We may differ over which projects proceed, but it’s widely accepted that the UK needs investment in infrastructure, to bring growth, provide for future generations and address climate change.
But the statutory and other authorities that tend to undertake larger schemes should respect the rights of occupiers who find themselves subject to either a compulsory acquisition or the imposition of a scheme on their land.
The use of compulsory acquisition and related powers is enshrined in a variety of legislation ranging from the Land Compensation Act to Flood Protection Schemes, the Electricity Act, the Electronic Communications Code and many other acts of primary and secondary legislation that confer rights to statutory bodies and even private companies.
When a public body determines to commence a scheme, it notifies the affected party, who has to follow a set procedure in order either to object to the scheme or to engage with the authority in the hope that they will be adequately and properly compensated.
However, when there is a dispute or even a variance of opinion, the landowner is sometimes left bereft of support or funding to protect their position. We have recently been involved in cases relating to flood prevention schemes which have taken more than 10 years to reach settlement with the local authority. Due to the actions of the local authority, we have struggled to find a solution that is both affordable to our client and offers a realistic pathway to a satisfactory settlement.
However, while local authority and public bodies have the power to delay and obfuscate well before the first shovel breaks the soil, uncertainty can leave a landowner subject to financial stress and business disruption.
They may be forced to accept a lower than fair settlement in any litigation in order to avoid financial ruin following an order for their own legal costs and possibly those of the acquiring authority. This is a particular risk in cases under the Electronic Communications Code, where landowners challenge often much larger, private telecommunication companies.
One way to address this power imbalance would be to require an acquiring authority to fund occupants’ professional and legal advice – rather like the accused in criminal cases having the right to proper representation, whether or not they can afford it.
In one case in the North of Scotland, our client was forced to accept a much reduced settlement that did not reflect the impact of a scheme or the business losses incurred, following significant delay on the part of the acquiring authority. Sadly the client died shortly after the claim was settled.
In my view, legislation enabling infrastructure projects, however well intentioned, is drafted in such a way as to favour the acquiring authority too strongly. Even then, affected parties should be able to pursue valid and reasonable claims without the pressure of unfair risk.
As we embark on a period of increased public spending on infrastructure work, lawmakers should balance the scales a little less in favour of the State and more in favour of the people endeavouring to run their businesses and lives without undue interference from the powerful.
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