Compulsory purchase reform in Scotland: consultation

4. Early engagement and preliminary steps

Overview

4.1 This chapter looks at the stage of the compulsory purchase process which takes place before a CPO is made by the acquiring authority and submitted for confirmation. A range of activities and tasks will happen during this period, the scope and duration of which can vary significantly depending on the nature of the project. Typical steps include:

• initial engagement with affected owners and occupiers
• land referencing: identifying the land interests and rights that may need to be acquired
• entering onto land in order to carry out surveys

4.2 Although dealt with here as discrete stages, it should be recognised that in practice they are likely to be inter-linked rather than neatly delineated.

4.3 It is also important to recognise that a CPO is often one aspect of a wider development project (e.g. regeneration scheme, new road etc). The design and proposed land-take of such projects may evolve over a period of time on an iterative basis. This may be due to technical, environmental or financial consideration/constraints, but also as a result of engagement with affected parties and/or the local community. Other consents – notably planning permission – may also need to be obtained, which typically have their own procedural requirements and consultation arrangements. In short, the CPO process does not operate in a vacuum: a range of technical work, stakeholder engagement and consultation may take place simultaneously during the early stages of a development project.

4.4 Of course, a key task for the acquiring authority at this stage will be the preparation of the CPO itself and the associated documents that accompany the Order. These matters are covered in chapter 5.

Initial engagement

4.5 Compulsory purchase can be very unsettling for those affected. The prospect of a person or business having their property acquired at a time not of their choosing can be stressful. This may be compounded during the early stages of a project by uncertainty around whether, when and how much land might ultimately be acquired.

4.6 Early engagement with affected owners and occupiers is therefore vital and can play an important part in helping to mitigate the anxiety and uncertainty that compulsory purchase may induce. This may include:

• explaining the purpose of the project and why land may need to be acquired
• describing how the CPO process works, broad timings and next steps
• exploring whether there are alternative options that do not involve compulsory purchase
• seeking to purchase land by agreement

4.7 Communicating with those affected, as early as possible, can help to allay concerns about the process, allow alternative solutions to be explored and build trust. This can help to prevent positions becoming entrenched at the outset, which may in turn avoid protracted disputes and save all parties time and expense in the long run. It may lead to a voluntary transaction, alleviating the need for compulsory acquisition. Investment in early engagement can therefore make the process run more smoothly and swiftly, from the initial stages through to the assessment and payment of compensation.

4.8 This is not simply a box-ticking exercise: the manner in which engagement is carried out matters too. Its effectiveness is likely to be enhanced if conducted with compassion, openness and patience. Sensitive and respectful engagement is more likely to bring about positive outcomes for all concerned.

4.9 While the onus is on the acquiring authority to initiate contact with those whose land may be acquired, all parties have a role to play in effective early engagement. It is important for owners and occupiers not to ‘bury their heads in the sand’ even though this may be an understandable reaction to the prospect of a CPO. Affected parties are more likely to influence the process, limit the impact on their property and receive compensation promptly if they respond to and engage with the acquiring authority from an early stage.

4.10 There is limited legislation covering this stage of the CPO process. However, current Scottish Government policy and guidance strongly advocates early engagement by all parties – and underlines the potential benefits that can arise as a result of doing so. See for example:

• Circular 6/2011
• Guidance Note for Acquiring Authorities No. 2: What to do before developing a CPO
• Guide for Property Owners and Occupiers

Options and proposals

4.11 The absence of statutory prescription around early engagement has one clear advantage: flexibility. It allows engagement carried out prior to the making of a CPO to be tailored to the circumstances, scale and nature of a particular project. Where compulsory acquisition forms part of a wider project for which various consents are needed, this flexibility may also help avoid unnecessary duplication and ensure that engagement activities are joined-up and proportionate.

4.12 Given the wide variety of projects whose delivery may involve compulsory purchase, placing early engagement on a statutory footing could have unintended consequences. Statutory prescription in this area could lead to requirements which, although well-intentioned and appropriate for (say) a single house CPO, may not be proportionate and/or realistic for (say) a linear transport CPO – and vice versa. Furthermore as noted at paragraph 4.8, the effectiveness of early engagement will be informed by the attitude and conduct of those involved. Such behaviours are difficult to legislate for.

4.13 For these reasons, we are not minded to use legislation to introduce new statutory requirements for engagement prior to the making of a CPO. This is not because such engagement is not important, but because we do not consider legislation would be an effective or proportionate way of promoting early and positive engagement between parties.

Question 9: Do you agree that early and effective engagement is best promoted through non-statutory measures (e.g. guidance) rather than legislative requirements?

Question 10: How might early and effective engagement between acquiring authorities and affected parties be further encouraged?

