3. What is the compulsory purchase process and what can I do to influence it at each stage?
3.1. The process by which an Acquiring Authority obtains permission for a compulsory purchase and then takes possession of property and pays compensation can be summarised into four broad stages.
Stage 1 – the preparation stage
3.1.1. In most cases, this will represent the longest part of the process and will involve the Acquiring Authority developing, consulting on and refining its proposals, gathering evidence to support them, identifying all those with an interest in the property(s) in question, and then preparing its justification for both the scheme and the need to acquire the property(s).
3.1.2. During this stage you can expect the Acquiring Authority to contact you to explain the project and the options it is considering/have considered and how they may affect your property. You can expect to be asked for your views and you may wish to raise objections to the proposal and/or make suggestions for how the impact on your property can be minimised. You can expect your views and suggestions to be listened to and for the Acquiring Authority to respond – although they may not be able to agree with them or to adapt their proposal(s) to accommodate them all. From experience the sooner you engage with the Acquiring Authority, the greater the prospect of your views and wishes being able to be accommodated.
3.1.3. You can also normally expect the Acquiring Authority to enter into discussions about purchasing your property by agreement and to enter into negotiation about the price you are willing to accept (however, as noted in paragraph 2.6, this may not always be the case).
3.1.4. The Acquiring Authority should identify and contact all owners and tenants with an interest in the property(s) during this stage. They will do this by searching the Land Register, writing to the people concerned and/or placing advertisements on the property and in the local press. You should respond promptly to any requests for information to confirm your interest in the property.
3.1.5. If you believe that your property will be affected by a potential compulsory purchase project but have not been contacted by the Acquiring Authority you should get in touch with them immediately to confirm your interest. The Acquiring Authority may ask for proof of your interest in the property.
3.1.6. Once an Acquiring Authority has completed all of the actions that it needs to undertake in the preparation period it will prepare a proposal, including legal documents and the necessary accompanying documents (including its "Statement of Reasons"), advertise the making of the draft compulsory purchase proposal and submit it to the decision maker (usually the Scottish Government) for consideration.
Stage 2 – the objection and hearing period
Objecting to a compulsory purchase proposal
3.1.7. Once the Acquiring Authority advertises its draft compulsory purchase proposal and informs you of this there follows an objection period of at least 3 weeks.
3.1.8. If you wish to object to the proposal then you must do so in writing to the decision maker (usually the Scottish Government) before the end of the stated objection period. Important: There is no provision for accepting and considering objections received after the objection period has closed.
3.1.9. Reasons why you may wish to object to the compulsory purchase include:
- You object to the underlying purpose or project and/or believe that it has not been adequately justified;
- You object to the choice of route or site of the project and believe that an alternative would be more suitable and/or that the proposals could be adjusted to reduce the impact on your property; or
- You object to the proposed timing of the project and believe that an alternative or amended timing would be more suitable and/or would reduce the impact on your property.
3.1.10. However, you cannot object to a compulsory purchase proposal solely on the grounds that you believe that you will be or have been offered insufficient compensation. Agreeing compensation for a compulsory purchase project is subject to separate procedures that only commence once the compulsory purchase has been confirmed (see below, Negotiating and agreeing compensation).
3.1.11. You should therefore consider an objection carefully, take professional advice about how to explain and justify your objection as clearly as possible, and ensure that it is lodged in time. Where applicable you should also set out clearly any suggestions that you have to modify the proposal so that the Acquiring Authority and the decision maker can consider these.
3.1.12. You should note that you will normally only be able to recover some or all of the costs incurred in preparing your objection if it is successful. Otherwise, you are fully responsible for all such costs (see Section 4).
Responding to objections
3.1.13. All objections submitted to the decision maker will be passed to the Acquiring Authority, who will then be asked whether it wishes to amend its proposal to address them. The response from the Acquiring Authority will then be passed to you and you will be asked to confirm whether you wish to either maintain or withdraw your objection. During this period, the Authority should contact you directly to discuss your objection and how it could address your concerns. If you are satisfied with the Acquiring Authority's response then your objection can be withdrawn in writing.
