and that it may be advantageous to begin CP procedures in parallel with negotiations;
  • Partnerships - although an authority may have powers compulsorily to purchase land, it might not have the resources needed to carry forward its scheme alone. For this reason, the draft guidance states that partnership with private developers or other third parties should be considered. It cites as an example, that an authority might appoint a preferred developer and enter into a "back to back" agreement under which the authority would acquire land by CP and sell it to a private developer in return for the developer carrying out the development (as formulated by the local authority and at the developer's own expense).

CP processes

In respect of procedural aspects of CP, Appendices E & G to the draft guidance provide a checklist detailing the recommended steps to be undertaken by the acquiring authority in the preparatory stages of a CP. This should ensure adequate consultation with parties potentially affected and culminate in the submission of a Statement of Reasons to the Scottish Ministers along with a draft of the CP order. The Scottish Ministers will assess the application against relevant policy and in light of representations and objections received in relation to the proposals.

Where objections are unresolved, an inquiry or hearing may be held. Anyone can object to a CP order - statutory objectors with a right to be heard include owners, occupiers, tenants with a lease for one month or more, benefited proprietors, the holders of personal real burdens and owners' associations. Non-statutory objectors have no statutory right to be heard at an inquiry or hearing, although Ministers may choose to give them such opportunity.

Although the clarifications in the draft guidance are aimed at minimising any such errors, challenges to a CP decision may be available by way of judicial review where there is cause to question the procedure by which such a decision was reached.

Consultation responses
The Scottish Government has requested responses to the Consultation by Friday 6 May 2011 and aims to publish finalised guidance in Summer 2011.

To view the full Consultation document click here.

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