The purpose of this paper is to provide an overview of the evidence available on the implementation and progress of the Land Reform (Scotland) Act 2003 to date, and to highlight some of the key issues that may be worth considering in its forthcoming review.
The Land Reform (Scotland) Act 2003 (the Act) encompasses the policy actions of access; community right to buy in non-crofting areas; and community right to buy in crofting areas with other crofting measures. The Act was introduced as part of a raft of measures within the wider Land Reform Programme, which included the set up of the Community Land Unit in Highlands and Islands Enterprise (HIE), and the Scottish Land Fund (superseded by Growing Community Assets).
This paper will cover each of the key aspects of the Act in turn, before discussing the key issues highlighted by each of these. The key aspects are:
- Access Rights
- Community Right to Buy
- Crofting Community Right to Buy.
In addition to these aspects, two levers intended to help deliver the outcomes being sought from Land Reform will be discussed. These are:
- The Land Fund
- The Growing Community Assets Fund.
Progress on key aspects of the Act and levers to deliver intended outcomes
Recent evidence from several sources indicates that awareness of the Scottish Outdoor Access Code has increased substantially in recent years, both amongst recreational users and amongst land managers (MacLeod Research Ltd, 2011; TNS Research International, 2010). Survey findings indicate that visits to the outdoors for recreational purposes have remained stable since 2006, and there appears to have been a decrease in the frequency of recreational users experiencing access problems. Moreover, there is evidence to suggest that the access rights contained in the Act have served to increase the confidence of access-takers in relation to exercising their rights (MacLeod et al, 2010).
Core Paths Plans, drawn up by Access Authorities in accordance with the Act's access provisions, are helping to facilitate access to and use of the countryside, as well as promoting dialogue and co-operation. However, their creation has been challenging and time-consuming for a number of Authorities and, in some instances, continues to be so (AECOM Environment, 2011).
Overall the evidence suggests that there is little appetite amongst access stakeholders for significant changes to the provisions of Part One of the Act.
Community Right to Buy (CRtB)
Part 2 of the Land Reform (Scotland) Act introduced the Community Right to Buy (CRtB) as a mechanism for encouraging opportunities for community ownership of land in rural Scotland. The evidence suggests that CRtB has the potential to deliver social, economic and environmental benefits, including the potential to make community land/assets more financially viable; improve local services; facilitate affordable housing; generate new economic activity and jobs; and enhance the environment through, for example, encouraging species management.
Research highlights that not all communities are equally well placed to achieve the full benefits of land and asset ownership. In addition, without the right conditions in place, ownership can bring with it more risks than benefits. It is therefore important that mechanisms are available to prevent purchases becoming liabilities (Aiken et al, 2011; JRF, 2011; Skerratt, 2011).
To date, 142 applications to register a community interest in land have been submitted as part of the Act's CRtB provisions, of which 95 have been approved. This level of uptake is greater than was assumed by the Land Reform (Scotland) Bill, which predicted 25 applications to register interest in the first year, followed by five a year thereafter, and two community purchases each year.
Of the, 95 approved applications, 33 have had the chance to go ahead and purchase land, and 11 have been successful in doing so (Scottish Government, May 2012).
The areas of land purchased using CRtB have generally been small, often constituting specific facilities and/or buildings rather than larger land areas and estates. The total area of land bought in the 11 incidences of successful community land purchases to date is 20,578.031 hectares: four of these bodies purchased less than two hectares, and only three purchased over 402 hectares (Scottish Government, October 2011).
The widespread geographical distribution of the applications made shows that the Lowlands is an important area for the community ownership of land and suggests that community ownership of land is not only associated with Highland and Island communities.
There are a number of barriers limiting the uptake of CRtB. These include: land not coming on to the market, or being withdrawn from it; legislation being too complex and resource-intensive; and applications being rejected due to their being late or failing to meet particular requirements (MacLeod et al, 2010). There are also a number of barriers limiting the realisation of benefits linked to CRtB, including: a lack of appropriate guidance and support; a lack of comprehensive information regarding the condition of an asset and/or the full costs of asset ownership; poor management and leadership; and the lack of a strategic approach to local community development in some areas.
