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Submission on the Community-Right-to-Buy Proposals in the draft Land Reform Bill

Caledonia Centre for Social Development June 2001

Contents

1. Summary
2. Introduction
3. Why Legislate and Why a Community-right-to-buy?
4. Overarching Reservations and Concerns
5. The Likely Impact of These Measures
6. Seven Key Issues
7. Conclusion
8. Contact details

1.Summary

The Caledonia Centre for Social Development (CCSD) is an independent organisation which supports and facilitates Scottish civil society’s engagement and participation in both the land reform and social land movements.

We welcome the Scottish Executive's intention to remove the land-based barriers to sustainable development of rural communities, and its objectives of creating greater diversity of ownership and increased community involvement in land decisions.

We are, however, concerned that the draft bill, as it presently stands, is:

We argue that the measures proposed in the draft bill will do little to achieve the Scottish Executive's objectives for land reform.

We also highlight seven issues - strategic context; Ministerial discretion; definition of community; registration of interest; land as lotted; constraints on sale of land bought under the community right to buy; and appeals. We also offer detailed suggestions to help the emerging Scottish legislation take adequate account of a wide range of communities’ pressing social needs and their aspirations to use local resources in more sustainable ways.

2. Introduction

The Caledonia Centre for Social Development is a web-based not-for-profit research and advocacy organisation. The focus of the organisation’s endeavours is on popular participation and people’s self-development in the co-operative and social economy both in Scotland and overseas. The Centre was founded by a number of development practitioners with over 20-years of professional practice both in Scotland and internationally – Africa, Asia and the Caribbean and Central America. To ensure its independence both from the public and private sectors the Centre has a policy of funding its core activities and costs through the tithing of resources by its membership.

The Centre is one of the leading not-for-profit land research and policy analysis organisations in Scotland. In addition to these functions the Centre operates the largest land reform and social land Internet websites in the UK:

www.caledonia.org.uk/land
www.caledonia.org.uk/socialland

Together these websites host over 100 articles, briefing papers, the McEwen lectures, conference papers and case studies on aspects of land tenure reform, land administration, land use and the social land sector. The material is both Scotland specific and international – mainly lesson learning from the land reform movements of the South.

Since its founding the Centre’s involvement has ranged from advising a number of community land buy-outs, facilitating the networking of both community land trusts and the social land ownership sector, policy analysis and advice to national civil society fora and organisations to giving specialist advice and briefings to government agencies, political parties and professional associations.

3. Why Legislate and Why a Community-right-to-buy?

The Scottish Executive in its Land Reform Action Plan of August 1999 stated its intent to bring forward a programme of land reform legislation one part of which was a community-right-to-buy on the part of discrete communities in rural Scotland. The primary purpose of introducing land reform to rural Scotland is to remove the land-based barriers to sustainable development of rural communities.

The Scottish Executive has identified two principal objectives for promoting an exclusive piece of legislation that only applies to rural Scotland. These are the need to:

The Scottish Executive recognises that there are many ways of achieving increased diversity and community involvement without legislation. However the Scottish Executive firmly believes that by creating an exclusive community-right-to-buy for discrete rural communities that this will give greater impetus to achieving its two principal objectives – greater diversity of ownership and increased community involvement in land decisions.

The proposed Community-right-to-buy legislation has four separate parts:

4. Overarching Reservations and Concerns

The Caledonia Centre for Social Development has the following overarching reservations and concerns about the proposals. The draft Bill as it currently stands is:

These substantive shortcomings at the core of the legislation will need to be addressed if the primary purpose and principal objectives of the Bill are to be met. The next section assesses whether the Bill will have the level of impact that the Scottish Executive has portrayed in its promotion of the legislation.

5. The Likely Impact of These Measures

To judge the likely impact of the proposals, we identify three reasons why communities may wish to acquire land - to meet urgent needs, to pursue opportunities not otherwise available to them and to maintain their viability; and consider three questions:

5.1 Will the proposed right to buy help communities acquire relatively small areas of land they need to meet pressing social needs, e.g., for housing, village halls, community centres, or sports /recreational facilities?

The proposed right to buy will only have a meaningful impact here if it persuades a landowner to make land available quickly through some form of voluntary agreement. But it would seem that the majority of responsible landowners interested in the welfare of local communities do not need to be pressurised in this way. It would also appear that the proposals will not create any kind of effective pressure on a landowner who refuses to consider, or declines to act with regard for, the community interest. Therefore it is doubtful whether the current proposals will do much to help communities to acquire the small amounts of land they urgently need to end social disadvantage and/or rural deprivation.

5.2 Will it give them opportunities to acquire larger areas of land to allow them to increase economic activity, create jobs, extend educational provision, and contribute to environmental improvement/ecological restoration?

Under the current proposals opportunities to acquire land will only become available when the landowner decides to sell. However there is not a large turnover in land on the open market and communities may have to wait a long time. Thus the proposals do little to make more opportunities available within reasonable time scales and do nothing to ensure that land will eventually become available. Given these facts, the requirement to register an interest - in a hypothetical possibility - and maintain it by periodic renewal seems more deterrent than administrative support, demanding very high levels of far-sightedness, patience, optimism and perseverance from the community.

The proposals seem particularly unsuited to provide support for legitimate community aspirations to develop in sustainable ways, which, given enabling support, would result in a range of community-based initiatives (e.g., community woodland-based enterprises). These would not only improve welfare but also help to meet the Scottish Executive's stated aims (see above) of increasing the diversity of land ownership and use and achieving a higher level of community involvement and participation in the ownership and management of land.

