Slow progress towards review of compulsory purchase orders in Scotland, says expert

Out-Law News | 12 Oct 2016 | 4:41 pm | 2 min. read

Much-needed reform of the law on compulsory purchase in Scotland still seems to be a long way off following the conclusion of a law reform project by the Scottish Law Commission (SLC), an expert has said.

This week, the SLC presented an 800-page report summarising the responses to its 2014 discussion paper on compulsory purchase to the Scottish Government. It will now "await the Scottish Government's response before taking the project further", according to a statement published on its website.

The SLC said that it was "pleased with the quality" of the responses it received to its discussion paper, which included 47 formal and eight informal responses. It has met with officials from the Scottish Government to "consider various options for progress, including the possibility of reform in stages rather than the one comprehensive bill contemplated by the discussion paper"; but no formal proposals have as yet been published.

Civil litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that there was a "long road still to run" to modernise the law of compulsory purchase of Scotland.

"Even a cursory glance at the assembled responses – extending to almost 800 pages – reveals multifarious complications and many areas where no consensus emerges," he said. "Even then, the SLC correctly points out that the simple consensus may conceal the fact that the one dissenter could have a logical and well-reasoned alternative."

"Why so difficult? The law has been built up over time since steam engines were first seen. Tinkering may be easy, but to review and rewrite the entire edifice is much more challenging. The concern is that this may make it something to languish on the 'too difficult' shelf," he said.

Compulsory purchase rights give certain bodies which need to obtain land or property for public interest projects to do so even where the owner does not consent; usually in exchange for financial compensation. In Scotland, compulsory purchase rights are governed by a variety of acts of parliament, many of which were passed "both [as] a consequence and a catalyst of the great expansion of the national transport infrastructure in the late eighteenth and early nineteenth centuries", according to the SLC's discussion paper of December 2014.

According to the SLC, the closest thing that modern compulsory purchase orders (CPOs) have to a common set of procedural provisions is set out in the 1845 Railways Act. Acts of parliament authorising modern CPOs usually have to disapply large parts of that legislation and replace them with other provisions, in many cases because "the procedures set up in the first half of the nineteenth century no longer seem appropriate in modern circumstances", according to the SLC.

One of the biggest challenges to reform of the law in this area is the changing nature of CPO schemes, which even in recent times have "altered out of all recognition", according to Craig Connal.

"Gone are the days when the CPO label almost inevitably meant the road extension or public school building where the public interest in the project run by a public authority was beyond doubt, indeed, possibly taken for granted," he said. "Indeed, that might be the whole basis on which taking someone's private property by compulsion was justified. Now, a major scheme is as likely to be driven by a private developer seeking to assemble a site. Even if in line with the planning policy for an area, on one view taking from A to give to B to make a profit may raise different issues."

"Not dissimilar issues may arise in the acquisition of wayleave and similar rights by utilities. Although these are no longer public bodies, they still run networks for the public - but if they acquire land to do X rather than Y there may be questions over whether this is for the benefit of the public or for shareholders," he said.