Compulsory purchase reform in Scotland: consultation

6. Confirmation procedures – Deciding a CPO

6.1 This chapter deals with the process for determining whether or not CPOs should be confirmed, the basis of such decisions and how those decisions can be challenged. It is broken down into the following sections:

• Considering objections to a CPO
• How CPOs are decided
• Who takes CPO decisions
• Special category land
• The scope and timing of CPO decisions
• Challenges to a CPO

Considering objections to a CPO

6.2 Once a CPO has been made and the relevant notices served, it is submitted to the Scottish Ministers for confirmation. This section of the consultation looks at what happens when a CPO is received by the Scottish Ministers and how objections are handled prior to a decision on the Order being taken.

Receipt of CPO by the Scottish Government

6.3 CPOs submitted for confirmation are sent to the relevant team in the Scottish Government that handles casework on behalf of the Scottish Ministers – as are any objections. For example, CPOs made under planning legislation are handled by the decisions team within Planning, Architecture and Regeneration Directorate (PARD); CPOs made under housing legislation are dealt with by More Homes Division.

6.4 The next step depends on whether any objections are received. Where objections are received (be that from statutory objectors or other parties), copies are sent to the acquiring authority, which will be given the opportunity to comment on those objections. The acquiring authority’s comments will then be sent to the objectors and a further period allowed for their comment. This iterative process of exchange between objectors and the acquiring authority can lead to objections being withdrawn.

6.5 If there are no objections from statutory objectors – or their objections are submitted but subsequently withdrawn – Scottish Ministers may proceed to make a decision on whether or not to confirm the CPO. These are sometimes referred to as ‘unopposed cases’ or ‘unopposed CPOs’. In such instances, the relevant Scottish Government official will send advice to the Scottish Ministers who will decide whether to confirm the CPO, or confirm it with modifications.

6.6 If there are objections from statutory objectors, the case will be passed to the DPEA who will be appointed to hold a PLI or offer a hearing. These are known as ‘opposed cases/CPOs’. It should be noted that non-statutory objections can be considered by a Reporter if they are judged to warrant consideration in this way – although this is not a statutory requirement.

Options and proposals

6.7 As noted above, if a CPO is opposed, there is an iterative process after it is received by the Scottish Government and before it is passed to DPEA. This has the advantage of allowing further negotiation, which may result in objections being withdrawn. If that is the case, then parties may save time and money in the long run. However, the Scottish Law Commission highlighted that this back-and-forth can become protracted and lead to substantial delay. As indicated in the Business and Regulatory Impact Assessment (BRIA) accompanying this consultation, data suggests this period is an average of almost 7 months (205 days)^[10].

6.8 We are interested in whether there should be a statutory time period by which an opposed CPO should be referred to a Reporter for consideration. Compared to the currently open-ended position, such a deadline may help to provide certainty for interested parties and encourage negotiations to conclude more swiftly. There may also be risks of unintended consequences – such as parties being ‘bounced’ into a potentially costly PLI or hearing process. Larger CPOs with higher numbers of landowners will naturally take longer to resolve all the issues.

6.9 If a deadline of this nature were introduced, detailed consideration would need to be given to what the defined ‘start’ and ‘end’ points would be. A starting point, could perhaps be the end of the objection period or the date on which all CPO documentation is received by the Scottish Government. An end point could be, for example, the issuing of: the notice of a Reporter being appointed; the ‘relevant date’ notice^[11]; or the notice of a Pre-Inquiry Meeting.

6.10 A further question arises around how long the period should be. It would need to be long enough to enable key tasks to be carried out (e.g. checking CPO documentation, obtaining and circulating comments on objections) and to provide scope for objections to be withdrawn – but not so long as to defeat the purpose of specifying a time period.

Question 24: Should there be a statutory time period within which an opposed CPO should be referred to a Reporter after it has been submitted for confirmation? If not, please explain your reasons.

Question 25: If there is to be a statutory time period, how long should it be?

Handling of opposed CPOs by the DPEA

6.11 Once a case is passed to the DPEA and a Reporter identified, objections will be handled by one of three procedures:

• Public Local Inquiry (PLI)
• hearing
• written submissions

6.12 Both PLI and a hearing involve an oral process, where those involved state their case in front of the Reporter. A hearing takes the form of a structured discussion whereas a PLI is typically a more formal event, at which witnesses give evidence in front of the Reporter and can be cross-examined, similar to a court of law. Written submissions, as the name suggests, involve parties stating their case in writing and having the opportunity to comment on each other’s statements.

