Compulsory purchase reform in Scotland: consultation

3. Enabling powers

Overview

3.1 Enabling powers specify who can compulsorily acquire land and the purposes for which it can be acquired. They relate to the statutory functions of the acquiring authority concerned, such as planning, housing, environmental protection or the provision of various types of infrastructure. Enabling powers also set out the nature of the interests that can be acquired and, in particular, whether this can include the creation of new rights short of full ownership (e.g. servitudes). This chapter of the consultation covers:

• who can acquire land and for what purpose(s)
• the nature of what can be acquired
• creation of new rights in land
• temporary possession

3.2 Additionally, this chapter looks at the relationship between compulsory purchase powers and other mechanisms, including community rights under Land Reform legislation and orders under the Transport and Works (Scotland) Act 2007.

Who can acquire land and for what purpose(s)?

3.3 A very wide range of organisations have compulsory purchase powers – and for a wide range of purposes. Acquiring authorities include:

• the Scottish Ministers – who have powers under various pieces of legislation. In some cases, these powers are in practice utilised by national agencies (e.g. Transport Scotland, Forestry and Land Scotland)
• local authorities – under various pieces of legislation covering their statutory functions
• executive non-departmental public bodies such as NatureScot and Scottish Environment Protection Agency (SEPA), and public companies such as Scottish Water
• private companies holding transmission licences, electricity system operator licences or certain distribution licences under the Electricity Act 1989
• executive non-departmental public bodies of the UK Government which have functions in Scotland, such as Network Rail

3.4 As noted, each acquiring authority’s enabling powers correspond to their statutory functions and objectives. This means that, for example, Transport Scotland can compulsorily purchase land to construct or improve a trunk road – but it cannot do so for (say) a housing development or a hospital. Organisations which have several statutory functions, such as local authorities, may have multiple compulsory purchase powers. Although not exhaustive, Appendix B of Circular 6/2011 sets out a range of the compulsory purchase powers applicable in Scotland.

3.5 During the course of the reform work, we have spoken to a range of stakeholders – both within and outside of the Scottish Government – to understand whether there are any gaps in existing enabling powers or any uncertainty as to their scope. Put another way: are there activities that authorities may need to carry out in exercising their statutory functions which could involve compulsory purchase but which fall outside the scope of their enabling powers?

3.6 On the basis of this engagement, there do not appear to be fundamental gaps in the scope of enabling powers. In general, compulsory purchase powers are broad and correspond appropriately to acquiring authorities’ statutory functions. There are two notable exceptions to this:

• South of Scotland Enterprise (SOSE) does not have compulsory purchase powers (unlike Scottish Enterprise and Highlands and Islands and Enterprise)
• although they can promote schemes under TAWS legislation (see paragraph 3.24), Network Rail have relatively limited general powers of compulsory purchase compared to other infrastructure providers

3.7 We can see that new CPO powers could support these bodies in delivering their statutory functions and will explore the matter further. In the case of SOSE, these could help to promote economic development in, and attract investment to, the South of Scotland.

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.

Local Authority powers

3.8 As the table below indicates, local authorities have extensive compulsory purchase powers, which can be used to support a wide variety of projects in the public interest. This includes refurbishing empty homes and bringing vacant and derelict land or buildings back into use, helping to address the blight that such sites can cause to communities across Scotland. There do not appear to us to be any obvious gaps in the scope of local authorities’ powers. We would welcome views on this, including whether there is any scope for clarification.

Question 4: Are local authorities’ compulsory purchase powers (set out below) 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.

Key Local Authority Compulsory Purchase Powers

Section 45, Building (Scotland) Act 2003

Acquiring a building and its site on which the authority has carried out works under the Act’s enforcement provisions for dangerous buildings, and has then demolished the building, but the work / demolition costs incurred cannot be recovered because the property owner cannot be found.

Section 20, Education (Scotland) Act 1980

To enable the execution of any of the authority’s functions as an education authority.

Section 66, Flood Risk Management (Scotland) Act 2009

For operations specified in the authority’s flood protection scheme.

