Functionings of Land PDF
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FUNCTIONINGS OF LAND Analysing Compulsory Acquisition Cases from Scotland Jyoti Rao Functionings of Land Jyoti Rao Functionings of Land Analysing Compulsory Acquisition Cases from Scotland Jyoti Rao University of Melbourne Melbourne, VIC, Australia ISBN 978-981-13-1440-7 ISBN 978-981-13-1441-4 (eBook) https://doi.org/10.1007/978-981-13-1441-4 Library of Congress Control Number: 2018949300 © The Editor(s) (if applicable) and The Author(s) 2018 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the pub- lisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institu- tional affiliations. Cover illustration: Modern building window © saulgranda/Getty Printed on acid-free paper This Palgrave Pivot imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore P reface This book is inspired by the “unjust” approach to social welfare as demon- strated through “unfair” compensation models adopted in many cases of compulsory acquisition of land for public infrastructure projects across the globe. While the momentum of social welfare maximization is appreci- ated, there is need to relook at the inequalities in the distribution of ben- efits and burdens among different members of the society. Compulsory acquisition of private land for public projects is a classic example of unequal distribution of burdens, which are concentrated in the hands of those landowners whose share of contribution to the project, in the form of land, is probably the largest. This book initiates the debate on consider- ation of functionings of each affected landowner in the compensation model so that all subjectively valuable functionings of the landowner can be satisfactorily recreated or replaced. These discussions pave way for fairer compensation mechanism, through which is ensured just distribution of benefits and burdens arising from any public project. Melbourne, VIC, Australia Jyoti Rao v c ontents 1 Introduction 1 2 Theoretical Framework 7 3 Case Studies from Scotland 39 4 Conclusion 99 vii L f ist of igures Fig. 1.1 Step-by-step method of qualitative content analysis used in this research. (Source: Rao (2017), p. 313) 4 Fig. 2.1 Positioning “capability and functionings” in the theoretical framework 17 ix L t ist of abLes Table 3.1 Timeline of events for the case of David Strang Steel and Richard Strang Steel v Scottish Ministers, 2014 49 Table 3.2 List of functionings identified under each case study (1997– 2016) 90 Table 3.3 Relative occurrence of discussions of functionings at the Lands Tribunal for Scotland 96 Table 4.1 Loss of financial gains from expected and planned development 104 Table 4.2 Cases of reduction in market value of the subject property due to the negative impact of public works 106 xi CHAPTER 1 Introduction Abstract The introductory chapter initiates the discussion on Sen’s capa- bility theory and its application in the re-examination of value of land to its owner in the context of “functionings.” The chapter states the scope of the book, which is limited to understanding the functionings of land that have been identified as being valuable to landowners in Scotland and are often uncompensated in the process of compulsory acquisition. This is performed through qualitative content analysis (QCA) of 19 relevant case reports from the Lands Tribunal for Scotland. A short description on the method of QCA is presented in this chapter. Keywords Capability • Functionings • Property rights • Compulsory purchase • Compensation • Market value • Compulsory acquisition Functionings and capabilities generated from land, by their owners and the challenge in satisfactorily recreating these through the compensation paid in the case of compulsory acquisition of private land, are the focus of this book. These discussions initiate a new debate on the insufficiency of existing approaches to compensation that are ignorant of the losses of “capabilities” and “functionings.” The relationship between land, owner- ship and well-being of an individual is explained through the identification of various “functionings” associated with the ownership of land in the context of Scotland. © The Author(s) 2018 1 J. Rao, Functionings of Land, https://doi.org/10.1007/978-981-13-1441-4_1 2 J. RAO Re-examination of theories of justice and the approaches to equality by economist-philosopher Amartya Sen reveals the insufficiency of earlier theories in addressing inequalities in the society. While the focus of most theories of distributive justice is concentrated in “just” allocation of scarce resources, Sen (1979) argues that this approach does not eradicate the inequality of human “capabilities” which results in unequal utility. Sen strongly argues for equalization of capability and functionings as a holistic approach to equality. Sen’s capability argument provides strong theoreti- cal reasoning for considering individualistically valuable functionings (or usefulness) generated from land by the landowners, who are unequal in their capabilities. Land permits generation of multiple functions which include those necessary for a good life (howsoever it may be defined). In the context of free market operation where a willing seller exchanges land with a willing buyer, the market value1 of land shall satisfactorily replace or reconstruct all valuable functionings of the original landowner, who will otherwise not sell the land. However, in the process of compulsory acquisition of private land (for public purposes), particularly in cases when the affected land- owner is unwilling to sell, the subjective value attached to the functionings from land may be higher than its market value, and it is not always possible to reconstruct these functionings from its (monetary) market value. While market value of land is an essential component of losses borne by the land- owner, it does not fully encapsulate all valuable functionings which are attached to land. There is need to re-examine losses of affected landown- ers through the application of Sen’s capability theory, and pave way for “fairer” compensation mechanism for the compulsory acquisition of land. The scope of this book is limited to understanding the functionings of land that have been identified as being valuable to landowners in Scotland and are often uncompensated in the process of compulsory acquisition. This is performed through qualitative content analysis (QCA) of 19 rele- vant case reports from the Lands Tribunal for Scotland. As the Lands Tribunal for Scotland is the final arbiter on compulsory purchase compen- sation claims, decisions from this body are considered the best available evidence of interpretation of the existing legislation. It is acknowledged 1 Market value is “the estimated amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arm’s length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion” (IVSC, 2018).
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