SECTION 2 Compulsory purchase process
Outline of procedure
2.1 Where the Scottish Ministers have proposals to construct a new road or improve an existing road, they commission design and development work, including environmental impact assessments to bring the proposals to reality. When this initial design and development work has been completed to the level necessary to enable the Scottish Ministers to determine the proposed line of the road, the Scottish Ministers are in a position to identify the extent of the property required for the scheme.
2.2 Where the Scottish Ministers intend to purchase property on a compulsory basis, they publish a draft Compulsory Purchase Order (CPO). The CPO identifies the land and rights over land (which for simplicity are referred to in this guidance as "property") required for the scheme by reference to a schedule and a map. The owners and occupiers are identified as accurately as possible and their details are included in the schedule. Each owner and occupier listed in the schedule, together with certain other parties as required by statute, will be served with the relevant notices under the statutory procedure along with explanatory literature.
2.3 The Scottish Ministers advertise the publication of the draft CPO in the press. Information on the scheme will be available at www.transportscotland.gov.uk and depending on the scale of the project may be provided from a project website or at a public exhibition.
2.4 The assessment of compensation is covered in Section 3 – page 9.
2.5 The Scottish Ministers must serve notice on certain parties specified by statute, including every owner and tenant (except for tenants for a month or less) of any property included in the CPO, stating the effect of the CPO. If the name or address of the party, e.g. an owner of a piece of property, is not known and there is no person on the property to whom the notice may be delivered, notices are posted on the property.
2.6 The content of both the press notice and the individual notices is very similar, and each will:
- state that a CPO has been prepared;
- specify the time within which objections to the CPO can be made;
- specify the manner in which objections to the CPO may be made; and
- say where in the locality the CPO and map may be inspected.
2.7 This guidance is about the CPO procedure and compensation issues. Other statutory orders which may be published, and any Environmental Statement published, follow their own statutory procedures which are set out fully in the notices accompanying their publication.
2.8 Anyone who wishes to object to the CPO must do so in writing to the Scottish Ministers at the contact address given, and by the date specified in the press and individual notices that the CPO has been prepared. This objection period is normally, and cannot be less than, 21 days and runs from the date of service of those press and individual notices.
2.9 There is no specific format for an objection to the CPO other than it must be in writing.
2.10 Following the period for objections the Scottish Ministers will then consider all written objections received. The Scottish Ministers can only disregard an objection if it relates solely to matters of compensation.
2.11 The Scottish Ministers, through their technical specialists, will contact objectors with a view to resolving their objection if possible.
2.12 If this process does not result in all objections being withdrawn or otherwise resolved it is normal for those objections to be considered at a Public Local Inquiry (PLI) arranged by the Scottish Ministers.
Public Local Inquiry (PLI)
2.13 The PLI is held before a Reporter appointed by the Scottish Ministers. The Reporter determines how the inquiry is to proceed. Generally he or she will try to keep proceedings informal whilst ensuring that all parties are able to have their say in an organised and orderly manner to ensure that the case for and against the compulsory purchase of property is fully tested.
2.14 The Reporter will visit the site before, during or after the close of the PLI. Objectors are entitled to attend and the arrangements for the visit will be announced. However, the Reporter will not discuss the merits of the case on the visit.
2.15 The costs incurred by people in attending or being represented at the PLI are generally only met by the Scottish Ministers where their property is included in the CPO, they object, and as a result of their objection their property is removed or partly removed from the CPO. Where only part of their property is removed from the CPO, only part of their costs is normally met.
2.16 After the close of the inquiry, the Reporter will produce a report for the Scottish Ministers setting out his or her conclusions and putting forward recommendations.
2.17 After considering the Reporter’s recommendations, the Scottish Ministers will decide whether or not to proceed with the compulsory purchase.
2.18 The Scottish Ministers may make a decision which is contrary to the Reporter's recommendations.
2.19 When the Scottish Ministers have reached their decision, they will inform the objectors and any other person who appeared at the inquiry and asked to be notified. The decision letter will set out the reasons for the decision. Any party can request a copy of the Reporter's report.
Compulsory Purchase Order (CPO)
2.20 If the Scottish Ministers have decided not to proceed with the compulsory purchase that brings an end to the matter. If the Scottish Ministers have decided to proceed with the compulsory purchase then those parties specified by statute, including each owner listed in the schedule to the CPO, will be served with the relevant notices under the statutory procedure along with explanatory literature outlining the effects of the CPO and a form for claiming compensation. At the same time the Scottish Ministers will advertise the making of the CPO in a notice in the press.
2.21 The date of publication of the notice of making the CPO by the Scottish Ministers is relevant in terms of the timetable for the following two actions:
- for you to mount a legal challenge against the making of the CPO. The time limit is 6 weeks. The challenge can only be made by way of a formal Court action. There is therefore a need to act very quickly. If you think there are valid grounds for challenge, you should take legal advice;
- for the Scottish Ministers to take possession of your property.
2.22 Following completion of the statutory procedure the next stage is for the Scottish Ministers to take title and possession of the property included in the CPO.
2.23 There are a number of different methods for taking possession. The one normally followed by the Scottish Ministers is the General Vesting Declaration (GVD).
2.24 The GVD is a formal procedure that gives the Scottish Ministers title to the property and the right to enter and take possession.
2.25 The GVD cannot be made for 2 months after the making of the CPO. The Scottish Ministers will serve a notice of the making of the GVD on the affected parties. The notice will specify a date, which must be at least 28 days away, when the Scottish Ministers will take title and entry to, and possession of, the property.
Short tenancy and long tenancy which is about to expire
2.26 Tenancy agreements are normally included in the GVD process. However this is not the case for either a short tenancy or long tenancy which is about to expire. A short tenancy is a lease for up to a year or from year to year. A long tenancy which is about to expire is a lease which has more than a year, but less than a specified period to run. The period specified in the GVD itself and is typically (but not always) 15 months. The Scottish Ministers cannot purchase a short tenancy or a long tenancy which is about to expire by the GVD route. There are several alternative procedures open to the Scottish Ministers and the method chosen will depend on the individual circumstances of the tenancy in question. Alternatively the Scottish Ministers may decide that the best course of action is to let the tenancy run its course.
2.27 Where part of your property is included in the CPO and GVD, and you consider the effect on the remainder of the property is particularly severe, then you may be entitled to serve a notice of objection to severance. If successful the Scottish Ministers would be required to purchase the whole of your property. There is a strict time limit for formally objecting to severance. The exact time limit depends on factors such as the type of your property and the nature of your interest in it. The time limit can be as short as 28 days. Whatever the extent of the time limit, it starts running from the date you are served with the notice that the Scottish Ministers have made the GVD. If you are concerned about severance you should consult your professional advisor.
2.28 Blight is a procedure whereby you can require the Scottish Ministers to buy your property without going through the whole CPO process. In certain limited circumstances a property may be blighted as a result of the CPO. Your property could also be blighted by the scheme over and above the CPO, for example by the road orders. The rules governing when a property is blighted are complex. If you think your property may be blighted then you should consult your professional advisor.
Voluntary purchase as an alternative to compulsory purchase
2.29 Notwithstanding the fact that the Scottish Ministers are exercising compulsory powers of purchase for the scheme nothing prevents them at any time from purchasing property for the scheme on a voluntary basis. Where the purchase proceeds on a voluntary basis the terms, including the price, must be agreed. In those circumstances the compensation provisions explained in this brochure no longer apply.