Compulsory Purchase

People who live in disinvested parts of cities should not be required to live in sub-standard housing, poor environments and with few services. Neither should they be dispossessed of their homes, businesses, livelihoods, schools or services in the name of regeneration as a supposed ‘fix’ of that disinvestment. Currently in Scotland, these are the two options seen as available to combat urban poverty and disinvestment: either be left alone to the vagaries of urban land markets, or be cleared off to make way for a ‘better class’ of community that will bring new investment. By presenting this stark and brutal choice, Scotland’s regeneration industry is pursuing the most dispossessory and  socially unjust form of urban regeneration.

It does not have to be that way. There are many possible urban worlds, many possible alternatives to reviving disinvested urban areas. We need a radical new approach to regeneration, one that reclaims the word and its meaning from the slippery slope to gentrification. This article seeks to begin a conversation, and hopefully some action, in Scotland about what is wrong with urban regeneration and what the alternatives might be.

Land and property ownership matters to any analysis, and therefore any left politics worth its salt, of the wealth distribution, class relations, and operations of power in a society. Land is the basis of the means of production. The question, then, of who owns it is clearly critical to any understanding of the contemporary structure of accumulation, and the specifically urban and geographical processes of disinvestment and reinvestment. Scotland is of course no exception, the ‘property’ of Scotland, who owns it and where they’re from surely remains one of the most hotly debated issues in our country today. The means by which land owners come to own land matters too.  Andy Wightman sees this history as a series of six ‘land grabs’. He shows how different mechanisms and methods are used to wrest common lands into private ownership, mechanisms that are neither morally nor legally defensible. The consequence, as Wightman documents, is a land ownership pattern across Scotland dominated by the landed aristocracy (still alive and well), institutions such as pension funds and insurance companies, and overseas investors.

I am going to start in a slightly unusual place for a discussion about regeneration and urban justice – that of a little known, highly technical regulatory mechanism used to dispossess and displace in the name of regeneration. This mechanism is compulsory purchase. This may seem a strange way to enter a debate that is really about the right to the city. Private property is not a subject close to the heart of the left. It is too close for comfort to land values, profit-making, and speculation. But this rather unique form of social displacement is lurking on the shadowy margins of the economic and social restructuring of Scotland. Nobody notices, because there is little media interest. And nobody campaigns, because disputes about CPOs look and smell too grubby, too much about property prices and greed. Yet compulsory purchase demands attention because it constitutes a new wave of dispossession of working-class families, and a new way for neoliberal governments and propertied interests to increase their profits through urban development. It is at least in part the skewed geographical and class distribution of its use that calls us to place this technical regulatory power within our analyses of uneven capitalist urban development. When we do that, as I will try to demonstrate here, we will see precisely how and where CPOs are one of the tools, alongside tenant evictions and a conscious strategy to collapse social housing provision, by which governments are seeking to restructure urban neighbourhoods through ‘regeneration’.  Consequently, compulsory purchase must surely become a question for urban struggles and campaigns, for what I would like to call, following Chester Hartman (2002) the ‘right to stay put’. Our campaign of the same name aims to bring these matters much more squarely into the public eye.

There are two critically important matters to understand: first, that CPOs are being used deliberately as part of an overall strategy of land dispossession and re-concentration of ownership; and second, that the process of administering CPOs is so profoundly brutal and unjust that it should call into question their use in all but the most extreme of circumstances. In Glasgow, for example, CPOs are commonplace in the East End but unheard of in the West End. They are deliberately used in regeneration of ‘deprived’ areas, but only against working-class families, ordinary householders and shop-owners. CPO is never utilised against large companies, property investors or developers, and hardly ever against slum landlords. The Scottish Government is currently reviewing its CPO guidelines and policies, employing the usual suspects in the property industry, including the Royal Institute of Chartered Surveyors, to sell its virtues as an efficient tool for regeneration. We should expect, then, that CPO use is set to increase. Gaining a full appreciation of this brutal dispossessory work requires an understanding of the procedural minutiae of how a CPO process actually operates. But an article on the procedural minutiae of compulsory purchase is likely to make for a very dull read, so I will try to show this by drawing on examples of actual CPO cases in Scotland today.

