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Proposals for compulsory purchase of derelict or abandoned land in Scotland

Derelict building Print publication

16/05/2018

Earlier this year we published a briefing on the Scottish Land Commission (SLC)’s discussion paper on the housing land market in Scotland. One of the options suggested in that paper for the improvement of the supply of land for housing was the introduction of compulsory sale orders in respect of land left vacant or derelict for a long time.

The SLC has now announced plans to implement a new compulsory sale power enabling Scottish Local Authorities to order to the sale of derelict or abandoned plots of land.

The proposed new power was originally recommended in 2014 by the Land Reform Review Group with a view to enabling productive use of derelict or abandoned land. Official estimates suggest that up to 12,435 hectares of derelict or abandoned land currently exist in Scotland, of which over two-thirds are privately owned. In its 2014 Report, the Land Reform Review Group argued that “there comes a point when it is no longer in the public interest for an owner to retain land and property indefinitely, without use or sale”. A challenge for advocates of the new power will, however, be to clarify exactly when, and under what conditions, that point arises.

It is proposed that the compulsory sale power could be used in relation to any land which is deemed to have been left in a derelict or abandoned state for 3 years. A new publicly available statutory register of derelict and abandoned land is likely to come into existence, using information already collected by local authorities. Where land is placed on the register, the owner will have up to 3 years to challenge the designation of their land as derelict or vacant. Additionally, third parties who believe land has been mistakenly omitted from the register will be able to apply for such land to be registered. In both cases, a decision regarding the status of the land will be made by the local authority, with a further right of appeal for aggrieved parties.

After 3 years of being listed on the public register, landowners would be obliged to sell affected land at a public auction. Public auctions are identified in the 2014 Report as providing the best means of guaranteeing a fair price for such land. (It is acknowledged that selling land by way of auction may result in lower prices paid in comparison to those which could be achieved by waiting for a purchaser. However, this potential negative for landowners will be outweighed by the public interest in the facilitating productive use of unused land.

To ensure that affected land sold at public auction is not simply kept in a state of dereliction or disuse, the 2014 Report suggests incorporating a condition into the sale of the land which allows the Local Authority to re-purchase the land at a future date if no development on the site has been effected by the new owner.

Public Agencies, Community Councils and other related bodies may also have a statutory right to request a local authority deploys a compulsory sale order over a qualifying plot of land which is not already the subject of such an order.

WM Comment

The proposals to introduce new compulsory sale powers raise a number of legal issues, both for private landowners and public authorities. As there is not yet a detailed piece of legislation in place to give effect to the proposals, there remain a number of questions regarding how the power would operate in practice. Some of these include how the new power relates to existing compulsory acquisition powers in Scotland and the criteria of assessment used by Local Authorities in determining whether land is derelict or abandoned.

Additionally, landowners may be concerned at the prospect of being forced to sell land which they may not consider to be derelict or abandoned. Such concerns may be further amplified by the prospect of land being sold at public auctions. Clarification regarding landowners’ rights of appeal in relation to decisions made by authorities exercising the proposed powers will therefore be welcome.

More generally, it is clear that balancing public interest against the rights of landowners who stand to be directly affected by the new powers will remain a key challenge for legislators moving forwards.

Walker Morris will continue to monitor and report on developments.

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