Partners in purchase

Compulsory purchase is a valuable tool to facilitate projects in the public interest where it is impossible or impractical to acquire the land by agreement. These are often vital schemes that can promote economic recovery and sustainable economic growth and bring real benefits to our communities. But without compulsory purchase, they simply couldn't go ahead.

Most people know that compulsory purchase is invaluable for projects such as new roads and railways. Indeed, Transport Scotland uses compulsory purchase as its preferred method of acquiring land for trunk road schemes. Without the discipline of the acquisition process, schemes such as the M74 completion could not proceed to any acceptable timescale, if at all.

However, the process should not be seen just as a tool for major transport projects. The challenges that Transport Scotland faces are often the same as those faced by a local authority, in dealing with multiple owners against the often vital need for certainty in project timescales.

North Lanarkshire Council successfully used compulsory purchase to demolish sub-standard housing and replace it with new housing. This resulted in a win/win with benefits for the council, owners and the wider community.

Falkirk Council successfully used compulsory purchase to regenerate Stenhousemuir town centre. Without compulsory purchase neither of these projects would have been possible.

Could the process be improved?

If my numerous meetings with the Society's members over the last few months are anything to go by, I'm guessing that most readers will answer "yes". Despite the potential value of compulsory purchase, many of you have been telling us that there are some issues that make it less effective than it could be.

Many members tell me that compulsory purchase law should be reviewed. Indeed, we need to go right back to 1845 and the Lands Clauses Consolidation (Scotland) Act to find the primary legislation. It's probably fair to assume that modern urban regeneration schemes taken forward by a local authority in partnership with a private developer were not in the forefront of the drafter's mind. Also, many members would like updated guidance from the Scottish Government on the use of compulsory purchase. The most recent good practice guidance on the use of CPOs in Scotland is contained in a circular issued by the Scottish Development Department in 1976. Clearly, our world has changed since then. Many of you also tell us that in some local authorities, and in some areas of the private sector, there's a lack of experience and expertise in using compulsory purchase.

Compulsory purchase has been neglected in the past. To address this, the Scottish Government has started a programme of work to ensure that compulsory purchase is an effective tool.

Government programme

For the longer term, Scottish Ministers have approved the Scottish Law Commission's current work programme, which includes a review of compulsory purchase law. However, this runs until the end of 2014.

To deliver more immediate improvements, we have undertaken a targeted programme to promote good practice under current legislation:

• We'll be issuing a new circular in 2011, after consultation later this year, to provide up-to-date guidance on the use of compulsory purchase.
• We're facilitating training events such as the CPO conference that we co-hosted (with the Society of Local Authority Lawyers and others) on 6 October in Edinburgh. This was attended by more than 200 people from the public and private sectors, and many more would have attended had there been room. This shows the desire out there to learn more.
• We'll be issuing easy-to-use plain English guidance for owners on the compulsory purchase process, how the process affects them, what rights they have, and where they can go for advice.
• We're also reviewing our internal procedures to make them more efficient, where possible.

Solicitors' role

The Law Society and its members are playing an important role in this work and we're grateful for your help.

John McNeil of the Society's Conveyancing Committee represents the Society on the Scottish Government's Compulsory Purchase Advisory Group. Also, many Society members employed across the public and private sectors have met me to share what issues they face and what the Scottish Government could do to help. These meetings have been invaluable in helping inform our work.

I'm very grateful for the warm welcome you've given me and for your positive and constructive input.

Partnership: a key theme

Working together in partnership has been a key theme throughout our programme. At a very early stage we realised the importance and value of involving key stakeholders. With this in mind, we set up our Compulsory Purchase Advisory Group to provide high level, expert advice to inform our work. As well as the Law Society of Scotland, the group comprises representatives from the Society of Local Authority Lawyers and Administrators, Association of Chief Estates Surveyors and Property Managers in the public sector, Valuation Office Agency, Royal Town Planning Institute, Royal Institution of Chartered Surveyors and Scottish Property Federation. We are delighted that Professor Jeremy Rowan-Robinson also sits on the group.

Emerging key messages

One of the key messages from our engagement is that it is vital that acquiring authorities never lose sight of those affected by compulsory purchase. The impact on someone of losing their home or business can be enormous. Compulsory purchase need not be a heavy handed process if it is managed correctly: key to this is early, ongoing and meaningful engagement with those affected. Society members have a particularly interesting perspective on this as many of you act or have acted for both acquiring authorities and claimants.

The importance of preparatory work to the acquiring authority is another subject raised - in particular, the value of working at the earliest possible stage to identify and thus reduce risk factors such as unforeseen costs, getting it wrong, refusal to confirm the CPO, challenge in the courts, and nasty valuation surprises.

Both of these subjects were covered at our recent CPO conference. Talks that may be of particular interest to solicitors include presentations by Aileen Devanny of North Lanarkshire Council on "Why CPO?", Jackie McGuire of Brodies LLP on "Moving from risk aversion to risk management", Jonathan Riley of Pinsent Masons LLP on "Town centre regeneration CPO case studies", and Alison Fraser and Pauline Bradshaw of Glasgow City Council on "CPO in partnership with a private developer".

We intend putting all presentations and lecture notes on our website at www.scotland.gov.uk/cpo.

Ongoing engagement

We intend putting the draft CPO circular out for public consultation before the year end and I encourage you take part. We'll welcome any comments or suggestions for improvement. After all, the fact that the existing guidance is more than 30 years old shows what a significant opportunity we have here. In the meantime, please don't hesitate to get in touch if you'd like to share any good practice examples, talk about challenges that you face, contribute to the work that we're doing or just find out more. Let's continue to work together to make the most of this opportunity, and make this CPO circular as comprehensive, helpful and easy to use as it can be.

Use proactively: minister

In closing I quote from the keynote address to the CPO conference by John Swinney MSP, Cabinet Secretary for Finance and Sustainable Growth. He said: "Compulsory purchase is a valuable tool and we in the Scottish Government are working with you to make that tool more effective.

"Acquiring authorities should recognise that it won't always be possible to acquire the land that you need by agreement. In those circumstances I encourage you to consider using compulsory purchase positively and proactively.

"Compulsory purchase needn't be a heavy handed process if it's managed correctly. Key to this is early, ongoing and meaningful consultation and engagement with those affected.

"The CPO conference marks a significant step towards making working together on this issue more effective and fit for the 21st century, to promote economic recovery and sustainable economic growth."

Stephen Jones is compulsory purchase orders policy manager with the Scottish Government

Further information

For more information about the Scottish Government's programme of work on CPOs, progress updates and minutes of Advisory Group meetings, visit www.scotland.gov.uk/cpo

To contact Stephen Jones:

e: Stephen.jones@scotland.gsi.gov.uk

t: 0131 244 1430