The Scottish Law Commission takes another step towards compulsory purchase law reform

The Scottish Law Commission, Scotland’s law reform body, has this month reached the next stage in its project considering the law in relation to Compulsory Purchase.

Following a period of consultation, finishing in June 2015, the Commission has submitted a report to the Scottish Government which sets out a summary of the responses received from parties interested in this area of the law, including members of the public, local authorities, statutory bodies and utility companies.

The key themes emerging from the consultation include:

1. Recognition that the current compulsory purchase legislation is outdated, complex and not well suited to the modern context.
2. The view that the system does not operate fairly across the whole country, with different acquiring authorities using different methods and approaches to dealing with compulsory purchase orders.
3. Issues with the payment of compensation; with a suggestion that some acquiring authorities are not operating in a joined up manner when it comes to the acquisition of land and the subsequent payment of compensation.
4. A desire for the Scottish Government to reform this area of the law more quickly, using legislation and powers already in place, rather than relying on new legislation at a later date. Reponses to the consultation noted that there are provisions in the Land Compensation (Scotland) Act 1973, currently not used, which would allow the Scottish Government to review different maximum and minimum amounts for home loss payments.
5. The question of human rights, particularly in relation to the differences between the use of compulsory purchase for projects benefitting the general public and those promoted by the private sector or utility companies.

The extensive report sets out a wide range of views and recognises that compulsory purchase is not only a legally complex area of the law, but also attracts strong (and sometimes emotive) views from parties previously or potentially affected by the compulsory purchase of their property.

Of particular interest in the report are some of the views expressed by parties affected by compulsory purchase and their pergence from the positions taken by acquiring authorities. For example, one of the questions asked by the Commission was whether all CPOs made by local authorities or statutory undertakers should have to be confirmed by the Scottish Ministers or whether there should be circumstances where the acquiring authority could confirm its own CPO. In response, a number of local authorities took the view that there should be instances where a CPO could be confirmed without recourse to the Scottish Ministers, particularly where there were no objections raised. Such a provision would mirror the powers of local authorities in England and Wales. However, responses from other interested parties, including members of the public affected by compulsory purchase, were wary of a system where local authorities could ‘rubber-stamp’ their own decisions in this way. There were strong views that the compulsory purchase process requires democratic checks and balances, and transparency in the decision making process.

Such pergence in views is not surprising, but it does highlight how difficult a task it may be for the Scottish Government when considering the Commission’s report and the prospects for legal reform in the future.

Following the submission of its report, the Commission must now await the response of the Scottish Government. While the various stakeholders may disagree about how the compulsory purchase process in Scotland should operate, there appears to be consensus at least that reform is needed.