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
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
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-1919 4-06 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
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 9-02 9-03 9-04 9-05 9-06 9-07 9-08 9-08 9-09 9-11 9-13 10-01 10-01 10-04 10-05 10-06 10-07 10-08 10-08 10-10 10-11 10-12 10-13 10-14
xii Remoteness of loss Who may be disturbed 10-16 10-17 The circumstances of the claimant Mitigation 10-19 10-21 Chapter 11 Remaining Land 11-01 Set-off 11-02 Injurious affection 11-05 Lands held therewith 11-08 Measure of loss 11-09 Conclusion 11-14 Chapter 12 Compensation: Other Matters 12-01 Short tenancies 12-01 Home loss payments 12-02 Disturbance payments 12-05 Rehousing 12-07 Agricultural land 12-08 An owner-occupier 12-09 A landlord 12-11 A tenant 12-12 Advance payment 12-14 Interest 12-15 The taxation of compensation 12-16 The Lands Tribunal for Scotland 12-17 PART III COMPENSATION FOR REGULATION AND 13-01 BLIGHT Chapter 13 Compensation for Regulation 13-01 Introduction 13-01 "Mainstream" planning control 13-03 Regulating new development 13-04 Regulating the existing use of land 13-07 Discontinuance 13-08 Revocation or modification 13-09 Mineral operations 13-11 Nature conservation 13-14 Conclusion 13-17 Chapter 14 Blight 14-01 Introduction Planning blight 14-01 14-03 Qualifying interest Qualifying land 14-04 14-05 Reasonable endeavours to seil 14-11 Counter-notice 14-12 Compensation for injurious affection 14-14
xiii Legitimate exercise of statutory powers 14-15 A substitute for an action at common law 14-16 An injury affecting the value of land 14-17 Injury from the construction of the works 14-18 Injury from the use of the works 14-19 Mitigation 14-23 Noise insulation 14-24 Mitigating works 14-25 Expenses of temporary removal 14-26 PART IV THE ACQUISITION OF NEW RIGHTS IN LAND 15-01 FALLING SHORT OF OWNERSHIP Chapter 15 Utility "Wayleaves" 15-01 Introduction 15-01 Gas 15-03 Electricity 15-04 Telecommunications 15-05 Water supply 15-06 Sewage disposal 15-07 Pipe-lines 15-08 Conclusion 15-09 Page Index 373