Compulsory purchase reform in Scotland: consultation

5. Confirmation procedures – Making a CPO

Overview

5.1 This chapter covers the procedures which govern the preparation of CPOs. It encompasses the steps involved in drafting an Order, advertising it and notifying affected parties. It also considers questions around the potential for digitising parts of the CPO process, much of which is concerned with notices and advertising.

Form and content of a CPO

5.2 The 1947 Act^[5] says that a CPO “shall be in the prescribed form and shall describe by reference to a map the land to which it applies”. This prescription is provided by ‘Form 1’ in the Compulsory Purchase of Land (Scotland) Regulations 2003 (“the 2003 Regulations”). Circular 6/2011 provides guidance on drafting a CPO and what documents it should be accompanied by – as does the third of Scottish Government’s Guidance Note series for acquiring authorities. In summary, the effect of the legislation and guidance is the following documents will need to be prepared by an acquiring authority:

Components of a CPO

Statutory Documentation

• The Order
• Schedule(s)
• Map(s)

Non-Statutory Documentation

• Statement of Reasons
• General Certificate
• Protected Assets and Special Category Land Certificate

Statutory documentation

5.3 The Order itself is generally quite short, comprising up to five articles. The 2003 Regulations provide that a CPO must:

• set out relevant enabling powers authorising compulsory purchase
• specify the name of the acquiring authority
• state the title of the Order (article 1)
• describe the purposes of the Order by reference to the Schedule of land (article 2)

5.4 Depending on the acquiring authority’s intentions, a CPO may:

• incorporate the ‘Mining Code’, which has the effect of excluding mineral rights from the acquisition (article 3)^[6]
• make reference, via a separate Schedule, to any exchange land being given (article 4)
• identify, via a separate Schedule, any real burdens or servitudes (or development management schemes) it does not wish to extinguish or disapply (article 5)

5.5 The Schedule describes, by reference to the Map, what interests are proposed to be acquired and identifies owners, lessees and occupiers. The 2003 Regulations provide that the Schedule comprises four columns:

i. map reference number

ii. description of the land

iii. details of owners

iv. details of lessees and occupiers

5.6 If any ‘special category land’ (see chapter 6) is included in the Order, the 2003 Regulations require that this is to be specified. Any exchange land being provided and any real burdens or servitudes that are to be preserved must be identified in separate schedules.

5.7 The Map is required by both the 1947 Act and 2003 Regulations. The notes in the Regulations state:

“The boundaries of each plot of land separately numbered in the Schedule to the order should be clearly delineated. Also, the map itself should contain sufficient topographical detail and be on a scale sufficient to enable the situation of the land to be readily identified on the Ordnance Map and related to the description given in the Schedule”.

Options and proposals

5.8 The statutory provisions regarding the form and content of a CPO appear to be proportionate and appropriate. We do not consider that major change is needed.

5.9 In chapter 4 of this consultation paper we propose to introduce new general powers for acquiring authorities to: a) create new rights in land and; b) take temporary possession of land. If such powers are taken forward, we consider that – in the interests of clarity and transparency – these should be recorded in separate schedules from interests that are to be permanently acquired.

Question 14: Are any changes required to the legislation which prescribes the form and content of CPOs? If so, please give details.

Non-statutory documentation

5.10 Although it is not a statutory requirement, a CPO will generally be accompanied by a Statement of Reasons. It is the principal document through which the acquiring authority sets out its justification for the proposed acquisition and seeks to demonstrate that it is in the public interest. As such, the Statement of Reasons will generally need to address the key factors that are taken into account when confirmation decisions are taken (see ‘How CPOs are decided’ below). Appendix D of Circular 6/2011 provides guidance on what should be included in a Statement of Reasons.

5.11 The General Certificate identifies who the acquiring authority has notified of the making of the CPO, confirms that a period of not less than 21 days has been allowed for objections and indicates where a copy of the Order and Map can be inspected. The purpose of the General Certificate is to confirm that the relevant statutory procedures have been followed and the notices served correctly. Appendix H of Circular 6/2011 provides a form for the General Certificate and encourages acquiring authorities to submit it alongside a CPO.

