Planning Circular 6/2011: Compulsory purchase orders

Sending the order to Scottish Ministers for confirmation

58. As soon as possible after it makes the compulsory purchase order, the authority should send the order and supporting documents to the relevant Scottish Government Directorate ³¹ . To avoid delay, the authority should ensure that it sends all the documents and information that Ministers will require ³² .

59. Scottish Ministers will seek to minimise the period of uncertainty for the people affected. Ministers will therefore decide as quickly as possible whether an inquiry is required and hold any inquiry as soon as possible, depending on the circumstances. Ministers will not normally agree to delay or postpone the decision making process unless the authority no longer wishes to pursue the order. The authority should not therefore make a compulsory purchase order unless it is ready to proceed.

60. Scottish Ministers will decide as quickly as possible whether to confirm the compulsory purchase order. Ministers will consider each order on its merits and may take longer to make a decision on some orders than on others, depending on the circumstances. Ministers will publish indicative timescales and a list of contact points at www.scotland.gov.uk/cpo . Anyone who wishes to check progress or ask any questions about an order that Ministers are considering should contact the relevant Scottish Government Directorate.

Related applications or appeals

61. The authority should identify any related application or appeal that Scottish Ministers may wish to consider at the same time as the compulsory purchase order ³³ . This will allow Ministers to consider whether a joint inquiry might be appropriate. The authority should ensure that it carries out any procedures that it is responsible for at the right time to allow Ministers to consider related applications or appeals in step.

Objections to the order

62. Scottish Ministers will send the authority a copy of all objections and will ask the authority to reply with its comments about the objections. The authority should reply to Ministers as quickly as possible. It should tell Ministers whether it intends contacting the objectors and whether it is likely to reach agreement with all objectors to secure the withdrawal of every objection. It should also include any general comments it wishes to make.

63. In some cases the authority may be able to alter its plans or provide assurances to the objectors that may address their concerns and result in all objectors withdrawing their objection. If this is the case it should tell Ministers. However, in other cases the authority might consider that there is no realistic prospect of every objector withdrawing their objection. This might be because of the number of objections, the grounds for objection or because the authority is already aware of the objectors' concerns and has exhausted attempts to negotiate. If the authority does not consider it likely that every objector will withdraw their objection it should tell Ministers as soon as possible.

64. If Scottish Ministers consider that an inquiry is likely to be necessary they will arrange the inquiry as soon as possible. However, the authority can continue to negotiate with objectors about their concerns in the meantime ³⁴ . If the authority becomes aware that an objector has withdrawn their objection it should tell Scottish Ministers as soon as possible.

The inquiry

65. If an inquiry is necessary Scottish Ministers will decide whether a public local inquiry session or a hearing session is most appropriate in the circumstances ³⁵ .

The Scottish Government's Directorate for Planning and Environmental Appeals ( DPEA) will arrange and hold the inquiry before an independent reporter appointed by Scottish Ministers. The reporter will usually be a specialist such as a planner, surveyor, engineer, architect or lawyer.

66. In general, Scottish Ministers will bear the administrative costs of holding the inquiry. If a statutory objector to an order is successful, an award of expenses will usually be made in their favour, unless there are exceptional circumstances for not doing so. ³⁶ Ministers may award expenses if a party has acted unreasonably and the party claiming expenses has incurred unnecessary expense as a result.

67. Once the date of the inquiry is fixed DPEA will change it only for exceptional reasons. DPEA will not usually agree to cancel or postpone the inquiry unless all objections are withdrawn or the authority says it no longer wants to pursue the order.

Scottish Ministers' decision

68. After the inquiry the reporter will write a report with recommendations for Scottish Ministers. Scottish Ministers will consider the merits of the case, including the reporter's conclusions and recommendations then decide to confirm the order (with or without modifications ³⁷ ) or refuse to confirm the order. Scottish Ministers will write to the authority to tell it of their decision and the reasons for reaching that decision. Scottish Ministers will send a copy of this letter to everyone who maintained an objection to the order.

69. As soon as possible after Ministers have confirmed the order, the authority should publish notice of the confirmation and serve notice of the confirmation on everyone that it served with the notice of making of the order. It should notify the relevant Scottish Government Directorate ³⁸ once it has done this.

Challenge to the validity of the order

70. There is a six week period, beginning from the date that the authority first publishes notice of the confirmation of the order, in which the validity of the order can be challenged in the Court of Session. The challenge may be made on the grounds of the lawfulness, rather than the merits, of the decision. If the challenge is successful, the court may quash the compulsory purchase order in whole or part.