What, then, is compulsory purchase, or a CPO, and how does it work? Called different things in different places (such as expropriation or eminent domain), compulsory purchase is the reserved right of the state to acquire property or land from its title-holders without their consent. In theory, in a democratic state, the reasons for its use should of course be public interest reasons. The state in that sense must have a reserved right to compulsorily acquire a private interest where that private interest is a threat to the public interest (for example rogue or slum landlords), or where private interests may act perniciously to prevent the delivery of necessary public infrastructure in order to make a private gain (owners who hold out for a better price). For these kinds of reasons, it is an important state power supposedly serving a collective, public interest.

The problem is that compulsory purchase is not used for public interest, but instead for private gain, to recapitalise the value of urban land. There is, for example, no test for measuring public interest in the legislation governing CPO use, and no legal avenue at all for challenging a CPO on these grounds. In the slippery neoliberal world of supply-side economics, everything can be claimed as ‘in the public interest’ – even a golf course and luxury housing development on an environmentally sensitive beach dune in northern Scotland. But this aspect of compulsory purchase use is not new, in fact it constitutes the roots of this peculiar state power.

Modern compulsory purchase powers in Scotland developed in the early nineteenth century, when Scottish cities, particularly Glasgow, were rapidly growing. During this time, public works were heavily promoted and delivered by private companies, and it was these interests that pushed for a codification of state powers to acquire small landholding interests to deliver major infrastructure projects. The plethora of Acts of Parliament that had resulted from this pressure from the private sector eventually resulted in one consolidated Act, the Land Clauses (Consolidation) (Scotland) Act of 1845 which remains the basis of compulsory purchase legislation in Scotland today. In the years since, compulsory purchase use had waned, and tended to be reserved for narrow state-defined purposes. Yet the power of private interests to lobby the state to use its compulsory purchase powers remains intact and is now being revived in urban development schemes across the country. Most famously and recently, Donald Trump has demanded Aberdeen City Council to use its powers of compulsory purchase to deliver the land titles of farmers and homeowners who are currently refusing to sell their land to him, so he can build his luxury housing development.

This one high-profile example is but the tip of the iceberg. CPOs are now used routinely in what is euphemistically called ‘regeneration’. Hiding beneath the slippery title (just like the ‘urban renewal’ in 1960s America), these are in essence clearance projects, a state-led class remake of urban neighbourhoods. CPOs are used to transfer land ownership from individual homeowners to large companies so the latter can make profit from urban redevelopment. An example from Easterhouse, in Glasgow’s East End schemes, indicates how this works. A site of predominantly social housing in the area of Stepford Road captured the attention of the regeneration industry. The area became the subject of a regeneration programme to demolish the existing Council houses and rebuild new homes with a mix of socially rented and private market housing. But some people had purchased their homes under the right to buy scheme, and so were in private ownership. Council used its powers of compulsory purchase to wrest the title from individual households to transfer to Arlington Property Developments.  Sheena Sweeney and her family were one of those households. Seeking not to be displaced by the regeneration project, they objected to the CPO and resisted various attempts to bully and cajole them out of their home. They were eventually evicted by Sheriff’s Officers in 2002, and the building was demolished soon after. Yet the site remains, to this day, vacant. Arlington Property Developments , a private development company with whom Glasgow City Council entered into a development agreement with back in 1998, are seeking to build a large residential development. In this case, local residents were dispossessed of their homes both by CPO and tenant eviction, to create a new development plot for private developers to benefit.

It is the legal framework of CPOs that enables this kind of phenomenon to take place. Divested in local authorities and a range of public agencies, compulsory purchase powers are written into general enabling legislation to allow the public authorities who are responsible for implementing those Acts the power of expropriation. For example, the Town and Country Planning (Scotland) Act 1997 allows a planning authority (usually a local council) to:

“acquire compulsorily any land in their area which –

(a)    is suitable for and is required in order to secure the carrying out of development, redevelopment or improvement;

(b)   is required for a purpose which it is necessary  to achieve in the interests of the proper planning of an area in which the land is situated” (S189[1]).

Such clauses above offers local authorities almost carte blanche: virtually anything can be ‘required’ for planning and development purposes.