5.12 The Protected Assets and Special Category Land Certificate indicates whether certain heritage assets (listed buildings, buildings subject to a preservation notice, buildings in a conservation area, scheduled monuments) would be affected be the CPO scheme. It also indicates whether any special category land is proposed to be acquired. Appendix J of Circular 6/2011 provides a form for this certificate and encourages acquiring authorities to submit it alongside a CPO.

5.13 As the above three documents are non-statutory, it is not a legal requirement for CPOs to be accompanied by them. Nevertheless, it is likely to be in the acquiring authority’s interest to submit supporting material which serves the same purpose as these non-statutory documents, even if this has a different title and/or uses a different format. For example, an acquiring authority will need to explain its justification for a CPO even if this is not done via a Statement of Reasons.

Options and proposals

5.14 We are not aware of any particular calls for either the Statement of Reasons, General Certificate or Protected Assets Certificate to be put on a statutory footing. These non-statutory documents, or equivalents, are in practice prepared for (and submitted with) most CPOs. As such, making it a statutory requirement to prepare them would not necessarily make the process more onerous for the acquiring authority. We note that if proposals for CPOs to be ‘self-confirmed’ in certain circumstances (see ‘Who takes CPO decisions’ below) are taken forward, the General Certificate may take on additional importance.

Question 15: Should any or all of the following documents be placed on a statutory footing?

• Statement of Reasons
• General Certificate
• Protected Assets and Special Category Land Certificate

Notification and advertisement of a CPO

5.15 Before submitting a CPO for confirmation, the acquiring authority must publicise their intention to do so and notify those affected. The purpose of this step is to make people aware that a CPO has been made and to provide an opportunity for objections to be lodged. Further notification takes place if a CPO is confirmed.

5.16 There are effectively three elements of the notification and advertisement process:

• notifying individuals, including approaches to be used where their name or address cannot be found
• notices for public information, currently in newspapers, and
• making documents available for inspection

Notices to individual parties

Who is notified

5.17 Schedule 1 of the 1947 Act requires that before submitting the Order for confirmation, the acquiring authority must serve notice on:

(i) every owner, lessee and occupier (except tenants for a month or for any period less than a month)

(ii) the holder of any personal real burden affecting the land

(iii) the owner of any land which is a benefited property, and

(iv) any owners’ association of the development in question

5.18 Those who are required to be notified of a CPO are described as ‘statutory objectors’. This is because if they make an objection which is not withdrawn, the confirming authority must, before confirming the order, either hold a public local inquiry (PLI) or offer them a hearing (see ‘Considering objections to a CPO’ below). Other parties can object to a CPO – or make other representations – but these do not have any bearing on whether a PLI or hearing must be held. In other words, any further procedure regarding non-statutory objectors is discretionary.

Form and method of notice

5.19 The prescribed form of notice for individuals (‘Form 3’) is contained in the 2003 regulations. In summary, the notice states the relevant enabling powers, the title and effect of the Order; indicates that it is about to be submitted for confirmation; and includes details of where documents may be inspected, how objections can be made and by when they must be submitted.

5.20 The procedures for serving notice on statutory objectors are set out in the 1947 Act itself. For owners, lessees and occupiers (group (i)), the 1947 Act^[7] provides that a notice may be served by delivering it to the person, leaving it at their address, or by registered post. If the person’s name or address cannot be found, it can be delivered to “some person on the land” or “affixed to some conspicuous part of the land”.

5.21 The Title Conditions (Scotland) Act 2003 (“the Title Conditions Act”) added the requirement to notify groups (ii), (iii) and (iv), with different arrangements for doing so. For groups (ii) and (iii), (holders of personal real burdens; owners of benefited property) service is by:

• sending (see section 124 of the Title Conditions Act, which includes by email)
• advertisement
• affixing a conspicuous notice to one or more lamp posts near the property (with substantial detail as to how this is done), or

5.22 “by such other means as the acquiring authority think fit”For group (iv) (owners associations), service is to be by sending, as above, or such other means as the acquiring authority think fit.

Options and proposals

5.23 The notification requirements for CPOs in Scotland are set out in primary legislation, namely the 1947 Act. This means that there are limited opportunities to change them, needing an Act of the Scottish Parliament. As a result, the notification requirements for CPOs have not kept pace with societal and technological changes.

