Culag

Social Land Ownership

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The agreement between the ASSYNT ESTATE and the CULAG COMMUNITY WOODLAND TRUST

	1. Introduction
	2. The Situation
	3. Negotiating the Agreement
	4. Assessing the Agreement
	5. General Discussion

Legal Commentary

	Note on terminology
	Company limited by guarantee

1. Introduction

In 1992 the Assynt Estate and Assynt Community Council came to a verbal agreement that the community could manage the Culag wood. Now in 1996 after three years of successful co-operation between land-owner and community, the estate and the Culag Community Woodlands Trust (the successor to other community groups which have worked with the estate) are about to sign a 50-year lease which will allow the trust to manage the wood as a community woodland. The terms of the agreement mean that the local community, through the trust, can take steps to restore the amenity of the wood and to develop its economic potential. The estate also benefits in that it is freed of the costs of making good the damage resulting from an abandoned attempt to extract timber on a commercial basis and can look forward to the wood being restored, within the period of the lease, to a well-managed state.

2. The situation

The Culag wood stands on the edge of Lochinver, between the village and the sea, and extends to 36 hectares (for a map, see Appendix 1.1). It is owned by the Assynt estate, except for a small part at the north end amounting to about eight per cent of the total area, which is owned by Highland Regional Council (HRC). It is one of the largest woods in Assynt, an area of some 500 square miles in North-West Sutherland with a widely scattered community of about 1,000 people.

The Culag wood is stocked with conifers interspersed with pockets of native trees - rowan, aspen, oak, holly, hazel, downy birch and willows. It was first planted by the Duke of Sutherland in 1847, and has long been valued by the local community, for it gives the village some shelter and has pleasant walks which lead to a rocky shore with quiet coves. By 1990 however, neglect and mismanagement had considerably reduced its amenity value. The network of paths which had been created when the wood was planted had become overgrown and needed clearance and maintenance work. In some areas there was a danger to the public as a result of the hasty abandonment of the felling operations in the wood a few years before. These were stopped when the contractors realised that the costs of extracting and transporting the timber exceeded the value of the sawn logs on the market. The abrupt halt to the felling operations left part of the wood susceptible to wind-blow. The amount of wind-blow damage has increased as the years have passed. Since the felling operations were abandoned, the estate has not considered the wood to have any commercial value, although it contains some well-grown trees.

3. Negotiating the agreement

In 1992, in response to public concern about the state of the wood, the Assynt Community Council arranged a meeting in the wood with the District Councillor and with representatives of Scottish Conservation Projects Trust and HRC’s Department of Libraries and Leisure Services, who all agreed that action was needed. The Community Council considered the possibility of taking on the management of the wood, and decided that it needed to prepare a practical plan, if it was going to convince the estate and possible funding agencies that it could be entrusted with the task.

Accordingly the Community Council invited Bernard Planterose of North Woods to prepare a brief report, which recommended developing the wood as a Community Woodland (see Appendix 1.2). This would involve the creation of a mixed-species wood of uneven age structure, which would provide good habitats for wildlife and enhance its amenity. The wood would be managed in a way which would provide a steady yield of good timber for the local market, and support the employment of a Community Forester who would also have a role in developing facilities for visitors, including maintaining a nature trail and providing interpretative materials for visitors and schoolchildren.

The report was sent for comment to a number of individuals and organisations with an interest in the wood: Mr Vestey, the owner of the Assynt Estate; the Regional Councillor; the Forestry Officer in HRC’s Planning Department; HRC’s Department of Libraries and Leisure Services; the Forestry Commission; Scottish Natural Heritage (SNH); and Caithness and Sutherland Enterprise (CASE). The responses were generally favourable. Most importantly, the estate expressed its approval in principle of a community woodland, and a first practical step was taken when the Community Council made an informal agreement with the new factor, Peter Voy, to improve the paths in the wood.

A steering committee was elected, and immediately began to bring together as much support and help as it could. It publicised the matter in the community newspaper and talked to the Assynt Field Club, some of whose members agreed to help on a voluntary basis. It spoke to SNH about help with a nature trail, and it discussed the possibility of financial help with CASE. It also discussed the idea of a community woodland with the Regional Councillor, Francis Keith, who took it up with the Depute Director of HRC’s Planning Department. As a result, HRC agreed to attend a public meeting to discuss the idea of leasing the wood from the Lochinver Estate as a community woodland. The meeting strongly supported the idea, and HRC agreed to fund a full consultant’s report.