3.1.14. If no response is received from an objector within a specified period (usually 14 days), it will be assumed that you wish to maintain your objection.
Hearing the arguments and preparing a report
3.1.15. If, at the end of this part of the process, any statutory objections remain unresolved, then the case will be passed to the Directorate for Planning and Environmental Appeals who will appoint an independent Reporter to consider it.
3.1.16. The Reporter will decide how best the evidence and arguments for and against a compulsory purchase project should be heard. A Public Local Inquiry is the most common route, however, if all parties agree, this may be undertaken through a Hearing or via Written Submissions (or a combination of these).
3.1.17. If you maintain your objection, you will need to consider how you wish to make your case to the Reporter and whether you wish to employ a solicitor or other experts to help you present and justify your arguments. In doing so, you should be aware that the costs of employing someone to represent you at this stage of the process might not be recoverable. Only if an objection is upheld in your favour (or in other exceptional circumstances) will some or all of your costs be awarded. If an objection is deemed to be vexatious (i.e. deliberately obstructive) it is also possible that you will be required to pay the Acquiring Authority's costs.
3.1.18. Once the Reporter has heard all of the objections and evidence in the case, they will then prepare a report setting out their conclusions and recommendations and will submit this to the Scottish Government for consideration by Scottish Ministers.
Stage 3 – the determination period
3.1.19. Ministers will then decide whether the compulsory purchase proposal should be:
- Confirmed (i.e. authorising the purchase of the property) with no modifications;
- Confirmed with modifications (typically used to remove property from a draft proposal which has since been acquired voluntarily or to reflect a minor design change); or
- Not confirmed (i.e. rejecting the proposal and not authorising the purchase).
3.1.20. In making their decision Ministers will carefully consider any report submitted by the Reporter and weigh up the public benefit of the proposal against the private property rights of the affected owner(s), as well as the merits of any objections that were lodged.
3.1.21. You do not have any chance to influence the decision at this stage so it is important that you take every opportunity to have your voice heard at Stages 1 and 2 if you wish to affect the outcome.
3.1.22. Once Ministers have made their decision this will be communicated to the Acquiring Authority, who must then advertise the decision.
3.1.23. At this point, you have the right to submit a legal challenge to the decision to confirm the compulsory purchase proposal at the Court of Session within 6 weeks. However, you should be aware that such a legal challenge can only be made on the grounds of lawfulness, rather than on the merits of the decision. Furthermore, employing specialist legal representatives to argue your case will be very expensive. You are therefore strongly advised to seek expert legal advice before pursuing such a course of action.
3.1.24. If a legal challenge is lodged then the Outer House of the Court of Session may choose to suspend the process of implementing the compulsory purchase until they reach a decision.
3.1.25. Once the Court has considered the challenge (by setting a hearing date and hearing the respective legal arguments), it may choose to quash the authorisation in whole or in part, or to confirm it with no change.
3.1.26. There is then a right of appeal to the Inner House of the Court of Session and then to the Supreme Court in London if you are not satisfied with the Court's decision. Again, such a course of action will be very expensive and should be considered very carefully.
Stage 4 – the implementation period
Taking possession of the property
3.1.27. After a compulsory purchase has been confirmed the Acquiring Authority has up to 3 years to implement it by taking title to and possession of the property(s). This period includes the time taken to consider any legal challenge.
3.1.28. Acquiring Authorities are encouraged to implement a confirmed proposal as soon as possible but may delay taking possession of the property for a variety of reasons – for example, to allow you time to find a suitable alternative and to relocate your possessions or to allow for a tendering process for contractors to be appointed to undertake the work. You are strongly encouraged to contact the Acquiring Authority as early as possible to discuss and agree a mutually convenient date and (if necessary) seek their assistance in relocating.
3.1.29. The Acquiring Authority will normally take title to your property by serving a General Vesting Declaration (GVD) but may, less commonly, may do so by serving a Notice to Treat and then a Notice of Entry.
