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Town and Country Planning (Scotland) Act 1997

Status:

This is the original version (as it was originally enacted).

Chapter IInterests Affected by Planning Decisions or Orders

Service of purchase notices

88Circumstances in which purchase notices may be served

(1)This section applies where—

(a)on an application for planning permission to develop any land, permission is refused or is granted subject to conditions,

(b)by an order under section 65 planning permission in respect of any land is revoked, or is modified by the imposition of conditions, or

(c)an order is made under section 71 or paragraph 1 of Schedule 8 in respect of any land.

(2)If—

(a)in the case mentioned in subsection (1)(a) or (b), any owner or lessee of the land claims that the conditions mentioned in subsection (3) are satisfied with respect to it, or

(b)in the case mentioned in subsection (1)(c), any person entitled to an interest in land in respect of which the order is made claims that the conditions mentioned in subsection (4) are satisfied with respect to it,

he may, within the prescribed time and in the prescribed manner, serve on the planning authority in whose district the land is situated a notice (in this Act referred to as “a purchase notice”) requiring that authority to purchase his interest in the land in accordance with this Chapter.

(3)The conditions mentioned in subsection (2)(a) are—

(a)that the land has become incapable of reasonably beneficial use in its existing state,

(b)in a case where planning permission was granted subject to conditions or was modified by the imposition of conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions, and

(c)in any case, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which planning permission has been granted or for which the planning authority or the Secretary of State has undertaken to grant planning permission.

(4)The conditions mentioned in subsection (2)(b) are—

(a)that by reason of the order the land is incapable of reasonably beneficial use in its existing state, and

(b)that it cannot be rendered capable of reasonably beneficial use by the carrying out of any development for which planning permission has been granted, whether by that order or otherwise.

(5)For the purposes of subsection (1)(a) and any claim arising in the circumstances mentioned in that subsection, the conditions referred to in sections 58 and 59 shall be disregarded.

(6)A person on whom a repairs notice has been served under section 43 of the [1997 c. 9.] Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 shall not be entitled to serve a purchase notice in the circumstances mentioned in subsection (1)(a) in respect of the building in question—

(a)until the expiration of 3 months beginning with the date of the service of the repairs notice, and

(b)if during that period the compulsory acquisition of the building is begun in the exercise of powers under section 42 of that Act, unless and until the compulsory acquisition is discontinued.

(7)For the purposes of subsection (6) a compulsory acquisition—

(a)is started when the notice required by paragraph 3(b) of Schedule 1 to the [1947 c. 42.] Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 is served, and

(b)is discontinued—

(i)in the case of acquisition by the Secretary of State, when he decides not to make the compulsory purchase order, and

(ii)in any other case, when the order is withdrawn or the Secretary of State decides not to confirm it.

(8)No purchase notice shall be served in respect of an interest in land while the land is incapable of reasonably beneficial use by reason only of such an order as is mentioned in subsection (1)(c), except by virtue of a claim under subsection (2)(b).

89Circumstances in which land incapable of reasonably beneficial use

Where, for the purpose of determining whether the conditions specified in section 88(3) or (4) are satisfied in relation to any land, any question arises as to what is or would in any particular circumstances be a reasonably beneficial use of that land, then, in determining that question for that purpose, no account shall be taken of any prospective development other than any development specified in paragraph 1 or 2 of Schedule 11.

Duties of authorities on service of purchase notice

90Action by planning authority on whom purchase notice is served

(1)The planning authority on whom a purchase notice is served shall serve on the owner or lessee by whom the purchase notice was served a notice (a “response notice”) stating—

(a)that the planning authority are willing to comply with the purchase notice,

(b)that another local authority or statutory undertakers specified in the response notice have agreed to comply with it in their place, or

(c)that for reasons so specified the planning authority are not willing to comply with the purchase notice and have not found any other local authority or statutory undertakers who will agree to comply with it in their place, and that they have sent the Secretary of State a copy of the purchase notice and of the response notice.

(2)A response notice must be served before the end of the period of 3 months beginning with the date of service of the purchase notice.

