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Discussion Paper, Including Copies of Responses, May Be Made Available in Terms of the Freedom of Information (Scotland) Act 2002

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Discussion Paper, Including Copies of Responses, May Be Made Available in Terms of the Freedom of Information (Scotland) Act 2002 NOTES 1. Please note that information about this Discussion Paper, including copies of responses, may be made available in terms of the Freedom of Information (Scotland) Act 2002. Any confidential response will be dealt with in accordance with the 2002 Act. We may also (i) publish responses on our website (either in full or in some other way such as re-formatted or summarised); and (ii) attribute comments and publish a list of respondents' names. 2. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected]. 3. The Discussion Paper is available on our website at http://www.scotlawcom.gov.uk/ or can be purchased from TSO (http://www.tsoshop.co.uk/). 4. Please note that all hyperlinks in this document were checked for accuracy at the time of final draft. 5. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that the pdf version of this document available on our website has been tagged for accessibility. 6. © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any copyright enquiries regarding this publication should be sent to us at [email protected]. ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Pentland, Chairman Laura J Dunlop, QC Patrick Layden, QC TD Professor Hector L MacQueen Dr Andrew J M Steven. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this Discussion Paper were submitted by 19 June 2015. Please ensure that, prior to submitting your comments, you read notes 1-2 on the facing page. Respondents who wish to address only some of the questions and proposals in the Discussion Paper may do so. All non-electronic correspondence should be addressed to: Mrs Lucy Galloway Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). iii iv Contents Paragraph Page PART 1: INTRODUCTORY AND GENERAL Chapter 1 Introduction Genesis of compulsory purchase project 1.1 2 Terminology 1.4 2 Background 1.7 3 Our general aim 1.10 3 Structure of Discussion Paper 1.15 4 Partial responses are welcome 1.16 5 Part 1 – Introductory and General 1.18 5 Part 2 – Obtaining and implementing CPO; Mining Code 1.22 5 Part 3 – Compensation 1.28 6 Valuation of land to be acquired 1.30 6 Consequential loss 1.34 7 Compensation payments for non-financial loss 1.36 7 Part 4 – Resolution of disputes; Crichel Down Rules; miscellaneous 1.37 matters 8 Legislative competence 1.41 8 Human rights 1.42 8 Financial justification for project 1.43 9 Judicial decisions 1.44 9 Comparative material 1.45 9 Advisory Groups 1.46 9 Consultation 1.49 10 Chapter 2 General issues Introduction 2.1 11 Topics included 2.2 11 Topics excluded 2.5 11 Justification for compulsory purchase 2.6 11 Matters peripheral to “core” elements of compulsory purchase system 2.9 12 Conveyancing matters 2.10 12 Special rules applying to particular categories of land 2.11 12 Special procedure under 2010 Act 2.14 13 Land to which special procedures apply 2.16 13 (a) Common or open space 2.17 13 (b) Land held inalienably by National Trust for Scotland 2.19 14 (c) Common good land 2.20 14 (d) Ancient monuments 2.24 15 (e) Crofts 2.25 15 v Contents (cont'd) Paragraph Page (f) Crown land – general 2.26 15 (g) Crown land held by Queen’s and Lord Treasurer’s Remembrancer 2.29 16 (h) Listed buildings 2.32 16 (i) Public rights of way 2.33 17 (j) Land owned by acquiring authority 2.36 17 (k) Land held by statutory undertakers 2.37 17 Discussion 2.39 18 Summary 2.42 18 Acquisition by whom? 2.43 18 Acquisition of what? 2.46 19 General 2.46 19 Existing rights and interests in or over land 2.49 20 (a) Leases 2.50 20 (b) Liferents 2.51 20 (c) Standard securities 2.52 20 (d) Servitudes 2.53 20 (e) Real burdens 2.54 21 (f) Other existing rights or interests 2.55 21 New rights or interests in or over land 2.57 21 (a) Leases 2.60 22 (b) Liferents 2.61 22 (c) Standard securities 2.62 22 (d) Servitudes 2.63 22 (e) Real burdens 2.68 24 (f) Other rights and relationship between compulsory purchase and property law 2.69 24 Conclusion 2.70 24 Temporary possession and use of land 2.71 25 Chapter 3 Human rights Introduction 3.1 26 Background 3.6 26 Summary 3.16 29 General 3.20 29 Focus on individual cases rather than on general legislative framework 3.21 29 Relationship between Article 8 and A1P1 3.22 30 (a) General 30 (b) When should a challenge be made? 3.25 30 Acquiring authority’s duty to demonstrate consideration of human rights 3.26 30 vi Contents (cont'd) Paragraph Page A1P1 3.36 32 Proportionality 3.40 33 Does it require use of least possible interference? 