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

Highlights

Why was the research requested?

In some areas of Scotland, small numbers of owners own a significant percentage of the land, creating a pattern of land ownership where land is concentrated in the hands of relatively few people. The Scottish Government plans to introduce further land reform legislation this Parliamentary session (2021-26). This report was commissioned by the Scottish Government to inform the thinking around the land reform proposals.

What does the research do?

The research aims to aid understanding on how other countries have made changes to their laws around land ownership and the extent to which that complies with the requirements of the right to property included in the European Convention on Human Rights. It looks at regulations around land transactions, focusing on land ownership restrictions and land acquisition powers. The geographical focus is primarily on European countries given the common factor of the European Convention on Human Rights, but also includes recently introduced models in New Zealand and South Africa which introduce restrictions on land ownership. The research methodology is comprised of a scoping literature review, scoping meetings with relevant experts, legal database searches, case law review and case study analysis. The review is intended as illustrative and not exhaustive.

What was learnt?

Most countries have some limits on how land can be owned and the use to which land can be put. In relation to land restrictions, three European case studies are examined, analysing the compatibility of the land transaction processes with European Convention on Human Rights law.

A factor in two of the three European examples is that the laws which restrict ownership were introduced before (and sometimes considerably before) the country ratified the European Convention on Human Rights. While laws are subject to ongoing review and revision, the principal intent of the law was introduced at a time when the European Convention on Human Rights was not a factor in the development of the law.

In Switzerland, some of the land ownership restrictions were introduced before ratification of the European Convention on Human Rights and others after ratification and subject to continual revision.

In Finland, the Åland Islands have a special status which was granted in 1921. Restrictions on the ownership of law as a result of that special status were introduced in 1975 and further revised in 1991. In Finland, the current law was introduced after the ratification of the European Convention on Human Rights, however (the basis of the law /first measures were introduced in 1921). The Finnish example may not expressly refer to a public interest test but a view must have been taken that it was in the public interest to seek to preserve the cultural integrity of the islands by preventing significant holiday home development.

In France, a body established by the French Government known as SAFER operates an external assessment of public interest by reviewing agricultural land sales and intervening to ensure the sale meets the objectives of French agricultural law. These restrictions were introduced before ratification of European Convention on Human Rights and have been expanded since. This is more about maintaining the supply of farm land for farming than for land.

The research did not find any cases brought against France, Finland and Switzerland to the European Court of Human Rights in respect of their laws. However, a dispute will only reach the European Court of Human Rights if it is not resolved in the courts of that country, so it is possible they may have been challenged in domestic courts and resolved therein. Review of the case law of the courts of these countries is outwith the scope of this study.

New Zealand stands out internationally as it has developed restrictions on foreign ownership of land through three tests: investor test; national benefit test; and national interest assessment. The approach to these tests is of interest despite New Zealand not being signatory to the European Convention on Human Rights and therefore outside the jurisdiction of the European Court of Human Rights.

While the Scottish Government does not propose changes to the compulsory purchase powers, a review of the ways that other countries implement these powers can still inform the debate. Case studies from Belgium, Bulgaria, the Czech Republic, Germany and the Netherlands demonstrate development, infrastructure, social justice and climate change can be the public interest justification for land acquisitions.

Where cases in respect of laws restricting ownership or acquisition of land have appeared before the court, the public interest justification has not been central to the decision made by the European Court of Human Rights.

The European Court of Human Rights has been clear that, where a country’s parliament passes a law to approve a particular policy that the government considers is in the public interest, the court will only find the law non-compliant if the restrictions imposed by that law are not proportionate to the policy aim.

Beyond a wide definition of public interest, the European Court of Human Rights instead of ‘Court is interested in whether the proposed intervention is necessary for that public interest to be achieved.

What happens now?

The learnings from this review will help to inform the proposals in the proposed Land Reform Bill. The Bute House Agreement commits to introduction of the Bill to the Scottish Parliament by the end of 2023.