Bernard Planterose was then commissioned to prepare a more detailed report, which was completed in February 1994. The report adopted a long-term view. It suggested that the management of the Culag wood should be looked at in the context of other developments in Lochinver, and recommended two five-year management plans. The first of these identified immediate priorities - improving public access, preventing further damage from wind-blow, and restocking and regeneration through planting, fencing and deer control. It also suggested a possible management group and outlined different management options.

The report recommended that the second phase should concentrate on the development of the wood as a model of sustainable high quality mixed woodland management for the North West Highlands. It outlined how this would provide opportunities for community involvement - and local employment - in setting up training and managing experimental and demonstration programmes, which would be linked to crofter forestry projects. Running the wood in this way would mean building a Forest Centre and employing a Community Forester who would provide training in managing small woodlands.

It became clear that if the Steering Committee was to go ahead on the lines suggested in the report, there would have to be a clearer, more formal agreement between it and the owners, the Assynt Estate. The Steering Committee wanted the security of a long lease before it put a major effort into the management of the wood, and proposed a 99-year lease. The estate was not prepared, however, to accept such a long lease, being advised by its lawyers that a 99-year lease was tantamount to a sale. Instead, the estate proposed a 50-year lease, and eventually a compromise of a 50-year lease with an option to renew for a further 50 years was accepted by both parties.

HRC agreed to recognise the wood as a community woodland leased from the estate and offered to act as lease-holder on behalf of the community, which would manage the woodland. However it was prevented from doing this by one of its own regulations which does not allow it to be a lease-holder when the lease is for a period of more than 19 years. It became clear that the community would have to make arrangements to hold the lease itself.

The Steering Committee therefore called a second public meeting at which the Culag Community Woodland Trust was set up. In addition to becoming the legal lease-holder when the lease is eventually signed, the Trust has responsibility for the management of the wood and for putting development plans into action. Membership of the trust is open to any resident of Assynt and to others with a special connection with the area in return for the payment of a small subscription.

The most important terms of the lease have already been agreed between the two parties involved. The duration of the lease will be 50 years. The wood will be made over to the trust as stocked woodland, and must be maintained as such. In return for an annual rent of �250, the trust will have the right to improve the amenity of the wood and to develop its economic potential, provided it manages it as a community woodland and returns it to the estate as a well-managed and well-stocked wood at the end of the lease. There is an option for the renewal of the lease for a further 50 years. The lease specifies that the trust has a duty to take all reasonable steps to keep deer out of the wood, but stipulates that the estate has sole right to cull deer, although the trust can request that this be done. This is an important matter, as deer will be able to circumvent the boundary fence by swimming to the shore at the far edge of the wood. Unauthorised or inexpert attempts to cull deer which have entered the wood in this way could endanger public safety, cause animal suffering and create tension between estate and community.

The lease also specifies that the factor of the Lochinver estate is a director of the Trust and that several other groups - for example, the Assynt Community Council, the HRC, and SNH - have the right to appoint directors.

The Trust is also currently considering the need for a separate lease with HRC for the small part of the wood which is not owned by the estate.

4. Assessing the agreement

Almost two years have passed since the two parties began to work out the terms of the lease, which is now being studied by HRC’s lawyers on behalf of the trust. The fact that it has not yet been signed is the result of legal wheels turning slowly rather than of delays caused by unforeseen obstacles. Both parties are confident that the arrangements it will confirm will work successfully. As proof they point to the three years of co-operation between estate and community (since the preparation of Bernard Planterose’s first report), and the progress that has been made in the wood since the estate first approved the idea of it being managed as a community woodland.

The reasons for the success of the agreement are not far to seek. Both parties have an interest in seeing the wood managed properly, and each party has confidence in the ability of the other to deliver its part of the bargain. The estate is also able to maintain a close watch on what is going on, through being able to nominate a director of the trust.

The Lochinver estate benefits in a very obvious way from the agreement and the lease. It has been relieved of the burden of doing something about the dangerous and neglected state of the wood, and will have the satisfaction of knowing that it is being managed in a way that benefits the community at very little cost to itself. It also has the prospect of having the wood returned to it in 50 years time as an attractive woodland - in a better state than it is in at present. Through the trust the estate has in effect access to finance (in the form of grant aid) and management inputs which it cannot supply from its own resources.

