Scottish Government publishes revised Crichel Down Rules

On 13 October 2011 the Scottish Government published Circular 5/2011 setting out the revised arrangements under which surplus government land acquired by or under threat of compulsion should be offered back to former owners or their successors (commonly known as the Crichel Down Rules). The Circular replaces the previous arrangements contained in Circular 38/1992.

The Rules

The Rules apply to the disposal of land by government and other public bodies in Scotland where the land was acquired by or under threat of compulsory purchase. As a general principle the former owner or their successor (who would have acquired the land under a will or through intestacy) should be offered a first opportunity to repurchase the land at market value. The Rules provide for various exceptions, for example if the character of the land has materially changed since acquisition, if the area of land is so small that its sale would not be commercially worthwhile, or if more than 25 years have passed since acquisition. The Rules also detail the procedures to be followed in offering the land to former owners and in determining market value.

Although the arrangements are non-statutory the Circular is clear that government departments should adhere to the Rules. Local authorities and statutory undertakers are also “expected” to follow the Rules and the Circular “recommends” adherence by privatised companies to which formerly public land has been transferred.

Changes in the Circular

The Circular does not radically revise the Crichel Down Rules. It updates terminology and references that were almost 20 years old and provides some welcome clarifications. For example, what constitutes a “material change” in the character of land, and that the Rules do not apply to disposals of land for the purposes of public/private partnership projects or from legacy PPP/PFI projects.

Some detailed amendments and additions are also worth noting. For example provisions for the transfer of the land on Ministerial authority to a local authority or other public body for reasons of public interest no longer state that this should be only in very exceptional cases or for strong and urgent reasons. The exception relating to small areas of land no longer refers only to agricultural land. Similarly, the procedure for agreeing terms of re-sale now specifies a 3 month period to agree the price, followed by reference to an independent expert for determination. As before, the particular circumstances of any proposed disposal will have to be considered against the detailed Rules.

Future changes

The new Circular is part of a wider Scottish Government review of compulsory purchase processes. Revised guidance on the appropriate and effective use of compulsory purchase powers is expected later this year. The Scottish Law Commission’s current law reform programme includes a review of compulsory purchase law. However any change to the substantive law of compulsory purchase or compensation is likely to be some years away.