(3)Where the planning authority on whom a purchase notice is served by an owner or lessee have served a response notice on him in accordance with subsection (1)(a) or (b), the planning authority or, as the case may be, the other local authority or statutory undertakers specified in the response notice shall be deemed—

(a)to be authorised to acquire the interest of the owner or lessee compulsorily in accordance with the relevant provisions, and

(b)to have served a notice to treat in respect of it on the date of service of the response notice.

(4)Where the planning authority propose to serve such a response notice as is mentioned in subsection (1)(c), they must first send the Secretary of State a copy—

(a)of the proposed response notice, and

(b)of the purchase notice.

(5)Where the planning authority on whom a purchase notice is served by an owner or lessee do not serve a response notice on him before the end of the period mentioned in subsection (2)—

(a)the purchase notice shall be deemed to be confirmed at the end of that period, and

(b)subsection (3) shall apply as if the authority had served a response notice on him on the last day of that period.

(6)A notice to treat which is deemed to have been served by virtue of subsection (3)(b) or (5)(b) may not be withdrawn under section 39 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963.

91Procedure on reference of purchase notice to Secretary of State

(1)Where a copy of a purchase notice is sent to the Secretary of State under section 90(4), he shall consider whether to confirm the notice or to take other action under section 92 in respect of it.

(2)Before confirming a purchase notice or taking such other action, the Secretary of State shall give notice of his proposed action—

(a)to the person who served the purchase notice,

(b)to the planning authority on whom it was served, and

(c)if the Secretary of State proposes to substitute any other local authority or statutory undertakers for the planning authority on whom the notice was served, to them.

(3)A notice under subsection (2) shall specify the period (which must not be less than 28 days from its service) within which any of the persons, authorities or statutory undertakers on whom it is served may require the Secretary of State to give them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(4)If within that period any of those persons, authorities or statutory undertakers so require, the Secretary of State shall, before he confirms the purchase notice or takes any other action under section 92 in respect of it, give each of them such an opportunity.

(5)If, after any of those persons, authorities or statutory undertakers have appeared before and been heard by the appointed person, or the persons, authorities and undertakers concerned have agreed to dispense with a hearing, it appears to the Secretary of State to be expedient to take action under section 92 otherwise than in accordance with the notice given by him, the Secretary of State may take that action accordingly.

92Action by Secretary of State in relation to purchase notice

(1)Subject to the following provisions of this section and to section 93(3), if the Secretary of State is satisfied that the conditions specified in subsection (3) or, as the case may be, subsection (4) of section 88 are satisfied in relation to a purchase notice, he shall confirm the notice.

(2)If it appears to the Secretary of State to be expedient to do so, he may, instead of confirming the purchase notice—

(a)in the case of a notice served on account of the refusal of planning permission, grant planning permission for the development in question;

(b)in the case of a notice served on account of planning permission for development being granted subject to conditions, revoke or amend those conditions so far as appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of that development;

(c)in the case of a notice served on account of the revocation of planning permission by an order under section 65, cancel the order;

(d)in the case of a notice served on account of the modification of planning permission by such an order by the imposition of conditions, revoke or amend those conditions so far as appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of the development in respect of which the permission was granted; or

(e)in the case of a notice served on account of the making of an order under section 71 or paragraph 1 of Schedule 8, revoke the order or, as the case may be, amend the order so far as appears to him to be required in order to prevent the land from being rendered incapable of reasonably beneficial use by the order.

(3)If it appears to the Secretary of State that the land, or any part of the land, to which the purchase notice relates could be rendered capable of reasonably beneficial use within a reasonable time by the carrying out of any other development for which planning permission ought to be granted, he may, instead of confirming the purchase notice or, as the case may be, of confirming it so far as it relates to that part of the land, direct that, if an application for planning permission for that development is made, it must be granted.

(4)If it appears to the Secretary of State to be expedient that another local authority or statutory undertakers should acquire the interest of the owner or lessee for the purpose of any of their functions, he may, if he confirms the notice, modify it, in relation to either the whole or any part of the land to which the purchase notice relates, by substituting another local authority or statutory undertakers for the planning authority on whom the notice was served.

(5)Any reference in section 91 to the taking of action by the Secretary of State under this section includes a reference to the taking by him of a decision not to confirm the purchase notice either on the grounds that any of the conditions referred to in subsection (1) are not satisfied or by virtue of section 93.

