Compensation for public developments and building work

This page explains your options if the council, Scottish Government or a public authority is planning construction or development work near your home. It looks at compensation you may be entitled to for noise or loss of property value, and what you can do if you want to move away. Your course of action will depend on how badly your home is likely to be affected.

What is a public development?

A public development is construction work that is planned by:

• the council

• the Scottish Government

• a railway company

• a utility company such as Scottish Gas, Scottish Power and Scottish Water.

On this page, we use the example of the council.

Examples of public developments include:

• a new road or motorway

• a new railway line

• a wind farm or power station

• a new shopping centre built by the council

• an extension to an airport

• the regeneration of an area, usually involving the demolition of existing run down properties.

What can I do if my home is affected by public development construction work?

If your home is likely to be affected by the development, there are several things you can do:

• If you don't think the development should go ahead at all, or you think it should be moved to a different area, you can object.

• If the noise, traffic and dirt caused by the works are going to affect you, you can ask the council to pay for you to move out while the work is going on. You may also be able to claim compensation.

• If the works cause any damage to your home, you can claim compensation for this as well.

• In some cases, you may decide to sell your home and move. If you can't get a fair price on the open market because of the works, you may be able to get the council to buy your home.

• You can also make comments in support of the development, for example, if you think your area will benefit from it.

How do I comment on a development?

If the council is planning a development in your area that requires planning permission, you have a right to comment on the proposal. You'll have to do this formally and put your comments in writing. You can comment if you are an owner or a tenant. The page on objecting to planning and building work explain the process in more detail.

Some developments carried out by public authorities such as the Scottish Government or utilities companies do not need planning permission. This means you won't be able to comment on the plans. This could include:

• extensions to hospitals

• some road building schemes

• some developments by utilities companies.

However, if the development involves the compulsory purchase of people's homes (for example, if a new railway line or motorway is being constructed and people's homes are in the way), you will have the chance to comment, and object if necessary. Read the section on compulsory purchase orders to find out how the CPO process works and how you can object.

If the development requires an environmental impact assessment you'll also be able to comment on that - the page on objecting to planning and building work has more on this.

What if the council wants to buy my home?

In order to carry out the development work, the council may need to buy your home from you. If you aren't willing to sell voluntarily, it can force the sale through using a compulsory purchase order (CPO). Read the page on objecting to a CPO to find out what you can do if you don't want to sell.

What if the work is disturbing me with noise or dust?

If noise and dirt from the development work is making your life a misery, you may be able to claim compensation for this. You must make your claim while the work is going on. Speak to your solicitor if you're in this situation.

What if I need to move out while the work is going on?

If the work is seriously disturbing you and affecting your quality of life, you may need to move out until it's finished. In some cases, you may be able to get the council to pay for you to stay somewhere else while the work is going on - this applies to both owners and tenants. However, you'll need to prove that it's impossible for you to carry on living in your home because of the work: for example, because you can't get in and out of your home, or your water, gas or electricity has been cut off.

Can I make the council buy my home?

If you own your home, you may wish to ask the council to buy your property so you can move away. This may be the case if:

• the council is planning to buy your home using a compulsory purchase order (CPO) at some point in the future, or

• you can't sell your home on the open market because of the development, or

• the value of your home has dropped significantly because of the development, or

• your home will be badly affected by the planned work, for example, if a new airport extension or motorway will make the area you live in noisy and polluted.

You may be able to persuade the council to buy your home by writing to them and explaining your situation. Otherwise, you may be able to force the sale through by serving the council with a 'blight notice' - the page on blight notices explains this in more detail. If this fails, you may still be able to claim 'injurious affection compensation' (see below).

What if my home is damaged or loses value because of the development?

If your home loses value because of the development itself, you may be able to claim injurious affection compensation. There are two situations in which you may be entitled to claim this:

• if your home has lost value due to the development itself, and

• if your home has been damaged by the construction work.

