Compulsory Purchase Reform: Consultation Responses Summary

7. Implementation

Procedure

Question 50: Do you agree that there should be a single procedure for implementing compulsory purchase, similar to GVD? If not, what problems do you see with this approach?

There were 56 responses to the closed question. All but one (98%) were in favour of a single procedure for implementing compulsory purchase, similar to the current general vesting declaration (GVD) procedure.

Twenty-four comments were made on this question. The largest number agreed that a single procedure, and following the GVD approach, would simplify the process. Several respondents noted that GVD is now almost always used in Scotland. Some highlighted that the alternative procedure, Notice to Treat, provides for quicker entry and allows interests in short leases to be acquired, so the new procedure would need to cover these issues. Others suggested that a separate procedure would be needed for the proposed power to take temporary possession of land, and one offered an alternative process which would cover both temporary and permanent acquisition.

Three individuals (who did not all answer the closed question) were concerned that the GVD-style approach risked removing safeguards for the landowner, and took the view that compensation should be agreed before title is transferred.

Objection to severance

Question 51: Should there be a single test for objection to severance, or a different categorisation? If you propose different categories, please explain what they would be.

There were 49 responses to the closed question, of which a majority (63%) preferred a single test for objection to severance. There was little support (16%) for maintaining the current categories, but slightly more (21%) for a new set of different categories.

Thirty-one respondents commented on this question. Both those who favoured a single test and those who preferred different categories had similar concerns. It was felt that the current categories are unclear and complex, and that the new system needs to cover all types of land: there were different views as to whether this requires different categories, or separate criteria or guidance on what constitutes “material detriment” in different cases, within a single test. Some respondents suggested new categories, while others felt there should be additional consultation on the detail of the new approach.

Question 52: Under the new compulsory purchase vesting declaration (CPVD), should a notice of objection to severance prevent the land included in the CPO from vesting in the acquiring authority?

Note that the consultation paper proposed that a notice of objection to severance should not prevent the land from vesting, therefore “no” indicates agreement with the proposal here.

Forty-nine respondents answered the question, of whom 80% agreed that a notice of objection to severance should not prevent the land vesting in the acquiring authority. The main arguments of those who supported the proposal were that: the acquisition of the land included in the CPO has already been approved; it is necessary to allow projects to go ahead without delay; and severance should be considered as part of the compensation process. Those who opposed the proposal were generally concerned over the impact of the severance on the landowner.

Timing

The online questionnaire was structured with closed questions 53 to 56, and then question 57 was an open question with the opportunity to comment on any of these points. However, many of those who responded by email gave comments on questions 53 to 56 individually, and some of those who responded online allocated their comments under question 57 to separate questions. The comments have therefore been summarised under each question.

Question 53: Should confirmation notices be required to be published within 6 weeks of the date on which the order is confirmed? If you disagree, what timing would you prefer, and why?

Fifty-four respondents answered the question, of whom 85% agreed that confirmation notices should be published within 6 weeks and 15% disagreed.

Twenty-four respondents provided comments, around a third of whom suggested different periods for publishing confirmation notices, ranging from 7 to 14 days, up to 3 months. A couple suggested making allowance for public holidays, either by making the period 8 weeks or setting the time in terms of working days.

Some respondents felt that a set timescale was helpful in providing certainty for owners and occupiers, and some of these suggested a shorter period than six weeks. Several local authorities and other acquiring authorities considered that a longer timescale, or flexibility, was necessary to allow for complex projects and those involving large numbers of land interests. A couple highlighted the current uncertainty over the timing of confirmation. One asked what the consequences would be of failing to comply with the time limit, saying that “It would be disproportionate if the CPO confirmation was prejudiced”.

Question 54: Do you agree that the standard implementation period should remain at three years?

Fifty-nine respondents answered the question. Three quarters of them agreed that the standard implementation period should remain at three years. One respondent selected “yes” and then commented that they “disagree”. This response has been discounted as unclear.

