Compulsory Purchase Reform: Consultation Responses Summary

3. Enabling powers

Question 3: With the exception of the bodies referred to at paragraph 3.6, are there any gaps in acquiring authorities’ enabling powers? Please provide specific examples.

Sixty-four respondents answered this question. Of these, 27 answered ‘no’ without any further comment, or noted that they were not aware of any gaps in enabling powers. A handful of respondents used their answer to this question to indicate that they were opposed to any extension of enabling powers. Several respondents expressed support for the introduction of powers to create new subordinate rights in land (e.g. servitudes) and to take temporary possession (covered by questions 5 to 7 of the consultation), or made comments about other aspects of compulsory purchase.

As regards gaps, several local authorities mentioned the lack of a specific power to acquire land for waste or recycling facilities. One local authority wanted a specific enabling power for regeneration projects, querying whether these would be covered by existing powers. Another sought a specific power for CPOs related to empty homes. As regards local authority powers, there was overlap with responses to question 4 which covered this issue specifically.

Several energy provider respondents pointed to issues with the Electricity Act 1989, especially the lack of temporary possession powers for electricity generation. A number of these also suggested that CPO powers should extend to all those involved in electricity generation not just licence holders, and for the ability to compulsorily purchase other acquiring authorities’ land.

The consultation paper specifically referred to South of Scotland Enterprise (SOSE) and Network Rail as bodies who potentially lack clear enabling powers. Several respondents suggested that CPO powers should be extended to both, although a couple queried doing so in respect of SOSE (and Enterprise Agencies more generally).

A range of other suggestions were made, including clarifying National Health Service Boards’ powers, giving acquiring authorities powers to acquire land necessary to meet biodiversity net gain requirements and a power for the descendants of the Highland Clearances to compulsorily acquire the remains of their ancestral homes.

Question 4: Are local authorities’ compulsory purchase powers (set out on page 13-14) sufficiently broad to cover the circumstances in which they may need to compulsorily acquire land in carrying out their statutory functions? If not, please specify which powers require to be amended, clarified or supplemented.

Fifty-eight respondents answered this question, of whom 83% indicated local authorities have sufficiently broad enabling powers to carry out their statutory functions.

There were calls for either clarification of existing powers or for express provision in respect of particular matters, including empty homes, listed buildings, active travel, biodiversity, regeneration and reuse of vacant/derelict land. There was some overlap between respondents’ answers to this question and question 3, although notably the point about local authority powers regarding waste and recycling facilities was not reiterated – despite arguably being more relevant to this question. One individual argued that local authority powers are already too wide and lack sufficient safeguards.

Several responses indicated that the main issue is not a lack of powers but rather a reluctance to use them, with various reasons given, including procedural complexity and costliness, perceived risk, insufficient resources and a lack of ambition. Suggested remedies included training, guidance and making legislation more streamlined, consistent and clear. One response recommended adopting provisions on rental auctions in the Levelling-Up and Regeneration Act 2023 for vacant commercial properties.

A few respondents (principally housebuilders) proposed introducing a statutory provision which would allow developers to formally request that local authorities initiate a CPO, with specific timescales, appeal rights and cost recovery provisions.

Question 5: Should there be a general power for acquiring authorities to create new rights in land and to attach conditions to such rights?

Seventy-three respondents answered this question, of whom 93% were in favour of introducing a general power for acquiring authorities to create new rights in land and to attach conditions. Many respondents supported the view that enabling acquiring authorities to create limited rights such as servitudes, wayleaves, temporary access, restrictive covenants (real burdens in Scotland) and corridor rights would provide a more proportionate and less intrusive alternative to full land acquisition. It was suggested that if such a provision were introduced, it could result in reduced compensation, fewer objections and faster delivery. It was also noted that there is no clear rationale for the current position, whereby some authorities have this power while others do not.

A number of responses highlighted the need for legislative clarity and accompanying guidance on when and how such provisions would work, in order to ensure fair and consistent use. Issues such as duration of rights, the nature of conditions, their enforceability, safeguards for landowners, restoration of property and rights to compensation were mentioned. A couple of responses indicated that conditions could help safeguard the acquiring authority’s position.

Of the five respondents who answered ‘no’, only one provided a comment. Their view was that voluntary agreement should be sought and, if that is not forthcoming, then compulsory purchase should be pursued as a last resort. One response made a technical, legal point that servitude rights in Scots Law do not relate to access to leased sites, and that this should be addressed in new legislation. Another respondent highlighted concerns about the tax implications of temporary rights.

