What guidance has been published?
The Scottish government published compulsory purchase guidance for acquiring authorities at the end of April. It is aimed at acquiring authorities with no, or limited, experience of compulsory purchase. The ministers are encouraging authorities to consider using their compulsory purchase powers proactively as they see these powers as important tools, particularly in the delivery of housing and regeneration projects. The guidance provides a high-level overview of the issues with which acquiring authorities will need to grapple and walks acquiring authorities through the steps they need to take when considering compulsory purchase and promoting a compulsory purchase order (CPO).
What is the background?
The Scottish Law Commission undertook a comprehensive review of the law on compulsory purchase and compensation, including public consultation and engagement with stakeholders, between 2014 and 2016. The Commission delivered its report on the responses to the 2014 discussion paper to the Scottish government in 2016; in that report the Commission noted the general agreement of respondents with their position that compulsory acquisition legislation ‘is old, difficult to understand and does not work effectively in context’. The government states that it is still considering the Commission’s proposals for legislative reform; however in practice, the full legislative programme before the Parliament in 2018 and 2019 - including significant work linked to Brexit – makes it unlikely this will reach the top of the list any time soon. The interim solution of ministers is therefore is to look for opportunities to make the CPO process easier and fairer by amending, rather than replacing, the existing legislation.
This amending approach goes hand in hand with trying to build the confidence of acquiring authorities to use the CPO powers they already have in place. The Minister for Local Government and Housing stated in 2017 that the use of CPOs was key in bringing forward development and in meeting Scotland’s housing targets. He continued to say, however, that the government had identified ‘lack of confidence, knowledge and recent experience of the process, concerns about costs, and fears about how use of these powers will be perceived’ as being barriers to the use of CPOs. This new guidance is intended to address those barriers by providing an easier to understand guide to CPO which is more approachable for those not experienced in considering the use of compulsory powers. The new guidance is targeted at acquiring authorities but will be of interest to anyone involved in compulsory acquisition in Scotland, including developers hoping to persuade authorities to use these powers to unlock development sites.
The previous general guidance (Compulsory purchase and compensation: A guide for owners, tenants and occupiers in Scotland) published in 2011, and Circular 6/2011 (which provides detailed advice on CPO procedure for acquiring authorities) sit alongside this new guidance.
Points of note from the guidance
The guidance is set out in five separate documents designed to be read in order and take the reader through the CPO process. The first, ‘Can I use compulsory purchase?’ contains a useful overview diagram of the process and the likely timescales of each stage. The guidance also explains how third party developers can be involved in projects requiring the use of CPOs and provides more guidance on how authorities can acquire land to be developed by a third party than is included in Circular 6/2011. The new guidance includes a list of matters that an authority should consider before adopting such an approach. This should help to provide reassurance to both authorities and third parties seeking to engage with them as to the type of considerations they should be raising and including in reports to decision makers.
The second document ‘What should I do before developing a Compulsory Purchase Order’ sets out the actions that the Scottish ministers strongly encourage acquiring authorities to take before resolving to use compulsory purchase powers and builds upon existing good practice.
The third document ‘How do I prepare a Compulsory Purchase Order’ and the fourth document ‘How do Scottish Ministers consider a Compulsory Purchase Order?’ drill down into further detail of promoting a CPO.
The fifth document ‘Confirmed Orders – Next Steps’ provides an overview of the period for challenging CPOs, the procedures for taking title to and possession of the land, agreeing and paying compensation. It reminds acquiring authorities that it is the acquiring authority that remains ultimately responsible for delivering the project for which the CPO was obtained.
The Scottish government publishes a register of CPOs considered by the ministers since the start of 2012, which is also a useful resource to those authorities considering using compulsory purchase.
Further Scottish guidance on CPO for landowners and on the use of certificates of appropriate alternative development is due to be published later in 2018.
How does this compare with England?
Compulsory purchase reform is underway in England with several legislative amendments having come into force in the past year. See our article on these for further information.