Compulsory Purchase Reform in Scotland

Closes 19 Dec 2025

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Chapter 6 - Deciding a CPO - Decisions

CPO decision-taking involves weighing the public benefits of the acquiring authority's proposals against the private interests of the people affected.  For a CPO to be confirmed, the decision-taker must be satisfied that it is proportionate and will deliver outcomes in the public interest, that would not be realised without acquiring the person's property. 

This part of chapter 6 of the consultation paper deals with:

  • how CPOs are decided
  • who takes CPO decisions
  • special category land

More information

The public interest test is policy-based rather than statutory. Key considerations are set out in Circular 6/2011, and are summarised at paragraph 6.25 in the consultation paper. These considerations can be applied flexibly taking account of the individual circumstances of each case. We consider that the current policies provide a fair and reasonable balance and do not need to be changed. The policy based approach also provides flexibility. We are open to any improvements to the guidance, which can be considered as the reform programme moves forwards.

All decisions as to whether to confirm CPOs are currently taken by Scottish Ministers. The consultation paper considers whether there are circumstances in which other parties could make these decisions, which might streamline the process. Acquiring authorities might be allowed to confirm CPOs where there are no objections. Where there are objections, DPEA Reporters might be authorised to make decisions, as they do for planning appeals. Ministers would still be able to recall cases to make the decison themselves.

Additional procedures are required where "special category land" is included in a CPO - land which is owned by a local authority or statutory undertaker, held inalienably by the National Trust for Scotland, or forms part of a common or open space. In some circumstances, these CPOs have to be scrutinised by the Scottish Parliament before they are confirmed. These rules are complex, and it is not always clear why they apply to some CPOs and not others. We think these requirements could be simplified. We also propose to streamline procedures where public rights of way are involved.

31. Does the public interest test, as currently set out in Circular 6/2011, strike a fair balance between private and public interests?

More information

The key considerations can be summarised as:

  • does the purpose of the CPO clearly relate to the acquiring authority’s enabling powers?
  • has the acquiring authority sought to acquire the land by agreement?
  • have alternatives to compulsory purchase been considered?
  • is there reasonable clarity as to how the land is proposed to be used or developed?
  • what are the social, economic and/or environmental benefits of the proposals?
  • do the acquiring authority’s proposals accord with planning policies? Has planning permission been granted for the proposals? If not is there any obvious reason why it would be refused?
  • do the acquiring authority’s proposals support or align with any other strategies, policies or programmes outwith planning?
  • will the necessary funds be in place to deliver the acquiring authority’s proposals within a reasonable timeframe?
  • will the scheme be funded and/or delivered in partnership with a third party?
  • are there any other physical or legal barriers to the acquiring authority’s scheme?

These are not "hard and fast" rules. The circular makes clear there is flexibility to take site-specific circumstances and context into account. The test takes all relevant considerations together to establish whether the use of compulsory purchase is proportionate and justified in the public interest.

32. Do you agree that the public interest test should continue to be policy-based rather than statutory?
33. Should acquiring authorities be empowered to confirm unopposed CPOs?

More information

A significant number of CPOs are unopposed (ie, have no objections or all objections are withdrawn). These still have to be processed by the casework team in Scottish Government and confirmed by Scottish Ministers. We think the process could be streamlined by allowing acquiring authorities to confirm unopposed CPOs. 

34. If acquiring authorities are empowered to confirm unopposed CPOs, which approach would be preferable?

There are two options to empower acquiring authorities to confirm unopposed CPOs.

  • Under Option 1, CPOs would continue to be sent to the Scottish Government for confirmation by Ministers, and notices would instruct parties to send objections to the Scottish Government. If no objections are received from statutory objectors – or all such objections are withdrawn - Scottish Ministers could refer the case back to the acquiring authority.
  • Under Option 2, objections would be sent to the acquiring authority in the first instance. The CPO would only be sent for confirmation by Scottish Ministers if objections are received from statutory objectors. If all objections are later withdrawn, Scottish Ministers could refer the case back as in Option 1.

Option 2 would be a more fundamental change, and could offer greater time savings. There might be concerns about a lack of oversight to ensure notices are served correctly. However, this would continue to be the acquiring authority's legal responsibility, and any failure to comply with the requirements could increase the risk of successful legal challenge. If objections were lodged, the authority would need to submit the CPO to the Scottish Government together with a General Certificate confirming that notices have been served correctly.