Sections 9 and 10, Housing (Scotland) Act 1987

For or in connection with the provision of housing accommodation.

Section 124, Housing (Scotland) Act 1987

Acquiring the site of a building which has been demolished by the authority where an owner fails to comply with a demolition order under this Act, and the demolition costs cannot be recovered because the owner cannot be found.

Section 40, Housing (Scotland) Act 2006

Acquisition of a house and its site for the purposes of demolition where the house owner fails to comply with a demolition notice served under the Act.

Section 71, Local Government (Scotland) Act 1973

For the purposes of any of the authority’s functions under any Act.

Section 42, Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

For the preservation of listed buildings.

Sections 103 to 110, Roads (Scotland) Act 1984

Various purposes including: the construction, improvement or protection of public roads (including cycle tracks and footpaths); the provision of buildings/facilities needed for constructing, improving, maintaining or servicing a public road; mitigating any adverse effect of their roads on the surroundings of the road.

Section 189, Town and Country Planning (Scotland) Act 1997

Carrying out development, redevelopment or improvement; or a purpose necessary to achieve in the interests of the proper planning of an area.

Creation of new rights in land

3.9 Where a piece of land is subject to compulsory purchase, the acquiring authority will generally need to acquire the whole interest on a permanent basis. However, in certain circumstances, an acquiring authority may be able to achieve its purposes through the creation of a new right in land (such as a servitude) without needing to acquire the land outright.

3.10 Doing so may be mutually beneficial. The creation of lesser rights may be less intrusive in terms of land-take and so cause less disruption to affected owners and occupiers; it may also be less costly in terms of compensation. This flexibility can therefore help to enable public interest objectives to be achieved in a more proportionate and streamlined way.

3.11 However, acquiring authorities need express provision in legislation to allow them to create new rights in land, and not all enabling powers have this. For example, section 19 of the Forestry and Land Management (Scotland) Act 2018 allows the creation of new rights, while others, such as section 47 of the Water Industry (Scotland) Act 2002, do not. In practice, this means that some acquiring authorities have the flexibility to create new rights in land whereas others do not. There does not seem to be a clear policy reason for this inconsistency.

3.12 Given the potential benefits such powers offer to both landowners and acquiring authorities, we intend to address this issue. Specifically, we propose to take forward a general power for all acquiring authorities to create new rights in land – and to attach conditions to such rights (for example, to prevent tree planting over the relevant area).

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

Temporary possession

3.13 Acquiring authorities may find it beneficial to acquire land on a temporary rather than permanent basis. For example, land may be needed for temporary facilities or for storage purposes during the construction of a project but not required once it is operational. Such arrangements may be less disruptive to the landowner and less costly for an acquiring authority than permanent acquisition.

3.14 However, as with the ability to create new rights in land, temporary possession can only be taken (unless agreed on a voluntary basis) where it is expressly provided for in an enabling Act. It would appear that the only express powers to take temporary possession under Scottish acts relate to projects which have been authorised through specific private acts or TAWS order. For example, the Edinburgh Tram (Line One) Act 2006 and Forth Crossing Act 2011.

3.15 Our view is that a new power of compulsory temporary possession would provide additional flexibility that could benefit both acquiring authorities and affected owners. We therefore propose to take this forward. However, we consider that the following would need to be set out in legislation to ensure use of any new temporary possession powers is proportionate and fair:

• the process by which temporary possession is to be sought and authorised
• the uses and works that may be carried out on land by the acquiring authority during the period of temporary possession
• notice requirements prior to taking temporary possession of land
• the maximum duration of possession (under the Waverley Railway Act this was one year following the completion of the works – unless agreed by the owner)
• the condition to which land is to be reinstated at the end of the period of temporary possession
• compensation entitlement of affected parties
• how disputes are to be settled

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

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.

Back-to-back CPOs

3.16 Compulsory purchase powers can only be used by those bodies which are authorised to do so by statute. However, it is possible for an acquiring authority to compulsorily acquire land which it is not intending to use or develop itself, and dispose of the land to a third party after the acquisition.

