David Mitchell: Pressure is on to find a solution to vacant Property

Communities in Scotland are all too aware of the problems associated with living next to land or buildings lying vacant or derelict, particularly in urban areas where neglected places can become magnets for anti-social or criminal behaviour.

David Mitchell is Partner in Shepherd and Wedderburns property and infrastructure team

The Scottish Government also has concerns about derelict land and buildings and the effect they have on local communities, and is exploring ways to address the problem.

One solution already available is the Community Right to Buy, allowing communities to purchase such sites, even if the owner is unwilling to sell, though with an onus on the buyer to fund improvements.

Given the majority of local community buyers would struggle to fund the necessary programme of improvements, the Scottish Government is hoping to bridge the gap with a proposal to introduce Compulsory Sales Orders, which would give local authorities a mechanism to bring derelict or vacant land and buildings back into use.

How the compulsory sale powers would operate is still being explored by the Scottish Land Commission, on behalf of the government. However, planning minister Kevin Stewart has committed to introduce these powers during the current Parliament.

The Land Commission proposes local authorities would have the power to issue a compulsory sale order on an owner to sell a derelict or vacant property at auction, with a requirement on the buyer to bring the asset back into productive use within a set timeframe, backed with rights for the local authority to buy the site back from its new owner if improvements aren’t made.

Such powers would be available as a last resort; the hope being the threat of compulsory sale would open constructive dialogue and dissuade some owners from “land banking” indefinitely, moving from a position of “passive” ownership to active possession and a return to productive use.

There are, of course, instances where owners have no interest in improving the condition of a holding. Equally, there are owners frustrated by their inability to develop land due to difficulties or delays in obtaining the necessary planning consents or adequate access to funding.

Also, some pockets of vacant land simply have no development potential and some derelict buildings are now too dilapidated to be restored economically.

Contamination can also be a major barrier to bringing land back into productive use. Local authorities are unlikely to have the funds to acquire and clean up such holdings, so the suggestion they could re-acquire via compulsory purchase powers and bring such land back into use may be wishful thinking.

Yet the issue of vacant and derelict land and buildings needs to be addressed.

Statistics for the year to March 2018 show there were more than 37,000 empty homes in Scotland, and a corresponding 35,000 homelessness applications in the same period. Given such statistics, there is understandable pressure to find a solution, though the reality is of course more complex.

The most recent Scottish Vacant and Derelict Land Survey (2017) states there are 11,600 hectares of vacant or derelict land in Scotland, although much of this consists of derelict mineral sites and in pockets in rural areas.

Also, the survey deals with larger areas of land, and so many of the small urban sites, which the proposals seek to address, are not included in the vacant land figures. Indeed, there is no central register of land or buildings that may be subject to these proposals, though the numbers are significant enough to merit attention.

The rights of owners must be considered in whatever proposals are introduced by the government: the right to peaceful possession of property is an enshrined human right, although it is not, it seems, an absolute one, and must also be weighed against public interest considerations and the entitlement of persons to fundamental rights like food, housing and an adequate standard of living.

Derelict land and vacant buildings intrude on these rights, but any compulsory sale powers must also give the owner a right to present their side of the story.

Whether or not the problem can be alleviated by imposing such a power, the private sector alone cannot deliver the solution without public investment. Given the constraints on the public purse, it is unlikely these measures will deliver meaningful change, and a concerted, comprehensive programme to foster greater collaboration between government, owners and communities could ultimately prove more fruitful.

David Mitchell is Partner in Shepherd and Wedderburn’s property and infrastructure team