5.24 To provide greater flexibility, we propose that the detailed requirements for publicising CPOs and notifying affected individuals should be prescribed through secondary legislation. This would enable Governments to keep these requirements up-to-date, and potentially simplify them, without needing a Bill to do so. It would also bring CPO into line with other regimes such as planning.

Question 16: Do you agree that the notification requirements for CPOs should be prescribed through secondary rather than primary legislation?

5.25 As regards who is notified of CPOs, we think the current list of statutory objectors is broadly appropriate. Some respondents to the Scottish Law Commission’s review suggested that heritable creditors could be added to the list, for awareness in relation to the value of their asset. This would be particularly relevant if a CPO extinguishes all securities, as discussed in paragraph 7.44. On the other hand, the conditions of a standard security will generally require the borrower to inform their lender of any prospective CPO or other action that could affect the property^[8]. Form 3 in the 2003 Regulations could be amended to highlight this and advise recipients to do so.

5.26 As indicated in paragraph 5.18, those who are required to be notified of a CPO have the status of statutory objectors. If heritable creditors, or any other additional groups, are to be added to the list of parties who must be notified of a CPO, it is not clear that giving them the status of statutory objector is necessarily proportionate. It might be appropriate to establish a new category of persons to be notified but who would not qualify as statutory objectors.

Question 17: Should heritable creditors be added to the list of parties who must be individually notified of a CPO? Should they have the status of statutory objectors?

Question 18: Are any other changes required to the list of people to be individually notified?

5.27 As outlined above, some statutory objectors can be notified by email but this does not apply to owners, lessees and occupiers, whose notices must be delivered in person, by post or left at their address. It is clear from our engagement to date that stakeholders consider that the compulsory purchase system is overly paper-based. This is partly driven by legislative requirements. The ‘Digitisation’ section below looks at how the compulsory purchase process could be digitised – including procedures for serving notice.

Newspaper notices and access to documents

5.28 As well as notifying statutory objectors, the acquiring authority must publish a notice for two successive weeks “in one or more local newspapers circulating in the locality in which the land comprised in the order is situated”. If the Order is confirmed, a similar notice must be published for one week.

5.29 Similar to individual notices, those in newspapers must: state that the CPO has been made and is about to be submitted for confirmation; state the purpose for which the land is required; describe the land; specify a place within the locality where a copy of the order and map can be inspected; and specify how and by when objections can be made.

Options and proposals

5.30 The purpose of newspaper notices is to bring the making of a CPO to the attention of a wider audience than those who are notified individually. It can also be a means of trying to identify unknown owners.

5.31 During our engagement to date we have heard concerns about the cost of newspaper advertisement and questions raised about its effectiveness given declining circulation and the rise of alternative media platforms. However, we are also conscious of the risk of digital exclusion if information is only available online.

5.32 As a minimum, we propose that – in addition to being made available for inspection at a specified location – CPOs should be published on a suitable website (e.g. the acquiring authority’s site). The relevant website would be referred to within newspaper and individual notices. This would reduce reliance on hard copy documentation and inspection at physical locations.

Question 19: Do you agree that the CPO (and map) should be published on a suitable website, in addition to being made available for inspection at a specified physical location?

5.33 We are also interested in respondents’ views on whether newspaper notices should continue to be required and, subject to that, what alternative approaches may be effective. Clearly, online notices – wherever they are placed – have a similar problem to those in newspapers: people will only see them if they know where to look for them and/or subscribe to the relevant outlet or platform.

5.34 It might be helpful for notices to be listed somewhere central, either nationally or by local authority. An existing central resource is the Public Notice Portal operated by the News Media Association, where many notices placed in local newspapers are also listed and which can be searched by area. Of course, as a privately owned resource, government cannot guarantee that the Public Notice Portal will continue to operate. We note that planning authorities are required to maintain registers of planning applications and issue weekly lists of these to community councils. CPOs could perhaps be added to those lists, which would at least reach those who have an interest in planning and development matters in a particular area. This would, however, require other acquiring authorities to provide the information to the local planning authority.