6.13 Statutory objectors have a right to be heard. The 1947 Act provides that if a PLI is not held, statutory objectors must be offered a hearing. There seems to be a widely held view that there must be a PLI if statutory objectors ask for one but this is not what the legislation states. However, the situation is made more complicated by the rules regarding awards of expenses (see next section).

6.14 PLIs are governed by the Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998^[12]. These rules prescribe the procedures to be followed before, during and after the inquiry – including the holding of pre-inquiry meetings, site visits and the service of documents.

6.15 In Scotland, there is no statutorily prescribed process for conducting hearings and written submissions in respect of CPOs. In the absence of such provision, the Town and Country Planning (Appeals) (Scotland) Regulations 2013 are used ‘by analogy’ in those cases where objections are considered through a hearing or written submissions.

6.16 Once the relevant procedure has been completed, the Reporter will prepare a report making a recommendation as to whether the CPO should be confirmed, including any recommended modifications. This report is sent to the relevant casework team in Scottish Government; advice is then provided to the Scottish Ministers who take the final decision.

Options and proposals

6.17 The current situation, whereby planning appeals regulations are used ‘by analogy’ to manage hearings or written submissions in CPO cases seems unsatisfactory and potentially confusing.

6.18 We therefore propose that in reforming compulsory purchase legislation in Scotland, express provision should be made for objections to CPOs to be considered through written submissions (where statutory objectors^[13] agree to that as an alternative to a PLI or a hearing). We also propose that the procedural rules for hearings and written submissions should be set out in secondary legislation. This would provide greater clarity and certainty for all concerned.

6.19 We propose to retain the right of statutory objectors to be heard through either a PLI or hearing. As at present, it would be for the Scottish Ministers to decide on the need for a PLI when statutory objectors exercise their right to be heard. Written submissions would be used if deemed appropriate by the Scottish Ministers and statutory objectors agree.

Question 26: Should express provision be made in legislation for objections to be considered through written submissions?

Question 27: Should the procedural rules for hearings and written submissions for CPO cases be set out in secondary legislation?

Question 28: Do you agree that statutory objectors’ right to be heard at either a PLI or a hearing should be retained?

Question 29: Should Scottish Ministers continue to decide whether a PLI or hearing is used? If not, in what circumstances should a PLI be required?

Awards of expenses

6.20 In a compulsory purchase context, ‘awards of expenses’ refers to one party being ordered to meet the expenses of another party. The 1947 Act makes provision for awards of expenses to be made in certain circumstances where a PLI is held. Scottish Government guidance on awards of expenses in planning appeals and CPO inquiries is set out in Circular 6/1990.

6.21 The Circular sets out principles for awarding expenses depending on the level of success of a statutory objector. Generally speaking, an award will be made where an objection is sustained: either by the Scottish Ministers’ refusal to confirm a CPO, or by their decision to exclude the whole or part of the statutory objector’s land.

6.22 Crucially, the power to award expenses applies only in relation to PLIs. There is no legal basis to do so in respect of other procedures. This partly explains the potential inclination to hold a PLI rather than a hearing where requested by a statutory objector, even though doing so is not a legal requirement.

Options and proposals

6.23 The current position whereby awards of expenses are not available in relation to hearings and written submissions seems unfair. Furthermore, it may result in cases that otherwise do not merit a PLI following that process, which has the potential to increase time and cost for all. We therefore propose to ensure that awards of expenses can be made where CPO objections are considered through written representations or a hearing – not just a PLI.

Question 30: Should provisions on awards of expenses be extended to cover cases where objections are considered through hearings and written submissions?

How CPOs are decided

The basis of CPO decisions: The public interest test

6.24 At its core, CPO decision-taking involves weighing the public benefits of the acquiring authority’s proposals against the private interests of the people affected. For a CPO to be confirmed, the acquiring authority must demonstrate (and decision-taker must be satisfied) that there is a strong enough case in the public interest to justify the acquisition. This balancing of public and private interests reflects that while compulsory purchase can bring about social, economic and environmental improvements, taking someone’s property is an intrusive step which requires clear and compelling justification.

6.25 The public interest test which governs CPO decision taking is policy-based rather than statutory. Decisions are taken on their individual merits reflecting the circumstances of the case. There are nevertheless some key considerations which are generally used to determine whether a CPO should be confirmed, which are summarised in the table below.

