Compulsory Purchase Reform: Consultation Responses Summary

6. Confirmation procedures – Deciding a CPO

Considering objections to a CPO

Question 24: Should there be a statutory time period within which an opposed CPO should be referred to a Reporter^[1] after it has been submitted for confirmation? If not, please explain your reasons.

Sixty-four respondents answered this question, 84% of whom were in favour of there being a statutory time period within which opposed CPOs should be referred to a Reporter following submission to the Scottish Ministers. 46 respondents commented.

The most frequently cited reason for support was that such a time period would provide greater certainty and transparency, which would in turn increase confidence in the process – both for acquiring authorities/investors but also affected landowners and occupiers. It was noted that this additional certainty could reduce the stress and negative mental health impacts felt by owners and occupiers.

Some supportive respondents noted that a time limit could incentivise early engagement (i.e. prior to a CPO being submitted) and that if such engagement has happened, there is potentially little to be gained from a further, open-ended period for negotiation. It was suggested that a statutory deadline could focus minds and facilitate swifter resolution. Several respondents who were in favour of the proposal nevertheless felt that there should be an option to extend the time period by agreement with relevant parties, if such a request is made timeously and there is a reasonable prospect of an objection being withdrawn.

The main concern expressed by those who were not in favour of the proposal was that fixed deadlines could limit flexibility, which could in turn reduce the quality of decision-making and result in unnecessary hearings or inquiries being held, increasing time and costs for all parties. A couple of respondents were concerned that a statutory time period could disadvantage parties with limited resources.

Question 25: If there is to be a statutory time period, how long should it be?

Fifty-one respondents offered a comment on how long the relevant period should be if a statutory time limit for referring opposed CPOs to a Reporter is introduced (see question 24). A small number of respondents used the question to reiterate that they did not support the proposal rather than suggesting a particular period.

The time periods suggested by respondents varied quite widely, ranging from 10 days to 12 months. The most common suggestions were: 8 weeks/2 months (11 responses), 12 weeks/3 months (10 responses) and 6 months (7 responses). Rather than a specific period, a few respondents put forward a range such as “4 to 8 weeks”, “2 to 3 months” or “3 to 6 months”.

Some felt that instead of there being a single time limit, this should vary depending on the scale or nature of the CPO – for example, a shorter time period for smaller-scale schemes and a longer (or no) time period for larger schemes.

Question 26: Should express provision be made in legislation for objections to be considered through written submissions?

There were 66 responses to this question, 94% of which agreed that legislation should make express provision for CPO objections to be considered through written submissions. 20 respondents provided comments.

The principal reason those in support gave is that written submissions can be more efficient and proportionate than a public local inquiry (PLI) or hearing in some cases, helping to streamline the confirmation process and reduce the time and cost for all parties.

Concern was expressed that objectors should have the right to be heard at an inquiry given the draconian nature of compulsory purchase – and that this is important in ensuring procedural fairness and European Convention on Human Rights (ECHR) compliance. One respondent indicated that self-representing parties are often better able to represent their position in person than in writing. It should be noted that the proposal was to make provision for written submission in Scottish CPO legislation rather than withdraw objectors’ right to be heard. The proposed measure is intended to address the current position in which there is no statutorily prescribed process for written submissions, meaning that planning procedures are used ‘by analogy’.

Question 27: Should the procedural rules for hearings and written submissions for CPO cases be set out in secondary legislation?

There were 61 responses to the question about whether the procedural rules for hearings and written submissions in CPO cases should be set out in secondary legislation. Of those who responded to the question, 97% were supportive although relatively few expanded on their yes/no answer.

It was suggested that prescribing procedures in secondary legislation would support greater speed and clarity, and provide greater flexibility for the Government to change and adapt provisions over time. One respondent was of the view that regulations should follow the affirmative procedure, while another stated that regulations should be subject to an appropriate level of parliamentary scrutiny and stakeholder consultation. Neither of the two respondents who disagreed with the proposal gave a specific reason.

