Inner House case relating to the compulsory purchase of land required for the Borders Railway. At the centre of the case were certificates of appropriate alternative development issued to developers with an interest in the land (in terms of s25 of the Land Compensation (Scotland) Act 1963). Section 25 certificates specify the classes of development for which the land would be suitable if the compulsory purchase does not go ahead. In this case the certificates stated that planning permission would have been granted for various residential and business developments if the compulsory purchase did not go ahead. Network rail argued that the certificates should have stated that planning permission would only have been granted for the development for which the land was to be compulsorily acquired (i.e. the Borders Railway) which would have reduced the compensation payable to the developers and  appealed to the Scottish Ministers on that basis. However, when they failed to comply with the Ministers’ Reporters’ request for documentation (the certificates and applications) within the time limit, the Reporter concluded that Network Rail’s appeal was deemed to have been withdrawn. Network Rail then made a further appeal to the court.

On a construction of the Reporter’s correspondence with Network Rail, it was found that the documents had been requested and time limits imposed (there was argument to the effect that the Reporter had indefinitely suspended the time limits) in line with the legislation.

In terms of the relevant legislation (the Land Compensation (Scotland) Development Order 1975), the applicant required to “furnish” the reporter with the documents within the time limit. Network Rail contended that, although the documents had not been sent to the Reporter, they had been available on the planning authority’s website and should be treated as being “furnished” in terms of the legislation. However that contention was rejected by the court:

“The court is not satisfied that the placing of material on a website, without something more, is sufficient to amount to the “furnishing” of that material to another for the purposes of statutory interpretation. There may be circumstances in which such information may be furnished by, say, providing a hyperlink to a website, where it has been made available, or uploading the information to a particular website at the request of the intended recipient. Where a party does nothing, however, there is no act which might be construed as “furnishing” the information to anyone. The [Reporter] cannot be expected to seek out the information required … on the basis that it may or may not be in the public domain.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case concerning a compulsory purchase order (CPO) made in relation to property on Argyle Street/Robertson Street in Glasgow.  The owners of the properties which were subject to the CPO raised an appeal in which they sought to quash the decision of the Scottish Ministers to confirm the CPO.  The CPO had been issued as part of a back-to-back scheme between the Council and a developer for the conversion of the property into, amongst other things, a hotel and apartment complex.

However, the scheme had fallen through when the developer became insolvent and the Irish Government’s National Asset Management Agency failed to re-instate a guarantee by Anglo Irish Bank.

Although all of the parties were then agreed that the CPO should not take effect, there were two practical difficulties:

1. there is no statutory procedure by which the Ministers can rescind a decision made by them to confirm a CPO; and
2. there is no statutory procedure by which an acquiring authority can withdraw a confirmed CPO.

This meant that the CPO would remain valid until it expired by the passage of time (on 7 September 2013) adversely affecting the interest of property owners (and that of their heritable creditors) in the property.

The Council therefore granted an undertaking which extended to successors in title confirming that it would take no further steps to acquire the land subject to the CPO.  The court took the view that, in this case, that was the best means by which the Council could give effect to its intention not to implement the CPO. After considering the authorities and noting that it is possible for a local authority to abandon its rights under a CPO by its conduct, the court found that, all the more so, it was possible for it to abandon its rights by express words.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.