Theme

Purpose & Lawfulness

Key considerations

Does the purpose of the CPO clearly relate to the acquiring authority’s enabling powers?

Theme

Engagement

Key considerations

Has the acquiring authority sought to acquire the land by agreement?

Theme

Alternatives

Key considerations

Have alternatives to compulsory purchase been considered?

Theme

Proposals

Key considerations

Is there reasonable clarity as to how the land is proposed to be used or developed?

Theme

Public Benefits

Key considerations

What are the social, economic and/or environmental benefits of the proposals?

Theme

Planning Position

Key considerations

Do the acquiring authority’s proposals accord with planning policies? Has planning permission been granted for the proposals? If not is there any obvious reason why it would be refused?

Theme

Strategic Fit

Key considerations

Do the acquiring authority’s proposals support or align with any other strategies, policies or programmes outwith planning?

Theme

Funding & Delivery

Key considerations

Will the necessary funds be in place to deliver the acquiring authority’s proposals within a reasonable timeframe?

Will the scheme be funded and/or delivered in partnership with a third party?

Theme

Other Barriers

Key considerations

Are there any other physical or legal barriers to the acquiring authority’s scheme?

6.26 These considerations, which are contained in Circular 6/2011, collectively comprise the public interest test. Taken together, they are about establishing whether, in the circumstances of the case, the use of CPO powers represents a proportionate step that will demonstrably deliver outcomes in the public interest, which would not otherwise be (or are unlikely to be) realised.

6.27 It is very important to stress that these are not ‘hard-and-fast’ rules. In other words, if the answer to the questions in the above table is yes or no, it does not automatically follow that the CPO will (or will not) be confirmed. As policy-based considerations, they provide substantial flexibility, which allows site-specific circumstances and context to be taken into account. For example, Circular 6/2011:

• encourages acquiring authorities to attempt to acquire land by agreement where practicable but recognises this may not always be possible. It states that the absence of such an attempt “will not prevent Ministers from confirming a CPO, as long as the authority can justify its approach”
• indicates that a CPO scheme should accord with planning policy but recognises that “it may not always be possible or appropriate for the authority to wait until the full details of its proposals have been developed, and planning permission obtained, before it proceeds with an order”
• underlines that there should be a reasonable prospect of securing sufficient funding to acquire the land within the three-year period and delivering the scheme within reasonable timescales. But recognises “that funding streams for projects can be unpredictable and their sources can change over time” and therefore it may be possible to justify acquisition where long-term funding is not guaranteed
• makes clear that the acquiring authority does not necessarily need to fund and/or carry out the CPO scheme itself but can enter ‘back-to-back’ arrangements with third parties. It notes that the authority do not necessarily need to have identified the party when the CPO is made

Options and proposals

6.28 The Scottish Government’s view is that the policies governing CPO decision-taking remain appropriate. The components of the public interest test are well-established and do not appear to require revision given the flexibility they afford. On the one hand, they reflect the intrusive nature of compulsory purchase and the need for clear and compelling public-interest justification for the powers to be used. While on the other hand, they provide flexibility for acquiring authorities to tailor their justification to the circumstances of the case. This seems a fair and reasonable balance.

6.29 We are also of the view that the considerations that comprise the public interest test should remain policy-based rather than detailed in legislation. This retains flexibility and enables considerations to be kept up to date. We do, however, accept that there may be scope to improve the way the public interest test and its considerations are laid out. Given that Circular 6/2011 will undoubtedly need to be updated to take account of wider reforms, such improvements can be considered as the programme moves forward.

Question 31: Does the public interest test, as currently set out in Circular 6/2011, strike a fair balance between private and public interests? Please explain your views.

Question 32: Do you agree that the public interest test should continue to be policy-based rather than statutory?

Who takes CPO decisions

6.30 All decisions as to whether to confirm CPOs are currently taken by the Scottish Ministers. As outlined above (see ‘Considering objections to a CPO’), if a statutory objector makes – and does not withdraw – an objection, a Reporter will be appointed and a PLI, hearing or written submissions will be conducted, after which the Reporter will prepare a report making recommendations. However, it is Ministers who at present take the final decision.

6.31 In this section we explore: whether that should always be the case; whether there are circumstances in which parties other than the Scottish Ministers could decide whether to confirm a CPO, and whether making changes in this area would help to streamline the process.

