Compulsory Purchase Reform Practitioner Advisory Group minutes: November 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

Anastasia Pseiraki, Planning Policy Officer, Scottish Government

Yvonne Leslie, Valuation Office Agency

Elaine Farquharson-Black, Brodies

Rob McIntosh, Aberdeenshire Council

Keith Petrie, FG Burnett

Iulia Toch, Glasgow City Council

Michael Duguid, Transport Scotland

Apologies

Gillian Baillie, Gillian Baillie Planning

Dougie Bowers, Valuation Office Agency

Alan Cameron, Planning Policy Manager, Scottish Government

Items and actions

Papers 

• minutes of third Practitioner Advisory Group (PAG) meeting on 27.08.24 (agenda item 2)
• engagement update (agenda item 3)
• confirmation procedures – part 1 (agenda item 4)
• forward look (agenda item 5)

Minutes of previous meeting and actions arising

• minutes for meeting 03 were agreed
• progress on actions from previous meeting discussed

Looking back: engagement since last PAG meeting

Scottish Government (SG) officials summarised the stakeholder engagement that has taken place since previous PAG meeting (August). That engagement has underscored that relatively few local authorities use their Compulsory Purchase Order (CPO) powers proactively at present. There is a general view within authorities that the process is difficult, expensive and slow; however, in some cases this was not necessarily based on first-hand experience. In some cases, local authority officials who had made use of CPO found that, despite delays/difficulties, the process had led to positive outcomes – in one case at much lower cost, in compensation terms, than was expected.

SG officials referred to recent discussions with an acquiring authority (not a local authority) which has made a handful of CPOs in recent years – and anticipates making more use of their powers in the years ahead. They told SG officials that, while there was certainly scope to improve the legislation, the process had become easier/quicker each time: lessons learned had been applied to subsequent CPOs. This underlines the importance of knowledge and experience gained from actually using the powers available. 

Confirmation procedures (building block 3)

Form and content of a CPO (topic A)

There was a discussion about the role and importance of the Statement of Reasons – including in articulating the public interest justification for a CPO. It was noted that in practice, the reasoned justification contained in a Statement of Reasons may draw heavily on other documents such as committee reports.

Members of the group were generally supportive of the Statement of Reasons (and General Certificate confirming notices have been served correctly) being put on a statutory footing. It was suggested that doing so would not necessarily make the process any more onerous for acquiring authorities but would underline their importance and may help to improve practice.

Notification and advertisement of a CPO (topic B)

SG officials summarised the emerging proposals set out in the paper and key questions arising. There followed a wide-ranging discussion which focussed in particular on the extent to which the notification and advertisement process could be streamlined – particularly through the use of electronic or digital communications. This was in the context of recurring messages emerging from stakeholder engagement: suggestions that the CPO process is overly paper-based and questions about whether newspaper advertisement is an effective approach to publicising Orders, particularly in view of the costs involved.

On the potential to digitise paper-based communications, a number of risks were flagged; not least those associated with the ‘digital divide’ and the fact that access to, and familiarity with, digital technology varies considerably. Such risks call into question the extent to which physical notices/documents could be wholly replaced by digital equivalents. It was noted that this may to a large extent be a generational issue but that there is a geographical element to it too (i.e. rural-urban). SG officials suggested this is perhaps an argument in favour of notification requirements being prescribed in secondary rather than primary legislation: this would allow provisions to evolve more flexibly over time.

Practical issues were also discussed – in particular how to confirm delivery and receipt of an electronic notice. There was a suggestion that perhaps the first notice could be sent by post (or served in person) and subsequent notices served electronically. The potential for parties to ‘opt in’ to digital communications was also suggested.

It was noted that it is in an acquiring authority’s interests to be able to demonstrate that they have met legal requirements as regards notices etc – for example if they are judicially reviewed on the grounds of a procedural defect. Being able to demonstrate that reasonable steps have been taken is vital.

