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Publication - Guidance

Guidance for acquiring authorities: what should I do before developing a compulsory purchase order?

Published: 26 Apr 2018
ISBN:
9781788518123

Second in a series of guidance notes intended to provide information for acquiring authorities with no, or limited experience of, compulsory purchase orders.

12 page PDF

243.6kB

12 page PDF

243.6kB

Contents
Guidance for acquiring authorities: what should I do before developing a compulsory purchase order?
3. Land Referencing

12 page PDF

243.6kB

3. Land Referencing

3.1. The Acquiring Authority should carry out thorough land referencing to make sure that, as far as possible, it has identified all rights and interests in the land that it seeks to acquire and extinguish. This should include searching the Land Register of Scotland and/or the Register of Sasines, as appropriate. The Books of Council and Session may also be consulted as a source of information. However, it should also visit the site and enquire locally. This is because some interests may not appear in the property registers.

3.2. The Acquiring Authority may also find it helpful to consult with Community Councils and any local history or amenity groups.

3.3. In addition, an Acquiring Authority may also find it helpful to issue questionnaires to postal addresses within the land referencing zone. The questionnaires can be used to seek information about who is actually in occupation of each property and any other relevant circumstances, and they are an efficient way of gathering information that may not be available from the official registers. Acquiring Authorities should be encouraged to make these questionnaires as user friendly as possible, with a single point of contact at the Acquiring Authority to whom any queries can be directed.

3.4. The Acquiring Authority should seek to identify all of the following:

  • Owners;
  • Lessees;
  • Occupiers;
  • The owner of any land which is a benefited property where the rights of the benefited property may be affected by compulsory acquisition of the subject land. The owner of benefited property may have title to enforce a real burden over the subject land or enjoy a servitude right of access or other servitude ( e.g. to run cables or pipes through the subject land);
  • The holder of any personal real burden that affects the land (if the real burden may be extinguished or varied on registration of a conveyance implementing the order);
  • The owners' association of the development in question (if a development management scheme applies in respect of any of the land, and would no longer apply if the CPO is implemented).

3.5. Acquiring Authorities should also note that, in some circumstances, the details recorded in the title may not be fully up to date. Accordingly, the Acquiring Authority may wish to seek up to date information from the Registers of Scotland. Registers of Scotland will be able to check titles against the Land Register and the Register of Sasines for land ownership. If an Acquiring Authority subsequently identifies additional interests and/or the correct current address for an interest it is considered advisable to re-issue any relevant notices and provide an opportunity for the landowner to respond or make objections.

Airspace

3.6. Compulsory purchase of 'airspace' may be necessary where the Acquiring Authority requires rights to a space above a landowners land and/or any structures on it, and/or where a previous landowner retains title. Examples of where airspace issues may apply include:

  • Where delivery of a development requires the use of a crane for building works, which would impact any space above a landowners property;
  • Where the Acquiring Authority wishes to acquire only one property in a block of high rise flats, where the property in question is not attached to the ground; or
  • Where the Acquiring Authority proposes purchasing a piece of land upon which a building previously existed but which has been demolished and where rights to properties in the building were not extinguished ( e.g. in a block of flats demolished for safety reasons).

In such circumstances Acquiring Authorities should take particular care to ensure that they have taken steps to identify the landowner(s) affected.

Unknown owners, lessees or occupiers

3.7. In some cases the Acquiring Authority may not be able to ascertain the name and/or address of an owner, lessee or occupier. In this situation compulsory purchase is still possible, but special procedures apply for completing the order and serving notice of the order as set out in the Section 19(4) of the Acquisition of Land (Authorisation Procedures) (Scotland) Act 1947.

3.8. Before using Section 19(4) procedures the Acquiring Authority must make reasonable enquiries to ascertain ownership. To this end, Acquiring Authorities should take a progressive approach to any enquires, relying initially on localised information, then progressing to the next tier of enquiry only when needed.

3.9. Indicative tiers of enquiry are as follows:

1 st Tier Enquiries (administrative enquiries)

  • Checking Council Tax records;
  • Checking the records of the local authority housing department;
  • An examination of the electoral roll;
  • Examining the title deeds of adjoining ground;
  • In the case of a company, examining the Register of Companies.

2nd Tier Enquiries (consultative enquiries)

  • Consulting the Valuation Office Agency Scotland/Local District Valuer;
  • Contacting the solicitor who presented the last recorded title to the land for registration in the Register of Sasines or Land Register;
  • Consulting Royal Mail;
  • Where a business has recently closed down, checking with Utility providers;
  • In the case of a foreign national, checking with the nationalities branch of the appropriate Police force.

3 rd Tier Enquiries (advertisement and public notices)

  • Fixing a notice to the relevant land to seek information about the last known owner;
  • Enquiring locally (including asking adjoining owners, solicitors and estate agents);
  • In the case of a deceased person, enquiring at the Local Sheriff Court Commissary Department, failing which, advertising in the Scots Law Times and other journals;
  • Where the Acquiring Authority believes trustees have an interest in the land, advertising in the Scots Law Times and other journals;
  • Advertising in a local newspaper to seek information about the last known owner.

3.10. Acquiring Authorities need not undertake all of the steps set out for each tier. However, before determining whether or not to confirm a CPO, Scottish Ministers will expect that the Acquiring Authority can demonstrate that notices have been properly served and that the Acquiring Authority has first taken reasonable steps to establish the identity and address of the owner, lessee or occupier of the land (as the case may be).

Queen and Lord Treasurer's Remembrancer

3.11. The Queen's and Lord Treasurer's Remembrancer is the Crown's representative in Scotland who deals with ownerless property.

3.12. Where a person dies intestate ( i.e. does not leave a will) and either has no spouse, civil partner or blood relative, or none who can be easily traced, the estate both moveable and heritable ( i.e. cash, shares, pension and land or buildings), is claimed for the Crown by the QLTR as ultimus haeres (last heir). In these circumstances, the Acquiring Authority should contact the Queen and Lord Treasurer's Remembrencer ( QTLR) to identify the land in question at the earliest opportunity, due to the QLTR's timescales for processing enquiries.

3.13. QTLR will not normally commence administration for 12 weeks after an estate is reported to them to give a further opportunity for an entitled person to claim the estate before their administration commences.

3.14. It is only on completion of administration of an estate that the QLTR is able to add the net value of the estate and move the estate onto their unclaimed estates list. The estates of these people are advertised on the website as "having fallen to the Crown".

3.15. QTLR can be contacted at: NationalUltimusHaeresUnit@copfs.gsi.gov.uk or by telephoning 0300 0204196.

Identifying and Notifying Benefited proprietors for servitude rights

3.16. Rights of access to land may not always appear in the property registers and Acquiring Authorities should therefore visit the site and enquire locally to identify the owners of any benefited properties with servitude rights over the land, such as a right of access.

3.17. In some cases it may be difficult for the Acquiring Authority to identify all benefited proprietors with servitude rights with any certainty. In such cases it can serve notice of the making of the Order on benefited proprietors by advertising and other means, rather than sending a letter. If an Acquiring Authority decides to serve notice in this way special procedures and requirements apply, as set out in section 19 of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (see Guidance Note CPOGNAA/004 for further details).


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