Compulsory Purchase Reform Practitioner Advisory Group minutes: August 2024

Attendees and apologies

Roseanna Cunningham, Co-Chair

Fiona Simpson, Chief Planner Scottish Government, Co-Chair

Tom Winter, Head of Compulsory Purchase and Infrastructure Levy, Scottish Government

Alan Cameron, Planning Policy Manager, Scottish Government

Anastasia Pseiraki, Planning Policy Officer, Scottish Government

Elaine Farquharson-Black, Brodies

Dougie Bowers, Valuation Office Agency

Rob McIntosh, Aberdeenshire Council

Keith Petrie, FG Burnett

Iulia Toch, Glasgow City Council

Gillian Baillie, Gillian Baillie Planning

Michael Duguid, Transport Scotland

Items and actions

Papers

• minutes of the second Practitioner Advisory Group (PAG) meeting on 30.05.24 (agenda item 2)
• engagement update (agenda item 3)
• enabling powers (agenda item 4)
• early engagement and preparatory steps (agenda item 5)
• confirmation procedures: scoping note (agenda item 6)

Minutes of previous meeting and actions arising 

• minutes for meeting 01 were agreed
• progress on actions from previous meeting discussed

Looking back: engagement since last PAG

Scottish Government (SG) officials summarised the ongoing engagement that has taken place since previous advisory group meeting, which has included both general updates on the background to, objectives of and milestones for the reform work – as well as more detailed engagement on specific topics such as enabling powers. Key takeaway was that there is a good level of interest in the work, from a range of different stakeholders; many organisations consider compulsory purchase order (CPO) reform to be long overdue and welcomed the fact that progress is being made.

Recurring theme from acquiring authorities – particularly local authorities – is that the powers are under-utilised (some have never promoted a CPO), for various reasons including cost, complexity and capacity.  

Stakeholder feedback suggests that compensation will be the most complex and contentious building block, and the one attracting greater level of interest beyond practitioners.

Enabling powers

SG officials introduced and summarised paper, which comprised two parts. The first part looked at who can acquire land compulsorily and the purposes for which these powers can be used. Officials have been exploring two principal questions: are there any gaps in existing powers? Are there uncertainties as to the scope of existing powers?

Based on engagement to date, officials’ view is that enabling powers are generally fit for purpose, with few obvious gaps. Network Rail is the most clear exception to this, whose compulsory purchase powers appear to be limited. Additionally, South of Scotland Enterprise do not have any compulsory purchase powers – in contrast to Scottish Enterprise and Highlands and Islands Enterprise, both of whom do. Although South of Scotland Enterprise have the option of working with local authorities, who have extensive powers, this was considered somewhat surprising.

The second part of the paper focussed on ‘associated powers’, namely the power to create new ownership rights and powers of temporary possession. The strategic issue here is inconsistency: some acquiring authorities have such powers whereas as others do not. Scottish Water was mentioned as an example of an infrastructure provider whose enabling powers do not specify that they can create new subordinate rights.

One member of the group suggested that table 1 in the annex could be clearer in terms of what the ‘current position’ meant in terms of feedback. SG officials acknowledged that this could be made clearer. 

There were some questions about whether certain organisations had been spoken to and whether substantive comments had been received. SG officials clarified position.

A member of the group mentioned that they had been approached by Network Rail about extending their powers and welcomed the paper’s acknowledgement of the issue. SG officials noted that Network Rail is a UK-wide organisation and the question of what could be done under devolved powers/competence needs further exploration.

Concern was expressed that some acquiring authorities are private organisations (e.g. utilities companies) who are answerable to shareholders. It was suggested that the reform work needs to ensure legislation prevents abuse and that projects promoted under CPO powers are genuinely in the public interest. As part of this discussion, it was clarified that unlike some private utilities, Scottish Water is accountable to Parliament. It was also noted that some legislation governing utilities companies (e.g. Electricity Act and Gas Act) is reserved and cannot be unilaterally amended by the Scottish Parliament.

There was a discussion about the potential shape of a future CPO Bill. SG officials commented that strategic intention is that a Bill would bring together reformed procedural and compensation provisions into single statute – and that current compulsory purchase Acts would be revoked. It is clear that there is very strong support for this approach among stakeholders. However, this is a matter for future discussion once scope of reform is clear and a legislative vehicle has been identified. 

Moving onto part 2 of the paper, members of the group were supportive of introducing general powers for acquiring authorities to create new rights short of full ownership, including servitude rights. It was agreed that these have the potential to provide more flexibility and lead to less intrusive (and less expensive) outcomes. However, it was noted that guidance would be required to ensure proportionate use of such powers – and potentially clarify what is meant by ‘other rights’ if that formulation is used.

Members of the group were also generally supportive of introducing temporary possession powers.  The potential scenarios in which these powers might be used were discussed. Members did, however, stress the need for clarity over what is meant by temporary, how long possession may be taken, when the period ends and how this is to be initiated. There were also questions about what the nature of the interest would be and how this would be reflected in deeds etc. Reference was made to a real-world example  where the term of possession was ill-defined: this caused uncertainty and delay regarding the duration of occupation and time taken to reinstate the land.