It was suggested that some acquiring authorities effectively take a ‘hybrid’ approach already – with paper notices containing links websites where further detailed information can be found.

One PAG member suggested that acquiring authorities sometimes use ‘email read’ receipts – but it was acknowledged that this does not indicate if the recipient has read attachments. If such an approach were used, it is important for all relevant information to be in the body of the email.

As regards newspaper advertisement, some PAG members expressed doubt about the effectiveness of online alternatives in terms of making the general public aware of an Order being made. How would people know to look for something on, say, a local authority website? A member of the group noted that although newspaper circulation may be declining, readers may also be accessing content in different ways (e.g. via smartphone, iPad etc rather than paper copy).

The potential financial impact of abolishing newspaper notification on local news media was discussed. It was noted that this could be politically sensitive and have implications for Parliamentary handling: any changes would need to be clearly and robustly evidenced.

Two members of the PAG highlighted that the costs of associated with advertisement and notification are partly down to the length of the notices, in particular the content prescribed by the 2003 regulations. It was suggested that even if newspaper/physical notices are retained, there could be scope to streamline their content/length. Doing so could reduce the costs to acquiring authorities in a way that is proportionate and not at the expense of transparency.  

• action: PAG members to provide information about the typical costs associated with advertising a CPO in a newspaper and serving notices (to help build evidence base)

A question was raised about whether a central CPO portal could be created. It was noted that this links to ideas proposed in the Compulsory Purchase Association Digital Working Group (DWG) Position Paper published in 2022. SG officials noted that we need to be mindful of scope of reform programme, which is for the time being focussed on legislative reform.

SG officials concluded the discussion by acknowledging that there is plenty to think about as regards notification and advertisement – and that the public consultation can be used to test emerging ideas further. It was suggested that in considering potential changes, it may be necessary to go back to ‘first principles’ in terms of determining what the purpose of different notices is and considering the most effective way of fulfilling that purpose.

Considering objections to a CPO (topic C)

SG officials invited views on the introduction of a statutory time period by which an opposed CPO should be referred to a Reporter for consideration and what the reasonable time period may be, as well as the specific start and end points.

A mix of views on the principle of such a time limit were expressed, with the majority of PAG members in favour. One member was concerned about a time limit reducing scope for negotiation and withdrawal of objections. However, other members of the group felt that a deadline may help focus minds and incentivise earlier and more effective engagement between acquiring authority and objectors. It was also pointed out that the current arrangements provide considerable uncertainty for all parties as to how long a CPO will take to process once it has been submitted to SG. Several members of the PAG agreed that a deadline for referring opposed cases to Division for Planning and Environmental Appeals (DPEA) could add certainty and transparency.

One member gave the example of CPO related to a school and the difficulty of having to explain to parents about the absence of clear timescales for the case being processed. It was felt that this was indicative of the public’s general sense of CPO: that it is slow and unwieldy. In this context it was noted that in considering any future Bill, the parliament would likely expect there to be measures which clearly and demonstrably speed up the process.

After discussing the principle of a time limit/deadline, the group talked about potential start and end points and what a relevant time period might be. There was a suggestion that the end of the objection period could be the starting point (although a couple of PAG members suggested that the 21-day minimum objection period is too short – see below). Various propositions were made in relation to what the relevant deadline for referral to DPEA might be – with suggestions ranging from 2 months to 6 months. One member asked whether it would be possible to distinguish between large/complex cases and small/simpler cases; their view was that a deadline would be more problematic in relation to the former.

The question of what a reasonable sanction may be was discussed. It was acknowledged that it is difficult to identify a sanction that would be fair to all parties (e.g. deemed non-confirmation would be unreasonable and unfair to the acquiring authority). One member of the PAG felt that the key issue was transparency and communication rather than there necessarily needing to be ‘sticks’. For example, if the relevant deadline was not going to be met then the Reporter should be required to notify parties of the reason(s) for the delay and the alternative date(s).

