Compulsory Purchase Reform in Scotland

After considering the merits of a CPO, the decision-taker can confirm or refuse the Order, or may confirm it with modifications. This option  can be used to deal with minor mistakes or changes of circumstances. 

At present, modification takes place at the end of the process, when the CPO is confirmed. The acquiring authority may agree to a modification at an earlier stage, to address an objection. However, until the CPO is confirmed with that modification, the statutory objector may maintain their objection, and still have a right to be heard. This could cause delay and unnecessary cost by requiring a hearing or PLI.

We would be interested in views on how an acquiring authority could address concerns formally during the confirmation process.  There could be different ways to achieve this, for example:

• allow the acquiring authority to give specific written undertakings as to how they will address statutory objections. This can already be done for some objectors, but not owners, lessees or occupiers of the land
• allow the acquiring authority to modify the CPO during the confirmation process, to remove land or make minor corrections

Any such mechanism would not allow additional land to be included in a CPO without the owner being notified and having the opportunity to object. We would also need to consider the issue of expenses incurred in relation to hearings or PLIs that are cancelled or curtailed.

Compulsory purchase is often one part of a wider development project, which may involve various consents, funding arrangements and dependencies. The public interest test for CPOs considers whether funds are in place and whether planning permission and other consents have been secured. While this can be flexible, other partners may want to wait until the CPO is in place before confirming their contributions, which can lead to a "chicken and egg" situation.

A possible solution could be to allow CPOs to be confirmed subject to conditions. This would mean the three-year period for implementing the CPO would not start until conditions had been complied with, such as securing funding or other consent. This might help to reduce risk and support delivery of projects.

There may be potential drawbacks to this approach. Procedures would need to be put in place to discharge conditions, including opportunities for those affected to make representations. Delaying the start of the implementation period could also prolong the uncertainty for owners and occupiers.

Both acquiring authorities and affected landowners / occupiers would like the CPO confirmation process to be swifter. It is not clear whether statutory time limits would be helpful. They might mean that issues are not properly considered, or lead to CPOs being refused.

It is also not clear what sanctions would be effective. It would be unfair to acquiring authorities if all CPOs were deemed to be refused if no decision was taken in time, and unfair to owners / occupiers if they were deemed to be confirmed. 

Instead of statutory time limits, we therefore propose the Scottish Government should publish target timescales for deciding CPOs. There should also be a requirement to report on whether timescales are being met.

Depending on other proposals within this consultation, separate targets may be required for CPOs decided in different ways, for example whether objections are considered by PLI, hearing or written representations.  

In summary, an aggrieved person may apply to the Court of Session to challenge the validity of a CPO on the grounds that either: the confirmation is ultra vires (outside the scope of legal powers), or the person bringing the challenge has been prejudiced by a failure to follow the relevant statutory procedures.

We propose that the substance of these grounds should be retained, although the wording might be clarified.

Legal challenges to the validity of a confirmed CPO must be brought within 6 weeks of the date when notices of the confirmation of a CPO are published. This is in line with other similar regimes and we do not propose to change it.

Where a challenge is successful, the court may quash (cancel) the CPO in whole or in part. If the whole Order is quashed, the acquiring authority would have to start the entire process again. In some cases, for example where some procedure has not been followed correctly, this may be more than is necessary to fix the problem. If the court could quash just the confirmation decision, the confirming authority could just go back to the part of the process where there was a problem.