Unopposed cases: confirmation by acquiring authorities

6.32 A significant number of CPOs are unopposed (i.e. have no objections or all objections are withdrawn). The BRIA accompanying this consultation document suggests around 70% of CPOs determined by Scottish Ministers under Housing Act powers receive no objections at all and in 80% of cases all objections are subsequently withdrawn. As set out above, unopposed CPOs still require to be confirmed by the Scottish Ministers which involves processing by the relevant casework team in the Scottish Government. The BRIA suggests that on average, unopposed cases take around 11 weeks to process^[14]. We think that there is scope to streamline the confirmation process by enabling acquiring authorities to confirm unopposed CPOs. Since such a measure would relate to cases where there are no objections from affected parties, or these have been withdrawn, such a provision need not be at the expense of fairness.

6.33 It should be noted that in England and Wales, unopposed CPOs can be referred back to the acquiring authority to confirm, under powers introduced by the Planning and Compulsory Purchase Act 2004. The English Register of Housing and Planning CPOs suggests that between 2019 and 2025 (June), 79% of all CPOs made under Housing Act powers and 33% of all CPOs made under Town and Country Planning Act powers were referred back to the acquiring authority for confirmation under powers introduced by the 2004 Act. We are not aware that these powers have raised particular concerns in respect of procedural fairness.

Options and proposals

6.34 We consider there to be two broad options that would empower acquiring authorities to confirm CPOs in certain circumstances.

• under Option 1, CPOs would continue to be sent to the Scottish Government for confirmation by Ministers. As is currently the case, notices would instruct parties to send objections to the Scottish Government. However, Scottish Ministers would have discretion to refer cases back to the acquiring authority where no objections are received from statutory objectors – or all such objections have been withdrawn. This would broadly mirror the position in England and Wales
• Option 2 would go further. Notices would be served in the usual way but any objections would be sent to the acquiring authority in the first instance rather than Scottish Government. The CPO would only be sent for confirmation by Scottish Ministers if objections are received from statutory objectors. As with option 1, Scottish Ministers would be able to refer back CPOs which start out as opposed cases but where objections are subsequently withdrawn

6.35 Both options have pros and cons. Option 2 would represent a more fundamental change and potentially offer greater time savings because cases with no objections from the outset would not need to come to the Scottish Government at all. There might be concerns about a lack of oversight because at present, the acquiring authority submits the ‘General Certificate’ (see paragraph 5.11) confirming that notices have been served correctly.

6.36 However, we do not consider that the risks of notices not being served correctly would necessarily be any greater than at present. It would continue to be the acquiring authority’s responsibility to comply with the legal requirements regarding notification. If objections were lodged, the authority would need to submit the CPO to the Scottish Government together with a General Certificate confirming that notices have been served correctly. As now, failure to comply with these requirements could increase the risk of successful legal challenge.

6.37 On balance our current preferred option is Option 2 but we would welcome views on the relative merits of each approach – as well as potential alternatives.

Question 33: Should acquiring authorities be empowered to confirm unopposed CPOs?

Question 34: If acquiring authorities are empowered to confirm unopposed CPOs, which approach outlined at paragraph 6.34 would be preferable – Option 1 or 2? Please explain your views.

Opposed cases: confirmation by Reporters

6.38 Where a statutory objector makes and does not withdraw an objection to a CPO, the case is passed to the DPEA and handled by a Reporter. Following the associated PLI, Hearing or Written Submissions, a Reporter will write a report making recommendations as to whether or not the Scottish Ministers should confirm the Order. This final stage of the process is administered by the relevant Scottish Government casework team.

Options and proposals

6.39 The current arrangements for opposed CPOs involve a degree of double-handling which adds to the time it takes for decisions to be taken. As indicated in the accompanying BRIA, this period from Reporter’s report to the decision by Scottish Ministers takes 45 days on average^[15]. To help streamline the process, we propose to take forward provisions that would enable Scottish Ministers to effectively delegate CPO decisions to Reporters. In such delegated cases, Reporters would determine whether or not the CPO should be confirmed – rather than making recommendations and the case being passed back to the Scottish Ministers.

6.40 This proposal would bring CPOs into line with other types of casework involving DPEA Reporters such as planning appeals, and cut down on the amount of double-handling that takes place.

6.41 As with other types of casework that can be delegated, the Scottish Ministers would retain the power to take CPO decisions themselves. In the interests of transparency, we would anticipate publishing Scottish Government policy on the circumstances in which cases would be recalled by the Scottish Ministers and those which would be decided by Reporters.

