Compulsory Purchase Reform in Scotland

Legislation sets out the form to be used for a CPO and the information to be provided. Guidance also recommends additional information that should accompany a CPO.  

Details of the requirements are provided at paragraphs 5.2 to 5.14 of the consultation paper. 

The Order must:

• set out relevant enabling powers authorising compulsory purchase
• specify the name of the acquiring authority
• state the title of the Order
• describe the purposes of the Order by reference to the Schedule of land

The Schedule describes, by reference to the Map, what interests are proposed to be acquired and identifies owners, lessees and occupiers.

The Map shows the boundaries of each numbered plot, with sufficient detail to enable the land to be identified on an Ordnance Survey map and to relate it to the description in the Schedule.

We propose in chapter 4 to enable acquiring authorities to create new rights in land and take temporary possession of land. If such powers are taken forward, we think these should be listed in separate schedules.

The Statement of Reasons sets out the justification for the proposed acquisition and why it is in the public interest.

The General Certificate identifies who has been notified and confirms that the procedure has been followed correctly.

The Protected Assets and Special Category Land Certificate indicates whether certain heritage assets would be affected by the CPO scheme, and whether any special category land is proposed to be acquired (see paragraph 6.42 of the consultation paper).

As these documents are non-statutory, it is not a legal requirement for CPOs to be accompanied by them, but guidance (Circular 6/2011) encourages acquiring authorities to include them. It is likely to be in the acquiring authority’s interest to submit supporting material which serves the same purpose as these non-statutory documents, even if this has a different title and/or uses a different format. For example, an acquiring authority will need to explain its justification for a CPO even if this is not done via a Statement of Reasons.

We are not aware of any particular calls for them to be placed on a statutory footing, but since they are generally provided it would not necessarily make the process more onerous.

Before submitting a CPO for confirmation, the acquiring authority must publicise their intention to do so and notify those affected, giving them the opportunity to object. People who must be notified are called "statutory objectors", because if they make an objection which is not withdrawn, there must be a hearing or inquiry before the CPO can be confirmed.

The procedures for notifying people and advertising the CPO are set out in primary legislation, which makes it more difficult to change them and to keep up with modern communication methods. 

We don't think the list of who should be notified needs major changes. But we propose it should be set out in secondary legislation, so it can be changed more easily if necessary.

The current list is:

(i) every owner, lessee and occupier (except tenants for a month or for any period less than a month)

(ii) the holder of any personal real burden affecting the land

(iii) the owner of any land which is a benefited property, and

(iv) any owners’ association of the development in question

It has been suggested that heritable creditors (mortgage lenders) should be added, since the CPO will extinguish all securities over the property. On the other hand, the conditions of the security will normally require the borrower to inform the lender of any prospective CPO.

Giving heritable creditors the status of a statutory objector (so that there has to be a hearing or inquiry if they make an objection) may not be proportionate. It might be appropriate to establish a new category of persons to be notified but who would not qualify as statutory objectors.

The legislation governing compulsory purchase in Scotland dates from a pre-digital age. Many of the procedural requirements envisage paper-based communication, in-person meetings and inspection of physical documentation in specific locations such as libraries or council offices.

Digitisation of the compulsory purchase system could improve access to information, streamline procedures and facilitate improved engagement between parties. However, it is important to recognise that access to digital technology varies and care will need to be taken not to widen the ‘digital divide’.

Common data standards are important to enable systems to work together. We propose that Scottish Ministers should have a power to set such standards for compulsory purchase in Scotland. These would be prescribed through secondary legislation, so they can be adjusted as technologies change.

The compulsory purchase system requires a range of notices and documents to be served on different parties at various stages of the process. The Acts generally expect these to be delivered by post, by hand or by being left at the relevant property.

We want to allow for these notices to be sent electronically, where people agree to this. It could not be used in all cases, because some people do not have internet access. A person would have to agree in writing and give an email address to receive the notices.