Question 28: Do you agree that statutory objectors’ right to be heard at either a PLI or a hearing should be retained?

Fifty-nine respondents answered the question, of whom 85% agreed that statutory objectors should continue to have a right to be heard – either at a PLI or a hearing. The main reason respondents gave for supporting the retention of the right to be heard was that it provides an important safeguard which underpins procedural fairness and transparency. Some noted that this was particularly important given the draconian nature of compulsory acquisition, and that the right to be heard was required in the interests of natural justice and potentially to ensure compliance with the ECHR. Local authority respondents were noticeably divided: 59% of those who responded to the question answered yes and 41% answered no.

None of those who disagreed with the proposal suggested that hearings or PLI should not be a feature of the CPO process at all – but rather that Scottish Ministers (or a Reporter) should have discretion as to whether one should be held, having regard to the circumstances of the case. Some felt that in the interests of proportionality, PLIs should only be held in respect of particularly large or contentious schemes. Linked to this, several respondents (including some who supported the retention of the right to be heard) felt that written submissions should be the default position and used in the majority of cases.

Question 29: Should Scottish Ministers continue to decide whether a PLI or hearing is used? If not, in what circumstances should a PLI be required?

Fifty-five respondents answered this question, of whom 85% agreed that Scottish Ministers should continue to decide whether a PLI or hearing is used. A number of respondents who supported the proposal suggested that retaining this discretion would help to ensure proportionality and flexibility. A couple of responses indicated that guidance should be issued to provide transparency around the circumstances in which a PLI or hearing might be used. One of these responses noted that such guidance might also help to address the incorrect assumption that all objectors have a right to a PLI. A few respondents used this question to reiterate their view that written submissions should be the default approach.

There were only a small number of specific suggestions around the circumstances in which a PLI should be a requirement. Several respondents felt that that a PLI should be used in more contentious, large-scale or high-profile cases – for example, based on the number of objections or the amount of land affected. Other specific suggestions included holding a PLI where there are disputes of fact, where there are significant public interest questions at issue (e.g. loss of community assets, environmental impacts), where a CPO could have significant personal, financial or health impacts or where the rights of vulnerable groups or those with protected characteristics are at stake. It was suggested that this would help maintain confidence in the system.

Question 30: Should provisions on awards of expenses be extended to cover cases where objections are considered through hearings and written submissions?

There were 58 responses to this question, of which 93% agreed that awards of expenses should be extended to cover hearings and written submissions – rather than applying only in PLI cases. Fairness was the most commonly cited reason for supporting this proposal, with several respondents suggesting that the ability to claim expenses should not be dependent on whether objections were considered via PLI, hearing or written submissions. One respondent who agreed with proposal thought it would encourage greater proportionality by reducing the incentives for objectors to ask for a PLI in cases where written submissions would otherwise be suitable. A few responses noted that the criteria for awards of expenses should be clear and proportionate to discourage unreasonable, uncooperative or vexatious behaviour.

How CPOs are decided

Question 31: Does the public interest test, as currently set out in Circular 6/2011, strike a fair balance between private and public interests? Please explain your views.

There were 66 responses to the question, with 88% agreeing that the public interest test strikes a fair balance between public and private interests. Several respondents who supported this view noted that the test is well-established and well-understood, which provides certainty. Another recurring point was that the circular offers a helpful degree of flexibility, enabling the merits of individual CPOs to be determined on a case-by-case basis. It was suggested by several respondents that the test creates an appropriately high bar which reflects the intrusive nature of compulsory acquisition. By contrast, a small number of respondents felt that the test sets too low a bar, being weighted unfairly in favour of acquiring authorities and inadequately reflecting the adverse impacts on affected individuals.

There were a number of specific suggestions for how the circular could be improved; these came from both those who thought the current test strikes a fair balance and those who did not. These include: placing greater emphasis on – and stronger expectations around – early engagement with affected parties; giving greater weight to sites allocated in development plans; emphasising that CPOs can proceed in advance of planning permission and taking account of future generations’ needs. Linked to these suggestions, a number of respondents expressed support for refreshing the circular.