3.40 33 Application of requirement for proportionality in different policy areas 3.43 34 Conclusion 3.46 35 Compensation 3.47 36 Compensation not required for restriction of use 3.49 36 Article 8 3.52 37 Proportionality 3.53 37 Nature of challenge under Article 8 3.56 38 Article 6 3.72 42 Conclusion 3.86 45 Chapter 4 Current statutory framework General 4.1 47 Background 4.3 47 Underlying structure of legislation 4.12 49 Examination of statutes 4.16 50 1845 Act 4.18 50 (a) Problems arising from amendment of 1845 Act 4.21 51 (i) Prohibition of acquisition of part only of dwelling house 4.22 51 (ii) Effect of “glossing” 1845 Act with references in later statutes 4.28 53 (b) Replacement of 1845 Act 4.29 53 (c) Restatement not consolidation 4.34 55 1845 Railways Act 4.39 56 Lands Clauses Consolidation Acts Amendment Act 1860 4.41 56 1919 Act 4.42 56 1945 Act 4.44 57 1947 Act 4.47 57 1949 Act 4.49 58 1959 Act 4.50 58 1963 Act 4.51 58 1973 Act 4.55 59 1991 Act 4.57 59 1997 Act 4.58 59 Summary 4.60 60 vii Contents (cont'd) Paragraph Page PART 2: OBTAINING AND IMPLEMENTING CPO; MINING CODE Chapter 5 Procedure for obtaining a CPO Introduction 5.1 62 Compulsory acquisitions to which present general procedure applies 5.2 62 Exceptions to application of general procedure 5.3 62 Local Acts 5.3 62 Opencast Coal Act 1958 5.6 63 Exceptions set out in 1947 Act 5.7 63 (a) Burial Grounds (Scotland) Act 1855 (“1855 Act”) 5.8 63 (b) Allotments (Scotland) Acts 1892 to 1922 5.10 63 (c) Light Railways Acts 1896 and 1912 5.12 64 Potential exceptions to 1947 Act 5.13 64 (a) General 5.13 64 (b) Acquisitions under Forestry Act 1967 (“1967 Act”) 5.14 64 Provisions on compulsory acquisition in other legislation 5.18 65 General procedure for making and confirming a CPO under 1947 Act 5.19 65 Preliminary matters 5.20 65 (a) Survey of land 5.20 65 (b) Advertisement and notification of public, and of directly affected persons 5.22 66 (c) Notification of statutory objectors 5.23 66 Objections to CPO 5.25 67 (a) Referral to DPEA 5.25 67 (b) Comparison with DPEA’s role in planning cases 5.28 68 (c) Fixing of time limits in primary legislation 5.31 68 Confirmation of CPO 5.33 69 (a) Requirement for Ministerial confirmation 5.34 69 (b) Alternatives to requirement for Ministerial confirmation 5.38 70 Advertisement and notification of CPOs – made and confirmed 5.42 71 Revocation of a confirmed CPO 5.43 71 Register of CPOs 5.48 72 Validity of a confirmed CPO 5.51 73 Six-year combined period 5.51 73 Introduction of flexibility in timescale 5.53 73 “Likelihood of implementation” test 5.56 74 Public rights of way 5.60 75 Summary 5.65 76 viii Contents (cont'd) Paragraph Page Chapter 6 Challenging a (confirmed) CPO Introduction 6.1 77 Statutory provisions 6.3 77 Time limit for challenging a CPO 6.6 78 Length of time limit 6.6 78 Challenges outwith time limit 6.9 79 (a) Smith v East Elloe Rural District Council and Others 6.10 79 (b) Anisminic Ltd v Foreign Compensation Commission and Another 6.17 81 (c) Hamilton v Secretary of State for Scotland 6.19 81 (d) R v Secretary of State for the Environment, ex parte Ostler 6.21 82 (e) Academic opinion 6.26 83 (f) McDaid v Clydebank District Council 6.28 83 Conclusion 6.32 85 Grounds of challenge 6.33 85 Challenge on ground of bad faith 6.36 85 Challenges on basis of non-compliance with Convention rights 6.40 86 Remedies 6.46 88 Stopping clock on validity of a CPO under challenge 6.49 89 Chapter 7 Implementation of a CPO Introduction 7.1 90 Implementation of CPO by notice to treat 7.4 90 Parties upon whom notice to treat is to be served 7.4 90 (a) Owners 7.11 91 (b) Interests other than ownership 7.12 92 Non-service of notice to treat 7.16 93 (a) Deliberate failure to serve notice to treat 7.16 93 (b) Interests overlooked by inadvertence 7.18 93 Content of notice to treat 7.20 94 (a) Land to be taken 7.20 94 (b) Description of lands 7.22 94 Form of notice to treat 7.24 95 Notice about claiming compensation 7.25 95 Effect of notice to treat 7.26 95 Nature of obligation created by notice to treat 7.32 97 Duration of notice 7.39 98 Withdrawal
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