APPENDIX F: Drafting the compulsory purchase order
F1. Notes for completing the order are set out in the Compulsory Purchase of Land (Scotland) Regulations 2003 66 . This appendix does not restate those notes.
F2. The authority should precisely describe the purpose for
which the land is being acquired. Where practicable, it can use the
words of the enabling act, but where those words are in general
terms and cover a range of purposes it should state the particular
purposes for which the land is required.
The Mining Code
F3. Article 3 of the order incorporates into the enabling act legislation that is generally referred to as 'the mining code'. If the authority does not incorporate the mining code the minerals under the land will be included in the purchase (and it may be required to pay compensation for their development value). The authority will also have to justify the need to purchase the minerals. The authority can omit Article 3 of the order or insert it with or without the reference to sections 71 to 78 (which impose constraints on how the minerals can be worked).
F4. The authority can indicate any modifications to the mining code that it requires to make, for example, by inserting the provision - 'References in the said section (5) to the company shall be construed as references to the said xxx and references to the [railway or] works shall be construed as references to the land authorised to be purchased and any buildings or works constructed or to be constructed thereon.'
Real burdens or servitudes
F5. If the authority does not incorporate article 5 of the order then, unless the conveyance implementing the acquisition of the land provides otherwise, all real burdens and servitudes will be extinguished and any development management scheme disapplied on registration of a conveyance of the land in implement of the order. However, the authority may not want to extinguish all real burdens or servitudes, or certain rights to enforce them. Or it may not want to disapply a development management scheme. It may also wish to vary some or all of the real burdens or servitudes that affect the land. In this situation the authority should specify what it proposes in the Schedule to the order and include Article 5 in appropriate form
The first schedule to the order
F6. The Schedule to the order should bear the words 'This is the schedule referred to in the [name of order]
F7. The authority should include all necessary land (including any new rights being created) as land can be added later only if all people with an interest in the land agree.
Description of the land
F8. If the extent and boundaries can be readily ascertained without dispute the authority need not include the extent of the land. For example, for a flat or house with a postal address it need not usually include the extent. However, if there is any potential for dispute it should include the extent of the land in square metres, where possible.
F9. It should include the postal address of each plot, where possible. It should take particular care where street numbers do not follow a regular sequence, or where individual properties are known by more than one name or number. It should amplify the description as necessary to avoid any possibility of mistaken identity.
F10. It should describe each plot in terms that can be readily understood by a layperson. Local people should be able to identify the land. The description should be sufficient to tell the reader roughly where the land is situated without the need to refer to the map. It should use simple descriptions in ordinary language. For example, where the land is agricultural it might describe it as 'pasture land' or 'arable land' and it might describe forested areas as 'woodland'. If necessary, it should relate the land to a well-known local landmark, for example 'situated to the north of Main Street and 1 km east of Smithy Farm'.
F11. If the land is registered in the Land Register of Scotland it should include the Title Number of the land. If the land is not yet registered it should refer to a deed recorded in the Register of Sasines that contains a full description of the land, where possible.
F12. Where the description includes a reference to Ordnance Survey field numbers it should also state the sheet numbers of the Ordnance Survey maps on which these field numbers appear. The Ordnance Survey map reference should quote the edition of the map.
New rights short of ownership 67
F13. If the authority seeks to acquire any new rights short of ownership over the land, it should show the land over which it seeks each new right as a separate plot. It should describe the nature and extent of each new right. Where it seeks to take new rights for the benefit of a plot or plots, it should say this in the description of the rights plots. It should describe new rights immediately before or after any plot to which the rights relate. If this is not practicable it should show the rights in the Schedule and cross-refer as appropriate between the related plots.
Owners, lessees and occupiers
F14. When completing columns 3 and 4 the authority should:
- if the owner, lessee or occupier is a corporate body , include its registered address
- In the case of unincorporated bodies such as clubs, chapels and charities, show the names and addresses of the office bearers
- always complete column 4. If the occupier is the same as the owner , write 'owner'
- not include tenants for a month or less in column (4).
- If the authority is unsure whether or not someone is an owner, lessee or occupier it should include the person
- if satisfied, after reasonable inquiry, that it is not practicable to ascertain the name of the owners, lessees and occupiers of any land , put 'unknown' in the appropriate columns.
The order map(s)
F15. The heading of the map(s) should be identical to the map headings used in the body of the order. The authority should include the words 'this is the map referred to in [order title]' on the map(s).
F16. The authority must clearly identify the land. Where it uses colouring, the long-standing convention is that land to be acquired is shown pink and land over which a new right would be created is shown blue.
F17. It should use a sufficiently large scale, Ordnance Survey based map 68 . Where the order includes of a number of small plots, it should consider using insets on a larger scale. If it needs to use more than one map, it should bind the maps together and show on a key or master 'location plan' how the various sheets are related.
F18. It should ensure that where there is more than one order map, the text of the order appropriately refers to all of the maps. This will avoid any doubt that they are all order maps. It should use a location plan only for the purpose of enabling speedy identification of the whereabouts of the area to which the order relates. It should use the order maps, and not the location plan, to identify the boundaries of the land to be acquired. Therefore, while it should mark the order map 'this is the Map referred to in [name of order]', it should mark a location map 'This is the location plan for the Map referred to in [name of order]'. If the location plan is correctly included and referred to in the Order then it will be part of the Order but it will remain only a location map.
F19. The order map should show such details as are necessary to relate it to the description of each parcel of land in the order Schedule(s). If necessary, the authority should mark on the map the names of roads and places or local landmarks not otherwise shown. The boundaries between plots should be clearly delineated and each plot separately numbered to correspond with the order Schedule(s).
F20. If the authority seeks to create new rights short of ownership over the land it should clearly distinguish between land over which new rights would subsist and land in which the authority seeks to acquire other interests.
F21. There should be no discrepancy between the order Schedule(s) and the map(s) and no room for doubt as to the precise areas of land included in the order. If the order, when read with the order map, fails to clearly identify the extent of the land to be acquired, Scottish Ministers may refuse to confirm the order, even if there are no objections to the order.
Copies for Scottish Ministers
F22. The authority should produce and authenticate (or certify as a true copy) two copies of the order and map(s) to send to Scottish Ministers.
Technical examination of a draft order by Scottish Ministers
F23. A technical defect in a compulsory purchase order will almost certainly cause delays and increase the period of uncertainty for people affected by it. In some cases the authority may have to begin the process again. To avoid this, the authority may wish to submit a draft order to Ministers for a technical examination before it makes the order. When sending a draft order the authority should also tell Ministers the purpose for which it seeks to acquire the land. The authority may also wish to submit a draft of the newspaper advert and/or the notice of the making of the order. If it has doubts about any particular technical points it may seek comments from Ministers as to the position Ministers may taken in relation to the particular issue.
Scottish Ministers will not consider the merits of the order or its justification at this stage. This technical examination, and any comments that Ministers provide about technical points, is without prejudice to their role in later considering the order for confirmation. Scottish Ministers' assessment of the order as being free from technical defects in no way implies that they have made a decision about whether to confirm the order. Nor does it mean that defects may not be detected at a later stage.
F24. If an authority wishes to send drafts for examination it should send them as early as possible to the relevant Scottish Government Directorate 69 by email. Ministers will send comments to the authority as quickly as reasonably practicable.