AC-2024-LON-001877 - [2025] EWHC 2132 (Admin)

In order to address these issues, it is necessary to refer to the relevant paragraphs in the CPO Guidance, in the terms in which they were promulgated at the date of the inspector’s decision.

The CPO Guidance consists of a series of parts or “tiers”. Tier 1 provides policy guidance in the form of an overview of the key stages of compulsory purchase process. Tier 2 provides more focused and detailed policy guidance on specific areas of administrative action in which powers of compulsory acquisition are likely to be exercised.

Tier 1 Stage 2 is headed “Justifying a compulsory purchase order”. Paragraph 12 states the well-established principle that a compulsory purchase order should only be made where there is a compelling case in the public interest. Paragraph 13 states that in determining whether to confirm a compulsory purchase order, the minister will need to be able to take a balanced view between the intentions of the acquiring authority, the concerns of those with an interest in the land that is subject to the proposed compulsory purchase and the wider public interest. The minister will consider each case on its merits and no particular degree of justification is to be taken to be required in any given case. The guidance continues –

“It is not essential to show that land is required immediately to secure the purpose for which it is to be acquired but a confirming minister will need to understand, and the acquiring authority must be able to demonstrate, that there are sufficiently compelling reasons for the powers to be sought at this time. If the acquiring authority does not:

•

have a clear idea of how it intends to use the land which it is proposing to acquire; and

•

cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale

it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making.”

The reader is then referred to the later section in Tier 2 of the CPO Guidance on the exercise of the compulsory purchase powers given by section 226 of the 1990 Act.

Paragraph 14 poses the question “What information about the resource implications of the proposed scheme does an acquiring authority need to provide?” and states –

“In preparing its justification for the compulsory purchase order, the acquiring authority should address:

a)

sources of funding – the acquiring authority should provide substantive information as to the sources of funding available for both acquiring the land and implementing the scheme for which the land is required. If the scheme is not intended to be independently financially viable, or the details cannot be finalised until there is certainty that the necessary land will be required, the acquiring authority should provide an indication of how any potential shortfalls are intended to be met. This should include:

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the degree to which other bodies (including the private sector) have agreed to make financial contributions or underwrite the scheme; and

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the basis on which the contributions or underwriting is to be made

b)

timing of that funding – funding should generally be available now or early in the process. Failing that, the confirming minister would expect funding to be available to complete the compulsory acquisition within the statutory period (see section 4 of the Compulsory Purchase Act 1965) following the operative date; and only in exceptional circumstances would it be reasonable to acquire land with little prospect of the scheme being implemented for a number of years.

Evidence should also be provided to show that sufficient funding could be made available immediately to cope with any acquisition resulting from a blight notice.”

Section 1 of Tier 2 of the CPO Guidance gives advice on exercising compulsory purchase powers under section 226 of the 1990 Act. Paragraph 106 describes the factors that the First Defendant will take into account in deciding whether to confirm a compulsory purchase order made under section 226(1)(a) of the 1990 Act -

“Any decision about whether to confirm an order made under section 226(1)(a) will be made on its own merits, but the factors which the Secretary of State can be expected to consider include:

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whether the purpose for which the land is being acquired fits in with the adopted Local Plan for the area or, where no such up to date Local Plan exists, with the draft Local Plan and the National Planning Policy Framework

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the extent to which the proposed purpose will contribute to the achievement of the promotion or improvement of the economic, social or environmental wellbeing of the area

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whether the purpose for which the local authority is proposing to acquire the land could be achieved by any other means. This may include considering the appropriateness of any alternative proposals put forward by the owners of the land, or any other persons, for its reuse. It may also involve examining the suitability of any alternative locations for the purpose for which the land is being acquired

•

the potential financial viability of the scheme for which the land is being acquired. A general indication of funding intentions, and of any commitment from third parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed. The greater the uncertainty about the financial viability of the scheme, however, the more compelling the other grounds for undertaking the compulsory purchase will need to be. The timing of any available funding may also be important. For example, a strict time limit on the availability of the necessary funding may be an argument put forward by the acquiring authority to justify proceeding with the order before finalising the details of the replacement scheme and/or the statutory planning position.”