5.3 Will it allow them to respond effectively to perceived threats to the local community's viability and vigour?

The provision to allow a community to register an interest under the emergency registration procedures will be of some help to communities faced with the kinds of threat to community viability and individual livelihoods with which Assynt and Eigg were confronted. However the requirements about the size and composition of the community body (with a majority of the members being required to be members of the community) need to be reconsidered. In their current form they impose criteria which not all the recent high-profile community land acquisitions would have met - see especially the case of the Isle of Eigg Heritage Trust.

Moreover the current proposals regarding the 'lotting' of any land that may come on the market will also tend to reduce the potential of the bill to fulfil the Scottish Executive's stated aims. These mean that communities may be faced with the prospect of having to buy very large tracts of land in order to acquire the very small areas they need for social facilities or larger parcels on which to base community ventures.

The combined effect of the registering and lotting proposals is as likely to frustrate the Scottish Executive's objectives for land reform as further them.

The Need for Amendment of the Current Proposals

Thus the current proposals need to be amended if they are to take adequate account of

The Scottish Executive's commitment to the principle of the community right to buy is long-standing - see the late Donald Dewar's statement in the McEwen Lecture he delivered in Aviemore on 4^th September 1998 that he viewed the community right to buy as an essential prerequisite of land reform. However that commitment seems to have been made without adequate consultation or close appraisal of the practical consequences of specific proposals.

Close analysis of the kind made above demonstrates that the impact of the current proposals will do very little to help achieve the objectives of greater diversity of landowners and greater community participation in land ownership. Land reform based on the current proposals will therefore fail to contribute to the achievement of the "overriding objective of current rural policy and thus land use" … which is … "to foster the sustainable development of rural communities" (Identifying the Problems, February 1998, page 3).

6. Key Issues

Strategic Context

It is difficult to see how this particular measure fits into the wider strategic approach to land reform which is to increase diversity in landownership and empower communities. Given the limited likely impact of this measure on these goals it is vital that other measures are taken which will produce the diversity and empowerment which is sought. These could include reform of inheritance laws, reform of the ownership of FC land, investigating and protecting Scotland’s ancient commonties, community control of coastal marine resources, action on absentee landlordism, community control of game resources and hunting licences etc.

Ministerial Discretion

We have grave reservations about the democratic credentials and scope for popular participation in land issues when so much of the detailed decision-making on key aspects of this so-called community right is in the hands of Ministers in central Government. In our experience this is a recipe for obfuscation, strife, and distrust. It also raises serious questions about the transparency of the whole process. Far better, in our view, would be to vest much of this decision-making in local fora which could take evidence and take decisions in public.

Definition of Community

Far greater flexibility needs to be built in to the definition of community. In our view the right-to-buy should be available to a much broader section of Scottish civic society subject to a clear public interest test. This would allow cultural, environmental and regional/national communities of interest to enjoy the opportunities which this legislation provides (it would allow a public interest bid for the Cuillin for example).

Registration of Interest

It is not clear what interests are served by insisting on a process of registration. This may be useful in order to focus attention on particular areas of land but it may also act to inhibit communities. The optimal solution would be to relax the tests that have to be met for registration and to allow the registration of large areas in order not to foreclose future opportunities which may only be obvious in the future. Despite the welcome proposals for an emergency registration, the stiffer tests this involves may prevent such opportunities being available to future generations if this is the only way of realising them.

Land as Lotted

It is clear from evidence across Scotland that communities are far more interested in small parcels of land. Insisting that communities must buy land as lotted will utterly frustrate the central aims of this legislation. Communities should be allowed to purchase that land in which they have an interest. If issues of compensation arise these should be dealt with on a case by case basis and be incorporated in the price to be paid as assessed by the valuer.

Constraints on Sale

Unlike previous legislative rights-to-buy where the purchaser benefits from discounted prices (council housing and crofts) and where there is a clawback period to compensate for any immediate profiteering, the community right-to-buy is at the market price. We see no advantages and many disadvantages in imposing any form of constraint on the future disposals (and thus use) of land bought under this legislation. It will have been purchased at market value and communities should be free to manage the asset in the best way they see fit. In the preamble to the Draft Bill much is made of the fact that all landowners should the treated the same. Imposing unreasonable burdens on community landowners flies in the face of this central principle.

Appeals

Given the quasi-judicial manner in which Ministerial discretion is to be exercised, appeals should be allowed on substantive and not just procedural grounds. If, as we advocate, such discretion is exercised in public by a local tribunal then such concerns are allayed.

7. Conclusion

We welcome the effort and political commitment being devoted to land reform. We remain concerned, however, that the process by which these proposals have been developed has not been sufficiently rigorous or analytical and has failed to draw on the wealth of international experience in this field.

The establishment of a community right-to-buy is a small but significant step in redressing the balance of power over land in Scotland. Far more needs to be done, however, before land reform will begin to deliver the wider strategic goals the Scottish Executive has set itself (see Strategic Context above). The Caledonia Centre for Social Development looks forward to participating in future debate about what that wider strategic agenda might look like. Meanwhile we submit the foregoing observations in a bid to improve the Draft Bill.

8. Contact Details

To respond to this submission, please contact, in the first instance:

David Reid

7 Muir of Fairburn

Urray

by Muir of Ord

Ross-shire IV6 7XA

Telephone: 01997-433203

Email: davidreid@ecosse.net 

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