Trump’s multi-million pound golf course and luxury housing development in Aberdeenshire is an excellent example of the slippery nature of this legal framework. Precisely how is it that such a development could ever be considered in the ‘public interest’? That particular case is argued through the twin desires, the holy grail of local economic development: jobs and tourism. For jobs and tourism, it seems we are willing to declare anything in the public interest. Hence, it becomes tenable for Aberdeen Council to consider using its powers of compulsory purchase to dispossess its citizens and hand over their homes and livelihoods to Donald Trump. In this case, the farms and homes of local people, have been compulsorily acquired as they ‘stand in the way’ of Trump’s plans.

On top of this blatant structural injustice, the administrative process of a CPO, is itself violent and deeply unjust. For those who find themselves on the end of one, a CPO usually ends in an eviction order or a Sheriff officer banging at the door, leaving people homeless, broken and without livelihood. One of the principles upon which CPO legislation rests is that it is a power of ‘last resort’. In that sense, it should only be used where there have been genuine negotiations to voluntarily acquire a property but these have failed to achieve a price reasonable to the public purse. The evidence indicates that this principle only applies to certain kinds of property owners: property developers or investors, large companies with significant land holdings, and middle or upper class individual homeowners living in wealthy parts of the city. For these special classes of people, the principle of negotiation first always stands. The best evidence of this is the property deal done by Glasgow City Council with property development company Springfield Properties, owned by city businessman Charles Price. Springfield Properties purchased vacant former industrial sites along Springfield Road Dalmarnock in 2005 and 2006 for a total of £3.37million. The land is central to the Athlete’s Village site, though Price claims not to have known that this might be the case when he purchased. We should note that Dalmarnock was on the public record as a preferred site for the Athlete’s Village by this time, but perhaps Mr Price doesn’t follow such things very closely? In 2008, Glasgow City Council struck a deal with Springfield Properties to purchase the land from them as a vital part of the proposed Village site. We collectively paid to Mr Price, via Glasgow City Council’s planning office, a total of £19million – around a 409% increase on the overall land value in a couple of short years.

Meanwhile, at exactly the same time in 2008, across the road in Ardenlea Street, the Jaconelli family and some shop-owners received letters from Glasgow City Council that their land was also required for the Athlete’s Village. The letters provided no information about what to do or how to respond, so the recipients simply began by telephoning and writing to the person named at the bottom. They were met with a wall of silence from Council. Months of nervous waiting, unreturned phone calls, and unanswered letters, passed for the Jaconelli’s and the shopkeepers. Eventually, late in 2008, a Council officer was seen pasting up Council notices on the lamp-posts. A compulsory purchase order was underway. None of these people were offered a genuine opportunity to discuss voluntarily selling their properties.

It is possible to lodge an objection to a CPO, and this is what the shopowners, the Jaconelli’s (and myself as a third party objector), did in mid-2009. Objections to CPO are allowable only on limited grounds: they must only object to the necessity of the order for the development to take place. In other words, you can only argue the CPO on the basis that the development could be built without the need for these particular parcels of land. Naturally, developers are uncannily clever at designing their developments so as to sew up the argument there. Neither the development itself, nor the process by which the CPO has been undertaken, are grounds for objection. Objections to a CPO require a public inquiry into the CPO. In the case of the Athlete’s Village CPOs, no public inquiry was held – instead we were given an informal ‘hearing’. Perhaps it was due to the national significance attached to the Games-related development, but we found ourselves across the table at this informal hearing from Glasgow City Council’s QC armed with boxes of documentary evidence.  It was no surprise that the Reporter recommended to Scottish Government that the CPO should proceed, a stage known as ‘confirmation’.

Once a CPO is confirmed, the district valuer arrives to value the property and recommend to Council an amount for compensation (it is no longer called a purchase price by this stage). Compensation must also include disturbance, home loss, business or income loss. The acquiring authority is also required to pay the legal expenses of those subject to CPO, but only in relation to securing the compensation. Legal expenses incurred outside of the negotiation about compensation must be met by the individual.

