Compulsory purchase reform in Scotland: consultation

Appendix A: Consultation Options and Proposals

Theme

New Compulsory Purchase Act

Options & Proposals

Repealing and replacing old and fragmented compulsory purchase legislation with a single new statute covering procedural requirements and compensation.

Contribution to Strategic Objectives

Could make the system simpler and more streamlined.

Theme

Enabling Powers

Options & Proposals

Giving acquiring authorities a new general power to create new rights (e.g. servitudes) in land.

Contribution to Strategic Objectives

Providing authorities with greater flexibility to pursue less intrusive (and less costly) options than acquiring land on a permanent basis could make the system simpler, more streamlined and fairer.

Giving acquiring authorities powers to take temporary possession of land.

Theme

Early Engagement and Preparatory Steps

Options & Proposals

Updating guidance to set clearer expectations as regards early engagement with affected owners/occupiers.

Contribution to Strategic Objectives

More consistent and effective engagement could help make the system fairer.

Seeking views on giving acquiring authorities powers to require information about land ownership in advance of a CPO.

Could make the system more streamlined by supporting effective land referencing.

Introducing a new general power for acquiring authorities to enter land for the purposes of surveying in advance of a CPO – subject to appropriate safeguards as regards notice periods, compensation entitlements etc

Replacing the current provisions (which date from 1845) with a new power could make the system simpler and fairer.

Theme

Confirmation Procedures

Options & Proposals

Simplifying the notification requirements for CPOs – and setting these out in secondary rather than primary legislation so they are more flexible to changes in digital technology.

Contribution to Strategic Objectives

Clearer and more proportionate notification requirements which are less paper-based could make the process simpler and more streamlined.

Seeking views on a new time limit within which opposed CPOs (those with objections) are to be referred to the DPEA by Scottish Government.

A time limit could provide parties with greater certainty, avoid delays in decision-taking and help make the system more streamlined.

Introducing an expedited process for unopposed CPOs (i.e. those with no statutory objections) whereby these can be confirmed by acquiring authorities.

Empowering acquiring authorities to confirm cases with no objections could make the process more streamlined.

Enabling Scottish Ministers to delegate decisions on opposed CPOs to DPEA Reporters in certain circumstances.

Allowing Reporters to confirm CPOs on Ministers’ behalf could reduce double-handling and thereby make the process more streamlined.

Making express provision for objections to be dealt with through written submissions, as an alternative to public local inquiry or hearing.

Providing greater clarity about how objections will be handled and the procedures to be used could make the process simpler. Enabling costs to be awarded to successful objectors in written submissions cases could make the system fairer – as well as more streamlined if it avoids cases going to PLI which otherwise would do.

Clarifying who determines whether objections will be dealt with through public local inquiry, hearing or written submissions – and the circumstances in which these procedures will be used.

Allowing awards of costs to be made in relation to hearings and/or written submissions – not just public local inquiries.

Seeking views on enabling CPOs to be confirmed subject to conditions.

If conditional confirmation incentivises authorities to make CPOs earlier in the development process, it could make the process more streamlined.

Publishing target timescales for issuing confirmation decisions.

Providing greater clarity and certainty about the timescales for confirmation decisions could help make the process simpler and more streamlined.

Giving the Court discretion to grant more flexible remedies than quashing the Order entirely where a CPO is successfully challenged on the grounds of a procedural defect.

Additional flexibility as to remedies open to the Court could avoid CPO processes having to re-started from scratch, helping make the system more streamlined.

Simplifying the arrangements that apply where a CPO includes special category land.

Rationalising the arrangements for special category land could make the confirmation process more streamlined.

Providing for common data standards within CPO documents

Taking steps to digitise the compulsory purchase process could make the process more streamlined.

Allowing documents and notices to be served electronically

Theme

Implementation

Options & Proposals

Introducing a single mechanism for implementing a CPO, which would replace the various ways this can be done at present.

Contribution to Strategic Objectives

A single procedure for implementing CPOs could make the process simpler and more streamlined.

Simplifying the procedures by which owners can object to severance of their land.

Clarifying and harmonising objection to severance provisions could make the system fairer.