Question 35: Should Reporters be empowered to take CPO decisions, subject to published criteria regarding delegation by Scottish Ministers? Please explain your views.

Special category land

6.42 Additional procedural requirements apply to the confirmation process where certain types of land are included. These are referred to as ‘special category land’. This section of the consultation looks at those extra procedures and considers whether they remain appropriate.

Special Parliamentary Procedure

6.43 If special category land is included in a CPO, and specified criteria are met, an additional process known as ‘special parliamentary procedure’ (SPP) will apply to the confirmation of that CPO. The table below sets out the four special categories of land which can result in SPP being required and the circumstances in which this is triggered.

Special Category Land

Land owned by a local authority

Special Parliamentary Procedure Trigger

CPO is subject to SPP if the local authority objects to the inclusion of its land and that objection is not withdrawn.

Special Category Land

Statutory undertaker land^[16]

Special Parliamentary Procedure Trigger

CPO is subject to SPP if the statutory undertaker objects to the inclusion of its land and that objection is not withdrawn.

Note that additional requirements apply in relation to statutory undertaker land – see paragraph 6.52 below.

Special Category Land

Land held inalienably by the National Trust for Scotland (NTS)

Special Parliamentary Procedure Trigger

CPO is subject to SPP if the NTS objects to the inclusion of its land and that objection is not withdrawn.

Special Category Land

Land forming part of a common^[17] or open space^[18]

Special Parliamentary Procedure Trigger

CPO is subject to SPP unless:

a) The Scottish Ministers certify that there has been or will be exchange land given by the acquiring authority which is of equal area, and of equal advantage to the persons entitled to the rights and the public; or

b) In cases where the land is less than 250 square yards, or the land is required for widening an existing public road, the Scottish Ministers certify that the giving of exchange land is unnecessary.

Prior to issuing such a certificate, Ministers must direct the acquiring authority to issue notices to interested parties. They must consider any objections made, including by way of PLI if it is expedient to do so.

6.44 SPP is a process of additional scrutiny by the Scottish Parliament which can apply to certain types of order (including CPOs) made, confirmed or approved by the Scottish Ministers. The steps involved in SPP are set out in the Interpretation and Legislative Reform (Scotland) Act 2010.

6.45 Where SPP is triggered, further notification must be carried out, in addition to that which is already required by the 1947 Act (see section above on ‘Notification and advertisement of a CPO’). Where ‘relevant objections’^[19] are made and maintained – in response to either set of notification requirements – then the CPO cannot be confirmed except by an Act of the Scottish Parliament.

6.46 If there are no relevant objections, or these are subsequently withdrawn, the CPO is laid before the Scottish Parliament and cannot come into force until at least 40 days has passed, and provided Parliament has not within that period resolved that the Order should be annulled.

6.47 For local authority and statutory undertaker land, the position is more complicated. The Local Government, Planning and Land Act 1980 excluded certain CPOs from the need for SPP where the Order includes local authority or statutory undertaker land. Whether these exclusions apply depends on who the acquiring authority is. As a result, some CPOs will trigger SPP if they include local authority or statutory undertaker land (and the authority/undertaker makes and does not withdraw an objection) but other CPOs do not. Furthermore, as noted below, separate restrictions apply in relation to statutory undertaker land.

Options and proposals

6.48 As summarised above, SPP effectively puts the matter of whether certain CPOs should be confirmed before the Scottish Parliament. Where there are ‘relevant objections’, an Act of Parliament is required. The procedures involved have the potential to add significant complexity, time and uncertainty to the process.

6.49 While the types of land which SPP can apply to are undoubtedly important, we are interested in views on whether the current arrangements are proportionate – especially having regard to the checks and balances that apply to the confirmation of CPOs more generally, and the considerations taken into account when applying the public interest test.

6.50 As regards local authority and statutory undertaker land, the requirement for SPP is already disapplied in respect of certain CPOs, depending on who the acquiring authority is. The policy rationale for this differential approach is unclear and calls into the question the need for SPP in relation to CPOs that include local authority or statutory undertaker land. For CPOs that include statutory undertaker land, there is a separate, additional restriction on confirmation where a representation is made and not withdrawn – and this would continue to apply, as set out below.