93Power to refuse to confirm purchase notice where land has restricted use by virtue of previous planning permission

(1)This section applies where a purchase notice is served in respect of land which consists in whole or in part of land which has a restricted use by virtue of an existing planning permission.

(2)For the purposes of this section, land is to be treated as having a restricted use by virtue of an existing planning permission if it is part of a larger area in respect of which planning permission has previously been granted (and has not been revoked) and either—

(a)it remains a condition of the planning permission (however expressed) that that part shall remain undeveloped or be preserved or laid out in a particular way as amenity land in relation to the remainder, or

(b)the planning permission was granted on an application which contemplated (expressly or by necessary implication) that the part should not be comprised in the development for which planning permission was sought, or should be preserved or laid out as mentioned in paragraph (a).

(3)Where a copy of the purchase notice is sent to the Secretary of State under section 90(4), although satisfied that the land has become incapable of reasonably beneficial use in its existing state, he need not confirm the notice under section 92(1) if it appears to him that the land having a restricted use by virtue of an existing planning permission ought, in accordance with that permission, to remain undeveloped or, as the case may be, remain or be preserved or laid out as amenity land in relation to the remainder of the large area for which that planning permission was granted.

94Effect of Secretary of State’s action in relation to purchase notice

(1)Where the Secretary of State confirms a purchase notice—

(a)the planning authority on whom the purchase notice was served, or

(b)if under section 92(4) the Secretary of State modified the purchase notice by substituting another local authority or statutory undertakers for that planning authority, that other authority or those undertakers,

shall be deemed to be authorised to acquire the interest of the owner or lessee compulsorily in accordance with the relevant provisions, and to have served a notice to treat in respect of it on such date as the Secretary of State may direct.

(2)If, before the end of the relevant period, the Secretary of State has neither—

(a)confirmed the purchase notice, nor

(b)taken any such action in respect of it as is mentioned in section 92(2) or (3), nor

(c)notified the owner or lessee by whom the notice was served that he does not propose to confirm the notice,

the notice shall be deemed to be confirmed at the end of that period, and the authority on whom the notice was served shall be deemed to be authorised as mentioned in subsection (1) and to have served a notice to treat in respect of the owner’s interest at the end of that period.

(3)Subject to subsection (4), for the purposes of subsection (2) the relevant period is the period of 6 months beginning with the date on which a copy of the purchase notice was sent to the Secretary of State.

(4)The relevant period does not run if the Secretary of State has before him at the same time both—

(a)a copy of the purchase notice sent to him under section 90(4), and

(b)a notice of appeal under section 47, 130 or 154 of this Act or under section 18 or 35 of the [1997 c. 9.] Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (appeals against refusal of listed building consent, etc. and appeals against listed building enforcement notices) or under section 19 of the [1997 c. 10.] Planning (Hazardous Substances) (Scotland) Act 1997 (appeals against decisions and failure to take decisions relating to hazardous substances) relating to any of the land to which the purchase notice relates.

(5)Where—

(a)the Secretary of State has notified the owner or lessee by whom a purchase notice has been served of a decision on his part to confirm, or not to confirm, the notice, and

(b)that decision is quashed under Part XI,

the purchase notice shall be treated as cancelled, but the owner or lessee may serve a further purchase notice in its place.

(6)The reference in subsection (5) to a decision to confirm, or not to confirm, the purchase notice includes—

(a)any decision not to confirm the notice in respect of any part of the land to which it relates, and

(b)any decision to grant any permission, or give any direction, instead of confirming the notice, in respect of any part (or the whole) of the land to which it relates.

(7)For the purposes of determining whether a further purchase notice under subsection (5) was served within the period prescribed for the service of purchase notices, the planning decision in consequence of which the notice was served shall be treated as having been made on the date on which the decision of the Secretary of State was quashed.

(8)A notice to treat which is deemed to have been served by virtue of subsection (1) or (2) may not be withdrawn under section 39 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963.

Compensation

95Special provisions as to compensation where purchase notice served

(1)Where compensation is payable by virtue of section 76 in respect of expenditure incurred in carrying out any work on land, any compensation payable in respect of the acquisition of an interest in the land in pursuance of a purchase notice shall be reduced by an amount equal to the value of those works.

