Compulsory Purchase - A Review

Compulsory purchase in Scotland is nothing new as is demonstrated by the fact that the primary legislation regulating the power and the processes relevant to that power date back to 1845. Despite the length of time compulsory purchase has been with us, it is an area of law which is controversial and difficult both in relation to the principles and the process. Given that any consequence of the use of compulsory purchase powers can be significantly detrimental to those affected. it is appropriate that the use of the power must be properly regulated. However proper use of the power of compulsory purchase may bring about significant benefits and whatever the affect there is no justification for the process to cause unecessary issues,

The present Scottish Government guidance on compulsory purchase dates from 1976. The Scottish Government, correctly, have decided to update that guidance and have produced a draft Circular, consultation in respect of which is to take place until the summer of 2011, with the revised guidance being produced thereafter.

While compulsory purchase has been with us a long time, that is not to say there have not been changes in the area. For example in 2007 the Scottish Parliament brought in the Transport & Works (Scotland) Act 2007 which covers inter alia compulsory purchase in relation to projects which fall within the ambit of that legislation.

In the covering letter to the consultation paper, John Swinney observes:-

"Compulsory purchase is a valuable tool to facilitate projects in the public interest where it is impossible or impractical to acquire the land by agreement. These are often vital schemes that can promote economic recovery and sustainable growth and bring real benefits to our communities. But without compulsory purchase they could not go ahead".

The reference there to "sustainable economic growth" echoes the key policy objective of the Scottish Government and it is probably no coincidence that this review is underway now. Facilitating compulsory purchase is likely to be seen by the Scottish Government as a useful tool where appropriate to stimulate economic activity.

The consultation paper is a lengthy document but a very useful one. Not only does it deal with the process but in a number of appendices gives specific guidance including check lists and forms of orders. Appendix A also lists the legislation under which compulsory purchase powers exist. Some 26 different pieces of legislation are identified...