Compulsory purchase and compensation: A guide for owners, tenants and occupiers in Scotland

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The compulsory purchase process

22. This flow chart will give you a brief overview of how compulsory purchase works. Some stages might overlap and they might not always happen in the order shown here. To find out more about any stage of the process, read the pages mentioned in the box.

23. We've highlighted the stages that are most likely to directly involve you.

The Compulsory Purchase Process
The Compulsory Purchase Process

Stage 1 - The authority designs its scheme

24. The authority will plan what it wants to do and work out how many properties it needs to buy to be able to do this. This is when you might first learn that a compulsory purchase order could affect your property. The authority will usually tell you about its plans, or it might ask you if you'll agree to sell your property to it. The authority might also ask you for information about your property or it might ask if it can enter your property to carry out surveys or other investigations.

25. Sometimes an authority might be working with a private developer, community group or other organisation. If so, it may be one of these organisations that contacts you, rather than the authority.

Stage 2 - The authority finds out who owns, rents, lives in and uses the property

26. The authority (or an organisation working with the authority) will find out who owns, rents, lives in or uses the property. It will also find out whether anyone else has any other rights in the property, such as a right of access. The authority might offer to meet with you to discuss this, or it might send you a form to ask you for information about the property. You should answer any questions the authority asks you as fully as you can.

27. If possible, it is a good idea to meet with the authority or any organisation working with it (or both) as early as possible. This will give you a chance to find out more about the authority's plans, ask any questions you have and let the authority know what you think about its plans and how they might affect you.

You should provide any information the authority asks you for as fully as you can.

If you receive any notices or letters and you aren't sure what they mean, you should immediately contact the organisation that sent you them and ask them to explain.

You may be able to get free advice from the Royal Institution of Chartered Surveyors' Compulsory Purchase Helpline on 0870 333 1600 or the Planning Aid for Scotland helpline on 0845 603 760.

If possible, it is a good idea to meet with representatives of the authority as early as possible. This might give you a chance to find out more about the authority's plans and discuss any concerns that you have.

Stage 3 - The authority decides to use compulsory purchase

28. The authority formally decides to use compulsory purchase. For a local council, this is known as making a 'resolution' to use compulsory purchase. Council officers present a formal written proposal to use compulsory purchase to the council committee for approval. If the committee agrees, it will pass a 'resolution'.

Stage 4 - The authority makes the compulsory purchase order

29. The authority will draw up the compulsory purchase order (this is often known as 'making' the order). The order will contain the name of the authority, details of the law that gives the authority the power to make a compulsory purchase order and the reason that the authority needs the property. The order will describe the property that the authority wants to buy and list the owners and other people with an interest in the property. The property will also be shown on a map.

Stage 5 - The authority advertises the compulsory purchase order and serves notices

30. The authority will put an advert in one or more local newspapers for two weeks in a row to say that it has made the compulsory purchase order. The authority will also send a written notice to owners and occupiers to say that it has made the order.

31. The notice will say that the authority is about to send a compulsory purchase order to Scottish Ministers for confirmation and will tell you where you can go to see a copy of the compulsory purchase order. The notice will tell you how to object to the compulsory purchase order and how long you have to object (this must be at least 21 days).

32. The authority should also send you a document or letter that explains why it needs your property and why it is using a compulsory purchase order.

Stage 6 - You can object to the compulsory purchase order

33. If you want to object to the compulsory purchase order you should send a letter to Scottish Ministers at the address given in the notice. Your letter doesn't have to follow any set style and you can either write it yourself or get a professional adviser to write it for you. If you choose to get a professional adviser to write the letter for you, you will have to pay any fees involved, but you may be able to get free advice from some of the organisations listed at the end of this guide. (Please see page 14 to find out more about professional fees.)

34. In your letter you should include your name and address and say whether you own, rent, live in or use the property, or explain what your interest in the property is. You should also clearly explain the reasons why you object to the compulsory purchase order.

35. Objecting to the compulsory purchase order will not alter the amount of compensation you are entitled to (Please see pages 12 to 17 to find out more about compensation.) If there is a disagreement about the amount of compensation that the authority should pay you, the Lands Tribunal for Scotland can decide how much you are entitled to. (Please see pages 16 to 17 to find out more about the Lands Tribunal.)

36. Scottish Ministers may not consider your objection if it's only about the amount of compensation you have been offered or might be offered.

If you want to object to the compulsory purchase order, you should make sure that your objection reaches Scottish Ministers by the date set out in the notice.

Stage 7 - The authority sends the compulsory purchase order to Scottish Ministers for confirmation

37. The authority sends the compulsory purchase order and supporting documents to Scottish Ministers and asks them to confirm the compulsory purchase order.

Stage 8 - Scottish Ministers receive any objections

38. If you write to Scottish Ministers to object to the compulsory purchase order, Scottish Ministers will send a copy of your objection to the authority. Usually, the authority will contact you to discuss your concerns.

39. The authority might be able to do something to reduce the effect its scheme would have on you. For example, it might be able to reduce the level of noise that would affect you, or it might agree to alter the amount of your property (land and so on) it needs to buy.

40. If you are happy with what the authority suggests, you might want to withdraw your objection. If so, you should write to Scottish Ministers as soon as possible to tell them that you withdraw your objection.

