Posted by Ilya Somin: The Elizabeth Pascoe Case and the Use of Eminent Domain in Britain: http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239857808
The Spectator, a British conservative magazine, has an[1] interesting article on the use of eminent domain in Britain. It describes a recent case where some 370 Victorian and Edwardian homes were condemned by the British government in order to promote "urban cleansing," as it was called by a government minister. One of the homes in question was owned by Elizabeth Pascoe, a grandmother who [2]successfully challenged the "compulsory purchase order" (the British term for eminent domain) targeting her home in a 2006 court case. The 2006 High Court ruling held that the CPO exceeded the government's statutory authority. A few weeks ago, however, the Court held that CPO is now legal, once the government revised its rationale for the taking. As the Spectator article points out, similar condemnations are becoming common in Britain. Reasonably well-maintained working class and lower-middle class homes and businesses are being condemned on the grounds that they must be removed in order to facilitate urban development. The pattern is strikingly similar to the use of "blight" takings in the United States. What started out as an effort to condemn severely dilapidated or disease-ridden neighborhoods gradually led to condemnation laws that define "blight" so broadly that virtually any property can be condemned, including in such "blighted" locations as downtown Las Vegas and Times Square, a state of affairs I discussed in [3]this article. The British law at issue in the Pascoe litigation is very similar to broadly worded American blight condemnation statutes. It allows the government to condemn any land that is [4]"under-used or ineffectively used." Obviously, almost any property can be described as "under-used" relative to some possible alternative. This gives British officials very broad, almost unlimited, authority to condemn any areas they want. Predictably, as the Spectator article suggests, such unconstrained power is often used to condemn the property of the politically weak for the benefit of well-connected interest groups. Once again, the pattern is similar to that of blight takings in the United States, which I discuss in the last Part of[5] this article. Unlike the United States with its Fifth Amendment takings clause, Britain does not have a constitutional provision restricting the use of eminent domain to "public uses." Under British law, property can be condemned for any purpose permitted by parliamentary legislation. For this reason, it's quite possible that the court decision upholding CPO against Pascoe's home was legally correct. The legislation in question seems broad enough to justify the condemnation of almost any property the government might want. Indeed, Pascoe's latest legal challenge to the CPO apparently did not claim that its purpose was impermissible, but[6] merely argued that the government had failed to meet certain procedural requirements. But even if legally defensible, the Pascoe ruling reminds us that unconstrained condemnation authority is dangerous - on either side of the Atlantic. REQUEST TO READERS: Can anyone point to a copy of the latest Pascoe ruling that is available online? I would like to link to it. References 1. http://www.spectator.co.uk/the-magazine/features/3521696/a-granny-in-the-front-line-against-new-labour.thtml 2. http://icliverpool.icnetwork.co.uk/0100news/0100regionalnews/tm_headline=the-grandmother-who-halted-350m-scheme%26method=full%26objectid=17833768%26page=1%26siteid=50061-name_page.html 3. http://www.law.gmu.edu/assets/homepages/isomin/files/LegalTimes_Blight.pdf 4. http://icliverpool.icnetwork.co.uk/0100news/0100regionalnews/tm_headline=the-grandmother-who-halted-350m-scheme%26method=full%26objectid=17833768%26page=2%26siteid=50061-name_page.html 5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865 6. http://www.liverpooldailypost.co.uk/liverpool-news/regional-news/2009/03/25/elizabeth-pascoe-fails-in-her-latest-bid-to-stop-liverpool-s-edge-lane-scheme-92534-23222282/2/ _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