Question 32: Do you agree that the public interest test should continue to be policy-based rather than statutory?

There were 65 responses to the question, of which 88% agreed the public interest test should remain policy based. The overriding reason given was flexibility. There were two key strands to this. Firstly, it was suggested that a policy-based test enables a diverse range of CPOs to be considered on a case-by-case basis, allowing complex site-specific factors to be taken into account. Secondly, several respondents pointed out that a policy-based test can evolve more flexibly over time to wider changes in strategic direction, policy and need.

Few of those who disagreed with the question gave specific reasons. One respondent suggested that a statutory test would provide greater certainty and consistency, although acknowledged that this could be at the expense of flexibility. Another respondent was of the view that putting the test on a statutory footing would be consistent with the proposed codification of other key aspects of the compulsory purchase framework, such as the no-scheme principle.

Who takes CPO decisions

Question 33: Should acquiring authorities be empowered to confirm unopposed CPOs?

Sixty-nine respondents answered this question, 83% of whom felt that acquiring authorities should be able to confirm unopposed CPOs. Among those who expressed this view, the most common reason given was that it would improve efficiency, help to streamline the process and reduce delays. Linked to this, several respondents suggested that enabling such ‘self-confirmation’ of unopposed CPOs would enable central government resources to be focussed on more complex and/or controversial cases. It was also stressed by a number of respondents that local authorities would need to be equipped with the necessary resources and skills to take on the role and responsibility that this proposal entails.

Some of those who supported the principle of acquiring authorities being able to confirm CPOs nevertheless noted that there would need to be appropriate safeguards to avoid such provisions being abused and to protect the rights of those affected. A few respondents also suggested that providing for self-confirmation of unopposed cases would bring Scotland into line with England and Wales.

Those who disagreed with self-confirmation expressed concerns about fairness, lack of transparency and insufficient scrutiny – it was suggested that this could undermine trust and confidence in the system, particularly given the intrusive nature of compulsory purchase. One respondent recognised the need to reduce administrative burdens but suggested this would be better achieved by streamlining the Ministerial confirmation process. Another respondent thought that self-confirmation could prejudice parties who have been unable to engage with the process or where land is unregistered and owners cannot be traced.

Question 34: If acquiring authorities are empowered to confirm unopposed CPOs, which approach outlined at paragraph 6.34 would be preferable – Option 1 or 2? Please explain your views.

Of the 57 respondents who answered question 34, 81% expressed a preference for Option 2 (objections to be sent to the acquiring authority and the CPO sent to Ministers for confirmation if objections from statutory objectors are received). The key reason by those in favour of Option 2 was that it would offer greater time savings and simplification compared to Option 1 and thereby help to expedite the process. A couple of respondents thought that Option 2 might incentivise early and effective engagement by acquiring authorities, helping to avoid objections arising.

Supporters of Option 1 (objections to be sent to Scottish Ministers and unopposed cases referred back to the acquiring authority) generally favoured this approach because it would retain a greater degree of oversight by the Scottish Ministers, which it was felt would ensure democratic accountability and independent scrutiny. Several respondents were concerned that Option 2 would concentrate too much power in acquiring authorities, who would be ‘judge and jury’ of unopposed CPOs. It should be noted that a few respondents who expressed support for Option 1 also answered ‘no’ to question 33, suggesting that their overall preference would be for Scottish Ministers to continue to confirm all CPOs, but if acquiring authorities were empowered to ‘self-confirm’ unopposed CPOs, then this option would be preferable. However, other respondents who responded ‘no’ to question 33 used their answer to question 34 to reiterate their opposition to the principle of acquiring authorities confirming unopposed CPOs, indicating that they supported neither option.

Question 35: Should Reporters be empowered to take CPO decisions, subject to published criteria regarding delegation by Scottish Ministers? Please explain your views.