The community began to benefit almost from the moment when the estate accepted the idea of the community taking over the management of the woodland. Even while the consultant’s report was being prepared for HRC, work began, with the approval of the estate, on basic maintenance which had been long neglected. With the help of a grant from HRC Libraries and Leisure Services Department, fallen timber was cleared from the main path.

The steering committee was able to embark on a programme of improving the paths because it was eligible as a community organisation to apply for grants from such agencies as CASE and SNH. The steering committee also negotiated the clearance of some dangerous fallen timber from the part of the wood belonging to HRC. The need to clear the dangerous timber created an opportunity for chain saw courses. These were financed by a grant of �1,000 from HRC and conducted in the area from which the dangerous timber had to be cleared. Work was also done on improving the entry to the wood.

These efforts have enhanced the amenity of the wood, which can now be used safely by both local people and visitors. A nature trail has been created with help from SNH. A leaflet has been prepared with local help and is available at the Visitors’ Centre in Lochinver. Income from the sale of these brought in �200 in 1995. The wood has become a small but significant addition to the features of Lochinver which may tempt visitors to linger in the area. These benefits alone justify the community initiative.

Other steps have been taken in an attempt to benefit the community. More chain saw courses have been held, with financial help from CASE and HRC. Six people took the first of these courses, four of whom then completed the second. However all six have since found other jobs locally. It is admitted that there is a difficulty in attracting people to the courses that have been offered. These need to target the younger people in the community: older people are less likely to perceive the benefits of managing woodland as materialising quickly enough for them. It is difficult, however, to attract suitable young people: those without a job can have 75 per cent of the cost of a training course paid by CASE, but those already in work or off-benefit are not eligible for financial help with training. Despite this, six people attended a recent course in pathcraft skills, and are keen to bid for contracts for path improvements.

The trust believes that the opportunity exists for two part-time jobs for self-employed people. The fact that no one has been identified so far to take these jobs has not deterred the trust, which hopes to be able to employ a forestry trainer and a part-time community forester within the next two years.

There is general agreement that the wood is not economically viable if the criteria of conventional commercial forestry are applied. However, several advisers believe that the wood has the potential to provide economic benefits if timber production is managed to meet local needs: for example, for firewood, for fencing posts, for boards for sheds and garden furniture, and also possibly for a few other higher-value uses. Estimates vary about how much timber can be produced, but several consultants have been favourably impressed by the size and quality of some of the timber. One important limiting factor is the topography of the wood, which has many ridges and makes extraction difficult. The current value of the marketable timber has been estimated at �37,000 at current (depressed) market prices, but much of this revenue would be offset by conventional extraction costs. A number of small-scale options for extraction are being considered, including the use of skylines, portable sawmills and horses, which could become a ‘feature’ for children and visitors. The trust has agreed on a policy of harvesting timber steadily over a period of 15 years to take advantage of any rise in prices and to help fund developments as they are needed.

Despite these uncertainties, it is clear that the steps taken so far have had ‘knock-on’ effects locally. Since the community began its initiative on the Culag wood, there has also been progress on a project to erect a ring fence round Lochinver. This would link up with the boundary fence to the Culag Wood and, with grids on the road, would keep sheep out of Lochinver and help to keep deer out of the wood. When approached, the estate agreed to put up �3,000, which was matched by a similar sum by HRC. The rest of the money, �21,000, has been found through SNH and CASE, and the project should be completed in 1996.

The improvements to the wood have also had an impact on planning in the area of Lochinver close to the wood. They appear to have stimulated thinking about businesses moving from the entrance to the wood to the industrial area behind the new harbour. With the building of houses behind the Lochinver Hotel, there is a recognition that this area needs to be tidied up, and HRC Planning Department has prepared a new landscaping plan.

There are, of course, other less tangible benefits. John Gibson, secretary of the Assynt Community Council, points out that, as with the Assynt Crofters’ buy-out and the building of the Lochinver Visitors’ Centre, successful initiatives create a feeling of confidence that people can succeed in joint action to improve their welfare.

