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

1. Introduction

Summary

The review sets out key examples where states have intervened in land ownership.

It also assesses whether these measures have been challenged before the European Court of Human Rights.

This review has been commissioned to aid understanding of public interest tests and other controls on land.

The Scottish Parliament has passed several pieces of land reform legislation since its creation in 1999. Further legislation is intended in order to advance the Scottish Government’s land reform agenda and a new Land Reform Bill is expected to progress this Parliamentary session.

Scale and concentration of land ownership has been identified as a key driver of forthcoming legislation. As such, there is a need to establish a robust evidence base for potential interventions, including strengthening restrictions on ownership, to address the concentrated pattern of land ownership in Scotland.

As part of the forthcoming Land Reform Bill, the Scottish Government has made a specific commitment to develop a public interest test to be applied to large-scale landholdings transfers. This commitment is in response to recommendations from the Scottish Land Commission (SLC),^[4] and independent advice from the Just Transition Commission (JTC),^[5] both published in 2019.

The SLC recommended introducing “a statutory power to apply a public interest test in significant land transfers”, which would test whether there was any risk that intervening state action would be contrary to the public interest.

The JTC similarly advised that a “statutory public interest test should be developed for any changes in land ownership over a certain threshold”. It is important that we understand the implications of developing potential restrictions, as well as recognise the benefits of them.

This review seeks to expand understanding of land restriction and acquisition powers in other jurisdictions. The review aims to answer the following research questions:

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

2. 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?

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

4. Have there been any legal challenges brought against the decision to introduce public interest tests in these contexts? (What was the outcome and legal basis for these challenges?)

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

The research provides a review of literature on state powers to place restrictions on land ownership and to acquire land. The review focuses primarily on European states, but also covers New Zealand given its significance and relevance. The European states are subject to the jurisdiction of the European Court of Human Rights (ECtHR), as Scotland is. Legislation in the Scottish Parliament must comply with the European Convention on Human Rights (ECHR) under the terms of the current devolution settlement. This is unaffected by the exit from the European Union.

It should be noted that Scotland, as part of the UK, has exited membership of the European Union (EU). However, the Scottish Government has committed to continued alignment with EU law and the current administration intends to rejoin the EU should independence be granted. To be compatible with EU rules, it is generally stressed that any measures must be proportionate and cannot be discriminatory towards other EU citizens.

This review is also limited to land reforms since World War II as this aligns with the oversight of the European Court of Human Rights (ECtHR).

European examples are developed as case studies to unpack the models and their legal basis. The case studies are accompanied by a review of interpretation of land restrictions and acquisitions by the ECtHR, to identify where these arrangements have been or could yet be subject to challenge by the Court. The review of cases is supported by a further review of evidence on the Court’s approach to public interest.