There were 67 responses to the question, of which 79% agreed that provision should be made to delegate CPO decisions to Reporters – subject to published criteria. The recurring reason given by respondents was that such a measure would streamline and speed up the confirmation process and – by avoiding ‘double-handling’ – would improve the efficiency of the system. Some respondents suggested that this would help to align CPOs with other types of casework such as planning appeals and provide consistency with the approach in England and Wales. Several respondents underlined the importance of published criteria in providing certainty and transparency, and noted that Scottish Ministers should retain the ability to confirm more contentious or complex cases.

Those who answered ‘no’ to this question were generally concerned that delegation of CPO decision-taking to Reporters would reduce democratic accountability and oversight, which could erode confidence in the system. The intrusive nature of compulsory purchase was cited as a reason why all CPO decisions should remain in the hands of Scottish Ministers, with one respondent drawing a distinction between planning appeals (which Reporters are already empowered to determine) and CPOs. Two respondents suggested that, rather than enabling Reporters to take CPO decisions, the confirmation process could instead be sped up by introducing a statutory time limit for Scottish Ministers to decide CPOs.

Special category land

Question 36: Is additional scrutiny still needed for CPOs which include particular land? If yes, which of the four current special categories of land should this apply to?

• land owned by a local authority
• statutory undertaker land
• land held inalienably by the National Trust for Scotland (NTS)
• land forming part of a common or open space

Of the 57 respondents who answered this question, a small majority (54%) were in favour of additional scrutiny in cases where special category land is included in a CPO. It was notable that several respondent groupings were split quite evenly between those for and against.

The second part of the question asked those who are in favour of additional scrutiny for CPOs which include particular types of land to indicate which category (or categories) of land this additional scrutiny should apply to. The results were:

• Land owned by a local authority (17 respondents)
• Statutory undertaker land (20 respondents)
• Land held inalienably by the National Trust for Scotland (24 respondents)
• Land forming part of a common or open space (24 respondents)

In commenting on their position, several respondents questioned whether the Special Parliamentary Procedure (SPP) was a proportionate form of additional scrutiny, or asserted that it was not. This overlaps with question 37, which asked about SPP specifically (see below).

A number of responses suggested that the CPO confirmation process itself provides sufficient safeguards for special category land – or that this could be provided by particular aspects of the process (such as requiring a PLI, involvement of a Reporter or ministerial oversight in certain cases) rather than SPP. One suggested adjusting the weight given to certain objectors in relation to special category land.

Question 37: If additional scrutiny of certain CPOs is needed, could there be alternative ways to achieve this other than Special Parliamentary Procedure? Please outline your suggestions.

Of the 34 who commented on alternative methods of additional scrutiny, a significant majority felt there are or could be alternative means of providing additional scrutiny to SPP.

The most commonly mentioned alternatives were: a requirement to hold a PLI, involvement of a Directorate for Planning and Environmental Appeals (DPEA) Reporter^[2] and certification along the lines of CPOs which include statutory undertaker land (see question 38). These were often mentioned in combination with each other or with one or more other measures, either in certain circumstances or as a standard where special category land is involved. Other suggested measures included: Ministerial involvement; using independent experts and assessments; stronger public interest tests and early engagement requirements on acquiring authorities.

Other comments included reference to what any alternative must achieve, for example being proportionate, rigorous and integrated to the CPO process. A couple of responses specifically favoured the option of SPP with confirmation by Parliamentary motion rather than an Act of Parliament, whilst three responses mentioned this in combination with the other proposals in the consultation paper relating to a PLI and certification.

Four responses favoured retaining the current requirements, at least in certain cases. One of these felt the case had not been made for amending or removing SPP requirements, whilst another focussed on the importance of the National Trust for Scotland’s right to declare land inalienable as a powerful tool in helping them to preserve conservation assets on behalf of the nation and in the public interest. Of the other two responses, one wanted SPP retained for statutory undertakers’ land and the other for local authority land.

Question 38: Should the restriction on confirmation of CPOs that include statutory undertaker land apply only where a relevant objection is made by the undertaker whose land is included in the Order? If not, please explain your reasons.