Larger benefits have been identified, but remain in the future. The development of the woodland as a model community woodland would have a positive impact not just on Lochinver and Assynt, but on the North West Highlands generally. Such a development cannot be funded in full by any likely revenues from the wood, and is therefore dependent on the availability of external funding. In 1995 the trust applied to the Millennium Fund (see Appendix 1.3) for a total of over �500,000 to fund developments based on Phases 1 and 2 of Bernard Planterose’s report, and was awarded �25,000 in principle for Phase 1, payment of the award being subject to the approval of a worked-up project plan with detailed costings. The trust has neither the time nor the expertise to prepare such a plan, and is about to appoint a consultant to do this work. A plan for 1966 (see Appendix 1.4) has been drawn up and focuses on setting up the infrastructure to allow the first stages of the development plans to be implemented. This had to be amended as a result of some serious wind-blow damage at the very end of 1995. A number of agencies have also indicated their support in principle but have not yet awarded grants.

Even if the trust’s application is approved by the Millennium Fund, it will have to find 50 per cent matching funding. This is not an easy task at a time of financial cutbacks, even when a community organisation is allowed to include the value of volunteers’ labour as an element of matching funding. John Gibson points out that even with the money from the estate and from Highland Regional Council it took three years to put together the rest of the money needed for the ring fence. The persistence and determination of community groups in Assynt should not be underestimated, however, for they have a record of substantial success. For example the Assynt Tourist Group not only raised �7,000 for a guide book it published in 1993, but also gained access to the total of �350,000 which was needed for the Assynt Visitors’ Centre, which is now leased by CASE to the Sutherland Tourist Board.

5. General Discussion

The informal agreement (dating from late 1992) between the Assynt estate and the steering committee has already made it possible for the community to begin to enhance an important community asset. The agreement on which this progress has been made has still not been formally confirmed in a signed lease although both parties have reached an understanding about the terms and conditions of the lease and do not anticipate problems which will prevent them signing in due course. However, the steering committee (and the trust) would have liked a longer lease, for it may well be the case that some of the benefits of re-stocking and re-structuring the wood will only materialise after 50 years.

Such a lease should prove effective in many situations where a landowner is prepared to allow a community access to resources on a long-term basis. However, as in other instances (see, for example, the Glen Affric study in this report) the precise terms of the agreement and the fact that they have been formally incorporated into a legal document are of little significance if there is a shortage of the resources needed to drive the project which the agreement makes possible.

Of these the most important is the strength of the community’s support for the development which is proposed. This is important for several reasons. Firstly, a project developed and supported by the community has access to funding which may not be available to others. As John Gibson points out, community woodlands attract funding from a variety of sources - from the Forestry Authority, from Highland Regional Council which has a community woodlands programme, from the local enterprise company which may give grants for environmental improvement, and also from a number of other organisations including SNH and the Millennium Fund. If a project is community driven, all these sources of funding open up. Similarly, community projects with a substantial training element become eligible for funding which is not available to those without.

Secondly a strongly-led community project attracts other inputs. Alex Scott of SNH points out that agencies do not have much time to seek out and set up such projects. The help SNH was able to provide with the nature trail and planting proposals was very much in response to the strength of the community lead.

However even these potential gains are at risk unless the community (and/or the organisation which represents it) has, or can quickly develop, certain other skills. Of these, three of the most important are the ability to harness local skills; the ability to build support; and the ability to maintain a commitment, as the experience of the Culag Community Woodland Trust project demonstrates.

A community such as Assynt has many skilled people within it, as the interest in experimenting with ways of extracting timber illustrates. The steering committee has been able to tap into these and to keep people interested.

From the very beginning of the Community Council’s involvement, those steering the project have been aware of the need to ‘network’ - to enlist and bring together the support of all those with a possible interest in the development of the wood and all those who may be able to help them gain their objectives. A checklist of all those whom the steering committee enlisted in support of their cause includes elected representatives, key officials, representatives of voluntary organisations and advisers in government agencies (see Appendix 1.5).

The benefits of such alliances are not simply financial. A sympathetic contact can give helpful suggestions about who to talk to for specialist advice or give word-of-mouth recommendations for breaking through bureaucratic systems. John Gibson considers that the support of the regional councillor - in gaining HRC backing - was of critical importance at a particular stage in developing the project. It helps, too, if efforts to network are backed up by a shrewd awareness of the importance of getting agreements to provide funds in writing rather than accepting assurances over the phone.

