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In September this year, the Scottish Government published its consultation on compulsory purchase reform.
The government is seeking views on how to make the compulsory purchase system in Scotland simpler, more streamlined and fairer for all, to help deliver development and new homes.
What is a compulsory purchase order?
A compulsory purchase order (CPO) is a legal tool which enables certain “acquiring authorities” to obtain rights to, or ownership of land, compulsorily, without the requirement to obtain consent from the requisite landowners.
It can play an important role in the delivery of both small and large-scale public interest projects, with the ability to aid the delivery of regeneration, housing and infrastructure.
Why are reforms needed?
Despite their potential benefits, CPOs remain significantly under utilised in Scotland, outside of major infrastructure projects. This contrasts with the position in England and Wales, where compulsory purchase has increasingly been employed as a viable mechanism to advance urban regeneration.
The comparatively limited use of CPOs in Scotland may be due to the complexity of the current system. With a patchwork quilt of legislation stretching as far back as 1845, the CPO system in Scotland has long been considered antiquated, complicated and expensive to implement. In 2016, the Scottish Law Commission issued a final report on CPOs, following an extensive period of review. The report concluded that the existing compulsory purchase regime was too complex, outdated and unfair, both in terms of procedure and compensation.
The Scottish Government consultation
The government's consultation report, put together with the help of a Practitioner Advisory Group (an expert group established by the Scottish Government to help inform reform of the law in this area), makes proposals to address the failings of the current system, in order to facilitate a modern compulsory purchase regime which is fit for use.
It is clear from the consultation report that the government's focus is on creating a CPO system which is equitable, effective and easy to understand. The government has broken its proposals for reform down into five key areas:
- Enabling powers – the range of enabling powers available and who should be able to exercise them;
- Engagement – the requirements for early engagement with affected landowners and the preliminary steps that an acquiring authority must take;
- Confirmation procedures – potential reform for existing processes including proposals on digitising some aspects;
- Implementation - potential reform to the current statutory process for implementation of a CPO; and
- Compensation – potential reform to the methods of calculation and payment of compensation.
Some of the suggestions which are advanced in the consultation report include:
- Implementing a single mechanism for compulsory purchase (rather than the various mechanisms currently in place) for a more streamlined procedure.
- Retaining market value as the basis of compensation, to reflect the principle of equivalence and ensure fairness for claimants.
- Simplifying the CPO notification requirements and making them more proportionate.
The consultation is also seeking views on the concept of compulsory sale orders and compulsory lease orders, to assess whether these could act as an aid, or an alternative, to the use of CPO.
The consultation will run until the 19th of December 2025.
Going forward
By facilitating the delivery of projects that would not otherwise happen, CPOs have the potential to bring about social, economic and environmental improvements, and could help deliver a number of Scottish Government policies.
On Tuesday 28 October, we look forward to welcoming the Compulsory Purchase Association Scotland to our Edinburgh office for a Q&A and panel discussion on the key issues raised in the consultation and the direction of travel for reform. Keep an eye out for our post-event commentary, where we'll share the key insights and highlights from the discussion.
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