With the transition to greener energy and the trend for larger-scale renewable developments, projects are getting more complex.

While the UK Government does not actively encourage the use of compulsory purchase orders (CPOs) to advance schemes considered vital, it is very clear that interests in land should not preclude the wider renewable development market.

Meanwhile in Scotland, a patchwork system of CPO legislation is undergoing a review. Here, some acquiring authorities have the ability to acquire these subsidiary rights in land while others do not. With no underlying policy reason for this inconsistency, the Scottish Government’s consultation on CPO reform proposes the introduction of three new general powers which could, in principle, be exercised by all acquiring authorities:

•             the general power to create new rights in land;

•             the general power of temporary possession; and

•             the general power to enter land prior to a CPO.

Interested parties can respond to the Scottish proposals here until 19 December. 

CPOs have long been seen as a last-ditch measure as they involve the mandatory transfer of property rights. Recently, developers have shown a growing interest in these powers, which are conferred upon them by the Electricity Act.

Given the importance of large-scale renewable developments both on- and off-shore, the use of CPO is justified where there are multiple land interests to be negotiated that would take a number of years to settle if carried out by voluntary means. Obtaining and using CPO powers enables the developers to “turbo-charge” the timescale, reduce risk significantly and lead to clarity in the development timescale for their projects.

Of course this almost certainly means financial and other cost to landowners – they may find themselves subject to what appears to be an aggressive approach by developers and their agents. Owners often find themselves in initial discussions about temporary works being done on their land, or traffic passing through it, then receive a compulsory purchase notice.

Understandably, this can be alarming to landowners, particularly when only a limited amount of progress has be made in seeking to agree commercial terms with the developer.

The use of CPOs is well established for nationally important infrastructure such as roads and water installations, and they were used extensively in the post-war period for slum clearance. Having then fallen out of favour for a period, they are now used more frequently.

Should any party be in receipt of a CPO notice, it is important not to panic, but rather seek expert professional advice, as the time between the receipt of notice and the deadline for lodging an objection to the notice can be quite short – usually about one month.

The promoter, or ‘acquiring authority’ of the CPO – typically a developer – must follow a specific pathway that is highly regulated and formulaic. Depending on the precise circumstances, it is generally better to seek a negotiated outcome than to resist a CPO. The ultimate power to determine compensation rights and other matters rests with the Lands Tribunal for Scotland and the High Court in England and Wales.

That said, bringing to bear a robust objection to a CPO is an important negotiating tool in reaching a negotiated settlement acceptable to all, and should not be overlooked.

While the balance of power may rest with the acquiring authority, as reported previously in Energy Matters the acquiring authority cannot ride roughshod over land and indeed personal interests.