Compulsory purchase are powers to obtain land in Scotland that were traditionally available to certain public bodies in Scots law. Scots law classifies compulsory purchase as an involuntary transfer of land, as the owner of the corporeal heritable property (land) does not consent to the transfer of ownership.

Compulsory purchase powers are similar, but not identical, to other jurisdictions who share similar concepts and similar terms. In contrast to other jurisdictions, compulsory purchase powers can be exercised by non-public bodies under the Land Reform (Scotland) Act 2003.

History The development of powers of compulsory purchase in Scotland originated in the railway mania of the Victorian period within the United Kingdom of Great Britain and Ireland (1801-1921).Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 2. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/. Historically, where the United Kingdom government wished to acquire land without the consent of an owner in Scotland, a private bill had to be introduced into the United Kingdom parliament.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 3. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/ . This bill had to outline the area of land (commonly the extent of the railway track itself) expressly sought and provided a power of compulsory purchase to the constructing entity.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 3. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/ . An example of this private bill is the construction of the Edinburgh-Glasgow railway line under the Edinburgh and Glasgow Railway Act 1838 (1 & 2 Vict. c. lviii). This method of compulsory purchase was viewed as a repetitive and time-consuming process and the United Kingdom parliament enacted the Lands Clauses Consolidation (Scotland) Act 1845 (8 & 9 Vict. c. 19), which introduced a standard form process of compulsory purchase into Scots law.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 3. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/.

Subsequent legislation has been introduced to amend and supplement the 1845 act, leading to criticism that the current legislative framework for compulsory purchase powers are complex and confusing.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 3. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/ .

Current Legislation

Lands Clauses Consolidation (Scotland) Act 1845 The Lands Clauses Consolidation (Scotland) Act 1845 (8 & 9 Vict. c. 19) operates by the Parliament of the United Kingdom passing a special act authorising the construction project. The special act would signal Parliament's approval to a specific project requiring compulsory purchase. The detailed procedural provisions for the compulsory purchase itself are carried out by incorporating the 1845 act into a subsequent local act. Therefore, the 1845 act provides a common framework upon which compulsory purchase procedures are obtained.

Despite criticism by the Committee on Acquisition of Land (1917–1919) chaired by Lord Justice Scott and the Scottish Law Commission in 2014, which advocated for the repeal and replacement of the act with modern regislation, the 1845 act has not been repealed and replaced by the Scottish Parliament.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 55. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/.

Railways Clauses Consolidation Act 1845

The Railways Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20) and the Railways Clauses Consolidation (Scotland) Act 1845 (8 & 9 Vict. c. 33) were enacted two months after the Lands Clauses Consolidation (Scotland) Act 1845.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 56. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/. The acts regulate the compulsory purchase of land in relation to railway construction. The acts also introduced special provisions for mineral (mining) rights known informally as the Mining Code.Railways Clauses Consolidation Act 1845 ss.47-49.

Lands Clauses Consolidation Acts Amendment Act 1860

The Lands Clauses Consolidation Acts Amendment Act 1860 (23 & 24 Vict. c. 106) allows the Secretary of State for Defence to use the Lands Clauses Consolidation (Scotland) Act 1845 to compulsory purchase land sought under the Defence Act 1842. The act also amended the Lands Clauses Consolidation (Scotland) Act 1845.

Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947

The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (10 & 11 Geo. 6. c. 42) is the main statute currently dealing with the procedural provisions of the compulsory purchase order process.Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 57. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/.

The 1947 act lays out the processes that must be followed for compulsory purchases authorised by other statutes, including the 1845 act. A range of other statutes empower public bodies such as the Scottish Government, the United Kingdom government and its agencies, and local authorities in Scotland.See Appendix B, Scottish Law Commission, Discussion Papers in Compulsory Purchase (2014, SLC DP No: 159), page 331. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/ .

Lands Tribunal Act 1949 The Lands Tribunal Act 1949 (12, 13 & 14 Geo. 6. c. 42) establishes the Lands Tribunal for Scotland (LTS). The Land Tribunal deals with a wide range of land related disputes, including disputes regarding compensation payable to landowners subject to compulsory purchases.Lands Tribunal Act 1949 s.1(3).