Equally important is the ability to maintain the community’s commitment to the project. It may be relatively easy to find people to serve on a committee, although in Assynt it was impossible to recruit some strong supporters of the project who were members of staff of public agencies and whose input had to be channelled through the advisory services their organisations could offer. It is harder to find the special skills and determination required to hold a group together in the face of cash flow difficulties and uncertainties about the long-term availability of public funds, and during the protracted business of preparing funding bids, which may seem at times to bring progress to a grinding halt. In this regard the steering committee were fortunate in having the services of John Gibson who has been described as having an uncanny knack of resolving potential conflicts before they arise by talking things through with representatives of different interests or calling a meeting which reaches a new consensus.

Long-term commitment of another kind is also important. It has been suggested that success in achieving the larger benefits identified in the consultant’s report should not be sought too impatiently. While maintaining its enthusiasm for the project, the community must accept that it has to ‘grow’ (into woodland management and timber production) along with the woodland as it is replanted and re-structured.

Thus whether a similar lease will be successful in other situations depends very much on the signatories’ ability to bring to it the resources required to take advantage of the opportunity it affords. Of key importance will be good will and an innovative spirit on the one hand and, on the other, the enthusiasm and skills of the community together with the networking abilities of the community group and its readiness to commit time and energy. Evidence that all these resources underpin the Culag Wood agreement is to be found in the comment of Peter Voy, the factor of the Assynt estate, that he has every confidence in the management of the project while it remains in the hands of the individuals who are the current directors of the trust and who are already actively involved in managing the wood.

Legal Commentary

Note on terminology

The initial public concern was raised with Assynt Community Council which made an initial approach to Assynt Estate, owned by Mr E H Vestey who has an estate office in Lochinver with a resident Factor, Peter Voy.

A community woodland is a convenient term for describing a woodland used by a local community for recreation. The Forestry Commission (as the Forestry Authority) will pay a Community Woodland Supplement (CWS) in addition to planting grant under the Woodland Grant Scheme (WGS). For the purpose of CWS a community woodland is a new woodland within five miles of the edge of a village, town or city and where there are few other woodlands which are used by the local community for recreation. The view of the local authority will be canvassed.

The Culag Community Woodland Trust Limited is a company limited by guarantee, without share capital.

Company limited by guarantee

This form of incorporation is appropriate for an Association of persons wishing to have the advantages of forming a company without having to subscribe for shares and without incurring personal liability.

For this purpose a company can be formed with liability limited by guarantee. Each member undertakes to contribute a certain sum if the company is wound up, e.g., each member may undertake to subscribe �5 in the event of the company being wound up.

The advantages are that the Association becomes a company which can own property and enter into contracts and take or defend legal proceedings, and the members of its council or board of directors have no personal liability.

The Memorandum of Association contains a declaration of the guarantee.

If the company is wound up no contribution can be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company.

The use of a company or business name which includes the word "trust" requires the approval of the Secretary of State for Trade and Industry. It is also possible to exclude the word "limited" from the company name.

A company limited by guarantee which is referred to as a trust is very different from a public or charitable trust. The trustees of a public or charitable trust have virtually permanent tenure and normally appoint their successors. They have sole responsibility for the assets which are entrusted to them.

In contrast, the company limited by guarantee is democratic in that its members have ultimate control and appoint a management committee (or board of directors) usually for a fixed term.

Assistance has been given by ACE-HI (Association of Community Enterprises in the Highlands and Islands), also a company limited by guarantee, which has charitable status and gives advice to community businesses on a variety of matters such as financial and legal problems.

Commentary

This case shows well the possible interaction of a community with a local landowner.

The commercial exploitation of the woodland had ceased to be viable yet the abandoned area was viewed by the community as a valuable resource.

The interest shown has been encouraged by public bodies and has resulted in an arrangement whereby the woodland area comes within community control without purchase costs.

The creation of a company limited by guarantee enables the lease to be taken on with minimal risk to the members. They have used other organisations such as ACE-HI to obtain free advice and have set up their company and revised their lease without making direct contact with legal advisers.

The landlord has retained ownership and may recover full control of the area in due course. His representative is on hand to monior the arrangement.