6.51 In cases where additional scrutiny is deemed to be required, we are interested in whether alternative approaches might be more proportionate than the current SPP arrangements. Potential alternatives could for example include:

• a requirement to hold a PLI if special category land is included in a CPO and objections are made and not withdrawn, rather than this being at the discretion of the Scottish Ministers or Reporter
• a restriction on Scottish Ministers’ ability to confirm a CPO that includes special category land unless and until specified certification has taken place – similar to the position for statutory undertaker land (see paragraphs 6.52 to 6.54)
• retain SPP but confirmation is by a motion of the Scottish Parliament, rather than an Act of Parliament, in cases where there are objections – similar to the position in respect of the National Planning Framework

Question 36: Is additional scrutiny still needed for CPOs which include particular land? If yes, which of the four current special categories of land should this apply to?

• land owned by a local authority
• statutory undertaker land^[20]
• land held inalienably by the National Trust for Scotland (NTS)
• land forming part of a common^[21] or open space^[22]

Question 37: If additional scrutiny of certain CPOs is needed, could there be alternative ways to achieve this other than Special Parliamentary Procedure? Please outline your suggestions.

Statutory undertaker land: restriction on confirmation of a CPO

6.52 Where a CPO includes statutory undertaker land, separate restrictions apply under paragraph 10 of Schedule 1 to the 1947 Act. In summary, where an objection is made and not withdrawn, Scottish Ministers are restricted from confirming the CPO – unless they certify that they are satisfied that the land, by virtue of its nature and situation:

• can be purchased and not replaced without serious detriment to the carrying on of the undertaking, or
• if purchased, it can be replaced by other land belonging to, or available for acquisition by, the statutory undertaker without serious detriment to the carrying on of its undertaking

6.53 It is notable that the legislation does not specify that the objection necessarily needs to be made by the statutory undertaker, or that it relate to the inclusion of the undertaker’s land within the CPO.

Options and proposals

6.54 We are minded to retain this restriction, which we think strikes a reasonable balance between the acquiring authority and statutory undertaker. Indeed, it is part of the reason that we consider that SPP could be removed insofar as it relates to CPOs that include statutory undertaker land. Nevertheless, we propose to clarify that this restriction on the confirmation of a CPO only applies if an objection is made by the relevant statutory undertaker (i.e. whose land is included in the Order).

Question 38: Should the restriction on confirmation of CPOs that include statutory undertaker land apply only where a relevant objection is made by the undertaker whose land is included in the Order? If not, please explain your reasons.

Public Rights of Way

6.55 Section 3 of the 1947 Act provides that, subject to certain exceptions, where a CPO includes land which has a public right of way over it (other than roads), and Scottish Ministers are satisfied that a suitable alternative right of way will be provided or none is required, then the Scottish Ministers can extinguish the right of way through an Order. In those circumstances, Ministers must publish a notice of their intention to extinguish a public right of way, and if there is an objection which is not withdrawn, a PLI must be held.

Options and proposals

6.56 The Scottish Law Commission’s review considered the requirement for a PLI where a public right of way is to be extinguished by an order under section 3, and the potential for this to be conjoined with any separate PLI into the related CPO. There was support among respondents for the confirming authority to have discretion over the need for a PLI where a public right of way is affected by a CPO and the acquiring authority offers to replace the right of way. There was also support for allowing PLIs to be conjoined.

6.57 Where a CPO includes land with such a public right of way over it and Scottish Ministers publish notice of their intention to extinguish that right of way, we propose to:

• give Scottish Ministers discretion as to the holding of a PLI if objections are made (and not withdrawn)
• allow a PLI into the extinguishment of a public right of way to be conjoined with a PLI into the related CPO

Question 39: Do you agree with the proposals at paragraph 6.57 regarding the interaction between CPOs and public rights of way? If not, please explain your reasons.

Scope and timing of CPO decisions

Scope of CPO decisions

6.58 After considering the merits of a CPO, the decision-taker can either:

• confirm the Order
• confirm the Order with modifications
• refuse to confirm the Order

Modifications to CPOs

6.59 The confirming authority’s power of modification is used sparingly. It can be used to deal with minor mistakes or change of circumstances but not to address more significant matters. An example of a possible modification would be to remove land from a CPO because it is no longer required, having been acquired voluntarily.

6.60 At present, modification takes place at the end of the process, when the CPO is confirmed. Prior to that, the acquiring authority may agree to a modification to address a statutory objector’s representation. However, until the CPO is confirmed with that modification, a statutory objector may maintain their objection and right be heard. This could delay the process and incur unnecessary expenditure on a hearing or PLI.

