As a result of a number of recent public projects, such as the construction of the Borders Railway and the proposed dualling of the A9 and A96, the impact of compulsory purchase on rural landowners and businesses has come to the fore, with concerns being raised in some quarters about compensation being inadequate.
These projects may be the tip of the iceberg if the Scottish Government takes forward the proposal by the Land Reform Review Group (LRRG) of introducing compulsory purchase powers to increase the amount of land in community ownership to 1 million acres by 2020. Proposals include the Scottish Government and local authorities being able to register a statutory pre-emptive right over land where acquisition would be in the public interest, and a new compulsory sale order over vacant or derelict land available to local authorities.
The underlying purpose for which compulsory purchase is authorised is to secure public benefit, for example to build a road, school or hospital. Compulsory purchase powers help prevent such projects being delayed or ‘held to ransom’ by those who own the land.
However, compulsory purchase is a serious interference with private property rights, which are protected by UK and European Human Rights Law and should be viewed as a measure of last resort. The powers provide for the gain of the wider community - the public interest - but only by loss to the individual.
What is ‘the public interest’?
While the Scottish Parliament has a wide discretion to determine what constitutes the public interest, it does not have free rein. Its powers are limited – it cannot legislate about areas of law which are reserved to Westminster or in a manner incompatible with European ‘Convention Rights’.
In considering legislation to extend compulsory purchase powers, the Scottish Parliament will be conscious that its interpretation of public interest must be capable of standing up to scrutiny. There are cases where the public interest is easy to identify, such as roads, railways, schools and hospitals. However, the substitution of one individual as owner of a piece of land for another is more questionable.
It must be shown that the public good cannot reasonably be delivered by negotiation; that using compulsory purchase is the only practicable method of delivering the public good (for example where negotiation would take too long); that it cannot be delivered in another location; and that other options for delivery have been considered. For example, compulsory acquisition would not be necessary where a landowner is willing to make land that is suitable for the public purpose available at market value.
This test involves looking at the extent of the interference with private rights balanced against the public benefits delivered by the scheme. While compulsory acquisition of land for hospitals, schools or roads may seem a reasonable interference with landowners’ interests, there may be schemes where the impact on the landowner weighs more heavily in the balance.
Compulsory purchase procedure must contain appropriate checks and balances to protect landowners. Most essential is the right to be heard and compensated. Any new powers must include provision to secure these protections in order to comply with the European Convention on Human Rights.
Existing Powers – room for improvement
Some of the LRRG’s aspirations could be delivered using existing compulsory powers without the need for new legislation. For example, existing statutes provide for acquisition of land for playing fields, paths and cycle tracks, conservation, and development. However, the legislation is complex, cumbersome and inaccessible involving a range of statutes from 1845 to the present day. If new powers are introduced, public interest will be scrutinised on a case-by-case basis before powers are confirmed. Affected landowners should always engage fully to ensure their interest is properly weighted in the balancing exercise.
The Scottish Law Commission is consulting with a view to simplifying the law and readers can respond by following this link http://www.scotlawcom.gov.uk/law-reform/law-reform-projects/compulsory-purchase/
Odell Milne is a partner within the land & rural business team at Brodies LLP. If you would like to discuss any aspect of this article please contact Odell on 0131 656 0189 or at firstname.lastname@example.org