The land of Scotland and the common good: report

Section 8 - Compulsory Purchase

1 In Scotland, as elsewhere, there is a continuing need for the Government and other public authorities to be able to buy land as part of fulfilling their responsibilities in the public interest. Common examples include land for road construction, housing developments and town centre regeneration.

2 Normally these acquisitions are achieved by agreement. However, compulsory purchase powers are required to acquire land when it proves impossible or impractical to buy the land by agreement. These powers enable the land to be acquired without the land owner's permission, if there is a strong enough case for doing this in the public interest.

3 Compulsory purchase powers are based on the long established position that, while a basic right of land owners is the security of their ownership, that right to safeguard private property gives way to the public interest. This position is reflected in Article 1 of the European Convention on Human Rights First Protocol, which states that:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and the general principles of international law."

4 In Scotland, the current legislation allows the Scottish Government, local authorities and a number of other public bodies to buy land through Compulsory Purchase Orders ( CPOs), if the Order is approved by Scottish Ministers. ^[1] The Scottish Government published updated guidance on the use of CPOs in 2011. At the same time, the Scottish Government also published updated guidance on the application of the 'Crichel Down Rules'. ^[2] These set out the circumstances in which land, previously acquired by compulsory purchase, will be offered to the previous owner if the land is no longer required and due to be sold.

5 Scottish Ministers recognise that " without compulsory purchase many projects in the public interest would not be possible" and that " compulsory purchase can play a vital role. It can help deliver urban and rural regeneration, revitalised communities, creating jobs and encouraging business". ^[3] Ministers therefore "encourage authorities to use compulsory purchase positively and proactively, to promote sustainable economic growth, improve quality of life and bring real benefits to Scotland's communities". ^[4]

6 At present, considering the four years 2009-2012, an average of six CPOs a year have been confirmed for the Scottish Government. These have all been through Transport Scotland to acquire land to improve the trunk road network. Over the four year period, an average of nearly seven CPOs a year were confirmed for local authorities. During the period, just over half of Scotland's local authorities (18 of 32) either requested or had confirmed at least one CPO. ^[5]

7 While some CPOs may not be implemented, no statistics are available on that, as the Government does not keep a record of the outcomes of CPOs. ^[6] It is recognised that " there may be benefits in making a compulsory order at an early stage in parallel with negotiations to purchase by agreement". However, CPOs for the land involving a number of owners may still go ahead, despite agreement, for the benefit of 'cleaning' the title to the overall area being acquired. ^[7]

8 Scotland's law of compulsory purchase should, like any such system, " be clear, accessible, fair and up-to-date". ^[8] However, as the Scottish Law Commission ( SLC) has commented, " The law of compulsory purchase is generally considered to be antiquated and obscure. Much of it is still contained in the Lands Clauses (Consolidation)(Scotland) Act 1854". ^[9] As result, CPOs tend to be time consuming and cumbersome to draw up and implement. It also appears that those who are having their land purchased, often have a more negative experience of the process than should be the case. ^[10]

9 The need to update compulsory purchase law in Scotland has long been recognised. In 1999, it was identified as an issue for further research in the Land Reform Policy Group's Recommendations. ^[11] Subsequently, following consultations, compulsory purchase was included as a medium term project in the SLC 8th Programme of Law Reform 2010-14. The Review Group's understanding is that the SLC is currently seeking views from the Scottish Government, for proposals that the Government may have on potential improvements to the operation of CPOs from its experience.

10 In its Law Reform Programme, the SLC " noted in particular a strong joint submission in support of such a review from the Royal Institution of Chartered Surveyors in Scotland and the Royal Town Planning Institute". Those organisations' members include the practitioners dealing directly with CPOs and their experience should be an important contribution to the review. The Review Group considers that this is essential to help ensure that the law is not only consolidated into modern legislation, but that the implementation of CPOs is also significantly improved.

11 The extent of that experience seems to be diminishing amongst public officials as CPOs appear to have been used less over recent decades compared to the 1960s and 1970s, when there were potentially more public sector led developments. The subsequent change in 'political culture' from the 1980s, may also have engendered greater reticence amongst public officials to consider the use of compulsory purchase powers as a way of achieving the public interest. The Review Group also recognises that the out of date nature of Scotland's compulsory purchase legislation can also act as a significant disincentive to the use of CPOs.

12 However, as the current level of use reflects, CPOs continue to be needed. The question therefore arises over how long it will be until Scotland's compulsory purchase laws are updated. The SLC anticipates publishing a discussion paper on the topic in 2014. However, there could then be some years before they have reported and the Scottish Parliament has passed new legislation.

13 A modernised and streamlined compulsory purchase regime in Scotland would make CPOs a more effective means of delivering the public interest. As discussed in Sections 20 and 21 of this report, the Review Group considers that there are important situations where there should be more public interest led developments using CPOs. A reformed system would also bring greater social justice for the individuals and businesses affected by CPOs. It might also be the case in some situations that CPOs might be needed less, as the scope to use a more workable system could more readily facilitate purchases by agreement.

14 The Review Group considers there is a clear need to update Scotland's system of compulsory purchase. The Group recommends that the Scottish Government should take forward the modernisation and reform of Scotland's compulsory purchase legislation, with a clear timetable for introducing a Bill to achieve this into the Scottish Parliament.

15 The Review Group's view is that the capacity of the Scottish Government and local authorities to acquire land in the public interest should also be enhanced by giving them a right to register a pre-emptive right to buy land. Legislation in 2003 gave this type of statutory right of pre-emption, when land is sold, to appropriate local community bodies and to agricultural tenants with secure 1991 tenancies as discussed in Sections 17 and 28 respectively. The Group considers that the Scottish Government and local authorities should have such a right too.

16 The Group anticipates that such a right might be particularly valuable to local authorities. For example, there may be situations where there is a public interest in acquiring an area of land that would not warrant using a CPO, but which the local authority might not want to miss the chance to buy if the land came up for sale. In such situations, rather than applying for a CPO, a local authority would apply to register a right of pre-emption over the land.

17 The Group considers that giving the Scottish Government and local authorities a right to register a right of pre-emption over land where that is judged to be in the public interest, could be a helpful tool to improve the delivery of public policy in a fair and reasonable way.

18 The Review Group recommends that the Scottish Government and local authorities should have a right to register a statutory right of pre-emption over land where that is in the public interest.

19 Prior to the Acts in 2003 introducing statutory rights of pre-emption over land, the only right of pre-emption in Scots property law was the right of an owner of land to reserve a right of pre-emption over land when disposing of its ownership. The 2003 legislation introduced two types of statutory rights of pre-emption and we have recommended more. The Group can see merit in these types of statutory rights of pre-emption in the public interest. However, the Group questions whether there should still be scope to create new private rights of pre-emption over land at the time of disposal. The ability to create these private rights of one land owner over another might be considered no longer appropriate. However, the Group did not consider this question further within the constraints of its inquiry.