Compulsory purchase orders and acquiring authorities: guidance on preparing a CPO

6. Drafting of a Compulsory Purchase Order

6.1. The Drafting of a Compulsory Purchase Order should always be carried out by a sufficiently qualified legal professional.

6.2. Notes and forms for completing the CPO are set out in the Compulsory Purchase of Land (Scotland) Regulations 2003 ^[2] . This guidance does not restate these notes in detail.

6.3. When preparing the Order the Acquiring Authority should:

• Give the Order a meaningful name which can easily be used to identify it;
• Set out the enabling powers being used to compulsory purchase the land; and
• Explain the purpose of the Order.

6.4. Where practicable, the Acquiring Authority can use the words of the enabling Act, but where those words are in general terms and cover a range of purposes it should state the particular purpose(s) for which the land is required.

The Mining Code

6.5. When preparing an Order, Acquiring Authorities should consider whether it requires the rights to any minerals deposited under the land.

6.6. When drafting an Order, Article 3 of the statutory form of Compulsory Purchase Order covers mineral rights. This is commonly known as 'the mining code'. If the mining code is incorporated in an Order then the mineral rights are excluded from any purchase of the land. Normally, the compulsory purchase of land would exclude the mineral rights, unless mining these at a later date would compromise the integrity of any project on the surface.

6.7. Possible implications of the mining code on drafting of Compulsory Purchase Orders are as follows:

• If the Acquiring Authority does not incorporate the mining code into the draft Order, the minerals under the land will be included in the purchase and it may be required to pay compensation for their development value. This can increase costs unnecessarily;
• The Acquiring Authority will also have to justify the need to purchase the minerals.

6.8. Depending on whether mineral rights are required or not the Acquiring Authority can omit references to the mining code, or insert it with or without the reference to the sections which impose constraints on how the minerals can be worked. It may also indicate any modifications to the mining code that it requires to make to ensure that access to any mineral rights does not jeopardise the integrity of the end development.

Real burdens or servitudes

6.9. Real burdens run with the land, which means that they are perpetually enforceable against successor owners of the affected land. They typically restrict the use to which land can be put, or impose obligations for the maintenance of shared boundaries. Real Burdens are only contained in certain deeds registered in the Land Register of Scotland or the older Register of Sasines. Although the abolition of the feudal system on 28 November 2004 resulted in some feudal real burdens ceasing to be enforceable, there are often third party rights held by neighbouring proprietors which survived abolition. In addition, feudal burdens which relate to maintenance were automatically preserved, and in some limited cases others have been preserved using a legislative procedure.

6.10. Servitudes are usually rights of access over land in the ownership of a third party ( e.g. for access, drainage and water).

6.11. Unless the Acquiring Authority explicitly specifies it in the Order under Article 5 ^[3] then, unless the conveyance implementing the acquisition of the land provides otherwise, all real burdens and servitudes will be extinguished upon implementation of the CPO.

6.12. However, the Acquiring Authority may not want to extinguish all real burdens or servitudes, or certain rights to enforce them, or it may not want to dis-apply a development management scheme. It may also wish to vary some or all of the real burdens or servitudes that affect the land. In this situation the Acquiring Authority should specify what it proposes in the Schedule to the order and include Article 5 in appropriate form.

Description of the land

6.13. The Acquiring Authority should include all necessary land (including any new rights being created) as land can be added later only if all people with an interest in the land agree.

6.14. If the extent and boundaries can be readily ascertained without dispute the Acquiring Authority may not need to include the extent of the land. For example, for a flat or house with a postal address it need not usually include the extent. However, if there is any potential for dispute it should include the extent of the land in square metres, where possible.

6.15. In describing the land the Acquiring Authority should:

• Include the postal address of each plot. It should take particular care where street numbers do not follow a regular sequence, or where individual properties are known by more than one name or number, and the flat position. It should amplify the description as necessary to avoid any possibility of mistaken identity;
• Describe each plot in terms that can be readily understood by a layperson and in sufficient detail to tell the reader where the land is situated without the need to refer to the map. It should use simple descriptions in ordinary language. For example, where the land is agricultural it might describe it as 'pasture land' or 'arable land' and it might describe forested areas as 'woodland'. If necessary, it should relate the land to a well-known local landmark, for example 'situated to the north of Main Street and 1km east of Smithy Farm';
• If the land is registered in the Land Register of Scotland it should include the Title Number of the land. If the land is not yet registered it should refer to a deed recorded in the Register of Sasines that contains a full description of the land, where possible;
• Where the description includes a reference to Ordnance Survey field numbers it should also state the sheet numbers of the Ordnance Survey maps on which these field numbers appear. The Ordnance Survey map reference should quote the edition of the map.

New rights short of ownership

6.16. If the Acquiring Authority seeks to acquire any new rights short of ownership over the land, it should show the land over which it seeks each new right as a separate plot.

6.17. It should describe the nature and extent of each new right. Where it seeks to take new rights for the benefit of a plot or plots, it should say this in the description of the rights plots.

6.18. It should describe new rights immediately before or after any plot to which the rights relate. If this is not practicable it should show the rights in the Schedule and cross-refer as appropriate between the related plots.