It was mentioned that even with temporary possession, there can be significant disruption to businesses and compensation in these instances needs to be fair.

One member suggested that the temporary possession powers in the Forth Crossing Bill were a positive example in terms of clarity and the certainty provided to landowners.

SG officials noted that they would welcome any further feedback on enabling powers and the questions in the paper – including thoughts on the as-yet-uncommenced temporary possession powers in England and Wales.

Early engagement and preparatory steps

SG officials introduced and summarised the paper which was structured around three parts: land referencing, powers of entry and early engagement.

As regards land referencing, members re-iterated concerns about the prospect of statutory power (akin to that which was introduced south of the border by the 2004 Act) to require information about land ownership with strict penalties for non compliance.

There was a discussion as to whether something akin to Form 9 in the 2003 Regulations could be used for this purpose. It was noted that the current form relates to the post-confirmation stage of the CPO process so could not be used on a statutory basis prior to the making of a CPO – although it was acknowledged that this could assist with land referencing. Whether a statutory form could be prescribed for this purpose under current powers would need further exploration.

Statutory or otherwise, there was a general view that starting the early engagement process by issuing forms demanding land ownership may set a negative tone and not be conducive to positive engagement. It was suggested that carrots rather than sticks may be more effective. 

It was noted that without context or clear explanation, issuing a form has the potential to cause panic or give rise to blight. Hence, any potential form/notice will need to be worded carefully; where appropriate it should clarify that land is not being acquired but that options were being explored and that land ownership information assists with that process.

It was noted that when a CPO involves tenants, the process becomes more complex; because of the way certain tenancies are recorded there may be a reliance on landlords providing relevant information. Owners may incur costs in establishing the position regarding tenancies and leases, with no prospect of compensation until a general vesting declaration is made.

There was a discussion about what the role and purpose of a book of reference and how this compares to a CPO Schedule.

As regards powers of entry, there was discussion about the merits of introducing a general power for acquiring authorities to enter land prior to making a CPO – along the lines of those introduced in England and Wales in 2016. Members generally welcomed this idea but it was stressed that there would need to be guidance to ensure proportionate use

It was noted that power could be particularly helpful in the context of time-critical surveys (e.g. ecological surveys). It was suggested that any new powers should be flexible enough to accommodate the potential for follow-on surveys.

It was suggested that compensation entitlement should relate to both loss and damages incurred – and that legislation should clarify when this is payable.   

One member underlined that in a an agricultural context, acquiring authorities entering land needed to be aware of things like biosecurity which may go to a farm’s organic status. More generally, need to ensure health and safety and that equipment is used properly. 

One member suggested that any general powers should not replace specific existing powers (e.g. s.317 Housing (S) Act 1987). SG officials indicated this is a point to consider but that a part of the rationale for a general provision is to ensure a fair and consistent approach which strikes an appropriate balance between the acquiring authority and landowner. There would need to be clear policy justification for departures from a new general approach.

As regards early engagement, some members noted that while there is guidance available already, it is not followed consistently. This may in part be due to lack of awareness. Education was therefore needed, including on the potential implications of not following guidance (e.g. Public Local Inquiry (PLI) more challenging) 

It was noted that in practice, acquiring authorities will already need to demonstrate through the PLI or hearing process how they have engaged with affected parties, even if this is not a statutory obligation.

One member of the group stressed that those engaging with landowners on behalf of acquiring authorities needed to have relevant people skills to be effective.

One member suggested that a minimum number of public events should be made a statutory requirement. It was noted that although this could prove to be disproportionate in some cases (e.g. small single property CPOs), legislation could provide flexibility in this regard. Reference was made to planning legislation, where requirements differ depending on whether national, major or local development. SG officials commented that it would be important to avoid duplication between separate requirements.

One member noted that in the context of very large schemes, with potentially hundreds of affected parties, engaging with every single one is not necessarily practical.

Looking forward: scoping out confirmation procedures

SG officials talked through the scoping paper, which suggested how the ‘confirmation procedures’ building block could be broken down into thematic sub-topics. One member suggested renaming ‘validity of a CPO’ to ‘duration of a CPO’. This suggestion was agreed.

There was a discussion about what some of the key issues to explore through building block 3 might be. One member highlighted the objections process – in particular the questions of who can object, what are valid grounds of objection and their status (statutory/non statutory). A member commented that it may be challenging to consider CPO in isolation from other regimes (e.g. Environmental Impact Assessments).

The issue of digitisation of the CPO process was mentioned and making information available to all parties efficiently.

Members discussed the necessity of also making guidance available, which would lead to a consistent approach when handling CPOs. Any guidance should consider nuances that apply in different cases.

Date and venue of next meeting

It was suggested that the next meeting should take place late October or early November and would ideally be in person. SG to follow up on potential dates and venues.