6.61 For certain statutory objectors (see groups (ii), (iii) and (iv) in paragraph 5.17), the current legislation already provides some flexibility to avoid having to hold a hearing or PLI in circumstances where the acquiring authority agrees to address an objection. Specifically, paragraph 4(2A) to (2C) of Schedule 1 to the 1947 Act allows the acquiring authority to give specific written undertakings as to how they will address certain statutory objections^[23] at the conveyancing stage, removing the need for a hearing or PLI. This provision does not, however, apply to owners, lessees and occupiers of land included within a CPO (see group (i) at paragraph 5.17).

Options and proposals

6.62 We would be interested in views on potential new measures that would give acquiring authorities greater flexibility to address statutory objectors’ concerns during the confirmation process, and in so doing avoid unnecessary hearings or PLIs – and the associated costs. We think this could potentially be achieved in different ways. For example:

• extending the provisions described in paragraph 6.61 so that they apply to all statutory objectors (i.e. to include owners, lessees and occupiers)
• making provision for the acquiring authority to modify a CPO during the confirmation process to allow them to remove land and/or make minor modifications to address errors

6.63 Clearly, any new mechanism of this nature should not enable additional land to be added to a CPO (even if this is to address a minor error) without the owner being notified and having the opportunity to object. If taken forward, further consideration would also need to be given to awards of expenses incurred in relation to a PLI or hearing that is cancelled or curtailed as a result of such a mechanism.

Question 40: Should there be a mechanism that would allow statutory objections to be addressed during the confirmation process, so avoiding unnecessary hearings or PLIs?

Question 41: If provision for such a mechanism were made, what procedures or safeguards would need to be put in place to ensure fairness? Could either of the suggestions in paragraph 6.62 achieve this?

Conditional Confirmation

6.64 CPOs do not exist in a vacuum. Compulsory purchase is typically one part of a wider development project, which may involve various consents, funding arrangements and dependencies. How these individual elements are sequenced may impact on overall cost and deliverability.

6.65 As outlined above (see ‘How CPOs are decided’), the public interest test for CPOs considers whether the relevant funds are in place to acquire the land and deliver the scheme, and whether planning permission and other consents have been secured. As noted, these are not hard-and-fast requirements, and the Circular provides flexibility in this regard. In particular, it does not necessarily require that all the funding needs to be in place up front – or that detailed planning permission and other consents must have been secured before a CPO will be confirmed. Nevertheless, it is understandable that some authorities may seek to manage risk by only seeking confirmation for a CPO once other consents have been secured and there is certainty of funding. If prospective funding partners are reluctant to provide this certainty until a CPO is in place, a ‘chicken and egg’ scenario could arise.

Options and proposals

6.66 An option could be to make provision for conditional CPOs. That is to say, the confirming authority would be able to confirm a CPO subject to conditions. Such conditions could, for example, relate to separate consents or funding being secured. If such a power were introduced, the CPO would not become operative (i.e. the three year implementation period would not start) until the confirming authority is satisfied that conditions have been complied with, following a subsequent application by the acquiring authority.

6.67 We would be interested in views on whether such a provision could add to the flexibility already provided by the Circular, in terms of when compulsory purchase powers are sought relative to other aspects of development projects. In particular, we would welcome thoughts on whether it would enable acquiring authorities to make CPOs earlier in the delivery of projects alongside other consenting, procurement and funding processes – and whether this would help to de-risk delivery in practice.

6.68 Although there may be some advantages, we can see potential drawbacks and risks too. Providing for conditional confirmation could add complexity: new procedures would need to be put in place by which acquiring authorities apply to discharge conditions, including opportunities for affected parties to make representations. Provision would need to be made to ensure matters of principle were not re-opened through such a process. Depending on how long acquiring authorities have to discharge conditions following conditional confirmation, the effect could be to prolong the uncertainty experienced by owners and occupiers. Additionally, there may be an increase in CPOs which are not confirmed on the basis of being premature.

Question 42: Would a power to confirm CPOs subject to conditions be helpful in terms of overall project delivery? Please explain your views.

Question 43: If conditional CPOs were taken forward, what additional procedures and safeguards would need to be in place to ensure fair and proportionate use?

Timescales for CPO decisions

6.69 This section looks at the need for time limits for issuing CPO decisions after the procedure for considering objections (be that PLI, hearing or written submissions) has concluded. No such time limits are currently prescribed.

Options and proposals

6.70 It is clear from stakeholders that both acquiring authorities and affected landowners/occupiers would welcome changes that make the CPO confirmation process swifter. What is less clear is whether statutory time limits for the issuing of CPO decisions would have that effect – and so contribute to the reform programme’s aim of making the process more streamlined.

