Compulsory purchase in Scotland: guide for property owners and occupiers

2. What are my rights and what can I expect?

2.1. If your property is affected by a compulsory purchase you have certain rights and can also expect certain things from the Acquiring Authority.

2.2. As a property owner or tenant you have the right:

• To object to the compulsory purchase and to have the reasons for your objection heard and considered by the decision makers (see Section 3);
• To challenge the decision to confirm a compulsory purchase on the grounds of unlawfulness (see Section 3);
• To be fairly compensated for any reasonable losses and expenses that you incur (including the market value of your interest in the property and certain fees incurred in representing your interests) (see Section 4); and
• To request an advance payment (or series of advance payments) of 90% of the Acquiring Authority's estimate of the compensation due where there is a delay in agreeing the final amount (see Section 4).

2.3. In addition, you can expect:

• To be given information in an accessible format about the compulsory purchase project and how the Acquiring Authority's proposals may affect your property;
• To be consulted about the proposals and to have your comments, suggestions or concerns listened to, taken into account and responded to; and
• To be provided with an estimate of the value that the Acquiring Authority places on your property and the types of compensation that can be claimed (although this will not be fully assessed, finalised and agreed until after the Acquiring Authority has taken possession of your property).

2.4. The Acquiring Authority is expected:

• To take adequate steps to identify all those with an interest in the property they are seeking to purchase;
• To communicate with all owners and tenants in a clear and accessible way and provide information on what owners and tenants can do to represent their interests and what compensation they may be entitled to;
• To explain why they are seeking to purchase the land, what other options have been considered and when and how they intend to deliver the project;
• To minimise the impact of the compulsory purchase project on affected properties; and
• To help affected homeowners and businesses relocate wherever possible when the whole of the property is to be acquired.

2.5. Furthermore, the Acquiring Authority is normally expected to attempt to purchase the property by agreement and to only resort to compulsory purchase when agreement cannot be reached.

2.6. However, there will be circumstances (particularly large schemes with many property interests affected) where an Acquiring Authority seeks authorisation for compulsory purchase without making an attempt to purchase by agreement or begins the compulsory purchase process in parallel with negotiations to purchase by agreement. Where this is the case, the Acquiring Authority will be expected to justify their approach and to satisfy the decision makers that it would have been impossible or impracticable to purchase all the property required by agreement.

Compulsory Purchase and the European Convention of Human Rights

Article 1 Protocol 1 of the European Convention on Human Rights (ECHR) provides that everyone is entitled to the peaceful enjoyment of their possessions– including property. No one should be deprived of their property except in the public interest.

Extensive case law has established that the exercise of compulsory purchase powers is compatible with the ECHR as long as it is undertaken proportionately, there is a strong case and robust justification for doing so in the public interest, and that property owners are compensated adequately. 'Adequate' compensation includes the payment of market value for the property in question.