UK: Could Proposals On Compulsory Purchase Powers Raise New Concerns?

Last Updated: 5 January 2018
Article by Elaine Brailsford and Stephanie Hepburn

The Forestry and Land Management (Scotland) Bill was introduced to the Scottish Parliament in May 2017. Amendments to the Bill have been considered by the lead committee, the Rural Economy and Connectivity Committee, culminating in an amended version of the Bill being published on 14 December. While there are no definite dates yet, it is envisaged that the final stage of the parliamentary process will commence imminently.

One of the main aims of the Bill is to transfer the powers currently held by the Forestry Commission, as a cross-border public authority, to the Scottish Ministers. If this is passed, the next step will be to issue an order to wind up the Forestry Commission as it currently exists in Scotland, and then put in place some form of collaborative cross-border arrangement with the Forestry Commission as it applies in England.

More controversially, the Bill also purports to expand the powers of the Scottish Ministers to purchase land compulsorily for the purposes of managing forestry land. In addition to the Scottish Ministers' compulsory purchase powers for the purpose of promoting sustainable forestry management, the Bill intends to expand those powers to include purchasing land for the purpose of furthering sustainable development.

Compulsory purchase of land – the proposals

A compulsory purchase order allows an organisation or a body, such as the Scottish Ministers, to acquire land without the landowner's express permission, where it is in the public interest, with compensation being paid to the landowner. Compulsory purchase of land for the purposes of managing forestry land is currently governed by the Forestry Act 1967. The Scottish Ministers' compulsory purchase powers have never been utilised under this Act in its 40 years of existence. If passed, the new legislation would repeal the 1967 Act.

Under section 16 of the proposed Bill, the Scottish Ministers would not only have the powers of compulsory purchase for the purposes of managing "forestry land in a way that promotes sustainable forest management", as already exists under the 1967 Act, but would also have the right to use those powers in order to manage "land... for the purpose of furthering the achievement of sustainable development".

Whilst the Rural Economy and Connectivity Committee (RECC) acknowledged the need for some level of compulsory purchase powers within the Bill to "unlock the potential in forestry land", it was felt by the majority of the RECC that the Scottish Government had failed to provide sufficient justification for the extension of those powers to cover sustainable development (which itself was not defined) and called for the provision allowing the Scottish Ministers to compulsorily purchase land for the purposes of sustainable development to be removed. Similarly, the Environment, Climate Change and Land Reform Committee noted that the Scottish Government had not explained its rationale behind extending its powers of compulsory purchase. The view was that passing the Bill in its original form would give the Scottish Ministers a very wide remit for purchasing land for the purposes of sustainable development – a very broad and undefined term.

The need for some form of restraint on the powers of the Scottish Ministers to compulsorily purchase land is clearly recognised. One suggested solution is to limit the scope of the compulsory purchase powers to only those granted by the 1967 Act. However, despite the majority view that the inclusion of "sustainable development" was unduly wide an amendment to this effect was not passed and, as such, the Bill will enter the next stage of the legislative process with the widened compulsory purchase powers still included.

Further amendments can still be made to the Bill. This time, instead of the amendment process being limited to the RECC, it will be opened to the Scottish Parliament as a whole. As a result, there is still adequate opportunity for the unduly wide powers to be amended out of the Bill.

There is a strict process that must be followed when Ministers wish to compulsorily purchase land under the 1967 Act. It is likely that, even if the existing powers are extended, the compulsory purchase process will be largely followed. This process includes giving interested parties at least 28 days to object to the compulsory purchase order from the date it was advertised in a local newspaper. If any objections are raised, an inquiry will be held to hear the parties raising the objections, before a decision is made.

What does this mean for you?

At this stage, it is still possible to raise any concerns with the proposals included in the Bill with your local MSP ahead of the Scottish Parliament debating the Bill at the final stage.

Conclusion

If the Bill is passed in its current form and the existing compulsory purchase process is followed, interested parties are afforded the opportunity to voice their objections. Thus, if the powers are extended to encompass purchasing land for the purposes of sustainable development by way of the Forestry and Land Management (Scotland) Bill, there will be mechanisms in place to object to any perceived misuse. However, it remains to be seen if there will be additional mechanisms, over and above parties having the opportunity to voice their objections, to protect against any perceived misuse of the newly proposed power.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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