Compulsory purchase orders and acquiring authorities: guidance on next steps for confirmed orders

2. Taking Title to and Possession of the Land

Overview

2.1. If no challenge is made to the validity of the Order within the six week period, the Acquiring Authority can proceed to implement the Order and take title to and possession of the land.

2.2. The Acquiring Authority has up to three years from the date of confirmation of the CPO to take action but should aim to minimise the period of uncertainty for the people affected. Generally, it should take title to and possession of the land, and pay any compensation due, as quickly as possible.

2.3. However, in some cases it may be in the best interests of the people affected for the Acquiring Authority to wait until it is ready to proceed with the next stage of its scheme. For example, if the Acquiring Authority intends to provide alternative accommodation for the people affected it may be in everyone's interests for the Acquiring Authority not to take title until the alternative accommodation is ready or available.

2.4. Engaging quickly, clearly and effectively with the people affected will help the Acquiring Authority to identify and address people's concerns or any particular circumstances affecting businesses or landowners that need to be taken into account in determining when the Order is implemented.

2.5. If the Acquiring Authority does not implement an order within three years from the date that it published the notice of the confirmation of the order, the order lapses. It should be noted that this is from the date that the confirmation of the Order is advertised – not the date on which Scottish Ministers sign the confirmation of the Order. In such circumstances the Order will no longer be valid and the Acquiring Authority will not be empowered to take possession of the land and would have to reapply to Ministers for a new Order if they still wished to proceed with the project.

Alternative Procedures for Taking Title to the Land

2.6. The process for taking title can be exercised by either making a 'General Vesting Declaration' ( GVD) or, less commonly, serving a 'Notice to Treat'.

2.7. A GVD may be viewed as a variant on a notice to treat, since they share many of the same features, but is a form of expedited procedure by which Acquiring Authorities can secure title to land more quickly. For example, the service of a GVD is deemed to constitute the service of a Notice to Treat upon every person on whom such a notice would have been required to have been served. A GVD can be made in relation to part or all of the land to be acquired by the Acquiring Authority, and when it has taken effect, it vests all the land described in it to the Acquiring Authority.

2.8. Where an Acquiring Authority will take less land than contained in the confirmed Order they may prepare a new map identifying the land to which title is being taken.

General Vesting Declaration ( GVD)

2.9. A General Vesting Declaration ( GVD) is a formal procedure that allows the Acquiring Authority to take over the ownership and title of the land before it has agreed compensation with the owner, and without having to satisfy itself as to the owner's title.

2.10. Using a GVD can therefore reduce the administration burden for the Acquiring Authority, particularly if multiple interests are being acquired (such as in major projects and significant infrastructure developments) or where owners are hard to trace. At the end of the period specified in the GVD, the title to the land, together with the right of entry, vest to the Acquiring Authority.

2.11. To pursue a GVD the Acquiring Authority must first publish a Notice, announcing their intention to use GVD procedure. Such a Notice will specify a period of 2 months during which owners, occupiers and other interested parties can notify the Acquiring Authority of their interest in the land. The period of 2 months can sometimes be shortened, but only if every occupier of the land specified in the declaration consents to a shorter period.

2.12. Once the 2 month notice period has expired the GVD can be made, at which point the Acquiring Authority sends all owners, occupiers and every other person who has given information to the Acquiring Authority in response to their Notice of intention to use GVD a further Notice proclaiming the GVD and giving a date at which it will formally own and take possession of the land. This date (known as the 'vesting' date) must be at least 28 days from the date on which service of both Notices were completed.

2.13. A General Vesting Declaration will not apply to short term tenants ( i.e. tenants for a year or less, or tenancies that run from year to year) or any lesser interest (such as long term tenancies where the lease is about to expire). These interests can be left to expire naturally through serving a Notice to Quit or, if required earlier, they can be terminated by service of a Notice to Treat followed by a Notice of Entry.

2.14. After acquiring title by GVD the Acquiring Authority may choose to lease the land back to the former owner or tenant if it does not need entry to the land immediately. However, it should draw up the lease carefully to ensure that the Acquiring Authority can take vacant possession of the land when it needs to.