3.1.30. Whichever mechanism is chosen, the Acquiring Authority is expected to communicate clearly with all those with an interest in a property and to specify clearly the date they intend to take title to and possession of the property.
Negotiating and agreeing compensation
3.1.31. It is usually at this stage that the Acquiring Authority will try to agree with you the compensation that is due; although you should note that, even where you are entitled to compensation you must submit a formal claim for what you are due. See Section 4 for details of the types of compensation that you may be able to claim.
3.1.32. The Acquiring Authority is expected to act fairly and to reasonably assess the compensation to which you are entitled but also to consider any representations that you or your representative may make arguing for a higher figure.
3.1.33. The Acquiring Authority will engage its own professional property Valuer to provide them with an estimate of the value of your property and you should seriously consider appointing your own advisor. The reasonable costs of obtaining valuation advice and negotiating compensation form part of the compensation package that you are entitled to claim.
3.1.34. The Acquiring Authority should provide you with confirmation of the type and extent of fees that they will recompense you for.
3.1.35. It is common that during the negotiation of a compensation claim that most disagreements and disputes in the compulsory purchase process arise. You are encouraged to make your case for the level of compensation that you believe you are entitled to in a reasoned and evidence based way. The reasonable costs of taking advice to help you estimate and negotiate your claim can themselves be reclaimed as part of the compensation package. Section 5 provides further details of where you can go to help you identify a suitably qualified and experienced professional to help you.
3.1.36. If you are unable to reach agreement on any aspect of the compensation due, then it is open to you or the Acquiring Authority to refer the matter to the Lands Tribunal for Scotland (LTS) for independent determination. You must do this within six-years of the date of the GVD or Notice to Treat. The LTS will then examine the application and determine how best to consider the case. This will normally involve a Hearing.
3.1.37. In addition to the LTS, mediation and arbitration are possible means of settling your differences with the Acquiring Authority but can only be used if both parties agree. If all else fails, you will have to go to the LTS to have the amount of compensation to which you are entitled decided.
3.1.38. The LTS is based in Edinburgh but covers the whole of Scotland and typically hears compulsory purchase cases in the locality where the land in question is situated because, in addition to hearing evidence and legal submissions, it will usually want to see the land in question for itself.
3.1.39. The LTS is made up of lawyers and surveyors and generally sits as a two-man tribunal (a lawyer who chairs the hearing, and a surveyor) but, in complex cases, three members may sit. Whilst, as in other courts and tribunals, you are entitled to present your own case, compulsory purchase cases tend to be complex enough to justify, or even require, representation by lawyers and other experts.
3.1.40. If you win your case you can reasonably expect to get an award of expenses, although this does not always mean that you will be able to recover from the Acquiring Authority all that you have spent – sometimes there can be a significant shortfall.
3.1.41. It is relatively rare for awards of expenses to be made against you as a claimant in a compulsory purchase case because the whole thing is necessitated by the Acquiring Authority in the first place and property owners are entitled to try to make sure they get proper value for what is being taken from them.
3.1.42. However, as a claimant you are expected to be reasonable and realistic in what you claim for and should take particular care before refusing an unconditional offer from the Acquiring Authority, otherwise you run the risk of an award (or partial award) of expenses being made against you.
3.1.43. Further information about fees and the detail of the LTS process can be found at www.lands-tribunal-scotland.org.uk/
Delivering the compulsory purchase project
3.1.44. Even where a third party (e.g. a contractor) is used to deliver the compulsory purchase project, the Acquiring Authority remains responsible for its implementation. The Acquiring Authority should therefore have a clear complaints process in place for any contract work, and should provide a clear point of contact or liaison officer for owners affected by the scheme.
3.1.45. If you are unable to resolve a dispute with a contractor about something related to the delivery of a compulsory purchase project, you should contact the Acquiring Authority who should be able to advise on the responsibilities of the contractor and, hence, who is responsible for resolving the issue.
Email: Sam Anderson