Discussion paper on compulsory purchase
Scotland: Scottish Law Commission
Discussion paper on compulsory purchase
Scotland: Scottish Law Commission
The statutory framework within which compulsory purchase is carried out is both a consequence and a catalyst of the great expansion of the national transport infrastructure in the late eighteenth and early nineteenth centuries. In particular, when railways became a practicable mode of transport, a large number of different companies sought Parliamentary approval for new lines up and down the country. The manner in which this was done was by seeking a private Act of Parliament. Every Bill for such an Act had to specify the course of the proposed railway. In order to prevent private landowners either blocking development completely, or holding the promoter to ransom, it was also necessary to provide for the compulsory acquisition of the necessary land, with appropriate arrangements for the assessment of compensation. Since the procedural and compensation arrangements, once refined in some of the initial statutes, did not alter much, Parliament was repeatedly being asked to debate and pass legislation, large parts of which were more or less identical from Bill to Bill. Accordingly, the 1845 Act set out the procedures for implementing compulsory purchase, the authorisation for which had previously been made by a separate piece of legislation directed specifically at a particular project. The application of a common set of procedural provisions is achieved by providing that the 1845 Act is incorporated into the authorising legislation. It is possible for later legislation to adjust the terms of the 1845 Act, as they apply to a particular project. But it would require a specific provision in an authorising Act to disapply the terms of the 1845 Act from the project in question. Many such Acts do in fact disapply large parts of the 1845 Act, and replace them with other provisions. Often that is done because the procedures set up in the first half of the nineteenth century no longer seem appropriate in modern circumstances. It is Commission’s hope that the Final Report, and the draft legislation which are they intend to attach to it, will obviate that requirement in the future. The Commission’s intention in undertaking this project is therefore to replace the diverse, overlapping and confusing layers of primary legislation - much of which survives on the statute book long after any use of it has ended -with a modern, comprehensive, statutory restatement.
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