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

2. Methodology

Summary

The research methodology comprised of a scoping literature review, legal database searches, case law review, case study analysis, and scoping meeting with relevant experts.

2.1. Literature review

A scoping review was undertaken in order to take a wide lens on existing research on land ownership restrictions and land acquisition powers globally. These two branches, land acquisition powers and land ownership restrictions, are considered to be of key significance to regulating concentration of land ownership.

Given this breadth, time constraints necessitated a restriction of the scope of this overview to research published between 2012-2022 and to a primary focus on European case-studies. One key international case study (New Zealand) is highlighted as a secondary focus. One key text^[6] provides the basis for a deep dive on land acquisition case studies in the European context.

2.2. Initial scoping

Land ownership restrictions (whereby the state limits the rights to own land) and land acquisitions (whereby the state acquires private land) are key to land governance and can play a significant role in regulating the scope and concentration of land ownership.

In order to assess and summarise existing research in this field, a scoping literature review was undertaken around two themes:

• land ownership restrictions, and
• land acquisition powers.

The review was restricted to research published between 2012-2022 and to a primary focus on European case studies.

The review found that there is insufficient comparative research on land ownership restrictions internationally but there is significant comparative research published on land acquisition powers internationally. Consequently, in order to identify models of land ownership restrictions the literature review also included legal databases, legal websites and national government websites.

This scoping literature review was accompanied by scoping discussions with key experts (see s. 2.6.).

2.3. In-depth descriptions and analysis of impacts

The results of the scoping exercise identified a gap in the literature – there is a lack of comparative studies on different models of land restrictions in Europe. This is in contrast to comparative studies on land acquisition powers in Europe. This study presents three case studies partly to fill this gap. The selection criteria for these case studies were that they were party to the ECHR and demonstrated different rationales for restrictions (i.e. land categorisation, special regionalisation, or foreign ownership).

Where available the case studies provide information on:

• the legal basis of the acquisition or restriction;
• the compensation terms to those whose lands are acquired by the state;
• any ECHR jurisprudence of significance in relation to the state’s powers of acquisition or restriction.

2.4. Secondary review – legal analysis

When land ownership restrictions or land acquisition power models were identified, a secondary analysis was undertaken to identify whether the relevant regulatory powers had been subject to ECHR scrutiny. Annexes A and B relate to this analysis.

The review found that the case study restrictions on land ownership have not been challenged at the European Court of Human Rights level. However, it should be noted that restrictions on land ownership may have been challenged in national courts and if satisfactorily resolved therein, these challenges would not reach the ECtHR. A review of national courts jurisprudence on challenges to land acquisitions was out of scope of this study.

The review found that expropriations have been challenged at the EctHR as violations of the ECHR ‘right to property’ (A1P1). Where this has occurred, it has been predominantly in relation to compensation arrangements and not in relation to the aim or purpose of the expropriation.

2.5. European Court of Human Rights Literature and Case Review

Both the restriction and acquisition case studies were accompanied by a review of relevant ECHR jurisprudence to establish whether the interventions had been challenged before the European Court of Human Rights.

A review of ECHR jurisprudence was undertaken using the HUDOC database. The HUDOC database is the official database of the European Court of Human Rights. It contains over 65000 case judgements and provides access to decisions, communicated cases, advisory opinions and legal summaries, the European Commission of Human Rights decisions and reports, and the Committee of Ministers resolutions.

In order to assess broadly a country’s property rights jurisprudence before the European Court of Human Rights a country specific search was undertaken to review ‘A1P1 caselaw’, as in caselaw where Article 1 Protocol 1 of the European Convention on Human Rights (the right to peaceful possession of property) is engaged. These findings are presented in Appendix A. This appendix details the number of cases where a right to property (A1P1) violation was claimed and those instances where an A1P1 violation was found, for each member country of the European Convention on Human Rights.

2.6. Cross-checking with country experts

Scoping and advice was received from the following relevant experts (in chronological order):

• James MacKessack-Leitch (Policy and Practice Lead at Scottish Land Commission).
• Jim Murdoch (Professor of Public Law at University of Glasgow).
• Janneke Gerards (Professor of Fundamental Rights Law at Utrecht University).
• Frankie McCarthy (Professor of Private Law at University of Glasgow).
• Rachael Walsh (Assistant Professor in Property Law at Trinity College Dublin).
• Aileen McHarg (Professor of Public Law at Durham University).

The accuracy of the information in the case study sheets was confirmed with academic and/or government contacts in each country to triangulate the data and to complete any parts that could not be completed via desk-based review. Questions were asked by online meeting or sent via email, accompanied by the completed case study sheet.