Requiring confirmation notices (which ‘start the clock’ on the three-year implementation period) to be published within 6 weeks of a CPO being confirmed.

Starting the clock within a specified time would reduce uncertainty for affected parties and could help make the system fairer and more streamlined.

Allowing a longer or shorter implementation period than the standard three years to be specified by the confirming authority.

Flexibility around the implementation period could help make the system fairer and more streamlined.

Making provision for the implementation period to be extended in the event of a legal challenge.

Allowing the implementation clock to be stopped where legal proceedings are brought could help make the system fairer and more streamlined.

Clarifying the effect of a CPO on existing titles and interests to ensure acquiring authorities are provided with clean title.

Clarification of the effect of CPO on title could make the system simpler.

Theme

Compensation

Options & Proposals

Retaining market value as the basis of compensation for land that is acquired.

Contribution to Strategic Objectives

Basing compensation on market value reflects the principle of equivalence and ensures fairness for claimants.

Asking whether there are any circumstances in which below-market value compensation might be justified.

Insofar as such provisions help deliver affordable housing and other developments, they could encourage more proactive use of CPO – but would raise important questions about fairness to affected owners.

Codifying the no-scheme principle so that increases or decreases in value attributable to the acquiring authority’s scheme are disregarded.

Codifying and clarifying complex and contradictory case law could make the system simpler and more streamlined.

Repealing and modernising the ‘planning assumptions’ so that they better reflect Scotland’s planning system in the 21^st Century and the way development value is assessed in the market.

Reforming outdated planning assumptions could make the system simpler and fairer.

Seeking views on whether Certificates of Appropriate Alternative Development (CAAD) could be abolished.

Abolishing complex CAADs could make the system simpler and more streamlined.

Repealing rights to ‘second bite’ compensation whereby, within a ten-year period following acquisition, permission is granted for additional development.

Removal of Part V compensation could increase certainty for acquiring authorities and make system fairer and simpler.

Seeking views on technical matters related to compensation for ‘injurious affection’, where only part of a claimant’s land is acquired and the value of their retained land is affected.

Clarification of injurious affection rules could make system fairer and simpler.

Making specific statutory provision for disturbance compensation.

A separate statutory right to disturbance and clarification of when this starts could make the system simpler and fairer.

Clarifying when a claimant’s right to disturbance (and their duty to mitigate losses) starts in relation to a CPO.

Abolishing the impecuniosity rule so that losses due to a person’s poor financial circumstances are not disregarded.

Abolishing the disregard of costs associated with claimants’ poor financial circumstances could make the system fairer.

Reforming home loss payments so that they are based on a flat or graded rate rather than being linked to the value of the property.

Basing home loss payments on a flat or graded rate rather than value of interest could make the system fairer.

Reforming farm loss payments to remove the requirement that those displaced must continue farming elsewhere in order to receive payment; seeking views on a new method of calculation.

Reforming the qualifying criteria for farm loss payments and simplifying their calculation could make the system fairer and more streamlined.

Seeking views on replacing farm loss payments with a more generalised payment for non-residential interests.

Extending loss payments to other interests could make the system fairer.

Seeking views on the introduction of a standard claim form

A standardised claim form could help ensure claims are ‘right first time’ and thereby streamline the process.

Clarifying the time limits within which compensation claims can be lodged and applications made to the Lands Tribunal.

Making clearer the time periods within which claims can be lodged could make the system simpler.

Enabling advance payments to be made to heritable creditors where parties agree.

Allowing payments to be made directly to creditors could streamline the process.

Seeking views on what measures might help to ensure advance payments are paid on time.

Incentivising advance payments to be paid more swiftly could make the system more streamlined and fairer.

Allowing acquiring authorities to offer an advance payment even where one has not been claimed, with interest capped where this is not taken up.

Seeking views on increasing the interest rate that applies to the balance of compensation outstanding from date of vesting.

Incentivising compensation to be paid more swiftly could make the system more streamlined and fairer.

Theme

Compulsory Sale and Lease Orders

Options & Proposals

High level consideration of the strategic case for CSO and CLO

Contribution to Strategic Objectives

Not part of CPO reform programme