COMPULSORY PURCHASE AND COMPENSATION

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1 COMPULSORY PURCHASE AND COMPENSATION THE LAW IN SCOTLAND SECOND EDITION by Jeremy Rowan Robinson Emeritus Professor of Planning and Environmental Law, Aberdeen University Consultant in Planning and Environmental Law, Pauli & Williamsons, Solicitors THOMSON * W. GREEN

2 CONTENTS Preface Table of Cases Table of Statutes Table of Statutory Instruments Page vi xv xxxix liii Para. PART I COMPULSORY PURCHASE: POWERS AND 1-01 PROCEDURES Chapter 1 Compulsory Purchase: Powers 1-01 Origins 1-01 Development 1-02 Streamlining procedures 1-05 Construction of compulsory purchase powers 1-10 Chapter 2 Compulsory Purchase: Procedure 2-01 Orders made by local and other authorities 2-02 Investigating ownership 2-02 The form of the order 2-03 The mining code 2-04 Special category land 2-05 Notice of the making of the order 2-06 Objection 2-08 The right to be heard 2-10 Post inquiry procedure 2-14 Expenses 2-15 Purchases by Ministers 2-16 Compulsory acquisition of statutory undertakers' land 2-17 Challenge in the Court of Session 2-18 A person aggrieved 2-19 The statutory grounds of challenge 2-21 Substantial prejudice 2-23 Human rights 2-24 The six week time period for challenge 2-26 Powers of the court 2-27 Power to extinguish public rights of way 2-28 Chapter 3 Compulsory Purchase: Acquiring Title 3-01 Notice to treat 3-02 Parties to be served 3-03 Interests omitted to be purchased 3-06 The land to be acquired 3-07 Effect of notice to treat 3-08 Withdrawal or abandonment of notice to treat 3-10

3 x Counter-notice 3-11 House, building or manufactory 3-11 Intersected lands 3-12 Agricultural land 3-13 Notice of entry 3-15 Compensation 3-16 Conveyancing 3-17 Statutory conveyance 3-18 Notarial instrument 3-19 General vesting declaration 3-20 Surplus land 3-24 PART II COMPENSATION FOR COMPULSORY 4-01 ACQUISITION Chapter 4 Compensation: Introductory Matters 4-01 The entitlement to compensation 4-01 The measure of compensation for compulsory purchase 4-04 The concept of compensation 4-04 The measure of compensation pre The Acquisition of Land (Assessment of 4-08 Compensation) Act 1919 Post-war reconstruction 4-09 "Putting People First" 4-10 Chapter 5 The Date for Fixing and Valuing Interests 5-01 The valuation date 5-02 When is possession taken? 5-03 The date of assessment 5-04 Säle by agreement in the absence of a notice to treat 5-05 General vesting declaration 5-06 The date for fixing interests 5-07 The traditional approach 5-08 Non-traditional approaches 5-09 Interests in land and "the scheme" 5-10 Increasing the bürden of compensation 5-12 Risk of damage to property 5-13 The date for determining the planning Status of the land 5-14 Chapter 6 Market Value 6-01 Rule (2) 6-02 Restrictions 6-03 Potentialities and rule (3) 6-04 Rule (4) 6-07 Chapter 7 Development Potential 7-01 Introduction 7-01 Assumptions derived from the development plan 7-02

4 xi Assumptions not derived from the development plan 7-06 Development in accordance with proposals of the 7-06 acquiring authority Schedule 11 development 7-07 Development referred to in a certificate of appropriate 7-08 alternative development Compensation where permission for additional development 7-14 granted after acquisition Chapter 8 Disregarding the Scheme 8-01 Introduction 8-01 The Pointe Gourde principle 8-02 Statutory expression of the Pointe Gourde principle 8-03 The relationship between the Pointe Gourde principle and 8-06 section 13 Identifying the scheme 8-07 Valuing in the "no scheme" world 8-08 Comment on the Operation of the principle and its statutory 8-09 expression Depreciation due to the prospect of compulsory acquisition 8-10 Chapter 9 Special Values 9-01 Equivalent reinstatement Devoted to a purpose No general demand or market Bona fide intention to reinstate The tribunal's discretion Equivalent reinstatement Acquisition of houses below the tolerable Standard Introduction Compensation not to exceed cleared site value Owner-occupier Supplement Well-maintained payments 3ter 10 Disturbance The entitlement to disturbance compensation The rule (6) claim must be consistent The limits of a disturbance claim Causation Increased operating costs Fees and expenses Interest and charges Adaptations Removal costs Loss of profits Loss of goodwill Pre-notice to treat expenses

5 xii Remoteness of loss Who may be disturbed The circumstances of the claimant Mitigation Chapter 11 Remaining Land Set-off Injurious affection Lands held therewith Measure of loss Conclusion Chapter 12 Compensation: Other Matters Short tenancies Home loss payments Disturbance payments Rehousing Agricultural land An owner-occupier A landlord A tenant Advance payment Interest The taxation of compensation The Lands Tribunal for Scotland PART III COMPENSATION FOR REGULATION AND BLIGHT Chapter 13 Compensation for Regulation Introduction "Mainstream" planning control Regulating new development Regulating the existing use of land Discontinuance Revocation or modification Mineral operations Nature conservation Conclusion Chapter 14 Blight Introduction Planning blight Qualifying interest Qualifying land Reasonable endeavours to seil Counter-notice Compensation for injurious affection 14-14

6 xiii Legitimate exercise of statutory powers A substitute for an action at common law An injury affecting the value of land Injury from the construction of the works Injury from the use of the works Mitigation Noise insulation Mitigating works Expenses of temporary removal PART IV THE ACQUISITION OF NEW RIGHTS IN LAND FALLING SHORT OF OWNERSHIP Chapter 15 Utility "Wayleaves" Introduction Gas Electricity Telecommunications Water supply Sewage disposal Pipe-lines Conclusion Page Index 373

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