Compulsory Purchase Reform: Consultation Responses Summary

5. Confirmation procedures – Making a CPO

Form and content of a CPO

Question 14: Are any changes required to the legislation which prescribes the form and content of CPOs? If so, please give details.

There were 51 responses to question 14, more than two thirds of which (69%) did not consider that any changes need to be made to the prescribed form and content of CPOs. Many of those who indicated that changes are not required (i.e. answered ‘no’) did not give reasons, although a few noted that the current forms are sufficient/well-understood.

Several respondents suggested that the forms should be updated to reflect wider reform proposals (e.g. introduction of temporary possession powers) and to take account of wider trends, such as changes in digital technology. A couple of responses suggested that the form should include separate columns for particular types of interest (e.g. benefitted proprietors, heritable creditors) in order to bring greater consistency and clarity. There were some calls for greater use of plain English and shorter, more consistent descriptions of interests/rights.

There were also suggestions that the form should require the provision of information that goes to the public interest justification for the CPO, including the purpose and effect of the Order, alternatives considered and the site’s planning history. It should be noted that this type of information is generally provided in the Statement of Reasons (see question 15).

Question 15: Should any or all of the following documents be placed on a statutory footing?

• Statement of Reasons
• General Certificate
• Protected Assets and Special Category Land Certificate

A majority of those who responded to question 15 were opposed to making the Statement of Reasons (58%), the General Certificate (61%) or the Protected Assets and Special Category Land Certificate (63%) statutory documents. The balance of support/opposition was similar across each of the three, although there was marginally more support (42%) for placing the Statement of Reasons on a statutory footing. The key concern among those opposed to making these documents statutory was that it would limit flexibility.

Those who expressed support for making the documents statutory (and gave reasons) generally felt that doing so would promote consistency and transparency. A few respondents suggested that placing the documents on a statutory footing would be particularly important should acquiring authorities be given the power to self-confirm CPOs (see questions 33 and 34).

Notification and advertisement of a CPO

Question 16: Do you agree that the notification requirements for CPOs should be prescribed through secondary rather than primary legislation?

Sixty-five respondents answered question 16, of whom 95% were in favour of the notification requirements for CPOs being prescribed through secondary rather than primary legislation.

Relatively few respondents expanded on their yes/no answer. None of those who answered ‘no’ gave reasons. Among those who supported notification requirements being set out in secondary legislation, the principal reason given was that doing so would provide greater flexibility and enable provisions to be more readily updated in line with evolving technology and practice. A couple of respondents commented that this would bring CPOs into line with other regulatory regimes such as planning. One respondent who supported the proposal did so on the proviso that the secondary legislation was subject to appropriate consultation and scrutiny.

Question 17: Should heritable creditors be added to the list of parties who must be individually notified of a CPO?

The majority (71%) of those who responded to question 17 supported heritable creditors being added to the list of parties who must be notified of a CPO. It was noted that heritable creditors have a financial interest in land subject to compulsory purchase and it is therefore reasonable that they be specifically made aware of (and have the opportunity to object to) a CPO; several respondents indicated that this burden should not be on the borrower and should be the responsibility of the acquiring authority.

Those who did not support the proposal expressed concerned about the additional complexity, administrative burden and costs that could be introduced. It was noted that creditors can be difficult to trace. One respondent noted that the terms of standard securities typically require owners to notify their creditor of any action, such as a CPO, which could affect the property and that it was appropriate for this notification to remain the responsibility of the borrower.

Question 17A: Should heritable creditors have the status of statutory objectors?

There were 58 responses to this question, of which 71% were opposed to heritable creditors having statutory objector status. 30 respondents offered comments. The key concerns were that this would be disproportionate: that it would add cost and complexity to the CPO process and potentially cause additional delay. Several respondents who were opposed drew a distinction between owners/occupiers and heritable creditors, in terms of how they and their rights are affected by a CPO.

Of the respondents who favoured heritable creditors becoming statutory objectors, several suggested that this would be reflective of their legal and financial interest in land subject to compulsory purchase. It was also suggested that this would provide additional scrutiny and accountability to the process.

Question 18: Are any other changes required to the list of people to be individually notified?

Most of those who responded to this open-ended question noted that they considered the current list of parties who must be notified of a CPO to be appropriate and/or that no further changes were required. Eight respondents suggested specific additions to the list; these included: community councils/community bodies, adjacent neighbours who may be affected, formally-appointed agents acting on behalf of affected owners, beneficiaries of trusts and informal succession arrangements.

Question 19: Do you agree that the CPO (and map) should be published on a suitable website, in addition to being made available for inspection at a specified physical location?

Seventy respondents answered question 19, of whom 97% agreed that CPOs should be published on a suitable website. It was suggested that this would help to modernise the CPO process and make it more accessible. A couple of respondents noted that this already happens in practice, even though it is not a legal requirement. One of the respondents who answered ‘no’ queried whether acquiring authority websites would help to raise awareness of CPOs with the local population.

Question 20: Should newspaper notices continue to be used to publicise the making of CPOs?

Sixty-three respondents answered question 20, of whom 65% indicated that newspapers should continue to be used to publicise CPOs. Among those who favoured retaining newspaper notices, the key reason given was that some sections of the public rely on print media, and that not all parties have access to high-quality internet. The associated risks of digital exclusion were flagged. A couple of respondents who supported newspapers notices nevertheless acknowledged that their relevance may diminish over time and the matter should be kept under review.

For those who did not support the continued use of newspaper notices, cost was the key reason given. It was suggested that costs are disproportionate to the low level of readership, which limits their effectiveness. Several respondents indicated that if they are retained, the prescribed content of newspaper notices should be streamlined: it was suggested that shorter notices would be less costly and more accessible.

Question 21: What alternative approaches might be appropriate for publicising CPOs – either in addition to or instead of newspaper notices?

Around 50 respondents responded to question 21. A range of alternative approaches for publicising CPOs were identified. These included: local authority and/or Scottish Government websites; other websites or portals such as TellMeScotland; social media platforms; weekly lists of planning applications; site notices; notification of neighbours and community councils; noticeboards and newsletters.

Digitisation

Question 22: Should Scottish Ministers have a power to prescribe (through secondary legislation) common data standards for compulsory purchase documentation? If not, please explain your reasons.

Of the 62 responses to this question, 97% were in favour of giving Scottish Ministers the power to prescribe common data standards for compulsory purchase documentation through secondary legislation. The key points made by those in favour of this change were that it would promote greater consistency, transparency and efficiency, as well as providing for integration/interoperability with other systems.

Of the respondents not in support, one felt this measure could be overly prescriptive, while another expressed concern about digital communication taking precedence over paper notification. A few respondents felt that more detail was needed, and called for further engagement and consultation on the development of any data standards and associated regulations.

Question 23: Should acquiring authorities be able to serve compulsory purchase notices by electronic means, if a party agrees to this in writing and provides an address for this purpose? If not, please explain your reasons.

Seventy-one respondents answered this question, of whom 97% agreed that acquiring authorities should be able to serve CPO notices by electronic means, if the party agrees in writing and provides an address for this purpose. It was suggested that this would help to modernise the CPO process, improve efficiency, reduce cost and avoid unnecessary waste. Several respondents suggested electronic notification should be elective and that physical copies should remain an option for those who want it (this is what was proposed in the consultation).

Those who did not support the proposal expressed concern that emails can be missed or not received if they are marked as spam or go into a junk folder. Some respondents who supported the introduction of electronic CPO notices made detailed suggestions to ensure such arrangements operate fairly and effectively, such as use of read receipts and the ability to revert to hard copy documentation.