Crofting Community Right to Buy (CCRtB)
Part 3 of the Land Reform (Scotland) Act 2003 introduced the Crofting Community Right to Buy (CCRtB) provisions. Under these provisions, crofting communities are given the right to acquire and control the croft land where they live and work. Unlike the Community Right to Buy provisions, this does not depend on the land being for sale. The potential benefits of the CCRtB, like the CRtB, include economic, social and environmental impacts. The intention is to remove barriers to sustainable development by empowering crofting communities.
To date, CCRtB has never been implemented in its entirety to the point where a crofting community body has used it to purchase eligible land and associated rights (MacLeod et al, 2010). It is viewed as onerous, complex and resource intensive (ibid), which in part may explain the rate of uptake, which is much lower than had originally been anticipated. (To date, only two crofting community bodies have submitted applications to Ministers under the provisions. These are The Galson Trust and The Pairc Trust, both located in Lewis).
Other barriers to the successful implementation of the CCRtB include: concerns that the provisions may be unworkable in practice; insufficient awareness and promotion of the provisions; lack of funding support and advice; and the perceived lack of fit between the CCRtB and other recent reforms of crofting legislation and policy (MacLeod et al, 2010).
The Scottish Land Fund (SLF)
The Scottish Land Fund, which ran from 2001 to 2006, was initiated by the Land Reform (Scotland) Act to provide funding to communities in rural Scotland to support the acquisition of land and other assets. The SLF awarded 239 grants over its lifetime, spending a total of £13.5 million to support 188 community groups (SQW, 2007).
An evaluation of the SLF found that it had made a significant contribution to community development through the projects that have been supported. However, a number of limitations have been identified including:
- The limited value of the grants awarded, which makes it difficult for them to lead to anything more than a modest change to the pattern of land ownership (SQW, 2007);
- The need for more recognition of how land and asset ownership facilitated by the fund will help communities develop (SQW, 2007);
- The need for timescales in the application process to be more workable for the communities and resources involved (Skerratt, 2011); and
- The need for management / governance training in some Land Ownership Boards (Skerratt, 2011).
Growing Community Assets (GCA)
The Growing Community Assets fund (GCA) replaced the Scottish Land Fund In 2006. The first five year programme provided grants which totalled £50 million to help communities purchase land and other assets, to develop social capital to maximise the impact of their purchase and to have more control and influence over future development. One main difference between the SLF and GCA is that the latter includes urban as well as rural communities. GCA was re-launched in 2010 and will run until 2015, with approximately £50-60 million to invest in communities.
GCA made 127 investments between 2006 and 2010. The number of awards rose from 10 projects and £4.1 million in 2006 to 29 projects and £13.4 million in 2010. Almost half the projects (62) and half the funding, have been used to support community facilities. There have been 19 energy projects and 19 social enterprise-based projects.
The ongoing evaluation of the GCA programme has noted difficulties in monitoring and evaluating progress to date, given the diversity of projects funded and the fact that many projects have not yet produced outputs or achieved outcomes. However, despite these difficulties, evidence suggests that GCA has had a number of positive impacts, including: giving communities a greater say in how their services / assets are run; generating long-term streams of income from community assets; generating local jobs and businesses; and facilitating the sharing of skills, knowledge and confidence amongst community members (SQW, 2011).
Discussion - looking to the future
Individual Parts of the Act
Evidence suggests that the introduction of core paths by the Act has been popular, and that good progress has been made by most Access Authorities (AECOM Environment, 2011). There remains a concern that the currently challenging financial climate for the Scottish public sector means that the opportunities for encouraging more outdoor access through Core Paths Networks will slip away if funding for their creation, maintenance and management dries up (MacLeod et al, 2010; AECOM Environment, 2011)
The evidence suggests that there is little appetite amongst access stakeholders for significant changes to the provisions of Part One of the Act. However, concerns about some aspects of access provision have been raised, particularly by Access Authorities, in relation to perceived anomalies or weaknesses in the Act.