The vast majority of those who responded to this question indicated that the restriction on confirmation of a CPO due to the inclusion of a statutory undertaker’s land should only be triggered by an objection from the statutory undertaker themselves.

The current provisions do not specify that the objection necessarily needs to be made by the statutory undertaker, or that it relate to the inclusion of the undertaker’s land within the CPO. The content of a few answers indicated there may have been some confusion about the current and proposed positions. One respondent, for example, mistakenly thought that currently the restriction applies automatically if statutory undertaker land were included in a CPO. Another appeared to think such a change would limit the ability of a statutory undertaker to object at all to the inclusion of their land in a CPO.

The comments in support of the consultation proposal suggested that such a requirement would be proportionate, offer targeted protection, avoid delay in processing and prevent other parties frustrating an order. Several supporters also felt the general ability for statutory undertakers and others to object to an order would provide sufficient safeguards.

One respondent who disagreed suggested that statutory undertakers may have their own reasons for not objecting, such as commercial or strategic reasons that have nothing to do with whether the compulsory purchase is appropriate, proportionate or in the wider public interest. This they felt may be at odds with the wider public’s concern about the effect on essential services. They saw the change as risking a weakening of protections for administrative convenience rather than for strengthening fairness, and felt the inclusion of statutory undertaker’s land in a CPO should automatically trigger enhanced scrutiny. The other opposing view was concerned about reducing safeguards for the interests of statutory undertakers in the electricity sector.

Question 39: Do you agree with the proposals at paragraph 6.57 regarding the interaction between CPOs and public rights of way? If not, please explain your reasons.

Of those who responded to this question, 93% were in favour of allowing a PLI for a CPO and the related closure of a public right of way to be conjoined and for Ministerial discretion as to the holding of a PLI.

Less than a third of those in favour of the proposal expanded on their reasons for support. There were references to the proposals being sensible and proportionate, reducing delays, with several responses emphasising the criteria for the provision of an alternative route and/ or the need to justify the CPO vis a vis the particular public right of way, would act as suitable safeguards. One response felt Core Paths should be included in the legislation, while a couple felt provision of a suitable alternative route should remove the need for a PLI.

Amongst those opposing the change, all four disagreed with Ministerial discretion around the holding of a PLI (two explicitly favoured conjoining inquiries). One saw PLI as being the only way to secure a public right of way, and another saw it as the only way to examine a proposed alternative route. A third had a range of concerns around procedures for the closure and re-routing of rights of way.

Scope and timing of CPO decisions

Question 40: Should there be a mechanism that would allow statutory objections to be addressed during the confirmation process, so avoiding unnecessary hearings or PLIs?

There were 62 responses to question 40, with 94% of respondents agreeing that there should be a mechanism to allow statutory objections to be addressed during the confirmation stage in order to avoid PLIs or hearings being held unnecessarily. It was suggested this would provide greater flexibility which, insofar as it avoids the need for a PLI/hearing, could save time and money. However, most respondents who provided comments did so in response to question 41. None of those who answered ‘no’ to question 40 gave specific reasons.

Question 41: If provision for such a mechanism were made, what procedures or safeguards would need to be put in place to ensure fairness? Could either of the suggestions in paragraph 6.62 achieve this?

There were 46 responses to this question, although the most common comment from respondents was to express general support for the outline proposals at paragraph 6.62 of the consultation document. Several respondents stated that either or both of the two proposals would be suitable, with only one respondent expressing a preference between these options (power to modify the CPO during the confirmation process).

A number of suggestions were made in response to the sub-question about potential procedures or safeguards, although these were mostly expressed in quite general terms. These included, for example: clear notification provisions so that affected parties are made aware of (and have the chance to comment on) changes; opportunities to lodge objections; use of statements of common ground; awards of expenses; and clear audit trails to ensure transparency. Some respondents proposed that any provisions should be underpinned by guidance; another suggested that Scottish Government should work with practitioners to design and develop the processes in further detail to ensure they are workable.

