Compulsory Purchase Reform in Scotland

There are currently several different options for implementing a CPO, some of which have multiple stages. Most CPOs are now implemented by a General Vesting Declaration (GVD). This is a single document which directly transfers ownership of the land to the acquiring authority. It covers all the land the authority wants to acquire at one time, which may include multiple owners. Compensation is settled after title is transferred.

We propose that in the new system there should be a single procedure for implementing CPOs, based on the GVD. We call this a Compulsory Purchase Vesting Declaration (CPVD).

Where a GVD or NTT includes only part of a piece of land, and losing that part has a negative impact on the remainder, the landowner can serve a notice requiring the authority to acquire the whole of the land. This is known as a ‘counter-notice’ or ‘notice of objection to severance’, depending on the circumstances.

The acquiring authority can either:

• agree to acquire the whole of the land
• decide not to acquire any of the land, or
• refer the notice to the Lands Tribunal for Scotland (LTS) to decide whether there is a negative impact on the remaining land

The test of whether there is a negative impact depends on the type of land: 

• for a “house, building or manufactory” the question is whether the part to be acquired can be taken “without material detriment” to the rest
• for “the park or garden of a house”, the question is whether it can be taken “without seriously affecting the amenity or convenience of the house”
• for agricultural land, the test is whether the land “is not reasonably capable of being farmed, either by itself or in conjunction with other relevant land, as a separate agricultural unit”

These categories may not cover all modern land uses, and the difference in the language of the tests is unhelpful. We are interested in views as to whether there should be a single test for all types of land, or a different categorisation – for example having different tests for commercial versus residential land.

Where a person serves a notice of objection to severance under a GVD, it prevents the GVD from transferring ownership of the relevant land to the acquiring authority, until the issue has been resolved. Sometimes the acquiring authority may feel it has to agree to acquire the extra land to avoid delaying the development, rather than taking the time to refer it to the LTS. However, at this stage the CPO has been confirmed, meaning it has been shown that the land is needed for the development, and it is in the public interest for the authority to acquire it. It has been suggested that the land included in the CPO could be transferred as usual, and negotiation over the remaining land could be dealt with afterwards, alongside compensation.  

At present, an acquiring authority has three years within which to implement a CPO.

This currently starts from the date on which the acquiring authority publishes notices of the confirmation of the order. This date also marks the beginning of the six week period within which the validity of the CPO can be challenged in the Court of Session.

However, there is no fixed period within which the notices have to be published, after the order is confirmed. We think a time limit could be helpful, and six weeks would be reasonable.

A GVD takes a minimum of 3 months from confirmation of the CPO to transfer of ownership. First a notice of intention to make a GVD has to be served, inviting anyone with an interest in the land to provide their details to the acquiring authority - this can be issued with the notice of confirmation. Two months have to be allowed before making the GVD. Twenty-eight days is then required between the GVD being made and the land and right of entry vesting in the acquiring authority.

For the proposed new single procedure (CPVD), we don't feel it is necessary to have a separate statutory period for people to provide their details. We propose that the CPVD should come into effect six weeks after it is made. Any notice of objection to severance would need to be made within that six week period. This is also the same six week period that people would have to challenge the confirmation of the CPO - if the CPVD is made immediately after confirmation.