Most of those commenting on this question agreed that 3 years was appropriate for the standard period, although some felt this should be an absolute maximum and others felt it should be able to be extended for more complex cases. Some suggested linking it with the time limit for implementing any associated planning permission.

Several respondents felt the implementation period should be shorter; the principal rationale being that this would reduce uncertainty for those affected by a CPO. The most common suggestion was two years although one suggested 12-18 months.

Question 55: Should confirming authorities be able to specify a longer or shorter implementation period?

Fifty-eight respondents answered the question, 71% of whom agreed that confirming authorities should be able to specify a longer or shorter implementation period.

Those who commented on this question mostly agreed that it should be possible to specify a longer implementation period for larger or more complex schemes, with fewer mentioning the possibility of shorter periods. There were varying degrees of emphasis on the need for detailed justification for any extension; a few suggested that landowners should have a right to challenge any extension, while others proposed that acquiring authorities themselves should be able to extend the time limit. Legal organisations and energy companies, in particular, proposed that guidance should set out the circumstances in which an extension would be appropriate. Those who opposed the proposal focused on unfairness and uncertainty for owners / occupiers.

Question 56: Do you agree that the time limit should be suspended during any court challenge to the validity of the CPO?

Of those who responded to the question, almost all (91%) agreed that the time limit should be suspended during any court challenge. The majority of those who commented agreed that the time limit should be suspended, to avoid reducing the time available to implement the CPO. One suggested that instead of suspension, a court challenge should be a ground on which to apply for an extension of the time limit, only if the authority would be unable to implement the CPO in time.

Three comments opposed suspending the time limit, saying that doing so would penalise those affected by the CPO and could encourage poorly prepared cases.

Question 57: Please add any comments on the time limit for implementation, if you wish to expand on your answers to questions 53 to 56.

All comments made under this question have been covered in the previous paragraphs.

Question 58: Do you agree that the new CPVD should take effect six weeks after notification that it has been made? If not, what should the period be, and why?

Fifty respondents answered the closed question, of whom 86% agreed that a CPVD should take effect six weeks after notification that it has been made.

Twelve respondents provided comments. Most of these disagreed, taking the view that those affected by CPO would need a longer period to arrange their affairs and to vacate the land, or to consider whether to challenge the validity of the CPO. Some respondents offered alternative periods: 12 weeks or 3 months was the most common suggestion. This would align with the current period between serving a notice of intention to make a GVD, and the GVD taking effect.

Others agreed generally with the proposal, but recommended that the period should be 8 weeks, or 30 working days, to allow for public holidays. One suggested that a two-week buffer should be allowed beyond the period for bringing a legal challenge, to allow notices to be delivered and the vesting to be halted.

Question 59: Is there a need for a separate stage to notify people with an interest in the land and seek information from them?

Note that there is currently a separate notification stage, which the consultation paper proposed should be removed. “No” therefore indicates agreement with the proposal in this question.

Forty-nine respondents answered this question, and 80% of them agreed with the proposal that the separate notification stage is not necessary. There were only 11 comments on this question. Most agreed that the information about people with an interest in the land should have been gathered at an earlier stage in the process, but others thought an additional stage would be helpful to ensure the information was up to date. One was concerned to ensure that agricultural tenants were included, as well as owners. Some wanted provisions to ensure that those notified provided information promptly.

Effect on title

Question 60: Should the new CPVD provide the acquiring authority with a valid title, removing all defects, real burdens, servitudes etc and securities? If not, please explain your reasons.

Fifty-four respondents answered this question, and 96% agreed that the new CPVD should provide the acquiring authority with a “clean” title. Among the 24 who commented on this question, many stated that it was important to enable projects to go ahead without delays. However, others highlighted the need to carefully consider what rights might continue to be required, depending on the purpose of the CPO, such as access rights for neighbouring properties and for utilities.

