Comment: Forced land sales must start from a fair bedrock

'Special purchasers' would be in a position to profit handsomely from forced sales, says Alan Cook of Pinset Masons. Picture: Contributed
'Special purchasers' would be in a position to profit handsomely from forced sales, says Alan Cook of Pinset Masons. Picture: Contributed
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The Scottish Government is to push ahead with the introduction of Compulsory Sales Orders (CSO) which will allow the forced sale of long-term vacant or derelict land. CSOs are intended to give planning authorities an alternative method of bringing small sites and buildings that have been unoccupied or derelict for a long period of time back into productive use by requiring their sale by public auction to the highest bidder.

Housing and planning minister Kevin Stewart recently confirmed in a Parliamentary written answer that the government was committed to bringing forward proposals before 2021 to introduce a CSO mechanism “to help tackle the blight of abandoned buildings and small plots of land in our towns and communities”.

A 2018 report by the Scottish Land Commission (SLC), now with the government for consideration, envisages that CSOs should be used as a “last resort”, where other attempts to bring a site back into productive use have failed.

The SLC proposal is predicated on the notion that the various existing powers which can be used to deal with long-term vacant and derelict land are complicated and time-consuming, but the evidence points to the envisaged CSO process as being far from straightforward either.

Official figures show there are around 11,600 hectares of vacant or derelict land in Scotland. Sites that may be appropriate for CSO action would usually be identified by individual council officers and councillors, although community bodies would also be able to ask a planning authority to investigate a site for a CSO.

The SLC report recognises that a CSO would involve “the state directly interfering with an individual’s property rights” and for this reason planning authorities would be required to build “a very strong case” before taking action. They would also be required to give the property owner the opportunity to provide evidence of attempts to bring the site back into productive use, reasons why this is not possible or other extenuating circumstances.

Given the legal issues and the evidence base involved, I wonder if local authorities would have the appetite, resource and expertise to bring forward a CSO. It could be argued that, given the budgetary and resource constraints, it is unrealistic to expect them to focus on building watertight cases before initiating action.

Thought will need to be given to the position of the purchasers of these compulsorily-sold properties. “Special purchasers” – those who already own adjoining land or other interests which the sold land will complement – would be in a position to profit handsomely from this forced sale. Will this simply be allowed to happen, depriving the seller of its right to benefit from that, or should an owner forced into selling land by way of a CSO be compensated if the purchaser profits from an increase in the value of the land as a result of the sale?

If CSO measures ignored the question of whether a forced sale should also allow for payment of future overage to the seller if the purchaser profits from an increase in the value of the land as a result of the sale, this would feel like the seller was being financially penalised for their previous decision not to sell, with potential human rights repercussions. On the other hand, it could be argued that is not the point of the policy, which is simply to unlock the land for use in some way.

Leading up to the introduction of CSOs, the Scottish Government will need to develop its plans into something suitably balanced, which gives a robust structure to the process for determining which properties will be subject to a CSO, and which also respects the rights of landowners.

These issues must be resolved to create a fair system which actually achieves its objective of freeing up vacant or derelict land, and the property sector will take a close interest and be keen to engage in the consultation process.

- Alan Cook, partner and commercial property expert at Pinsent Masons