(2)Where—

(a)the Secretary of State directs under section 92(3) that, if an application for it is made, planning permission must be granted for the development of any land, and

(b)on a claim made to the planning authority within the prescribed time and in the prescribed manner, it is shown that the permitted development value of the interest in that land in respect of which the purchase notice was served is less than its Schedule 11 value,

the planning authority shall pay the person entitled to that interest compensation of an amount equal to the difference.

(3)If the planning permission mentioned in subsection (2)(a) would be granted subject to conditions for regulating the design or external appearance, or the size or height of buildings, or for regulating the number of buildings to be erected on the land, the Secretary of State may direct that in assessing any compensation payable under subsection (2) those conditions must be disregarded, either altogether or to such extent as may be specified in the direction.

(4)The Secretary of State may give a direction under subsection (3) only if it appears to him to be reasonable to do so having regard to the local circumstances.

(5)Sections 86 and 87 shall have effect in relation to compensation under subsection (2) as they have effect in relation to compensation to which those sections apply.

(6)In this section—

  • “permitted development value”, in relation to an interest in land in respect of which a direction is given under section 92(3), means the value of that interest calculated with regard to that direction, but on the assumption that no planning permission would be granted otherwise than in accordance with that direction, and

  • “Schedule 11 value”, in relation to such an interest, means the value of that interest calculated on the assumption that planning permission would be granted—

    (a)

    subject to the conditions set out in Schedule 12, for any development of a class specified in paragraph 1 of Schedule 11, and

    (b)

    for any development of a class specified in paragraph 2 of Schedule 11.

(7)Where a purchase notice in respect of an interest in land is served in consequence of an order under section 71 or paragraph 1 of Schedule 8, then if—

(a)that interest is acquired in accordance with this Chapter, or

(b)compensation is payable in respect of that interest under subsection (2),

no compensation shall be payable in respect of that order under section 83.

Special provisions for requiring purchase of whole of partially affected agricultural unit

96Counter-notice requiring purchase of remainder of agricultural unit

(1)This section applies where—

(a)an acquiring authority is deemed under this Chapter to have served notice to treat in respect of any agricultural land on a person (“the claimant”) who has a greater interest in the land than as tenant for a year or from year to year (whether or not he is in occupation of the land), and

(b)the claimant has such an interest in other agricultural land (“the unaffected area”) comprised in the same agricultural unit as that to which the notice relates.

(2)Where this section applies the claimant may serve on the acquiring authority a counter-notice—

(a)claiming that the unaffected area is not reasonably capable of being farmed, either by itself or in conjunction with other relevant land, as a separate agricultural unit, and

(b)requiring the acquiring authority to purchase his interest in the whole of the unaffected area.

(3)Subject to subsection (4), “other relevant land” in subsection (2) means—

(a)land which is comprised in the same agricultural unit as the land to which the notice to treat relates and in which the claimant does not have such an interest as is mentioned in subsection (1), and

(b)land which is comprised in any other agricultural unit occupied by the claimant on the date on which the notice to treat is deemed to have been served and in respect of which he is then entitled to a greater interest than as tenant for a year or from year to year.

(4)Where a notice to treat has been served or is deemed under this Chapter or Schedule 15 to have been served in respect of any of the unaffected area or in respect of other relevant land as defined in subsection (3), then, unless and until the notice to treat is withdrawn, this section and section 97 shall have effect as if that land did not form part of the unaffected land or, as the case may be, did not constitute other relevant land.

(5)Where a counter-notice is served under subsection (2) the claimant shall also serve a copy of it on any other person who has an interest in the unaffected area (but failure to comply with this subsection shall not invalidate the counter-notice).

(6)A counter-notice under subsection (2) and any copy of that notice required to be served under subsection (5) must be served within the period of 2 months beginning with the date on which the notice to treat is deemed to have been served.

(7)This section is without prejudice to the rights conferred by sections 91 and 92 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845 (provisions as to divided land).

97Effect of counter-notice under section 96

(1)If the acquiring authority do not within the period of 2 months beginning with the date of service of a counter-notice under section 96 agree in writing to accept the counter-notice as valid, the claimant or the authority may, within 2 months after the end of that period, refer it to the Lands Tribunal.

(2)On such a reference the Lands Tribunal shall determine whether the claim in the counter-notice is justified and declare the counter-notice valid or invalid accordingly.