This is where new levels of injustice arise, because the law is written to require the district valuer to value properties as if there was ‘no scheme’: in other words, as if the purchase was not compulsory, as if there were a willing seller and a willing buyer and the property was not blighted by a development proposal. They value, then, on the basis of mortgageable value – the amount a bank might lend a prospective purchaser to buy the property. What is more, the valuation takes place on the basis of the state of the property and its surrounds after the CPO confirmation. For the Jaconelli’s and the shopkeepers, this of course meant their properties were almost worthless. The buildings were derelict, having been systematically and deliberately disinvested since the early 2000s by the housing association and then Glasgow City Council. Consequently, the figures that came back as ‘compensation’ from the district valuer were extremely low, nowhere near sufficient for people to move on and replace their homes or shops ‘like for like’ and adequately compensate their loss of home, livelihood and income. Low valuations of compensation for CPO victims are the norm, and the process available for disputing compensation so lengthy, complex and specialist most people just accept what is offered and walk away.

Once a CPO is confirmed, the acquiring authority has limited time period to place a ‘general vesting declaration’ over the property, which is when the authority formally takes over the title. No money or keys change hands, a Sheriff’s officer simply delivers a notice to your door that you no longer own your property and you must get out, even if you have nowhere to go and no money to get there with. Even at this stage, the acquiring authority is under no legal obligation to pay you the compensation it has determined you are owed (whether you agree with the amount or not). The acquiring authority can simply hold onto your compensation. Your property title has been transferred someone else, but no purchase amount has yet been paid. It is difficult to imagine, particularly as property is usually the most significant thing an ordinary household will ever own, any other market transaction where you asked to hand over the goods before a price has even been agreed.

Disputing what the district valuer says is straightforward in theory but in practice is far more difficult. In theory, you hire a surveyor to argue your case. However, surveyors don’t terribly much like representing ordinary, dispossessed households, not to mention that most of the big surveying properties you might turn to for this work also work for local authorities and government in a whole host of different ways. It is a close establishment in this industry. What happens then in practice is that if you are lucky enough to find yourself a surveyor who will act for you, they are very likely to just give in to what the district valuer offers at the first negotiation and recommend you take what is offered. Most surveyors suggest that if you want to take the negotiations further, you’ll need to find somebody else.

Another option of disputing what the district valuer says,is  to sit tight, and continue to occupy your property. This is what the Jaconelli family, and some of the shopowners along Springfield Road did in 2009. They decided to stay put, and request that their rights to stay put be recognised and they be treated in the way that citizens, especially those shouldering a significant part of the burden of delivering a major ‘public’ project, should expect to be treated – with respect, dignity and fairness.

Instead, they were called to the Sheriff’s Court to face Council’s QC (again). Margaret Jaconelli appealed the Sheriff’s decision to evict her and her family, but lost her case with the Sheriff-Principal in 2011. Meanwhile, the shopowners had already been evicted, some forced away when their shops were attacked by arsonists, others found that their shops had been broken into by the Sheriff’s officers and notices of their eviction had been pasted to the walls. In March 2011, the Jaconelli family and their supporters waited anxiously in a show of protest at their Ardenlea Street home. Sheriff’s officers arrived in an attempt to evict them but were sent away by a peaceful protest of family and friends linking arms at the door of the building. They returned a few days later, in the wee hours of the morning before dawn, with sledgehammers, over 80 police, and 15 riot vans. The small group of tired protesters keeping watch at the front door were surprised as the gates of the Athlete’s Village construction site were suddenly flung wide to let this posse of the heavy hand of the state through to violently wrench Margaret and her family from their home of more than 30 years.

The social, economic and health impacts of forced displacement are well known and thoroughly documented. Urban renewal programmes in the USA during the 1960s caused untold damage to the fabric of people’s lives as they uprooted people from their homes and cast them aside like so many weeds in a field. Mindy Fullilove calls this phenomenon ‘root shock’ – the stress reaction to the loss of one’s “emotional ecosystem”. These impacts include poor health, early death, anxiety, depression and suicide. All of these are present in Scottish communities today because of forced displacement, some of which is caused by the use of CPOs.

There are, then, some basic questions we must ask. Is displacement ever in the public interest? Why are CPOs used with such stark geographical and class discrimination? Why are we allowing governments to spend inflated sums of public money in large back-room land deals with propertied interests in the name of regeneration? Why are we simultaneously standing by watching ordinary people evicted and dispossessed in the name of our public interest?



One response to “Compulsory Purchase

  1. Pingback: Compulsory Purchase | Housing Solidarity·

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