Crichel Down Rules in terms of the Repurchase of the Compulsory Purchased Land by the Former Owner
The Crichel Down affair that occurred in England had important consequences regarding political responsibility of ministers and ombudsman institution, and it also set ground for Crichel Down rules, which constitute the procedure for repurchase of compulsorily purchased land by former owner. Rules regulate that the land that was compulsorily purchased or acquired through purchasing method is surplus and determined to be disposed of by government should first be offered to former owners or their successors. Although rules have the potential to fill a significant gap in terms of purpose, due to absence of a provision regulating the right of the former owner to reclaim in current legislation, some criticisms are directed at the rules. The most serious criticisms directed at rules that impose mandatory compliance for some institutions while leaving it to discretion for others is perhaps their lack of legal basis. As it stands, rules lack granting individuals a right that can be asserted and protected by law. The rules created as a guideline by a ministry in England evolved haphazardly over time, leading to lack of unity and consistency in implementation. Failure to clearly define certain exceptions where rules will not be applied and use of exemplary methods for some exceptions led to debates about arbitrary enforcement. This study will provide information on compulsory purchase and repurchase of compulsorily purchased land and then will examine Crichel Down affair, its effects beyond compulsive purchase law, and Crichel Down rules that appear as its effect on compulsive purchase law.
Kamulaştırılan Taşınmazın Eski Malik Tarafından Geri Alınmasına Kaynaklık Etmesi Bakımından Crichel Down Kuralları
İngiltere’de meydana gelen Crichel Down meselesi, bir yandan bakanların siyasi sorumluluğu ve ombudsmanlık kurumuna dair önemli sonuçlar doğurmuş, diğer yandan kamulaştırılan malın eski malik tarafından geri alınmasına ilişkin prosedürü oluşturan Crichel Down kurallarına zemin hazırlamıştır. Basit anlatımla kurallar, kamulaştırılan ya da kamulaştırma sürecinde denenen satın alma yöntemiyle elde edilip ihtiyaç fazlası haline gelen ve idare tarafından elden çıkarılacağı belirlenen malın öncelikle eski sahiplerine veya onların mirasçılarına teklif edilmesini düzenle7 mektedir. Hali hazırda mevzuatta eski malikin geri alma hakkını düzenleyen bir hükme rastlanmaması hasebiyle kurallar yöneldiği amaç bakımından önemli bir eksikliği giderme potansiyeline sahip olsalar da kurallara doktrinde kimi eleştiriler yöneltilmektedir. Bazı kurumlar için uyma zorunluluğu getirilip bazıları için uyulması takdire bırakılan kurallara yöneltilen eleştirilerden belki de en ciddisi, kanuni dayanağa sahip olmamalarıdır. Bu haliyle kurallar ilgililere kanunla ileri sürülüp korunabilecek bir hak tanımaktan yoksundur. İngiltere’de bir bakanlık tarafından kılavuz şeklinde meydana getirilen kurallar zaman içerisinde gelişigüzel gelişmiş, kuralların uygulamasında birlik ve tutarlılık sağlanamamıştır. Yine kuralların uygulanmayacağı kimi istisnaların açıkça belirlenmeyip bazı istisnalar için örneklendirici yönteme gidilmesi, keyfi uygulama tartışmalarını beraberinde getirmiştir. Kamulaştırma müessesesi ve kamulaştırılan malın geri alınması hakkında bilgiler verilerek başlanacak çalışmada, İngiltere’de meydana gelen Crichel Down meselesi, meselenin kamulaştırma hukuku dışındaki etkileri ve meselenin kamulaştırma hukukuna etkisi olarak karşımıza çıkan Crichel Down kuralları inceleme konusu yapılacaktır.
The Crichel Down affair, which occurred in England and deeply affected the development of the public service in the country, had important consequences in English law regarding the repurchase of the compulsorily purchased land. Actually, the Crichel Down affair, on one hand, revealed the Crichel Down rules regulating the repurchase of compulsorily purchased land, and on the other hand, it also produced other important legal effects.