5.35 We also note that the cost of newspaper notices is partly down to their length. The content of notices is prescribed by the 2003 Regulations. If newspaper notification is retained, the associated costs could potentially be limited or reduced by streamlining the content required by the relevant form – in particular the need to describe all the land comprised in the CPO.

Question 20: Should newspaper notices continue to be used to publicise the making of CPOs?

Question 21: What alternative approaches might be appropriate for publicising CPOs – either in addition to or instead of newspaper notices?

Timing of notices

5.36 After an Order has been confirmed, the required notices (sometimes referred to as ‘confirmation notices’ or ‘notices of confirmation’) must be published and served “as soon as may be”. The date of this notification is the date when the Order becomes operative. This marks the start of the three-year period for implementing a confirmed CPO. Any legal challenge to the validity of the Order must be brought within 6 weeks of the date of this notification. Chapter 7 of this consultation considers potential changes to these time limits – see paragraphs 7.23 to 7.38.

Digitisation

5.37 The legislation governing compulsory purchase in Scotland dates from a pre-digital age. Many of the procedural requirements envisage paper-based communication, in-person meetings and inspection of physical documentation in specific locations such as libraries or council offices.

5.38 In recent years, digital technology has transformed the way we communicate, access information and consume media – as well as the way many services are provided. Against that backdrop, it is right that we consider the scope to digitise the compulsory purchase processes.

5.39 In 2021, the Compulsory Purchase Association (CPA) established a Digital Working Group to explore how the end-to-end compulsory purchase process could be digitised. Their subsequent Position Paper^[9] made a series of recommendations as to how this might be achieved.

5.40 The Paper’s recommendations were wide-ranging and go beyond what can be achieved through legislative change alone: wholesale digitisation of the compulsory purchase system will require investment and change by a range of industry partners. Nevertheless, legislative change can undoubtedly play a part in helping to facilitate and remove barriers to this process. That is the focus of this section.

5.41 Digitisation of the compulsory purchase system has the potential to improve access to documentation, streamline procedures and facilitate improved engagement between parties. However, it is important to recognise that access to digital technology varies and care will need to be taken not to widen the ‘digital divide’.

Data standards

5.42 The CPA Digital Working Group’s Position Paper highlights the importance of common data standards in enabling the digitisation of regulatory systems; it recommends that this is provided for by legislation. We note that section 187 of the Levelling-up and Regeneration Act 2023 allows the UK Government to specify (through regulations) common data standards for compulsory purchase documentation, which acquiring authorities would need to comply with. Regulations under that Act would not apply in Scotland.

Options and proposals

5.43 Through the compulsory purchase reform programme, we propose to introduce a statutory power for Scottish Ministers to prescribe common data standards for compulsory purchase documentation in Scotland. It is envisaged that these would be prescribed through secondary legislation rather than on the face of a Bill. This would provide greater flexibility and responsiveness to technological change.

Question 22: Should Scottish Ministers have a power to prescribe (through secondary legislation) common data standards for compulsory purchase documentation? If not, please explain your reasons.

Digitisation of notices and documents

5.44 The compulsory purchase system requires a range of notices and documents to be served on different parties at various stages of the process: from the confirmation stage, through to implementation and compensation. Generally speaking, the various acts envisage these being delivered by post, by hand or by being left at the relevant property.

Options and proposals

5.45 We propose to make provision for notices and other compulsory purchase documents to be served electronically. Doing so has the potential to speed up the process and reduce administrative costs.

5.46 We do not think electronic communications can be mandated in all cases, not least because some people have limited or no internet access. Instead, our intention is to provide the flexibility to serve compulsory purchase notices and documents by electronic means, where parties expressly agree to this.

5.47 We propose to make provision for notices to be served by electronic means where a party agrees to this in writing and provides an email address for this purpose. If a party does not agree to be notified electronically (or does not provide an address) then the current delivery methods would apply. It is considered that this would provide additional flexibility while recognising individual preference and the fact that not everyone has equal access to, or familiarity with, electronic communications.

Question 23: Should acquiring authorities be able to serve compulsory purchase notices by electronic means, if a party agrees to this in writing and provides an address for this purpose? If not, please explain your reasons.