35. Should Reporters be empowered to take CPO decisions, subject to published criteria regarding delegation by Scottish Ministers?

More information

Where a statutory objector makes and does not withdraw an objection to a CPO, the case is passed to the DPEA and handled by a Reporter. Following the associated PLI, Hearing or Written Submissions, a Reporter will write a report making recommendations as to whether or not the Order should be confirmed. This is passed back to the Scottish Government casework team, who provide advice to the Minister before they make the decision.

This process could be streamlined by enabling Scottish Ministers to delegate the decision to the Reporter. This would bring it into line with other types of casework involving DPEA such as planning appeals.

The Scottish Ministers would retain the power to take CPO decisions themselves. The Scottish Government would publish its policy on the circumstances in which cases would be recalled by the Scottish Ministers and those which would be decided by Reporters.

36. Is additional scrutiny still needed for CPOs which include particular land?

More information

If special category land is included in a CPO, and specified criteria are met, an additional process known as "special parliamentary procedure" (SPP) will apply to the confirmation of that CPO. Full details of the requirements for SPP are set out in paragraphs 6.43 - in general terms it is if the owner objects to the inclusion of their land and the objection is not withdrawn, or for a common or open space if there is not equivalent land given in exchange.

There are further measures excluding certain CPOs from the need for SPP, where the Order includes local authority or statutory undertaker land, depending on who the acquiring authority is. There are also separate restrictions in relation to statutory undertaker land (see question 38 / paragraphs 6.52-6.54). These discrepancies call into question the need for additional scrutiny via SPP.

We are interested in views on whether the current arrangements are proportionate - especially having regard to the checks and balances that apply to the confirmation of CPOs more generally, and the considerations taken into account when applying the public interest test.

36A. If yes, which of the four current special categories of land should this apply to?
37. If additional scrutiny of certain CPOs is needed, could there be alternative ways to achieve this other than Special Parliamentary Procedure?

More information

Where SPP is triggered, further notification must be carried out. Where "relevant objections" are made and maintained, then the CPO cannot be confirmed except by an Act of the Scottish Parliament.

If there are no relevant objections, or these are subsequently withdrawn, the CPO is laid before the Scottish Parliament and cannot come into force until at least 40 days has passed, and provided Parliament has not within that period resolved that the Order should be annulled.

Potential alternatives, which may be more proportionate, could for example include:

  • a requirement to hold a PLI if special category land is included in a CPO and objections are made and not withdrawn, rather than this being at the discretion of the Scottish Ministers or Reporter
  • a restriction on Scottish Ministers’ ability to confirm a CPO that includes special category land unless and until specified certification has taken place – similar to the position for statutory undertaker land
  • retain SPP but confirmation is by a motion of the Scottish Parliament, rather than an Act of Parliament, in cases where there are objections – similar to the position in respect of the National Planning Framework
38. Should the restriction on confirmation of CPOs that include statutory undertaker land apply only where a relevant objection is made by the undertaker whose land is included in the Order?

More information

Where a CPO includes statutory undertaker land, and an objection is made and not withdrawn, additional restrictions apply. The Scottish Ministers may not confirm the CPO unless they are satisfied that the land can be purchased "without serious detriment to the carrying on of the undertaking" - either because the land is not needed or it can be replaced by other land owned by or available to the statutory undertaker.

It is notable that the objection does not necessarily need to be made by the statutory undertaker, or to relate to the inclusion of the undertaker’s land within the CPO. We think we should retain this restriction, which we think strikes a reasonable balance between the acquiring authority and statutory undertaker, but propose to clarify these points.

39. Do you agree with the proposals regarding the interaction between CPOs and public rights of way?

More information

Subject to certain exceptions, where a CPO includes land which has a public right of way over it (other than roads), and Scottish Ministers are satisfied that a suitable alternative right of way will be provided or none is required, then the Scottish Ministers can extinguish the right of way through an Order. In those circumstances, Ministers must publish a notice of their intention to extinguish a public right of way, and if there is an objection which is not withdrawn, a PLI must be held.

To streamline the process in such cases, we propose to:

  • give Scottish Ministers discretion as to the holding of a PLI if objections are made (and not withdrawn)
  • allow a PLI into the extinguishment of a public right of way to be conjoined with a PLI into the related CPO