6.71 The Scottish Law Commission was cautious about the prospect of specifying such time limits through primary legislation, questioning whether this would be conducive to issues being properly considered – especially in more complex cases. Rigid time limits therefore have the potential to be counter-productive in terms of the quality of decision taking. Another unintended consequence of fixed or binding time limits could be to increase instances of Ministers (or Reporters) refusing to confirm CPOs.

6.72 A further consideration is what an effective sanction might be if time limits for issuing CPO decisions are not complied with. For example, providing that a CPO is invalid if it is not confirmed within a specified period could unfairly and disproportionately penalise acquiring authorities. By the same token, providing that a CPO is deemed to be confirmed if no decision is taken within a specified period would be very unfair to affected owners and unlikely to be compliant with ECHR.

6.73 For the above reasons, we are unconvinced about the effectiveness of introducing binding, statutory time limits for the issuing of CPO decisions. We instead propose to publish target timescales for deciding CPOs. Although non-binding, doing so should provide affected parties with additional clarity and certainty. A requirement to periodically report on these timescales could help to further support transparency.

6.74 The issue of decision-making timescales is contingent on other proposals in this consultation. For example, if provision is made for CPOs to be decided by Reporters and/or acquiring authorities, specific targets may be required for such scenarios. Similarly, specific timescales may be needed depending on whether objections are considered via PLI, hearing or written representations – recognising that the former are likely to be more complex.

Question 44: Do you agree that the Scottish Government should publish target timescales for the issuing of CPO decisions, rather than having binding statutory time limits? If not, please explain your reasons.

Question 45: If targets (statutory or otherwise) are not met, what sanctions might be appropriate?

Question 46: Should the Scottish Government be required to report on compliance with any target timescales for CPOs?

Challenges to a CPO

6.75 This section of the document examines how a CPO which has been confirmed can be challenged. It looks at the grounds of challenge, the time limits for bringing a challenge and the remedies open to the court where a challenge is successful.

Grounds of challenge

6.76 The legal basis for challenging a confirmed CPO is set out in paragraphs 15 and 16 of Schedule 1 to the 1947 Act. In summary, an aggrieved person may apply to the Court of Session to challenge the validity of a CPO on the grounds that either: the confirmation is ultra vires (outside the scope of legal powers), or the applicant has been prejudiced by a failure to follow the relevant statutory procedures.

6.77 While the wording could perhaps be clarified, we are not minded to amend the substance of the grounds on which a confirmed CPO may be challenged and propose that they are retained.

Question 47: Do you agree that the grounds on which a confirmed CPO may be legally challenged should be retained? If not, please explain your reasons.

Time limit for bringing challenge

6.78 Legal challenges to the validity of a confirmed CPO must be brought within 6 weeks. This time limit starts when notices of the confirmation of a CPO are published.

Options and proposals

6.79 The Scottish Law Commission did not consider the 6-week challenge period to be unreasonably short and noted that it is consistent with other analogous regimes. It therefore did not seek views on the matter. The Commission did, however, ask about whether legal challenges made on the basis of non-compliance with rights under the ECHR should also be brought within a 6-week period. A substantial majority of respondents agreed that they should and we do not intend to alter this. We propose to retain the 6-week period within which challenges to the validity of a confirmed CPO must be brought.

Question 48: Should the 6-week period within which a confirmed CPO may be legally challenged be retained? If not, what should the period be?

Remedies

6.80 Where a challenge is successful, the court may quash the CPO in whole or in part. The Scottish Law Commission acknowledged that in some cases, for example where a challenge succeeds on the grounds of a procedural defect, it may be disproportionate for the Court to quash the Order. Even if the CPO is otherwise sound, the acquiring authority would have to start the entire process again. The Commission therefore asked about whether the court should have discretion to grant some remedy short of quashing the CPO. This could, for example, include allowing the court to quash just the confirmation decision instead of the whole CPO or requiring the inquiry to be re-run. A substantial majority of respondents felt that the court should be given such discretion.

Options and proposals

6.81 We propose to give the Court the discretion to quash the decision to confirm a CPO, rather than its only available remedy being to quash the Order itself. This would provide greater flexibility to deal with situations where it would be disproportionate for a CPO to be quashed in whole or in part.

Question 49: If a legal challenge is successful, should the court have discretion to quash just the confirmation decision, rather than its only remedy being to quash the Order itself?