Question 42: Would a power to confirm CPOs subject to conditions be helpful in terms of overall project delivery? Please explain your views.

Forty-nine respondents answered the question about the principle of introducing ‘conditional CPOs’. Of these, 82% agreed that a power to confirm CPOs subject to conditions would be helpful. The flexibility that such a measure would afford acquiring authorities (and their development/funding partners) was the key reason given by those who were in favour. Several respondents suggested that conditional CPOs would help acquiring authorities to manage and mitigate delivery risks/contingencies, for example where a project involves obtaining other consents. A number of those who supported the idea of conditional CPOs nevertheless underlined the need for safeguards (see question 43), stressing that conditions would need to be clearly/narrowly defined, precise and enforceable. Several respondents suggested that guidance on the use of conditions in a CPO context would be required. A couple of respondents who felt conditional CPOs could be helpful noted that such provisions have been recently introduced in England and Wales by the UK Government.

The key concern raised by those who were opposed to the proposal was the potential uncertainty for affected owners and occupiers, who it was suggested could experience hardship as a result. Concerns were expressed that the availability of conditional CPOs could result in Orders being made prematurely or speculatively, and that the nature of compulsory purchase requires a front-loaded approach in which all relevant details are provided. Linked to uncertainty, some respondents felt that the ability to confirm CPOs subject to conditions could prolong the process rather than speed it up. Additional complexity was also flagged as a potential drawback by a number of respondents.

Question 43: If conditional CPOs were taken forward, what additional procedures and safeguards would need to be in place to ensure fair and proportionate use?

There were 39 responses to the open question about potential safeguards for the use of conditional CPOs. A range of suggestions were put forward, the most common of which was prescribed timelines for discharging conditions, in order to limit uncertainty for affected parties. Notification requirements and opportunities to make representations – as well as the ability to challenge decisions – were also recurring suggestions.

Several respondents felt that there ought to be clear limits on the scope of conditions, with some suggesting that guidance could set out tests to ensure they are reasonable, precise and enforceable. One respondent stated that conditions should relate only to the securing of funding or other consents. Other suggestions included making provision for compensation/cost recovery where additional expenses are incurred through the use of a conditional CPO and, in the interests of transparency, a requirement to publish conditions. Noting the recent introduction of conditional CPOs in England and Wales, it was suggested that lessons from the use of those provisions should inform policy development in Scotland.

Question 44: Do you agree that the Scottish Government should publish target timescales for the issuing of CPO decisions, rather than having binding statutory time limits? If not, please explain your reasons.

Sixty respondents answered the question, with 77% agreeing that target timescales would be more appropriate than binding statutory time limits. The key reasons given for supporting this approach were that it would provide additional transparency and predictability, whilst maintaining a level of flexibility that recognises variation between schemes in terms of scale and complexity. Several respondents suggested that statutory time limits could give rise to unintended consequences, including cases being rushed in order to meet deadlines – potentially resulting in less robust decision-taking. A number of those who were supportive nevertheless stressed that, in the interests of transparency and accountability, performance against targets should be monitored and kept under review to ensure they are realistic, with reasons given for slippage/non-compliance (see also questions 45 and 46).

Those who were not supportive of the proposed approach expressed concerns that non-binding timescales would be insufficient to have a meaningful impact on expediting the confirmation process. It was suggested that binding time limits would provide significantly more certainty, which would be beneficial for affected landowners, acquiring authorities and potential investors. A few respondents who advocated statutory timescales felt that, rather than the blunt sanction of deemed approval/refusal provisions, there could instead be a mechanism through which deadlines may be extended by the decision-taker – who would be required to publicise a new date and give reasons. One respondent pointed to the development consent regime for nationally significant infrastructure projects in England as a potential model.

Question 45: If targets (statutory or otherwise) are not met, what sanctions might be appropriate?

