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Compulsory purchase legislation in spotlight

It has been many years since Scotland has had large construction schemes that have been promoted using compulsory powers. In recent years we have been involved in the M77 extension, the Glasgow Southern Orbital and the A92 upgrade.

But, other than these large schemes and smaller road upgrades, farmers and landowners have not dealt with major construction projects promoted by Government for some time.

The new Forth Crossing is the first of the new larger-scale schemes being promoted by the Scottish Government which has had a significant impact on farmers and landowners at either end of the bridge

However, the list of schemes is now growing.

The Aberdeen Western Peripheral Route and the Fastlink from Stonehaven to Peterculter is the next major road scheme at an advance stage of planning.

This is a major construction project but likely to be dwarfed by the commitment and proposals for the dualling of the A9 commencing in 2017 and the upgrading and potential dualling of the A96 from Inverness to Aberdeen.

Whilst the Beauly to Denny transmission line upgrade is different in nature, the legislation remains and many landowners across the route are suffering substantial disturbance as the construction works progress.

The message is in the name ‘compulsory’. The powers vested in the acquiring authority are far reaching and, whilst there is normally consultation and negotiation during the planning part of a scheme, if your land is included in a scheme – particularly a major road scheme through your farm – there are not often many upsides.

It has been recognised by a number of landowners that the Beauly-Denny line, particularly in more remote areas, may provide opportunities if agreements can be reached with the relevant planning authority for the construction of new roads and bridges to provide access to more remote areas that would not have been cost-effective to build – and additionally retain this infrastructure in the long term to provide access for windfarm, woodland and agricultural purposes.

In many cases there will be environmental and business cases for the retention of this infrastructure that will assist in economic development in remote areas, leading to additional rural employment.

However, for the majority of farmers and landowners there are less likely to be benefits resulting from major road schemes.

There are no doubt safety issues, unfortunately regularly highlighted with the mix of agricultural vehicles and both cars and HGVs.

The impact on a farming unit can be significant and there are a number of key things that anyone involved in one of these larger schemes should consider.

Compulsory purchase legislation is only required to put you back financially in the same position as you were before the scheme. You will be compensated for land acquired, in addition to “accommodation works”. These are the provision of works to mitigate the impact of this scheme on your holding.

There are a huge number of items that can fall within this category from additional livestock handling, due to an area of land being ‘severed’from the main farm, bridges, underpasses, drainage, new water supplies and access roads.

You will also be entitled to claim for business impact during the construction period and for other longer-term impacts on your farming business depending upon the scale of land acquired and the restructuring of the farming business required to take account of this.

You may be able to claim for severance if part of the farm is cut off from the rest of the holding and less accessible for daily operations.

You may also be able to claim for injurious affection where land is acquired and this impacts on your business, known as a Part 3 Claim.

This relates to the long-term impact on the property retained by you and the impact on the value of the property due to the scheme.

Compulsory purchase legislation is complex and there are a number of key things that you should consider if you believe that your farm is going to be affected by one of these proposals.

It is crucial that you take action as soon as you are aware that a scheme may affect your land.

Find out about it, gather as much information about the route and nature of the proposals, take advice, go to local public exhibitions detailing the initial details of the scheme.

Remember, you have a right to object and all objections must be considered through a formal process.

Maintain a diary recording your time from the outset of the proposal and the activity that you have been involved in as a result of the scheme.

This is a major piece of evidence required as part of your claims as the scheme proceeds.

Once you have details of the scheme, consider carefully how this will impact on your business, both now and in the future.

This is particularly important on a mixed farm where the area affected may be in crop now but in future form part of the livestock enterprise.

There is usually only one chance to agree accommodation works as the scheme is construction, therefore it is vital you work through scenarios of how the scheme impacts on your farming business and day-to-day operations to ensure that all practical eventualities are considered.

The legislation recognises that farmers and landowners will need to take specialist advice and, within certain parameters, professional fees will be met as part of the compensation claim.

Andrew Wood is a partner in Bidwells, Perth.