Question 6: Should there be a general power for acquiring authorities to seek temporary possession of land?

Seventy-two respondents answered this question, of whom 92% were in favour of giving acquiring authorities a general power to seek temporary possession of land. There was considerable overlap between respondents’ comments on this question (which was focussed on the principle of temporary possession powers) and question 7 (which was focussed on detailed considerations).

A recurring message was that, compared to acquiring land outright, temporary possession can be a more proportionate means of facilitating essential activities such as surveying, construction, environmental works, utilities connection and maintenance. Respondents stated that this flexibility can reduce compensation and minimise impacts on landowners. It was noted that temporary possession must come with safeguards to ensure that landowners’ rights are respected and use is strictly regulated. A range of safeguards were suggested, such as clear timelines, compensation provisions, reinstatement obligations and conditions.

Only six respondents who answered this question were not supportive of introducing temporary possession powers; two provided substantive comments. One felt anything other than a negotiated temporary possession was compulsory purchase. The other suggested that acquiring authorities should rely on negotiated leases, licenses or voluntary agreements instead of using temporary possession powers, and that any such power should be tightly framed with specific safeguards.

Some responses from energy providers offered detailed, sector-specific comments describing how temporary possession is needed for oversail (large equipment needing to pass over land on route to installation), underground cable works, access corridors and construction in general, noting the technical challenges they face such as servitude limitation when the developer leases the land instead of owning it.

Question 7: Do you agree with the proposed list of matters that should be addressed in any new temporary possession power? If not, please give details.

Sixty-four respondents answered this question, of whom 86% agreed with the proposed list of matters that should be addressed in a new temporary possession power. Whilst most of the comments made about the list were supportive, many respondents suggested that further clarification or specification was needed. Some responses cited existing areas of legislation as potential blueprints for how a temporary possession power could be framed. Some respondents highlighted sector-specific (e.g. energy industry) issues, or pointed to specific scenarios as examples of where issues such as reinstatement, compensation and service of notices would need to be addressed.

As regards the duration of temporary possession, a number of respondents stressed that a longer period or flexibility would be necessary to deal with matters outside the developer’s control. Several suggested temporary possession would be needed for the lifetime of certain projects, from construction through to decommissioning.

Nine respondents to the question did not agree with the proposed list of matters – although as indicated above, some of those who agreed (i.e. answered ‘yes’) also made specific suggestions. A range of general concerns were expressed, such as temporary possession being more about expediency or administrative convenience, which may deprioritise more collaborative approaches. One respondent expressed concern that temporary possession powers could add procedural complexity and may be less fair or proportionate than leases or licenses. Another suggested rights of servitude may be more appropriate. The need to consider impacts on – and provide protections for – landowners was also raised, including compensation, notice periods and independent oversight.

A couple of respondents raised the issue of dispute resolution, with one proposing that parties have an early right to refer cases to the Lands Tribunal for Scotland before temporary possession begins. It was suggested that this could avoid project delays. Other issues/questions raised included: responsibilities for land during temporary possession; use of temporary possession powers independently of the acquisition of land; and whether landowners should have a right to request permanent acquisition of their land rather than temporary possession.

Question 8: How might the use of back-to-back CPOs be further encouraged?

Sixty-five respondents provided comments on the question. Many of those who responded made general comments about the benefits of back-to-back CPOs, with reference made in some cases to specific circumstances and sectors, such as housing, re-use of vacant and derelict land, community and environmental projects. Several respondents indicated what they considered to be barriers to more widespread use of this mechanism, such as limited financial resources and/or risk appetite within authorities and the complexity of the legislation.

The two recurring suggestions were guidance and legislation. On the former, many respondents called for clear guidance incorporating things like templates, model agreements, step by step guides, case studies and practical examples. It was suggested that this would help to build confidence. In the interests of providing greater certainty, others suggested putting back-to-back CPOs – including associated procedures – on a clearer statutory footing. Some responses went into more detail as to matters to be covered in legislation and guidance; several specifically mentioned a statutory provision which would allow developers to formally request that local authorities initiate a CPO, with specific timescales, appeal rights and cost recovery provisions.

Other respondents emphasised the potential role of engagement, including training, awareness-raising, webinars, outreach to LAs and communities and promotion through professional networks. Another issue raised was funding, including grants and access to capital funding.

Several respondents used their answers to voice opposition to the use of back-to-back CPOs. Concerns included lack of transparency, blurring of public and private interests and the need for safeguards to ensure proportionality, a clear public interest case and fair compensation.