Some respondents sought clarification on what would be covered by “defects” removed from the title, and how the proposal would interact with interests registered in relation to rights to buy, and other Land Reform legislation.

Question 61: In relation to section 107 of the Title Conditions Act, should the legislation be amended to clarify that the acquiring authority simply has to have relevant compulsory purchase powers? If not, please explain your reasons.

Fifty-one respondents answered the closed question, almost all of whom (96%) agreed with the proposal. This would allow burdens and servitudes to be removed from the title of land which is acquired by agreement, where the authority has powers which could have been used to acquire it compulsorily.

Sixteen respondents commented on the proposal. Most agreed that it would be helpful, to avoid additional process and encourage authorities to acquire land by agreement. One said that authorities sometimes find they need to use compulsory purchase to “cleanse” the title, when they could otherwise have acquired the land by agreement.

One respondent felt that this proposal represented a reduction in scrutiny and safeguards for compulsory purchase. Another ostensibly offered no view, but said the legislation should ensure that s.107 only applies in circumstances where the authority would otherwise have acquired the land compulsorily, rather than any case where it has powers and acquires land. This appears to oppose the proposal.

Question 62: Should acquiring authorities be able to include land in a CPVD which belongs to them, or where they are unsure if it does? If not, please explain your reasons.

Fifty-three respondents answered the closed question, of whom 92% agreed that acquiring authorities should be able to include land that belongs to them, or land where the ownership is unclear, in a CPVD.

Twenty-nine respondents provided comments; 21 generally agreed that it would be helpful to allow acquiring authorities to include land in a CPVD where ownership is unclear. Several commented that it should not be necessary to use this approach where the authority is certain it owns the land, but others suggested it could be used to extinguish burdens, servitudes and leases, with appropriate compensation.

While some who were in favour of the proposal believed it would help to clarify ownership and avoid future disputes, some who were against it felt it would do the opposite. These respondents believed that ownership should be established through title searches and “normal legal processes” before land is included in a CPVD.

A couple of respondents expressed concern about the rule that a person cannot convey land to themselves. One of these suggested that an alternative approach could be provided for, which simply confirms that the acquiring authority “takes or holds title to the land concerned”, rather than conveying it.

Question 63: Should a note be added to the title sheet in the Land Register stating that the title was acquired by compulsory purchase? If not, please explain your reasons.

All but one of the 52 respondents who answered this question agreed with the proposal. 25 respondents provided a comment; 17 of them agreed that a note on title would be helpful to clarify that the land was acquired by compulsory purchase, which would explain what had happened to previous burdens, servitudes etc. Additional comments included that it would show that the price paid was not an open market transaction, and that the use of CPO should not imply any defect, stigma, or expectation of continued compensation.

Several respondents considered that a note in the land register would be helpful when disposing of surplus land, under the Crichel Down rules, and suggested that the note should also show the name of the previous owner.

A few respondents were uncertain what the purpose of such a note would be, and gave differing accounts of what is already visible in the Land Register. Two legal organisations queried whether notes should also be added to other titles affected by the CPO, such as the benefitted property of a real burden which has been extinguished.

Rights subordinate to ownership

Question 64: Would there be any difficulties in including all leases and liferents in a CPVD, extinguishing them in return for compensation?

Thirty-five respondents commented on this question. Most felt there would be no problem with including leases and liferents in a CPVD, provided appropriate compensation was paid. Some noted that there may be complications in valuing a lease or liferent, separate from ownership.

Some respondents suggested there should be flexibility for a CPVD to allow a lease to continue for a time. This could suit both the acquiring authority and the tenants, where the land is not needed immediately for the project. It could allow more time to relocate, potentially reducing the need to compensate for lost crops, for example, and avoid the need for the authority to manage an empty property.

Other respondents expressed concerns about residential tenancies being ended and leaving people without accommodation. It was recommended that the legislation should align with housing law and existing provisions on ending leases and liferents.