As to other emerging proposals in the paper, members were generally comfortable with express provision being made in legislation for objections to be considered through written submissions, that the procedural rules for hearings and written submissions related to CPOs should be set out in secondary legislation and that the statutory objectors’ right to a hearing as well as the Reporter’s ability to decide on the need for a PLI (Public Local Inquiry) should be retained.

Deciding a CPO (topic D)

There was a discussion about the public interest test and the potential for the components of the test to be clarified through updated guidance. Generally this was welcomed as was the idea of an updated Statements of Reasons template. One PAG member commented that although updated guidance may be beneficial, the current guidance is helpful – but many authorities have not read/used it. 

The conversation moved on to whether the components of the public interest test ought to be defined in legislation; it was noted that this may be something that the Parliament is interested in doing and may link to other areas of work (e.g. land reform). Generally the group were not supportive of defining the public interest test in legislation on the basis that this could reduce flexibility, particularly as this may evolve over time and/or depend on site specific circumstances.

The Group discussed the emerging proposal that provision should be made for unopposed CPOs to be remitted back to acquiring authorities for ‘self-confirmation’. One member of the group was not in favour of this idea but generally the PAG was comfortable with the suggestion. There was a question about what the implications for acquiring authorities might be, and whether the potential time savings associated could be partially offset by authorities having to take the final steps to confirm the CPO. One member commented that in practice (if such provisions were introduced) when acquiring authority officials seek committee approval to make a CPO, delegated authority could simultaneously be sought for confirmation in the event of the Order being unopposed and remitted back to the Council – this may limit scope for delay.

There were also questions about why it takes as long as it currently does for unopposed CPOs to be confirmed by SG and whether this could be sped up – or whether such cases could be ‘rubber stamped’, as an alternative to cases being remitted back to acquiring authorities. The need for proper audit trail, including advice to Ministers (who are ultimately responsible for confirmation decisions) was discussed. It was pointed out that self-confirmation provisions have existed in England and Wales since 2004; members were not aware of this presenting particular issues or concerns in terms of propriety/transparency.

• action: SG officials to consider potential alternative options for speeding up unopposed cases

The group also discussed the emerging proposal of allowing the Scottish Ministers to delegate CPO decisions to DPEA Reporters. Generally PAG members were comfortable with this proposition – on the proviso that Ministers would retain the power to take decisions themselves if the circumstances called for it (e.g. large-scale, complex or otherwise controversial cases). There was an alternative suggestion about whether the Lands Tribunal could take decisions on CPOs. The pros and cons of this were discussed and the reaction was mixed – with particular concerns about the potential impacts on timescales.

The idea of conditional confirmation (recently legislated for south of the border via the Levelling-up and Regeneration Act 2023) was briefly discussed, with most PAG members being neutral or opposed, with particular concerns that such measures could heighten uncertainty for landowners – and potentially lengthen and/or complicate the process, rather than streamline it. As regards confirmation in stages, members of the PAG felt this was unlikely to be a useful provision in practice and may simply add complexity.

Timescales for confirmation decisions were discussed. Generally members of the group were in favour of targets/KPIs which may be helpful in providing certainty and clarity – even if they are not binding. One member thought that reporting to Parliament on performance would be useful, even if it is not a ‘sanction’ per se.

Looking forward: the plan to 2025

SG officials outlined the proposed next steps for the months ahead. It was noted that before the end of the year, the intention was to issue a high level Progress Report which summarises emerging proposals discussed to date and how these relate to the strategic objectives of the reform programme. Looking further forward, SG’s Programme for Government committed to a public consultation on reform proposals in 2025 – it is envisaged that publication will be late summer/Autumn.

• action: SG officials to prepare Progress Report, with a view to sharing it with stakeholders (and/or publishing it) before Christmas

Date and venue of next meeting

Next meeting to take place late January/early February and would be online.

• action: SG officials to canvas possible dates for fifth PAG meeting