Compulsory Purchase Order Objection and the Commonwealth Games
Friday, October 10, 2008
by
Martin Sales
Following a recent newspaper article concerning one family’s objection to the purchase of their property under threat of a compulsory purchase order, this article provides a commentary on some aspects of the law on how objections can be made against a compulsory purchase order.
Inside this article.
Background
It was reported in the Sunday Herald of 21 September 2008 that the last remaining residents of a tenement in Ardenlea Street, Dalmarnock were refusing to sell their property to Glasgow City Council as part of the Council’s plan to obtain ownership of the whole of the site to be used for the athletes village for the 2014 Commonwealth Games. Glasgow City Council has already resolved to promote a compulsory purchase order (CPO) to acquire any property in the Games Village site in Dalmarnock which it is unable to purchase on a voluntary basis but it was reported in the Sunday Herald article that the Jaconelli family is prepared to go to the sheriff court to object to the CPO at least partly on the grounds that the compensation offered to them so far by the Council is inadequate.
Although Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private life, his home and his correspondence and that there should be no interference with that right by a public authority, it is also declared that this right can be interfered with where it is necessary in specified circumstances. While the right to enjoy one’s property may be considered as a fundamental human right, the European Court of Human Rights has already taken the view that the compulsory purchase of property by public authorities does not breach human rights, at least where the use of such powers are proportionate and in the public interest. It is also important that the law under which the powers are exercised provides an opportunity for the affected persons to have their objections heard and, of course, provides for sufficient compensation in the event of compulsory purchase.
So, if you are served with a notice which states that your property is to be the subject of a CPO, what grounds of objection are valid and what is the procedure for objecting to the CPO?
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Grounds For Objection
A person who does not wish to leave his or her home in the face of a CPO may have several reasons for objecting to the making of the order but one thing is clear: an objection based on the insufficiency of the compensation offered by the public authority is not a valid objection. In terms of the second rule contained in section 12 of the Land Compensation (SCOTLAND) ACT 1963, a person whose property is purchased compulsorily is entitled to be paid compensation which represents the open market value of the property and, if the owner believes that the public authority’s offer of compensation does not represent market value, then the dispute can be referred to the Lands Tribunal for Scotland whose decision on the matter is final.
Given that there is legal entitlement to market value, plus disturbance costs and a possible right to a home loss payment under sections 27-30 of the Land Compensation (SCOTLAND) ACT 1973, and the right to have a disputed compensation offer referred to the Lands Tribunal, it follows that perceived insufficiency of the original offer made by the public authority cannot be a valid ground of objection to the CPO itself. The law on this point is made clear by paragraph 4(4) of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (SCOTLAND) ACT 1947 which entitles the Scottish Ministers, as the confirming authority in relation to the proposed CPO for the Commonwealth Games Village, to disregard any such objection.
For your objection to be valid so that it can be given due consideration, it must relate to the use to which the property will be put and the need to acquire your property for that purpose. The law does not set out what specific grounds of objection will be valid but the following are typical examples which can be argued in the case of any CPO.
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There is no need for the works or scheme in respect of which the CPO is being promoted. Such a contention has to be viewed in light of the Glasgow Commonwealth Games Act 2008, section 42 of which specifically authorises the use of a compulsory purchase order for the purposes of the Games. Generally, an objection which amounts in substance to an objection to the provisions of the development plan which defines the proposed use of the land can be disregarded by the Ministers in terms of section 200(1) of the Town and Country Planning (SCOTLAND) ACT 1997.
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The current use of the property is more important than the proposed use of the area by the public authority.
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Assuming that there is indeed a need for your property, you can object to the specific way the proposed scheme will be delivered. Such a contention would require to be backed up by detailed alternative proposals.
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You could argue that the boundaries of the land to be acquired can be adjusted so as to minimise the impact on your own property. However, if your property falls squarely inside the project site, then boundary realignments will not make any difference to you.
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You could argue that, either alone or with others, you are willing and able to carry out development of the project site yourself. This is somewhat unlikely in the case of individual householders and, in any event, Glasgow City Council is already some way forward in the procurement of a preferred developer for the Games Village.
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You could argue that there is a better alternative site where the scheme can be delivered. Again, such a contention would require to be backed up by detailed evidence.
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How To Make An Objection And The Purpose Of A PLI
Not only should the making of a CPO be advertised (twice) by the public authority in a relevant newspaper, a notice must be sent to the owners, tenants and occupiers of properties which are affected by the CPO, as well as to other interested parties as required by statute. The notice and first advertisement are issued at the same time and both require to state a period within which objections can be made. This period must be at least 21 days. The address of the office to which letters of objection should be sent must be contained in the advertisement and notices – this is usually the Scottish Government.
A dialogue then ensues between the public authority promoting the CPO and any persons who have lodged objections, copies of the letters of objection being sent to the public authority for this purpose. If after such further discussions you do not wish to withdraw your objections, then, if you are a “statutory objector”, the Scottish Ministers will arrange for a public local inquiry (PLI) to be held at which you have the right to give evidence. A statutory objector is a person whose property or other rights are directly affected by the proposed CPO but it is also open to other interested parties to object to the CPO and if the only remaining objections are from non-statutory objectors, the Scottish Ministers have a discretion as to whether or not to arrange a PLI.
