Table Of ContentFUNCTIONINGS
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
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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).
