Reform – 170 years on

May I encourage current legal practitioners involved in the field of compulsory purchase – I retired from that role at the end of May last year – to visit the website of the Scottish Law Commission and spend some time reading its Discussion Paper on Compulsory Purchase (Discussion Paper No 159).

Better still, download it, as at over 300 pages it is an informative and thought provoking read which merits careful consideration. For those who do not wish to read through the whole of the paper – at least not all at one go – it is divided into 20 chapters, each dealing succinctly with different aspects of that wide ranging topic, the law of compulsory purchase in Scotland.

My longstanding interest in compulsory purchase stems from having had the good fortune to occupy the compulsory purchase order ("CPO") desk in the legal section of the then Scottish Office for the second half of the 1970s, giving scrutiny on behalf of the confirming authority to CPOs made by other bodies possessing compulsory purchase powers. It was rekindled by being responsible for giving legal advice to Scottish Borders Council on the matter of making and implementing compulsory purchase orders for the 13 years prior to May 2014. Accordingly, it was a long awaited but welcome development when the Scottish Law Commission commenced a compulsory purchase project as part of its Eighth Programme of Law Reform, leading to Discussion Paper No 159.

The paper is divided into four parts: (1) Introductory and general; (2) Obtaining and implementing a CPO, and the Mining Code; (3) Compensation; and (4) Resolution of disputes, Crichel Down rules, and miscellaneous matters. Each part is divided into a number of chapters which, as indicated above, deal concisely with aspects of compulsory purchase law.

The Commission's intention, as stated at paras 1.13 and 1.14, is "not... merely to... reproduce the existing statute law in modern language [but to precipitate] a new statute [which] will reflect not only the effect of the current statutory provisions but also, where appropriate, the effect of the courts' decisions on those provisions. It will fill any gaps in the current statutory scheme”. Its purpose is no less than: "The current legislation as to compulsory purchase should be repealed, and replaced by a new statute."

The layout of the discussion paper readily accommodates readers who wish to focus on their own particular areas of interest or experience. My experience has led me to reflect in general terms on chapter 5 of part 2, headed "Procedure for obtaining a CPO", and chapter 7 of part 2, headed "Implementation of a CPO". In both cases my interest relates to a CPO governed by the terms of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.

Procedure for obtaining a CPO

It is interesting that the general and inclusive term "obtaining" has been used, as this includes: (i) the enabling legislation, (ii) matters preliminary to the making of a CPO, (iii) the detailed requirements of making and promulgating a CPO, and (iv) the process of confirming a CPO and making it ready to be used. These are all part of the daily diet of those whose task it is to take a CPO from being a future option discussed at a meeting at which projects to be implemented in future years are being considered, to the completed CPO taking effect on the date of the first publication of the newspaper notice announcing the confirmation of that CPO.

Paragraphs 5.56 to 5.58, under the heading “Validity of a confirmed CPO”, deal with what is referred to as a "likelihood of implementation test". In my view that test should usually have raised its head and been satisfied, as far as can then be done, before or during the taking of the formal decision to make the CPO in question, although others may proceed differently. It is perhaps for thought whether the various circulars that emanate from the Scottish Government could issue as looseleaf pages to a CPO Practice Manual. It would seem to be of benefit to both the confirming authority and the acquiring authorities were the detailed expectations of the confirming authority to be issued in a form that can readily be gathered and retained in one sequential volume.

In immediate contravention of the foregoing comments concerning taking a sequential approach, I refer back to para 5.16 of the paper, with a comment on what is a policy rather than a procedural point. That paragraph is one of four commenting on compulsory acquisition of land for Forestry Commission purposes under the Forestry Act 1967. It points out that the 1967 Act currently makes no mention of the procedures in the 1947 Act, but instead incorporates much of the Lands Clauses (Consolidation) (Scotland) Act 1845. It is then suggested that this might be related to the fact that the 1947 Act gives Scottish ministers the choice between ordering a hearing and a public local inquiry ("PLI") where there are continuing objections to a CPO, whereas the 1967 Act gives only the option of a PLI. For reasons that I have not been able to identify, for the last perhaps four or five years where statutory objections to a CPO have been made and not withdrawn it has been my observation that ministers invariably order a hearing to be held, contrary to their previous practice of invariably ordering a PLI.

Implementation of a CPO

The discussion paper considers this aspect of CPO procedure in chapter 7, which extends to 120 paragraphs. That chapter briefly summarises the details of proceeding to implement a CPO by initially serving a notice to treat or proceeding to execute a general vesting declaration. The statutory basis of a notice to treat is understood still to be s 17 of the 1845 Act, and the procedure to be followed when using a GVD was apparently first introduced (albeit under a different name) by s 17(3) of, and sched 6 to, the Town and Country Planning (Scotland) Act 1945. As I recall, one advantage (perhaps the main advantage) of proceeding by way of a notice to treat as opposed to a GVD is that a notice to treat paves the way, when combined with a notice of entry, for the right to enter the acquired land 14 days after service of both notices; whereas proceeding by way of a GVD will result in a period of at least three months passing before non-consensual entry to the compulsorily acquired subjects can be taken.

The paper considers whether a new single procedure should replace the current notice to treat and GVD processes as they presently stand. It seems to me that what is envisaged is an updated and expanded form of GVD with the time limits currently applicable to a notice to treat – see in particular paras 7.116 to 7.119. It is perhaps an attempt to retain the currently valued features of both procedures and add to them such further features as have in more recent years been thought to be prospectively advantageous. Accordingly, the opportunity now exists to consider, and by responding to the discussion paper to suggest, what features such new form of vesting declaration notice should contain.

Conveyancing procedures

Chapter 8 of the paper reflects on conveyancing procedures in the course of its 81 paragraphs. I wish to draw attention to the following two issues. (1) It is suggested that transfer of title by means of an ordinary disposition should remain available to the affected parties in relation to land acquired by CPO, or acquired under the shadow of a CPO. That seems desirable. However, (2) in place of completion of title following on "obtaining a CPO" by expeding any of (i) a statutory conveyance, (ii) a notarial instrument, (iii) a notice of title, or (iv) a GVD, the paper suggests as the Commission's provisional view that there be created by legislation a new form of deed which meantime it calls a "compulsory purchase notice of title" ("CPNT") – see paras 8.38-8.46. In connection with these two issues, may I suggest close scrutiny of the whole of chapter 8.

It is also proposed at the end of chapter 8 to rectify a longstanding lacuna in the toolkit of compulsory purchase practitioners, namely the power to create a heritable right that is less than ownership, such as a right of servitude. This has sometimes been a problem in the sense that where such a subordinate right is all that is desired in relation to a particular piece of land, it cannot be acquired where it does not already exist. This can result in the need to acquire ownership of the solum of the land concerned. Now it is proposed that new rights subordinate to ownership can be compulsorily acquired – see paras 8.79-8.81. I wonder whether it might be more accurate to refer to such new rights being empowered to be "created" as opposed to "acquired".

Finally

Whilst there is much, much more that could be said in reaction to the discussion paper from the point of view of the compulsory purchase legal adviser, my purpose in making the foregoing comments and observations is to encourage those whose practice is in this particular area of Scots law to take this long awaited opportunity to comment on its reform by considering and responding to the Scottish Law Commission Discussion Paper on Compulsory Purchase.