The first effect of the affair is the scope and nature of the political responsibility of ministers. It is one of the most frequently cited affairs about the political responsibility of ministers, and it brought the nature of ministerial responsibility and the ministers' powers to control the actions of their civil servants up for discussion. Although it was the civil servants who committed the faulty action, the minister resigned, assuming political responsibility, following the emergence of the affair. The remarkable point is that although the affair did not involve a direct faulty action, it raised an expectation that the minister should assume responsibility for making wrong decisions as a result of faulty actions in their organization.
On the other hand, the Crichel Down affair is one of the most important affairs that led to the formation of the om7 budsman institution. This is because the affair revealed the gap and inadequacy in existing complaint mechanisms. Particularly, the lack of proper procedure on how to deal politically or legally with the so7called maladministration has heightened the interest in the creation of the ombudsman institution. In the UK, public ombudsmen independently investigate the institutions and act through their investigative powers. The main duty of public ombudsmen is to contribute to the prevention of unfair practices by eliminating examples of maladministration.
Ultimately, the affair is the reason for the emergence and development of the Crichel Down rules regulating the repurchase of the compulsorily purchased land. The rules, which clarify the procedure for disposal of land previously acquired through compulsory purchase or through sales during the compulsory purchase process, serve as a guide in offering the former owners the opportunity to repurchase the land that was acquired from them and was not used for the purpose of acquisition since then. These rules, which have no legal basis, are mandatory for some institutions but are subject to discretionary application for others. As such, the rules are guidelines that are expected to be followed by public institutions and others concerning the disposal of surplus land.
Although there are various regulations regarding compulsory purchase in England, especially the Acquisition of Land Act 1981, there is no regulation in the legislation regarding the repurchase of land acquired through compulsory purchase. This affair, which is regulated by different guidelines in Scotland and Wales, is based on the Guideline issued by the Ministry of Housing, Communities & Local Government in England. In accordance with Article 1 of this Guideline, the Guideline includes regulations that do not have a legal basis, requiring that surplus land acquired through compulsory purchase or through purchase during the compulsory purchase process be offered first to the former owners or their successors.
The rules apply to all government departments, executive agencies, non7departmental public bodies, and other bodies subject to the minister's direction power in England. It is recommended that local authorities and other institutions that are not subject to the direction power of the Ministry but have the compulsory purchase authority or that own compulsorily purchased land comply with these rules. In the disposal of land to which the rules apply, the first opportunity to be given to the relevant parties to repurchase the land is subject to the condition that the nature of the land has not significantly changed since acquisition. If the nature of only a certain part of the land to be disposed of has been significantly changed, the obligation to make a repurchase offer will apply to the unchanged part.
The land will be offered to the former owner under normal conditions. According to the rules, the former owner may mean the former landowner or their successors, depending on the circumstances. For the sales to be made within the scope of the rules, the current market value of the disposal unit determined by a professionally qualified appraiser will be taken as the basis. The Guidance also includes exceptional cases where the rules will not apply. Exceptions can be divided into categories as temporal and material exceptions. Finally, it should be noted that there are special units and legal regulations in the Guidance to which the rules will not apply.
In fact, the rules should be given credit as they serve a correct and appropriate purpose, but it should not be forgotten that serious criticisms have been made both on the theory and implementation of the rules. First of all, it appears that there are many misconceptions about the repurchase offer procedure in practice. The fact that the rules are not collected in a single document as the guideline is not the only official guide and institutions also have their own guidelines, and that the rules were introduced in a hurry right after the affair that gave rise to them and were not widely announced, and that their implementation became increasingly unclear, causes the already carelessly prepared rules to create contradictions. Again, the fact that the exceptions to the rules are not clear and unambiguous, that the exemplary method is used in some exceptions, and the rules are not applied to all lands and all institutions paves the way for uncertainty and arbitrary practices. Undoubtedly, the most serious criticism directed at the rules is that they do not have a legal basis. These rules, which give the concerned persons the right to repurchase the compulsorily purchased land, must be regulated by law rather than ministry guidance.