If you find that the development has made your home uninhabitable or you can't sell your home on the open market as a result of the work (for example, due to excessive noise and pollution), you may be able to sell your home to the council (see 'can I make the council buy my home' above).

Loss of value due to the development itself

You may be entitled to a payment if:

• the development in question is:

• a new road, or

• a new carriageway on a road, or

• an airport extension, and

• the loss in value is caused by the finished development itself, and not the construction of the development,

• the loss in value is due to physical factors caused by the development, such as increased noise, vibrations, pollution, fumes, smoke, smells or artificial lighting.

So, for example, if a motorway is built outside your house, you may be entitled to claim injurious affection compensation because of the noise, fumes and vibrations caused by the traffic, or because the lights on the central reservation shine in through your windows.

Damage by construction work

You can also claim injurious affection compensation if your home is damaged by the work itself, for example, if vibrations or excavation work cause big cracks to appear in your walls.

If you're worried about damage to your property, it's a good idea to get a full survey done before the work starts. If your home is damaged by the construction work, this will prove that the problem wasn't already there. Bear in mind you will need to pay for the survey at the time it's done, and you won't get your money back unless your compensation claim is successful. Surveys can be expensive so make sure you get a quote up front. You can instruct a surveyor yourself or your solicitor (if you have one) can do it on your behalf.

How much compensation will I get?

The compensation you get should be the same as the loss in value to your property. This is the difference between the value of your home with the new development and the value your home would now have if the work hadn't been done, not the value your home had before the work started or the price it would have sold for on the open market before the work started. If the council has provided you with sound insulation (see below), the cost of this will be taken out of your compensation.

When should I claim?

Before you can make a claim, you need to wait a year from the date the development is finished and comes into use. This is to give you time to see how the development is affecting your property. You then have six years to make a claim, although it's best to do so as soon as possible. If you need to move before the year is up, you may be able to put in a claim in advance (see 'how do I make a claim?' below).

How do I make a claim?

Claiming injurious affection compensation is complicated, so you'll need to talk to a solicitor or surveyor before taking any action. They will be able to advise you on how to proceed. You can find a solicitor through the Law Society of Scotland and a surveyor through the Royal Institute of Chartered Surveyors Scotland (RICS).

If the council refuses to give you compensation, or if you're not happy with the amount you're offered, you can take your case to the Lands Tribunal.

Can I get sound insulation if the new development is noisy?

The proposed work may make your home very noisy, for example, if the council is building or widening a road near your home, leading to increased traffic, or if a new airport runway or extension is being built in your area.

In these cases, you may be able to get the council or public authority to pay for sound insulation for your home, such as double-glazing, double doors or Venetian blinds. Both owner-occupiers and tenants can apply, but if you're a tenant, make sure you speak to your landlord first, as they may wish to put in the claim. Bear in mind that if you live in a conservation area or listed building, you may need to get listed building consent to make these alterations.

How do I apply for sound insulation?

You'll need to write to the council or authority responsible for the development, explaining how the noise is affecting you, and asking for sound insulation to be provided. If the authority agrees that the noise levels are unacceptable, it will either carry out the work itself, or offer you a grant to arrange the work yourself.

If you're being disturbed by noise it can be really upsetting but try to stay calm when you're writing your letter and stick to the facts. For example, you could include information on:

• times and dates on which the noise affects you

• how often it affects you (for example, all day every day or twice a week)

• how it affects you (for example, if it keeps you awake during the night).

Can I get sound insulation if I live in a mobile home?

If you live in a mobile home that's affected by noise in this way, you won't be able to get sound insulation, but you may be entitled to compensation. Again, you'll need to write to the council to apply.

What if the council turns down my request for sound insulation?

If you have problems getting sound insulation, speak to an adviser at your local Citizens Advice, or get legal advice from a solicitor. They may be able to negotiate with the council on your behalf.

Where can I get help and advice?

Planning Aid for Scotland offers free, independent advice to individuals and community groups on all aspects of Town and Country planning and related issues. You can also get information and advice from the council's planning department and your local Citizens Advice.