(3)Where a counter-notice is accepted as valid under subsection (1) or declared to be valid under subsection (2), the acquiring authority shall be deemed—

(a)to be authorised to acquire compulsorily the interest of the claimant in the land to which the requirement in the counter-notice relates under the same provision of this Chapter as they are authorised to acquire the other land in the agricultural unit in question, and

(b)to have served a notice to treat in respect of that land on the date on which notice to treat is deemed to have been served under that provision.

(4)A claimant may withdraw a counter-notice at any time before the compensation payable in respect of a compulsory acquisition in pursuance of the counter-notice has been determined by the Lands Tribunal or at any time before the end of 6 weeks beginning with the date on which it is determined.

(5)Where a counter-notice is withdrawn by virtue of subsection (4) any notice to treat deemed to have been served in consequence of it shall be deemed to have been withdrawn.

(6)Without prejudice to subsection (5), a notice to treat deemed to have been served by virtue of this section may not be withdrawn under section 39 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963.

(7)The compensation payable in respect of the acquisition of an interest in land in pursuance of a notice to treat deemed to have been served by virtue of this section shall be assessed on the assumptions mentioned in section 5(2), (3) and (4) of the [1973 c. 56.] Land Compensation (Scotland) Act 1973.

(8)Where by virtue of this section the acquiring authority become or will become entitled to a lease of any land but not to the interest of the lessor—

(a)the authority shall offer to renounce the lease to the lessor on such terms as the authority consider reasonable,

(b)the question of what is reasonable may be referred to the Lands Tribunal by the authority or the lessor and, if at the expiration of the period of 3 months after the date of the offer mentioned in paragraph (a) the authority and the lessor have not agreed on the question and that question has not been referred to the Tribunal by the lessor, it shall be so referred by the authority, and

(c)if that question is referred to the Tribunal, the lessor shall be deemed—

(i)to have accepted the renunciation of the lease at the expiry of one month after the date of the determination of the Tribunal or on such other date as the Tribunal may direct, and

(ii)to have agreed with the authority on the terms of surrender which the Tribunal has held to be reasonable.

(9)For the purposes of subsection (8) any terms as to renunciation contained in the lease shall be disregarded.

(10)Where the lessor—

(a)refuses to accept any sum payable to him by virtue of subsection (8), or

(b)refuses or fails to make out his title to the satisfaction of the acquiring authority,

they may pay into the bank within the meaning of section 3 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845 any such sum payable to the lessor and sections 75, 76, 77 and 79 of that Act shall apply to that sum with the necessary modifications.

(11)Where an acquiring authority who become entitled to the lease of any land as mentioned in subsection (8) are a body incorporated by or under any enactment, the corporate powers of the authority shall, if they would not otherwise do so, include the power to farm that land.

98Provisions supplemental to sections 96 and 97

(1)Sections 96 and 97 apply in relation to the acquisition of interests in land by government departments which possess compulsory purchase powers as they apply in relation to the acquisition of interests in land by authorities who are not government departments.

(2)In sections 96 and 97—

  • “acquiring authority” has the same meaning as in the [1963 c. 51.] Land Compensation (Scotland) Act 1963;

  • “agricultural” and “agricultural land” have the meaning given in section 86 of the [1948 c. 45.] Agriculture (Scotland) Act 1948 and references to the farming of land include references to the carrying on in relation to the land of any agricultural activities;

  • “agricultural unit” has the meaning given in section 122(1); and

  • “government departments which possess compulsory purchase powers” means government departments being authorities possessing compulsory purchase powers within the meaning of the [1963 c. 51.] Land Compensation (Scotland) Act 1963.

Supplemental

99Interpretation of Chapter I

(1)In this Chapter—

  • “the relevant provisions” means—

    (a)

    the provisions of Part VIII, or

    (b)

    in the case of statutory undertakers, any statutory provision (however expressed) under which they have power, or may be authorised, to purchase land compulsorily for the purposes of their undertaking; and

  • “statutory undertakers” includes public telecommunications operators.

(2)In the case of a purchase notice served by such a person as is mentioned in subsection (2)(b) of section 88, references in this Chapter to the owner or lessee of the land include references to that person unless the context otherwise requires.

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