Although the Community Right to Buy provision in Part 2 of the Act has attracted more applications than was predicted by the Land Reform (Scotland) Bill, it has brought about relatively modest change in terms of land ownership.
Where land has been purchased using the CRtB provisions, the size of the areas purchased has generally been small and purchases are often restricted to specific buildings and facilities, rather than larger estates and land per se. This raises the question of what the rationale and scope of Land Reform should be (see General Points below).
It has been suggested that the CRtB provisions are likely to favour communities that are already reasonably strong - for example, those that have well established organisations and more resources. There has therefore been concern that it could widen the divide between poorer and better off communities.
There are a number of areas where the community right to buy could be reviewed, and where improvements might be made to the legislation. These include:
- Simplifying the time consuming administrative processes that have led to many applications being delayed, and giving communities more time (MacLeod et al, 2010; JRF, 2010)
- Providing more technical help and appropriate guidance and support to communities and community organisations (JRF, 2010)
- Providing more accessible funding to support community purchase and ownership (Macleod et al, 2010; JRF, 2010).
Several improvements have been suggested to increase uptake and impact of the Crofting Community Right to Buy. These include (Macleod, 2010):
- Reviewing the complex and onerous mapping requirements
- Improving promotion of the provisions in order to raise awareness
- Improving the fit between CCRtB and other recent reforms of crofting legislation and policy
- Publishing the Register of the CCRtB online, so that relevant documents and registrations can be easily accessed
- Making further funding available to assist in achieving crofting community buyouts using the Act and outwith the legislation.
Growing Community Assets
Following evaluation of the first round of the GCA fund programme, a number of suggestions have been made for improving the effectiveness of the programme (SQW, 2009); Big Lottery Fund Research, 2010; SQW, 2011). These include: shortening the timescale of the approvals process; making a clearer distinction between GCA and other funding programmes; encouraging broader engagement from community members (including a broad age range and a mix of 'established' and 'incomer' residents); providing more training and guidance on community management; and placing more emphasis on succession planning, in order for the asset to have long-term benefits and permanency, and to ensure the maintenance of skills, knowledge and experience.
There remains a lack of clarity over the rationale and remit of Land Reform, in terms of what specifically it is aiming to achieve and how it plans to do this. For example, there is a need to clarify the relative emphases and scope of the changes required in terms of land ownership and the changes required in terms of land stewardship, as evidence suggests that both are likely to be important in terms of the sustainable development of communities. Indeed, the evidence highlights that land / asset ownership is just one of a number of possible options that can contribute to community development, and that, in certain contexts, other options may be more effective and appropriate to communities' needs (SQW, 2009; SQW, 2011). There is also a need to clarify the relative roles played by land and by other assets (e.g. specific buildings and facilities) in terms of sustainable community development, as the use of the Act's CRtB provisions to date suggests that both land and assets are of interest to communities.
The extent to which Land Reform can deliver other benefits, making it more of a means to an end, rather than an end in itself, is also a key issue. For example, Land Reform has been promoted by some as a unifying strand of policy that can help deliver existing policies on community empowerment, asset transfer, regeneration, housing, local governance and finance, and renewable energy (Wightman, 2011).
Researchers have found that monitoring and evaluating the three parts of the Land Reform (Scotland) Act 2003 has been extremely challenging, given its flexibility and this lack of clarity regarding its rationale. Nevertheless, monitoring and evaluation will be key for assessing whether the Act is achieving what it set out to do.
Compared to economic and social improvements, the Act seems to have left a number of potential environmental gains relatively unexplored (Scottish Government, 2007). These include:
- Linking land use to land ownership type is difficult, not least because there are many other drivers of land use change (Munton, 2009)
- There could be potential to refocus Land Reform on the very large private estates. Yet the very large estates are the most obvious building blocks from which to deliver ecosystem services (Bryden and Geisler, 2007).
There are rapid developments taking place which support the wider policy agenda for strengthening communities, such as the Community Empowerment and Renewal Bill, together with legislative changes in areas which impinge on CRtB and CCRtB, such as changes to crofting legislation and compulsory purchase processes. There is also a need to ensure that consideration is taken of developments elsewhere in the UK.