Compulsory Purchase Association Scotland: Key Takeaways For The Future Of CPO Reform In Scotland

Burness Paull's planning and environment team recently hosted the Compulsory Purchase Association Scotland for a conference on the Scottish Government's consultation on compulsory purchase reform.

The event provided a forum for interested parties to hear more about the Scottish Government's proposals, and to participate in an open discussion and sharing of ideas, to help inform stakeholder responses to the consultation.

Here, we will look at one of the areas which was discussed at the conference by Alasdair Sutherland, head of planning and environmental at Burness Paull: the proposals to reform the structure and extent of compulsory purchase powers available to acquiring authorities.

Enabling powers

Enabling powers are the method by which certain public bodies can acquire land compulsorily. They also set out whether the acquiring authority can compulsorily acquire new rights which are less than outright ownership (for example, servitude rights).

In the patchwork of existing compulsory purchase order (CPO) legislation, some acquiring authorities have the ability to acquire these subsidiary rights in land, while others do not. With no underlying policy reason for this inconsistency, the Scottish Government's consultation on CPO reform proposes the introduction of three new general powers which could, in principle, be exercised by all acquiring authorities:

• the general power to create new rights in land;
• the general power of temporary possession; and
• the general power to enter land prior to a CPO.
  
  

A power to create 'new rights' in land

There can be situations in any scheme where an acquiring authority would be able to achieve its aims by taking a new right over the land, without the need to obtain full ownership. For example, when the acquiring authority only needs to put a drain though part of the land involved, it could achieve that aim through a servitude right rather than needing outright ownership.

The consultation proposes a new general power allowing for the creation of rights short of ownership, with the ability to attach conditions to these rights.

This proposal could be beneficial for both landowners and acquiring authorities. It could give acquiring authorities more flexibility to achieve its aims by taking interests which are more proportionate to the land rights they require. In turn, this may be more likely to encourage co-operation from landowners, who will be able to retain ownership of their land, subject to the imposition of the rights required for the scheme to be realised and reduce the potential for objections.

General power of temporary possession

The consultation also identifies that existing enabling powers do not permit all acquiring authorities to compulsorily acquire land on a temporary basis. Again, the temporary acquisition of land (as opposed to permanent acquisition) has potential benefits for acquiring authorities and landowners.

There are instances where, as part of a project, an acquiring authority may only need to temporarily occupy land (e.g. for a site compound or a crane over sail). In this situation, compulsorily acquiring ownership of land would be contrary to the interests of both the acquiring authority and the landowner. While in practice this is often done on a temporary basis by way of a voluntary agreement, this can cause difficulty, as the acquiring authority has no certainty that it will be able to obtain the voluntary agreement within a timeline envisaged by its programme. Both parties are left negotiating in the shadow of a potential CPO of the land, which can inevitably lead to frustrations.

Giving all acquiring authorities a general power of temporary possession, as proposed by the consultation, would potentially result in a compulsory purchase regime which reduces interference with the rights of landowners, and negates the need for the acquiring authority to sell the land back to the landowner once they have carried out the works, simplifying the process.

The power to enter land prior to CPO

Another point arising from discussions surrounding the consultation was whether there should be a power to give acquiring authorities the power to enter land prior to a CPO being made. Early entry for surveys and to understand the physical characteristics of the land can be crucial at the design stage of any major project. In fact, getting it right at this stage can help avoid costly changes and re-designs at a later stage.

At present, the CPO legislation in this area is found in the Land Clauses Consolidation (Scotland) Act 1845, albeit there are other enabling acts which stipulate powers of entry, each with different notice periods.

The result is that while some acquiring authorities are able to make good use of their more specific early entry powers, others have only more basic provisions which are viewed as being difficult to use in practice. The consultation proposes that there should be a new general power permitting acquiring authorities to enter land before a CPO is made. The consultation suggests that any such power would be subject to appropriate safeguards to protect the interests of landowners and their occupiers.

Get involved

We would encourage interested parties to provide responses to the consultation and help shape the future of the new compulsory purchase regime in Scotland. This will allow the Scottish Government to better understand the expectations of all stakeholders and will assist in creating a compulsory purchase system in Scotland which is more streamlined and fairer for all parties.

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