Owners, lessees and occupiers

6.19. When completing the First Schedule of the Compulsory Purchase of Land (Scotland) Regulations 2003, the Acquiring Authority should try to identify as fully and accurately as possible all owners, lessees and occupiers of the land in question - drawing on the land referencing work it has undertaken (see guidance note CPOGNAA/002). Detailed advice on completing the schedule is provided in the regulations but Authorities should:

• Include the registered address of a corporate body where it is an owner, lessee or occupier;
• Show the names and addresses of the office bearer(s) where an owner, lessee or occupier is an unincorporated body (such as clubs, chapels and charities);
• Not include tenants who have resided in a property for a month or less;
• Include any person who the Acquiring Authority is clear that they are an owner, lessee or occupier but is uncertain which of these categories they fall into; and
• Put 'unknown' in the appropriate column where the Acquiring Authority is satisfied, after reasonable inquiry, that it is not practicable to ascertain the name or status of the owners, lessees and occupiers of any part of the land.

Special categories of land

6.20. It is not possible to include land that an Acquiring Authority already owns in a CPO. Where an Acquiring Authority wishes to acquire the interests of other parties in such land the Order should make it clear that that the heritable interest of the Acquiring Authority is not being acquired, only the areas or interests in land which are not already owned by the Acquiring Authority.

6.21. Only in some circumstances can Crown land be compulsorily purchased. Therefore, if Crown owned land is sought to be acquired, careful consideration of the terms of the legislation under which the CPO is to be promoted will be necessary to ensure that adequate powers exist. Early discussions with the Crown Estate Scotland and relevant Scottish Government officials are also advised.

6.22. At the time an Order seeking to purchase Crown land is submitted for confirmation, Scottish Ministers will take cognisance of the proposals against their Crown Estate management functions in addition to their usual considerations.

6.23. Special categories of designated land (such as Sites of Special Scientific Interest or Scheduled Ancient Monuments) can normally be purchased compulsorily. However, due to additional requirements and consents necessary to use this land, Acquiring Authorities should make early contact with the appropriate authority responsible for protecting or maintaining the site to ascertain whether their proposals for the site are likely to be acceptable. For example, Scottish Natural Heritage for an SSSI or Historic Environment Scotland for Scheduled Ancient Monuments.

The Order map(s)

6.24. The map accompanying an Order should not generally be less than 1/2500 and, ideally, should be at 1/1250 scale. Where this is not possible (for example, where the land take is very large) the Acquiring Authority may, as a last resort, use an overview map at 1/10000 scale. Where the Order includes a number of small plots, it should consider using insets on a larger scale so that they can be accurately identified and understood. Maps should also show the orientation of the site by indicating which way is north.

6.25. Where an Acquiring Authority intends to submit a set of maps or a map which comprise of more than one separate plan or sheets, these must be correctly referred to in the Order. Failure to do so can cause delays and potentially invalidate the Order, or, if applicable, result in the Order being modified by Scottish Ministers.

6.26. The heading of the map(s) should be identical to the map headings used in the body of the order. The Acquiring Authority should include the words 'this is the map referred to in [order title]' on the map(s).

6.27. The Acquiring Authority must clearly identify the land. Where it uses colouring, the long-standing convention is that land to be acquired is shown delineated in red and coloured pink and land over which a new right would be created is delineated in red and coloured blue.

6.28. If it needs to use more than one map, it should bind the maps together and show on a key or master 'location plan' how the various sheets are related.

6.29. It should use a location plan only for the purpose of enabling speedy identification of the whereabouts of the area to which the Order relates. It should use the order maps, and not the location plan, to identify the boundaries of the land to be acquired. Therefore, while it should mark the order map 'this is the Map referred to in [name of order]', it should mark a location map 'This is the location plan for the Map referred to in [name of order]'. If the location plan is correctly included and referred to in the Order then it will be part of the Order but it will remain only a location map.

6.30. The Order map should show such details as are necessary to relate it to the description of each parcel of land in the order Schedule(s). If necessary, the Acquiring Authority should mark on the map the names of roads and places or local landmarks not otherwise shown. The boundaries between plots should be clearly delineated and each plot separately numbered to correspond with the order Schedule(s).

6.31. If the Acquiring Authority seeks to create new rights short of ownership over the land it should clearly distinguish between land over which new rights would remain in force, and any land which the Acquiring Authority seeks to acquire as part of its wider interests.

6.32. There should be no discrepancy between the order Schedule(s) and the map(s) and no room for doubt as to the precise areas of land included in the order. If the order, when read with the order map, fails to clearly identify the extent of the land to be acquired, Scottish Ministers may refuse to confirm the order, even if there have been no objections lodged to the order.

Copies of maps

6.33. The Acquiring Authority should produce and authenticate (or "certify as a true copy") a hard copy of the order and map(s). A copy of the Compulsory Purchase Order and high resolution version of maps should also be sent electronically to the relevant Scottish Government Lead Officer when requesting a technical check.

Newspaper Advertisements

6.34. A draft newspaper advertisement notifying the public of the creation of the Order, providing information on where to find details of the Order, and where to send an objection to the Order, should also be prepared as well as any personal notices. These advertisements and notices should only be issued once a technical check has been carried out by the Scottish Government, and the Acquiring Authority has passed a resolution approving the Compulsory Purchase Order.