Land Compensation (Scotland) Act 1963 The Land Compensation (Scotland) Act 1963 (c. 51) is the current statutory framework for compensation of land. These provisions replace those found in the Acquisition of Land (Assessment of Compensation) Act 1919.Scottish Law Commission, Discussion Paper of Compulsory Purchase (2014, SLC DP No: 159), page 58. Available under the OGL via: https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/. Section 12 of the 1963 act sets out the rules in which compensation must be assessed. There are special provisions for certain types of land.Land Compensation (Scotland) Act 1963 ss17-20, 22-24. Further provisions for compensation are found in the Land Compensation (Scotland) Act 1973.https://www.legislation.gov.uk/ukpga/1973/56/contents

Town and Country Planning (Scotland) Act 1997 The Town and Country Planning (Scotland) Act 1997 (c. 8) is one of the main statutes dealing with planning law in Scotland. Under part VIII, the 1997 act allows land to be compulsory or voluntarily purchased for planning purposes. The procedure for any compulsory purchase acquisition is dealt with by the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. The 1997 act also regulates General Vesting Declarations, discussed below.Town and Country Planning (Scotland) Act 1997 s.195; Schedule 15.

Compulsory purchase process by public body As discussed above, the main acts regulating the procedure for compulsory purchase are the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. Alternatively, the processes of the Lands Clauses Consolidation (Scotland) Act 1845 may be used instead.

Exceptions to normal procedure Certain exceptions to the normal procedures are provided for certain land by the following acts:

Local acts may provide for certain local authorities to be able to compulsory purchase land with processes specified by that local act.Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 s.6. The Opencast Coal Act 1958 provides specific procedures for compulsory purchase of opencast coal mines.Opencast Coal Act 1958 s.4; Schedule 2. The Burial Grounds (Scotland) Act 1855 provides specific procedures for compulsory purchase of burial grounds in Scotland.Burial Grounds (Scotland) Act 1855 s.2 The Allotments (Scotland) Acts 1892 and the Land Settlement (Scotland) Act 1919 provides procedures for the compulsory purchase of land for use as allotments gardening. The 1892 act provides a duty on local authorities to acquire land for allotments upon written demand of at least six residents.Allotments (Scotland) Act 1892 s.2(1). The Forestry Act 1967 (c. 10) provides specific procedures for the Forestry and Land Scotland's powers to compulsory purchase land for use for forestry.Forestry Act 1967 Schedule 5. Numerous other legislation also regulates compulsory purchase in a wide range of other types of land use and by a wide range of public bodies. A comprehensive list is available to view online in Scottish Law Commission, Discussion Paper of Compulsory Purchase (2014, SLC DP No: 159), Appendix B. It is anticipated that any further reform in this area will consolidate the vast complex range of procedures laid out in numerous statutes.

Stage one - Identifying and surveying land The acquiring authority should seek to listen to the people affected at every stage of the process. Scottish Government recommends that the acquiring authority should consider appointing a specified case manager to whom people have direct, easy and face to face access.

if no voluntary agreement is reached, the acquiring authority can identify land it wishes to compulsory purchase under powers given to it by statute, see above. Ultimate permission for the purchase is given by authorisation by the confirming authority, usually the Scottish Ministers (or the UK Government if undertaken by an authority under reserved powers). Thus, acquiring authorities cannot unilaterally utilise their compulsory purchase powers. However, where land has been identified for compulsory purchase, under the Lands Clauses Consolidation (Scotland) Act 1845, the acquiring authority has a power to enter the land for purposes of surveying, probing or boring.Lands Clauses Consolidation (Scotland) Act 1845 s.83 However, the acquiring authority must give at least 3 days, but not more than 14 days, notice to the current owner of the land.Lands Clauses Consolidation (Scotland) Act 1845 s.83

Stage two - Drafting of compulsory purchase order