Land referencing

4.14 Land referencing is the process through which the acquiring authority identifies those with an interest in (or rights over) the land they might need to acquire. It is an important feature of projects that involve compulsory purchase; it can help to ensure that relevant parties are notified of a CPO and facilitate early engagement, dialogue and negotiation more broadly. Acquiring authorities can include land in a CPO where the owners, lessees and occupiers are unknown. However, reasonable inquiries must have been made to identify such parties if this approach is taken.

4.15 Both Circular 6/2011 (Appendix E) and the second of Scottish Government’s Guidance Notes outline the techniques that an acquiring authority may employ as part of the land referencing process. These include searching the Land Register of Scotland and/or the Register of Sasines, visiting the site(s) to enquire locally, consulting with community councils and preparing questionnaires. Guidance is also provided on potential approaches where owners are unknown.

4.16 The various methods referred to in our guidance are non-statutory. We note that acquiring authorities in England and Wales have statutory powers^[4] to serve notice on specified persons, who must provide details about the ownership and occupation of the land identified in the notice. There are associated offence provisions for non-compliance with such a notice or for knowingly providing false or misleading information.

4.17 We are not aware of any equivalent general power in Scotland. There are specific powers to require information about land ownership at section 272 of the 1997 Act. These could only be used in conjunction with prospective CPOs made under the same Act (i.e. for planning purposes) and not CPOs under housing, transport or other legislation. SEPA has similar powers under section 27 of the Environment Act 1995.

Options and proposals

4.18 We are interested in respondents’ views on whether we should introduce a general power for acquiring authorities to require the provision of information about interests in land. A potential risk with such a power – particularly if used at the start of the process – is that it may be regarded as antagonistic rather than being conducive to early engagement between acquiring authority and affected parties. Serving statutory notices with offence provisions may lead to entrenchment and mistrust rather than promoting a positive dialogue. Despite this, we are keen to hear feedback on whether a power of this kind might be helpful as a statutory ‘backstop’ in support of other land referencing activities. It would be useful to hear from those with experience of practising in England and Wales about the effectiveness or otherwise of these powers.

Question 11: Would it be helpful to introduce a general power for acquiring authorities to require specified parties to provide information about ownership, occupation and other interests in land? Please explain your views.

Powers of entry

4.19 During the early stages of a project, an acquiring authority may need to enter land in order to ascertain whether it is suitable for the purpose they are minded to acquire it for. Doing so may help to inform the design and land-take of the proposed scheme, including potential mitigation measures, as well as consideration of alternative options, accommodation works and estimates of potential compensation liabilities. Entering land before a CPO is made may also be required to carry out environmental surveys that are needed to satisfy various legislative requirements.

4.20 Section 83 of the Lands Clauses Consolidation (Scotland) Act 1845 provides acquiring authorities with a power of entry, subject to giving not less than three days’ notice and not more than 14 days’ notice. The authority must compensate the landowner for any damage caused.

4.21 These powers do not appear fit for purpose. As well as being confusingly worded, the minimum notice period of three days is very short and it is not clear what purpose is served by the maximum notice period: this seems unhelpfully inflexible.

4.22 Furthermore, certain enabling acts (see for example sections 140 to 142 of Roads (Scotland) Act 1984) contain their own powers of entry with specific notice, warrant and compensation arrangements. Hence there is inconsistency between powers available to different acquiring authorities and the implications for landowners (in terms of notice periods etc).

Options and proposals

4.23 We are minded to take forward a new general power for acquiring authorities to enter land in Scotland in advance of a CPO being made. We propose that such a power would replace section 83 of the 1845 Act and would:

• empower all acquiring authorities (including persons authorised in writing by the acquiring authority) to enter land for the purposes of surveying and valuing land – including carrying out environmental surveys – in connection with a proposal to acquire land
• not allow the use of force unless this has been authorised by a warrant issued by the relevant sheriff
• be subject to a minimum notice period of 14 days (no maximum notice period)
• be subject to a right to compensation for damage caused by the exercise of the power of entry
• provide that the notice given to the owner/occupier must:
  • specify the works and activities proposed to be carried out by the acquiring authority
  • state the recipient’s entitlement to compensation
  • include a copy of any associated warrant – if there is one
• include offence provisions where a person unreasonably obstructs the exercise of the power of entry
• make provision in respect of statutory undertakers’ right to object to the carrying out of certain work, where it would be seriously detrimental to the statutory undertaker carrying on its undertaking

4.24 We would anticipate publishing guidance on these powers to ensure appropriate and proportionate use. For example, in an agricultural context there may be particular issues to consider such as crop cycles and biosecurity arrangements.

Question 12: Do you agree that acquiring authorities should have a general power of entry prior to the making of a CPO for the purposes of surveying etc?

Question 13: Does the outline proposal at paragraph 4.23 strike a reasonable balance between the needs of acquiring authorities and rights of the owner/occupier? If not, how should it be changed?