The authority might be able to do something to reduce the effect its plans would have on you. If you are happy with what the authority suggests, you can withdraw your objection.

If you decide to withdraw your objection, you should write to Scottish Ministers as soon as possible.

Stage 9 - If necessary, a public local inquiry or hearing is held before

an independent reporter

41. Owners, tenants and occupiers who object to the compulsory purchase order are called 'statutory objectors'.

42. If you or any other statutory objector have made an objection and not withdrawn it, the Scottish Government's Directorate for Planning and Environmental Appeals ( DPEA) must arrange to hold a public local inquiry or hearing. This is so that Scottish Ministers can hear your objections and properly consider them. DPEA will write to you to tell you when and where the inquiry or hearing will be held.

43. The Scottish Ministers might hold an inquiry or hearing even if there are no statutory objections. This will depend on the circumstances.

44. The inquiry or hearing will be held before an independent reporter appointed by Scottish Ministers. The reporter will usually be a specialist such as a planner, surveyor, engineer, architect or lawyer. The reporter will decide how the inquiry will be run (within the rules) and will explain this at the start of the inquiry. The reporter will keep the process as informal as possible while making sure that you, the authority and anyone else appearing are all able to have a say in an organised and orderly way.

45. You can represent yourself at the inquiry or hearing or you can get a professional adviser to represent you. If you ask a professional adviser to represent you, you will have to pay their fees, but you might get some or all of these fees back if your objection is successful. (Please see page 14 to find out more about professional fees.)

46. If you can't go to the inquiry or hearing, or if you'd rather not go, you can rely on your written objection.

47. You can read more about what happens at an inquiry in Scottish Government circular 17/1998 at www.scotland.gov.uk/Publications/1998/10/circular-17-1998-root/circular-17-1998-intro. If you don't have access to the internet, DPEA can send you a paper copy of this. We've included DPEA in the list of useful contacts at the end of this booklet.

You can represent yourself at the inquiry or hearing or you can get a professional adviser to represent you.

If you can't go to the inquiry or hearing, or if you'd rather not go, you can rely on your written objection.

Stage 10 - The reporter sends a report to Scottish Ministers

48. The reporter will consider all objections, representations and material presented at the inquiry or hearing. He or she will weigh up how the authority's proposals would benefit the public against the interests of the owners and other people affected. The reporter will then write a report for Scottish Ministers. This will set out the reporter's conclusions and recommendations.

49. The reporter can recommend that Scottish Ministers confirm the compulsory purchase order or that Scottish Ministers refuse to confirm the order. They can also recommend that Scottish Ministers confirm the order with some changes (but no extra property can be added unless everyone with an interest in that property agrees).

Stage 11 - Scottish Ministers decide whether to confirm the compulsory purchase order

50. Scottish Ministers consider the reporter's conclusions and recommendations and then decide whether to confirm the compulsory purchase order (with or without changes) or refuse to confirm the order.

51. If Scottish Ministers refuse to confirm the compulsory purchase order, the process ends and the compulsory purchase order will go no further.

52. Scottish Ministers will write to the authority with their decision and the reasons for reaching the decision. If there was an inquiry or hearing and you objected to the compulsory purchase order, Scottish Ministers will send you a copy of this letter.

Stage 12 - If Scottish Ministers confirm the compulsory purchase order, the authority advertises the confirmation and serves notices

53. If Scottish Ministers confirm the compulsory purchase order, the authority will publish notice of the confirmation in a local newspaper. The authority will also send a copy of this notice to all owners and other people with an interest in the property.

Stage 13 - You can challenge whether the compulsory purchase order is valid

54. If you do not think the compulsory purchase order is valid, you can take action through the Court of Session to challenge it. If you want to challenge whether the order is valid, you must do this within six weeks from the date the authority first publishes the notice of the confirmation of the compulsory purchase order.

55. If your challenge is successful, the court may cancel the compulsory purchase order.

You can challenge whether the compulsory purchase order is valid, but you have only six weeks from the date the authority first publishes the notice of confirmation to do this.

If you want to challenge whether the order is valid, you should get legal advice as quickly as possible.

Stage 14 - The authority takes possession of the property

56. The compulsory purchase order itself doesn't transfer legal ownership of your property to the authority. The authority needs to follow procedures set out in law to become the legal owner of your property and take possession of it. There are different ways that the authority can do this, but whichever way it chooses, it should give you as much notice as possible about when it wants you to move out.

57. In Scotland, authorities usually use a General Vesting Declaration ( GVD). The GVD is a formal procedure that gives the authority legal ownership of the property and the right to enter it and take possession of it on a set date.

58. If the authority is using a GVD, it will send all owners and occupiers a notice of the GVD. The notice will tell you the date the authority will become the legal owner of the property. On that date the authority will have the right to enter and take possession of the property.

59. If the authority doesn't need to enter your property on this date, it might allow you to pay rent to stay in the property for a while as a tenant. If you'd like to do this you should discuss this with the authority. Whether or not the authority is able to agree may depend on its timescale for finishing the development.

The authority should give you as much notice as possible about when it wants you to move out.

If you receive any notices or letters and you aren't sure what they mean, you should immediately contact the organisation that sent you them and ask them to explain.

You may also want to get advice from one of the organisations listed at the end of this guide.