Compulsory Purchase Reform Practitioner Advisory Group minutes: May 2024

 

 

Attendees and apologies

• Roseanna Cunningham, Co-Chair
• Fiona Simpson, Chief Planner Scottish Government, Co-Chair
• Helen Wood, Assistant Chief Planner, Scottish Government
• 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

• Compulsory purchase reform in England and Wales since 2004: potential lessons for Scotland (agenda item 3)
• Stakeholder engagement (agenda item 4)

Introductions and minutes of previous meeting

Minutes from meeting 01 agreed.

Reform in England and Wales

Scottish Government (SG) introduced the paper on Compulsory Purchase Reform (CPO) in England & Wales since 2004, which examined the extent to which these might meet the reform objectives of SG. Those measures considered potentially worthy of further investigation as part of Scotland’s CPO reform programme were organised into two broad categories: those that seem more straightforward to implement (Group 1) and others that would likely be more complex and/or contentious (Group 2). 

It was suggested that it would be useful to distinguish between the measure on the basis of technical updates and those having more significant impact for certain parties’ interests. The aim being to help ensure major provisions that will be introduced are robust, alongside the more technical aspects of reform.

There was also a suggestion that it would be helpful to highlight ‘big wins’ and their meaning in practice, which could facilitate the categorisation of measures in terms of objectives and outcomes. 

The group suggested checking what the experience has been in England and Wales as regards the changes to legislation there. It was noted that this could potentially be explored through the Compulsory Purchase Association. 

A question arose about legal equivalence between England, Wales and Scotland and extent to which Scottish Government’s Legal Directorate’s (SGLD) had been involved in paper.

It was noted that Scottish, English and Welsh compulsory purchase systems are very similar, being based on common DNA – although underlying property law is different. SG clarified that the paper on England and Wales measures represents initial thinking by policy officials; it does not yet represent SG policy. Any measures taken forward to consultation will of course need to be agreed by Ministers and worked up in detail with advice and input from SGLD.

There was general agreement amongst members that the England and Wales measures identified in the two groups were those worth pursuing in relation to CPO reform in Scotland.

Various views were expressed about how measures should be categorised and whether some should be moved from Group 1 to 2 – or vice versa. SG stressed that the division into two groups was not about prioritisation – it was more of an initial judgement about how complicated and/or controversial they are likely to prove. These points are made in para 12-13 of the paper. 

There was a discussion about enabling powers (and associated provisions such as powers of entry for surveying) and whether there are any gaps in acquiring authorities’ powers. Network Rail was cited as an example of where powers and rights of entry fell short of what was needed e.g. having to rely on a local authority using their CPO powers to buy land for stations on NR’s behalf. 

SG officials advised that enabling powers will be the focus of the next meeting and a specific paper prepared in advance. As regards powers of entry for surveying etc purposes and powers to create new rights short of ownership, he underlined that there is a discrepancy between different acquiring authorities’ powers – in some cases the legislation is explicit and in other cases silent. The Scottish Law Commission (SLC) report made clear that, in the absence of express provision, such powers/rights cannot be inferred. Hence clarity in this regard could beneficial.  

One of the England and Wales reforms (from 2004 Act) identified in the paper as potentially worthy of exploration was a power for acquiring authorities to request information on landownership and includes an offence provision in the event of non-compliance. SG officials asked for views on whether such a provision would be seen as beneficial given SLC review did not cover. 

Some Practitioner Advisory Group (PAG) members thought it would be useful; others less so. The potential usefulness of powers to require information on occupancy and leases was noted. Some group members thought such a power seemed draconian, that an offence provision would be harsh and use of the power unnecessarily antagonistic – not conducive to positive early engagement. 

Reference was made to existing offence provisions in relation to planning contravention notices and the Flood Risk Management (Scotland) Act 2009 . It was noted that it was useful to identify other examples of such provisions and would be interesting to understand whether the England and Wales provision mentioned had attracted concerns.

