Land acquisition powers and land ownership restrictions in European countries: evidence review

6. Conclusions

This review has sought to expand understanding of regulatory processes, including public interest tests, to restrict concentration of land ownership. The research found that land ownership restrictions and land acquisition powers are widespread across European countries. It finds that these powers are widely interpreted as legitimate interferences with property rights before the European Court of Human Rights. There is no European Court of Human rights case law to suggest that these are illegitimate interferences. The research did not review domestic case law however it is a prerequisite that domestic remedies are exhausted before reaching the European Court of Human Rights. Therefore if a regulatory model appears before the European Court of Human rights it is a given that it went through the domestic challenges and survived intact.

Scotland and the UK already have a wide range of acquisition powers. For the purposes of the present focus on reducing concentration of land ownership, in Scotland there may be more interest in land ownership restrictions than land acquisitions.

What regulatory standards or approval processes, including public interest tests, exist in other jurisdictions, to restrict the mass concentration of land ownership?

Land ownership restrictions come in a variety of forms; restrictions on agricultural land; restrictions on regions of special interest; restrictions by land area; restrictions by owner type; restrictions by owner nationality. These measures are be used to change concentration of ownership, where that is deemed to serve the public interest.

Land acquisitions or ‘expropriations’ – meaning action by the state or an authority of taking property from its owner for public use or benefit – has been the catalyst for development and infrastructure projects across Europe for centuries. Acquisitions have long been considered as potential solutions to widespread economic, social, and environmental problems such as housing crises (see above case study on Germany) and more recently the climate crisis (see above on the Netherlands), albeit not tackling concentration of ownership explicitly.

Where such evidence is available, how effective have the use of public interest tests been in these jurisdictions in reducing the concentration of land ownership?

The review identified a number of restrictions or tests which exist that allow for specific intervention by the state in the buying and selling of land. Evaluation of the effectiveness of these measures in existing literature is limited.

From the case-studies:

• Some evidence suggests that the establishment of the SAFERs in France has resulted in limiting the rise of land prices, and reducing consolidation of agricultural land and concentration of ownership.
• Evidence from Switzerland suggests that Lex Koller has effectively impacted affordability of homes in touristic towns enabling local working populations to settle in these towns, increasing diversity of ownership.
• There is limited evidence on the impact of the Åland Islands ownership restrictions but Statistics Finland suggests that summer cottage density has increased despite restrictions.
• It is too soon to know the impacts of the newly introduced New Zealand tests.

In respect of land acquisition powers, these have generally been used to implement development or infrastructure projects, without reference to reducing the concentration of land ownership. The German example above demonstrates the potential for acquisition powers to address concentration of ownership.

Where public interest tests have been introduced, what was the justification for interfering with property rights under Article 1 Protocol 1 of the ECHR?

Where public interest tests have been introduced, they are not in themselves an intervention or ‘interference’ with property rights. Public interest tests are a means of determining whether an intervention is in the public interest.

The European Convention on Human Rights review suggests that ‘public interest tests’ (i.e. the internal processes states have developed for determining the public interest) have rarely come under scrutiny at the European Court of Human Rights. From the review of the caselaw of the European Court of Human Rights, there is no clear or established requirement for a country to establish a ‘test’ or specific procedure to establish the public interest at the national level. There may have been actions at the domestic level which amended or removed public interest test procedures but this is beyond the scope of the review.

Where measures and regulations have been challenged, the Court has reiterated that the notion of ‘public interest’ is necessarily extensive and that the Court will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment is manifestly without reasonable foundation (James and Others v UK 1986 and subsequently upheld). Beyond a wide definition of public interest the Court is interested in whether, the interventions proposed are necessary to deliver the public interest objectives. The Court undertakes greater scrutiny of the question of whether the measures are proportionate to the intended aims.

Have there been any legal challenges brought against the decision to introduce public interest tests in these jurisdictions?

In relation to ‘legal challenges brought against the decision to introduce public interest tests’ the review of the European Court of Human Rights caselaw suggests that there have been no challenges of this nature before the European Court of Human Rights. Challenges must first be made in national courts and if resolved there will not reach the European Court of Human Rights.

How might the Scottish Government adopt these approval processes to aid in their commitment to increasing equitability in land ownership?

More research is required to understand the public interest tests processes in European states and their applicability to Scotland.

The New Zealand ‘Benefit to New Zealand’ test is an example of a public interest test that is comprehensive, accessible, easy to use, and has an appropriate supervisory body. It covers broad categories: economic benefits; benefits to the natural environment; public access; protection of historic heritage; advancing a significant government policy; oversight or participation by New Zealanders consequential benefits etc. The Overseas Investment Office (OIO) reviews and assesses the applications but it is as yet unclear how these benefits will be prioritised should conflict between competing interests occur. However, it should be noted that New Zealand is neither a signatory to the European Convention of Human Rights, nor subject to the EU’s free movement principles.