Purchase notices when land becomes incapable of use
The purchase notice test compares the land with its existing state, not with its value had permission been granted, which is why most notices fail at the first hurdle.
A purchase notice in planning is the remedy of last resort for an owner whose land has been rendered useless by a planning decision. Serve one successfully and the council is obliged to buy the land at its value. Serve one on the wrong facts, which is what usually happens, and you have spent a year establishing that your field is still a field.
The test in section 137 of the Town and Country Planning Act 1990 is narrow and it is not about value. Understanding why is the whole of this subject.
What a purchase notice does
Where planning permission is refused, or granted subject to conditions, the owner may serve a notice on the council requiring it to purchase the land. If the notice is accepted or confirmed, the authority is deemed to be authorised to acquire the land compulsorily and to have served a notice to treat, so the acquisition proceeds through the compensation code in the ordinary way.
The effect is unusual in English planning law. Most planning decisions carry no compensation at all: a refusal simply leaves you with the land you had. A purchase notice is one of the few routes by which a decision converts into a payment.
That is why the threshold is set high.
The incapable of reasonably beneficial use test
The owner must claim that the land, in its existing state, is incapable of reasonably beneficial use, and that it cannot be rendered capable of reasonably beneficial use by carrying out any development for which permission has been granted or which the authority has undertaken to grant.
Three points decide most cases.
The comparison is with the land's existing state, not with what it would be worth if the refused scheme had been permitted. A paddock refused permission for four houses is worth far less than it would have been with consent, and remains perfectly capable of reasonably beneficial use as a paddock. That is the answer in the overwhelming majority of attempted notices.
Reasonably beneficial use does not mean profitable use, and certainly does not mean the most profitable use. Grazing, storage, amenity land attached to a dwelling, woodland: all are capable of being reasonably beneficial uses even where the return is small.
And the use must be beneficial to the owner as owner of that land, judged objectively. A personal inability to make use of it, through age, health or lack of capital, does not make the land incapable of use.
Which decisions give rise to the right
| Trigger | Where it comes from | Practical frequency |
|---|---|---|
| Refusal of planning permission | Part VI of the Town and Country Planning Act 1990 | The common trigger, rarely successful |
| Permission granted subject to conditions | Same | Where conditions sterilise the land |
| Revocation or modification of a permission | Part VI, alongside the compensation provisions | Rare, and compensation is usually the better route |
| Discontinuance order | Part VI | Rare |
| Refusal of listed building consent | Section 32 of the Planning (Listed Buildings and Conservation Areas) Act 1990 | The most realistic use of the remedy |
| Refusal of consent under a tree preservation order or advertisement control | The relevant regulations | Occasional |
The listed building route deserves a note. A listed building purchase notice operates on a similar test, adapted to the fact that the building must be preserved. It is the more realistic application of the remedy, because a refusal of consent to demolish or substantially alter a redundant listed structure really can leave an owner with no use for it.
Blight notices are a different creature entirely. They arise where land is affected by a proposed public scheme, not by a planning refusal, and the qualifying conditions and procedure are separate.
Serving the notice and the council's response
The notice is served on the district or borough council within twelve months of the decision that triggered it. That period is not extendable in practice, so a refusal that is going to lead to a notice needs the decision taken quickly.
The council then has three months to respond with a counter-notice. It may state that it accepts the notice, that another authority or statutory undertaker has agreed to accept it instead, or that it does not accept it and has referred the matter to the Secretary of State with a statement of its reasons.
Most counter-notices take the third form.
What happens on referral
On referral the Secretary of State may confirm the notice, refuse to confirm it, grant planning permission for the refused development, modify the conditions imposed, or direct that permission be granted for some other development. There is provision for the notice to be treated as confirmed where the Secretary of State does not act within the periods the Act prescribes, so check the current provisions rather than assuming indefinite delay.
An inquiry or hearing is usual where the matter is contested, and the authority will normally argue that a reasonably beneficial use remains available. Expect the burden to sit firmly on the owner.
Evidence needed to support a notice
Assemble this before serving, not afterwards.
- A description of the land's existing physical state, with photographs and a measured plan.
- Evidence of every use the land could lawfully be put to in its existing state, and why each is not reasonably beneficial.
- Marketing evidence, where the argument is that nobody will take the land on any terms.
- Professional valuation evidence addressing existing use value, prepared by a suitably qualified valuer.
- The planning history, including any permissions that remain extant or that the authority has undertaken to grant.
- For a listed building, a condition survey and a costed schedule of repairs.
The valuation work belongs in a Viability Assessment prepared by a professional the council can test, and the planning history and policy analysis in a Planning Statement. Both will be scrutinised closely, because the authority is being asked to spend public money.
Why so few succeed, and the alternatives
The remedy fails because most land retains some use. Agricultural land refused housing is still agricultural. A garden refused an annexe is still a garden. Land severed by a road scheme may qualify for a blight notice instead. Only where the physical characteristics of the land, or a heritage constraint, remove every use does the test bite.
Before serving, consider the alternatives in order: appeal the refusal to the Planning Inspectorate, apply for a different and more modest scheme, seek to vary the offending condition under section 73, or where the council has simply failed to decide, pursue the non-determination and deemed refusal appeal route. Each is quicker and costs less than a contested purchase notice.
One honest observation. The value of a purchase notice is sometimes as much in the negotiation it opens as in its confirmation, because a council facing a credible notice on a site that really is sterilised may find a workable permission it had not previously offered.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Browse the 66 report types to see what evidence a planning case of this kind usually needs.
Frequently asked questions
What is a purchase notice?
A notice served on the council under Part VI of the Town and Country Planning Act 1990 requiring it to purchase land that has become incapable of reasonably beneficial use following a refusal of permission or the imposition of conditions. If confirmed, the authority is deemed authorised to acquire the land and compensation follows the ordinary code.
Does a loss of development value qualify?
No. The comparison is with the land in its existing state, not with what it would be worth had the refused scheme been permitted. A field refused housing remains capable of reasonably beneficial use as a field, and that answer defeats the majority of notices before any other issue is reached.
How long do I have to serve one?
Twelve months from the decision that triggers the right. The period is not extendable in practice, so the decision whether to serve has to be taken quickly after a refusal, alongside the decision whether to appeal. Assemble the valuation and existing use evidence before serving rather than afterwards.
What does the council do when it receives one?
It has three months to serve a counter-notice. It may accept the notice, state that another authority or statutory undertaker will accept it, or refuse to accept it and refer the matter to the Secretary of State with reasons. Referral is the usual response in contested cases.
Is a blight notice the same thing?
No. A blight notice arises where land is affected by a proposed public scheme rather than by a planning refusal, and has its own qualifying conditions, categories of qualifying interest and procedure. Owners affected by a road or rail proposal should look at the blight provisions instead.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.