VIEWPOINT
A Scotsman’s home is his castle
Our compulsory purchase laws need to be totally overhauled WORDS IAN THORNTON KEMSLEY
the border as well. Owning your own home or the land on which your business is based is an essential right and one with which there should be no interference unless it’s absolutely in the public interest. That’s why Scotland’s current rules on
T
‘One judge branded the rules granting such compulsory purchase rights as one of the least coherent and thought through pieces of legislation on the statute book’
compulsory purchase are such a shambles. Whether it’s Donald Trump trying to use the powers to force people out of their homes to expand his golf course, or mobile phone compa- nies adopting the rules in pursuit of profi t, the present legislation is not fi t for purpose. No-one will argue with the importance of
laying pipes and wires to bring water, sewage and utilities to the public, but the law hasn’t kept up with the switch that sees many of these services being provided by the private sector. While BT has a statutory duty to supply tele-
phone services, mobile phone operators do not – but they still enjoy the same powers as BT and boy do they use them. There are at least three cases before the courts in which mobile phone operators are seeking compulsory powers under the ‘telecommunications code’. One judge branded the rules granting such
compulsory purchase rights as ‘one of the least coherent and thought through pieces of legisla- tion on the statute book’. The appalling thing about this is the industry
regulator, Ofcom, apparently has no jurisdic- tion to monitor the use of these compulsory powers by the very companies that it licences. An operator may even be in breach of its oper- ating licence and yet still be able to invoke the compulsory acquisition provisions of the code. Some of the compulsory purchase rights are
totally archaic. For example, the Ministry of Defence still has the ability to invoke the 1842 Defence Act, which is based on a perceived threat to the realm. Other laws were put in
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hey say that an Englishman’s home is his castle – but that old adage could equally apply to any landowner living north of
place around 150 years ago to accommodate the building of the road and canal networks. There are now some 70 statutes granting compulsory powers to acquire rights over land, all of which operate in different ways and some of which do no even involve the purchase of land. Another problem is that increasingly large projects take time to come to fruition, such as the Aberdeen Western Peripheral Route. Compulsory purchase
could become an
even more divisive issue if the predicted rush to ‘frack’ for shale gas and other hard-to-reach forms of oil and gas comes to pass.
to search for and then work minerals. Unless the minister is satisfi ed that a prima facie case has not been made out, he must refer the application to the Court of Session. The court must be convinced that the grant is expe- dient in the national interest.
There is a rigorous process before minerals can be exploited or fracking can take place. This involves an application to the Scottish Govern- ment
When the needs of the public override the rights of an individual
then compensation
must be paid – but, even then, using the princi- pal of market value to work out compensation payments is extremely complex.
For example, if your home is acquired and you have to move elsewhere then your friend- ships may be lost – it’s hard to put a value on friendship, but such hardship is recognised with a ‘home loss’ payment. But when it comes to companies whose land is purchased then no such entitlement exists.
The Scottish Parliament is even consider-
ing the introduction of even more compulsory purchase powers. Proposals are being made to give agricultural
tenants the right to buy
their tenancies at any point in the future in an attempt to support a lively sector.
Yet even the very suggestion of such a move has made landowners reluctant to let land for agriculture. Is it really in the public interest
IMAGE: HELGA ESTEB/
SHUTTERSTOCK.COM
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