3.17 These types of arrangement are sometimes referred to as ‘back-to-back’ CPOs. They can support land assembly for projects that are to be financed or developed by (or in partnership with) a third party such as a private developer, a community group or another public body.

3.18 Back-to-back CPOs can help authorities to deliver schemes that would not otherwise be possible. It should be noted that the process does not necessarily need to be initiated by an acquiring authority; a third party can approach the acquiring authority and request that it uses its compulsory purchase powers. It is important to stress that CPOs involving a third party are determined like any other CPO: the purpose of the acquisition must fall within the scope of the acquiring authority’s enabling powers and demonstrably be in the public interest.

3.19 While public finances remain constrained, our view is that back-to-back CPOs could play an important role in delivering projects that require partnership working between public, private and voluntary sectors to unlock. Circular 6/2011 makes clear that back-to-back arrangements are a legitimate way of using compulsory purchase powers. However, it is apparent that some authorities have limited awareness of such approaches. We would therefore be interested in how the use of back-to-back CPOs might be encouraged – including whether more detailed guidance would be beneficial.

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

Relationship with other powers

Compulsory purchase, community ownership and land reform

3.20 Communities in Scotland have rights to acquire land or buildings under the Land Reform (Scotland) Act 2003 and Reform (Scotland) Act 2016. These are known as ‘Community Rights to Buy’ (CRTB) and include, in certain circumstances, the ability to compulsorily purchase land. The legislation and procedures governing these community rights are different from those which apply when acquiring authorities take forward a CPO. As such, CRTB is not within the scope of the compulsory purchase reform programme. However, the Scottish Government is carrying out a separate review of CRTB, which will report in December 2025.

3.21 Compulsory purchase is a land assembly tool rather than a land reform mechanism. The role of CPO is to enable statutory bodies to deliver specific projects, in the public interest, in accordance with their statutory functions. As noted above, it is possible for acquiring authorities to use their powers to deliver projects they are not intending to deliver themselves through so-called back-to-back CPOs. If CRTB powers were not an appropriate mechanism in the circumstances of a case, a community group could potentially ask a local authority to compulsorily acquire land on its behalf. Whether or not to do so would be at the authority's discretion.

3.22 It is vital to note that a CPO made in such circumstances would be assessed on the same basis as any other CPO (see chapter 6 for more detail on how CPO decisions are taken). Seeking to change the ownership of land cannot, in and of itself, be the objective of compulsory purchase: the acquisition must serve a specific purpose (e.g. planning, housing etc) that accords with the acquiring authority’s enabling powers.

3.23 At the time of publication, the Scottish Parliament is considering a Land Reform Bill which aims to ensure that the benefits of land ownership, and decisions about how land is managed and used, are more widely shared. The Bill includes a number of new requirements relating to land sales from large landholdings over 1000 hectares, including new powers to ensure that the public interest is considered when such holdings are sold, and in certain circumstances to require land to be sold in smaller lots. Unlike under a CPO, the landowner would not be required to sell land to a particular buyer. The Bill also includes requirements to notify certain land sales, as well as a range of tenancy reforms, including more opportunities for tenants to be able to buy their farms.

Transport and Works Act Orders

3.24 Certain types of transport project (e.g. tramways, railways, inland waterways) can be authorised by orders under the Transport and Works (Scotland) Act 2007 (‘TAWS’). Where necessary, a TAWS order can confer compulsory purchase powers for the purpose of delivering the specific transport project to which the order relates. Specific procedures apply when compulsory purchase powers are sought through a TAWS order. These procedures are outside the scope of this reform programme.

Compulsory Sale and Lease Orders

3.25 In recent years there has been interest in the potential introduction of compulsory sale orders and compulsory lease orders. Exploration of such measures has been outside the scope of the compulsory purchase reform programme, which is focussed on changes to existing tools rather than the creation of new ones. However, chapter 10 of this document contains some questions to further the Scottish Government’s consideration of such mechanisms.