2.15. If the Acquiring Authority is acquiring only part of someone's land Ministers expect the Acquiring Authority to advise the owner or tenant that they may have the right to serve a Notice of Objection to Severance or advance a claim for material detriment. See paragraph 3.17 for further details.

2.16. Where either a Notice of Objection to Severance or a claim for material detriment is served by the owner, the land and the right to enter and take possession of it does not vest in the Acquiring Authority until the Notice has been dealt with.

2.17. Under GVD procedure the relevant date for assessing any financial compensation due is the vesting date.

Notice to Treat procedure

2.18. A Notice to Treat is a formal notice by the Acquiring Authority of its intention to take land from the recipient(s) and asking them to agree a price for its compulsory purchase. There is no prescribed form of Notice but it typically advises of the Acquiring Authority's willingness to pay for the land's purchase and compensation, and requires the recipient(s) to give particulars of their interest in the land and their claim for compensation, normally within 21 days from the date of service of the Notice.

2.19. A Notice to Treat can be served at any time after the notices of confirmation of the order have been served and published. However, as a CPO may be challenged in the Court of Session, it is recommended that a Notice to Treat is not served until after the challenge period for the Order has expired. The Notice to Treat must be served on all persons with an interest in, or having power to sell and convey or release the land. This will include:

• Owners;
• Lessees and tenants having an interest greater than for a year or from year to year;
• Heritable creditors; and
• Persons having a qualified interest, for example, life renters having use and possession.

2.20. Under this procedure the Acquiring Authority must also serve a Notice of Entry ^[1] . This can either be done at the same time as the Notice to Treat is served or after it. Service of a Notice of Entry allows the Acquiring Authority to take possession of the land, provided that a minimum period of 14 days' notice is given to the owner, lessee or occupier of the land to take possession.

2.21. Holders of short tenancies, and persons having the benefit of servitudes or real burdens are not entitled to a notice to treat. However, as a measure of good practice, Scottish Ministers would expect Acquiring Authorities to also serve notice on such persons.

2.22. As in the GVD procedure, if the Acquiring Authority is acquiring only part of someone's land the owner may have the right to serve a Notice of Objection to Severance or advance a claim for material detriment (see paragraph 3.17).

2.23. A Notice to Treat provides that, if no claim is received (usually in 21 days from the date of service), and the Acquiring Authority can, therefore, not make a proper offer of compensation, they can make an application to the Lands Tribunal for the determination of compensation.

2.24. It should be noted that, once served, a Notice to Treat may only be withdrawn:

• By agreement between the parties;
• Within 6 weeks of a claim having been submitted that complies with Section 4 of the Land Compensation (Scotland) Act 1973 (that is, it provides details of the interest in respect of which compensation is claimed; gives details of the compensation claimed; and sets out the heads of claim and showing how the amount under each head of claim is calculated);
• At any time within 6 weeks of a decision of the Tribunal providing entry has not been taken if no claim is made in accordance with section 4 above, the notice may be withdrawn; and
• In response to a Notice of Objection to Severance.

2.25. Authorities should note that compensation remains payable if a notice to treat has been withdrawn and the landowner has incurred expenses or suffered a loss.

2.26. Where the landowner is either unwilling or unable to transfer the land, the Acquiring Authority can pay compensation, as agreed or determined, to a bank account of the seller, and acquire title by executing a deed before a notary public.

Agreeing a Date of Entry

2.27. Whichever procedure for taking title to and possession of the land is used the Acquiring Authority should consider the steps that the people affected will need to take to vacate their properties. Where possible it should adopt a timetable that takes into account the needs of owners, tenants and occupiers to move out, relocate and/or cease their business operations. Even when that is not possible, it should give people as much notice as possible of proposed stages in the process.

2.28. When acquiring agricultural land or business premises the Acquiring Authority should be aware that owners or tenants may need to know the entry date earlier than others, because of (for agricultural owners) crop cycles and/or the need to find alternative premises. It should also be aware that short notice periods often result in higher compensation claims.