There was a general discussion about digitisation (e.g. of notices and inquiries/hearings). Moving digitisation to Group 2 was suggested due to potential cost and complexities linked to data protection and access. Political risks around ensuring digital inclusion were noted. While it was recognised that many local authorities would be familiar with digitising various procedures/services, it was pointed out that not all acquiring authorities are local authorities and so may lack familiarity - need for consistency for all bodies.

There was a discussion about the potential introduction of greater flexibility around consideration of objections to CPO and the method used (e.g. inquiries, hearings, written reps) – something which has been taken forward in England and Wales. It was noted that such flexibility exists in other areas of planning.

Landowners’ current right to be heard was discussed and potential European Convention of Human Rights (ECHR) (article 6) considerations if this were to be amended; CPO not necessarily equivalent to planning appeal because former relates to loss of property rather than development of land.

One member of the group suggested that the right to be heard should be retained and importance of cross examining parties, and the need to strike a balance between placemaking in the name of public interest whilst protecting affected parties.

There was a discussion about powers introduced in England and Wales that provide for “self-confirmation” of unopposed CPOs by acquiring authorities (2004 Act) and delegation of CPO decisions to Inspectors (2016 Act) – and the significant extent to which these are being utilised in relation to Housing and Planning CPOs, thus streamlining processing. The need for safeguards was discussed by the Group, including the ability of Ministers to retain the right to determine cases where appropriate.

There was a suggestion that new legislation should have provisions on engagement with affected parties prior to a CPO being promoted. There was a discussion about what the balance between guidance and any statutory requirements should be in this regard.

• action Point 1: SG officials will continue to explore practical issues associated with pursuing the England and Walesreforms identified in the paper, including through the Compulsory Purchase Association and UK Government counterparts
• action Point 2: SG to identify other examples of existing powers on requiring information from landowners

Stakeholder engagement

SG officials summarised stakeholder engagement so far and explained how reform programme was initiated, including emails with links to information sent to various organisations, proactively offering to discuss CPO Reform. A number of discussions have been held with individuals/organisations who asked for an update or general overview, though no substantive issue-based engagement yet.

SG officials suggested that it may be beneficial to invite certain groups to the PAG forum to explore particular topics or issues.

There was a suggestion that stakeholders be grouped in terms of their specific interests e.g. those interested in ‘big wins’ and those in the more technical modernisation of processes.

It was noted that some groups/networks may be more interested in progress updates whereas others might need more active engagement (e.g. workshop(s) to investigate specific issues in detail).  Some specific technical issues (e.g. farm loss payments) were flagged, which may require involvement of specialist expertise. SG officials underlined that they are open to suggestions in terms of timing and format of ongoing engagement. General agreement that it would be sensible to work up proposals in greater detail before commencing substantive engagement.  

Group was comfortable with idea of ‘hosting’ sessions on particular topics. It was noted that certain issues might need to be discussed with specific groups earlier, before moving to wider public engagement. 

SG officials suggested that from meeting 3 onwards, PAG meetings proposed to be structured around the chronological building blocks discussed previously. It was recognised that some building blocks (e.g. compensation) are potentially very substantial/complex and will not necessarily be covered in a single meeting. 

Accordingly, next session will be on enabling powers. Some specific engagement with acquiring authorities will be carried out – including to understand any gaps in powers or uncertainties as to scope. 

Looking ahead to meeting 3 and preparation of a paper on enabling powers, there was a discussion on potential approaches to engagement with relevant organisations and acquiring authorities. 

SG officials noted that there may be areas where CPO powers are general therefore the relevant bodies are unsure if what they want to do is covered.

Onlooking ahead to future bill, it was stressed that whatever is drafted could be subject to amendments, e.g. seeking changes to powers, which then raise handling issues.

It was pointed out that the ‘building blocks’ for the reform programme are not available on Transforming Planning (TP) website and that SG needs to ensure all relevant information is made public especially where it could enhance engagement. 

SG officials advised TP website will be discontinued and information will be moved to different website, after which updates will be made. 

• action Point 3: SG to consider comments on stakeholder engagement, especially around enabling powers as the topic for the next meeting