A PLI is presided over by a reporter, normally appointed by the Scottish Ministers, and is conducted in an informal manner with the public authority and statutory objectors having the right to submit documents and to give oral evidence. The reporter then submits a report on all of the evidence given to the inquiry and it is the Scottish Ministers as the confirming authority who decide whether to confirm the CPO as made by the public authority, or to confirm it with amendments to take account of representations made at the PLI, or to decline to confirm the CPO. If the Ministers do confirm the CPO, and if no successful appeal is made against that confirmation, then the public authority may proceed to the next step, which is to take possession and ownership of the property by making a General Vesting Declaration.
Court Action
The procedure for making and considering objections to a CPO as outlined above is a special administrative process created by statute to deal with such objections. However, in parallel to this process, there may also be the possibility of raising court proceedings against the public authority to stop the CPO. Court action may be appropriate in three main scenarios: (1) where the decision of the authority to make the CPO is itself unlawful, (2) where acquisition of the property or the proposed use of the property after acquisition by the authority will in some way result in unlawful activity and (3) where the statute under which the CPO is promoted specifically provides for the right to take court proceedings.
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Unlawful Decision By The Authority
An action for judicial review of the decision of a public authority may be appropriate where the decision is not made in accordance with correct procedures or where the public authority has no legal authority to make that decision.
Acquisition Resulting In Unlawful Activity
The decision of the public authority to promote a CPO can be challenged by way of an action for judicial review where implementation of that decision will result in unlawful activity. An example of such an action would be a challenge to the making of a proposed CPO on the grounds that, even if the promoting authority were to comply with the CPO procedures, the compulsory acquisition would still breach human rights. However, given the statutory mechanism for the consideration of objections, as well as a right of appeal against confirmation of a CPO as discussed below, there would have to be a very strong case for suggesting that the proposed CPO is unnecessary or disproportionate so as to amount to a breach of human rights. It is also possible to argue that the proposed CPO might breach human rights even where the scheme is expressly approved by statute.
Special Statutory Remedy
Apart from the possibility of raising an action for judicial review, sometimes the statute which authorises the use of compulsory purchase powers itself entitles an aggrieved party to raise court proceedings in defined circumstances. For example, a local authority has the power to promote a CPO under section 42(1) of the Planning (Listed Buildings and Conservation Areas ) (SCOTLAND) ACT 1997 in order to preserve a listed building which has fallen into disrepair but, in addition to having the right to object to the CPO as described above, section 42(4) enables an interested party to apply to the sheriff court for an order to prohibit further proceedings in relation to the CPO on the grounds that they have taken reasonable steps to preserve the building concerned. Again, the provisions of the Glasgow Commonwealth Games Act 2008 and the Town and Country Planning (Scotland) Act 1997 would require to be examined to ascertain if any such court remedy exists. There is not.
Effect Of Court Action On Proposed CPO
Any court action as mentioned above effectively suspends the promotion of the CPO until the litigation is resolved and, of course, the CPO cannot be made if the court decides that the proposed CPO would be unlawful.
Appeal Against Confirmation Of The CPO
Finally, if the CPO is eventually confirmed by the Ministers, there is still a six week period from the date of publication of that confirmation in which an aggrieved person can appeal to the court of session to have the CPO set aside. The grounds of appeal are, however, limited to (1) the authority will be acting outwith its statutory powers by acquiring the land on the basis of the CPO and (2) the interests of the aggrieved person have been substantially prejudiced by non-compliance by the authority with the statutory requirements relative to promotion of the CPO.
The first ground of appeal would be relevant in a situation where, for example, a PLI is held but either the reporter or the Ministers take into account factors which they should not consider or fail to take into account material factors which they ought to consider. The second ground of appeal covers situations such as where it is proved that an owner of property which is subject to the CPO has not received a required notice.
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Timescales
Since there is a mandatory element of necessity for the use of powers of compulsory purchase, it is often the case that the acquiring public authority wishes to complete the CPO procedure within the shortest possible period. It is usually the case that a contested CPO in respect of which a public local inquiry is held takes much longer to complete than an unopposed CPO. If the Ministers do decide that a PLI should be held, then, in accordance with the Compulsory Purchase by Public Authorities (Inquiry Procedures) (Scotland) Rules 1998, the hearing must take place within 24 weeks of that decision.
As for court action, this can take years to resolve, at least where an initial decision is appealed – after which the CPO process begins.
Conclusion
Although the statutory procedures which govern the promotion of compulsory purchase orders provide for a special mechanism for considering objections, court proceedings may be raised in an attempt to prevent a CPO from being made in the first place. As with any legal action, there would have to be good and relevant grounds for pursuing objections or litigation in relation to a proposed CPO. There are other special provisions relating to the rights of affected persons where only part of their property is to be subject to a CPO or where the proposed scheme will adversely affect adjacent property owned by them but such provisions are outwith the scope of this article. In relation to the proposed CPO for the Commonwealth Games Village, the critical question is timing. With the 2014 Games being an immoveable feast, the plight of the Jaconelli family, and the prospect of any other objections or litigation, will be the subject of much interest.
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The information contained in this article is given for general information only, reflects the current law on the date of this article, and does not constitute legal advice on any specific matter