Thirty-seven comments were made in response to question 45, although there was significant overlap between respondents’ answers to this question and questions 44 and 46. Several respondents used their answers to expand on why they did not support binding statutory time limits (question 44), indicating that they thought legislative sanctions would be ineffective, expressing concern that such an approach could be counter-productive and/or compromise the quality of decision-taking.

Although arguably not a ‘sanction’ as such, a number of respondents underlined the importance of transparency and accountability. Some responses suggested that a requirement to report on performance against timescales (e.g. annually or quarterly) would help to identify resource gaps and drive performance improvements, which could in turn provide greater certainty and confidence. Other respondents reiterated their support for statutory time limits, but with provision for these to be extended on a case-by-case basis where the decision-taker publicises a revised timetable and reasons for delays. One respondent referred to such approaches as a form of ‘reputational sanction’.

Some respondents did, however, make suggestions for sanctions other than reporting requirements. Several responses proposed financial penalties or compensation – although some suggested this should be paid to acquiring authorities and others suggested it should be paid to affected landowners/occupiers. A few respondents argued that if timescales were not met, the CPO should be automatically cancelled/extinguished. One respondent suggested that in certain circumstances, the CPO should be automatically confirmed if timescales are not met.

Question 46: Should the Scottish Government be required to report on compliance with any target timescales for CPOs?

There were 60 responses to this question, of which 95% agreed that the Scottish Government should be required to report on compliance with timescales for CPO decision-taking. There were comparatively few (11) comments in response to question 46 specifically. However, as noted above, many respondents outlined why they were in favour of performance reporting in their answers to questions 44 and 45: namely, doing so would provide greater transparency and accountability, which could in turn help to drive swifter decision-taking and provide greater certainty and confidence for all parties. None of the respondents who answered ‘no’ to question 46 gave specific reasons.

Challenges to a CPO

Question 47: Do you agree that the grounds on which a confirmed CPO may be legally challenged should be retained? If not, please explain your reasons.

There were 61 responses to this question, of which 93% agreed that the current grounds for challenging a CPO should be retained. Those who answered ‘yes’ and expanded on their answer generally considered that the existing grounds of challenge were well-established and clear, providing an important safeguard against misuse of CPO powers whilst protecting the judgement of the decision-taker. Several respondents felt that the current grounds were important in providing accountability, supporting procedural fairness and thereby maintaining confidence in the system. A couple of those who agreed with the retention of the current grounds of challenge nevertheless felt that the wording of the legislation could be updated to align with modern terminology – and that guidance could help to clarify the provisions.

Those who answered ‘no’ did not suggest alternative grounds, although a couple of respondents used their answers to voice concern about the time and expense of legal proceedings for acquiring authorities – suggesting that too many projects are delayed by litigation and that this can sometimes be used as a tactic by objectors. One respondent expressed a more general concern about the lack of merits-based appeal against decisions taken by the DPEA or Scottish Ministers, suggesting that current routes of legal challenge were too expensive for objectors.

Question 48: Should the 6-week period within which a confirmed CPO may be legally challenged be retained? If not, what should the period be?

Sixty-two respondents answered this question, 94% of whom agreed with the retention of the 6-week period for challenging the confirmation of a CPO. The key reasons given by those who answered ‘yes’ were that 6-weeks is consistent with analogous regimes and that it strikes a fair balance between acquiring authorities’ need for certainty while providing aggrieved parties with access to justice.

Only three respondents put forward an alternative challenge period although each gave a different answer: one suggested three months, another suggested 20 working days and a third suggested 10 working days. One respondent proposed removing the right to legally challenge CPO decisions altogether.

Question 49: If a legal challenge is successful, should the court have discretion to quash just the confirmation decision, rather than its only remedy being to quash the Order itself?

There were 61 responses to question 49, of which 95% agreed that the court should have discretion to quash just the decision to confirm a CPO rather than having no option other than to quash the CPO itself. Relatively few (10) respondents expanded on their answer. Those who did so suggested that such a provision would provide greater flexibility, proportionality and potentially help to avoid unnecessary delays and costs. None of those who answered ‘no’ gave reasons.