Community Rights to Buy: consultation analysis

3: Responses to the questions

3.1 Combining the existing rights to buy

Q1: Do you think that the three existing compulsory rights should be merged?

This question firstly invited respondents to choose from Yes/No/Unsure.

The accompanying free text box also invited comments on the following basis: “If so, given that each of the existing ones provide a different level of rights to communities, in what way should they be merged?”

There was a total of 53 standard responses to this question with 51 respondents selecting a voting option and 35 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

In general,, opinions were divided but the most popular option was in favour of a partial combining of the rights. Key considerations amongst those who provided additional comments were that compulsory and non-compulsory rights should remain separate, and that the crofting right to buy should remain separate from the other compulsory rights.

Amongst those who chose to provide additional comments the following main themes emerged:

Simplification of the process: Amongst all respondents who voted, irrespective of their voting choice, there was a common theme that the process was too complicated and should be simplified. In some cases, merging the rights was felt to be a key part of the solution leading respondents to vote “yes” to the question.

“I agree that having three compulsory rights is confusing and simplification would help. That should not be an excuse to pick the least demanding measures from the "menu". Common definitions are essential.” (Individual respondent)

“Merging the three existing compulsory rights could simplify the process and make it more accessible for communities. However, it is important to ensure that the merged rights still provide the necessary protections and opportunities for communities.” (Highland Third Sector Interface organisation)

Some respondents did approach simplification as something that could and should be done without merging the rights. Some respondents felt it was important to carefully consider exactly how they should be merged. Therefore, in some cases, this resulted in those respondents selecting ‘no’ or ‘unsure’ for the voting option, even if their comments indicated some support for the idea of merging the rights.

There were particular concerns in respect of the crofting community right to buy: a common theme was that this should be kept separate in any event. There were also concerns about how a merger would take into account the current distinctions and in particular which of the rights would be considered dominant and would therefore set the tone of the merged right(s).

“However, Part 3 – the Crofting Community Right to Buy should be retained as a separate right given the particular nature of crofting communities” (Sleat Community Trust)

Related to the above theme, many respondents who supported a merger felt it important that this should apply only to the compulsory rights with the non-compulsory right being kept distinct. The sentiment that the crofting community right to buy should remain separate was echoed in these responses as well and in some cases this was strong enough for respondents to vote ‘no’ in respect of a merger but to use the free text box to explain that although there was scope for a merger of some of the rights, the crofting community right to buy should be excluded from this process.

Amongst those who supported a merger of the rights a common theme was the need to improve consistency of definitions, language and guidance in general. Where there was opposition to a merger, or the respondent was unsure, there was a sense that these consistency issues should still be addressed, but that this should not result in the rights being weakened or the process being less demanding.

“Having four different rights to buy is highly confusing. It would be really helpful if procedures could be standardised as much as possible. The only real difference should be the more exactly [sic] requirements for compulsory applications.” (Individual respondent)

The rights were established to serve different purposes: amongst those who opposed a merger, there was concern that merging the rights would lose these distinctions which offer clarity as to the most appropriate route. A related theme was that a merger could make the process more complex, as groups could be asked for information unrelated to their application, but that might be required for other sub-options under merged rights. Respondents here were either opposed to a merger or unsure but suggested that reshaping the rights could be a viable alternative to a merger.

“The three rights have three very different applications, and it helps to provide clarity but keeping them separate. Separation also means the rights can be shaped to suit.” (Atholl Estates)

“We do not believe that the existing compulsory rights to buy should be merged due to the very different basis for the use of intervention powers – one being the condition of the land and one being the current or intended use” (Scottish Land and Estates)

Q2: Should the newly merged compulsory rights be based on the condition of the land or on the owner's use of the land? For example, the existing Part 3A rights are based on the condition of the land, whereas Part 5 rights are based on how it is being used

This question invited respondents to select from Condition/Use/Other and contained a free text box for any additional comments.

There were 50 standard responses to this question with 46 selecting a voting option and 36 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

Most respondents thought that, if selecting between the two, “use” should be the main consideration. However, a majority selected “other” with many clarifying that both “use” and “condition” should be considerations, often in the context of the public interest test. The main objections to “use” centred around the fact that the value of that use is subjective and often location specific.

Themes

Amongst those who chose to provide additional comments the following main themes emerged:

Both conditions are relevant. A majority chose “other”, and this was expanded on in the free text box as a large number explained that both condition and use should be relevant factors.

“Both condition and use may be relevant factors in the exercise of these rights. One of the current streams should not be closed off through the merger.” (Individual respondent)

“In practice, these are often not separate issues. A standardised and integrated procedure could allow communities to make their case under either or both headings.” (Individual respondent)

Where “condition” was the favoured option, this was supported by comments that where the condition is obviously an issue, securing the right to buy should be the priority as use is something that could be settled upon later once the group is more established and able to dedicate more resources to the project. The view was also expressed that if use was the focus, then the use of the land could be contentious in cases where the land is being used but not necessarily for purposes that local interest groups might prefer or approve of.

“It can't be based on use given the current polarised views on land management. Small active groups in a community might disapprove of shooting and the traditional land management techniques of managing land for that purpose. However, unless they can demonstrate actual damage scientifically this cannot be grounds for a right to buy.” (Individual respondent)

When considering the condition of the land it was also expressed that assessing this could be dependent on where the land is situated. That is, what might be acceptable in a rural environment might not be as acceptable in an urban one.

“The condition of the land maybe all right for where it is i.e. a croft in the countryside, but this would not necessarily be acceptable in a small town or village where a ‘tidier’ appearance or less agricultural, animal grazing open land use would be more in character.” (Dalwhinnie Community Development)

Where “use” was the favoured option comments focussed on the community benefits that this option could bring as use carries with it a purpose that resolving the condition of the land alone might omit; use is a more robust aim when considering the wider benefits of community right to buy according to those who selected this option.

“…rights should primarily be based on the use of the land or potential use of the land for sustainable development in support of community needs and ambitions, with the condition of the land being a secondary consideration during the assessment process…” (Scottish Land Commission)

Public interest was also an important factor, with respondents considering that Scottish Ministers should retain a sense of what the overall aim of community right to buy is and seek to shape the rights to deliver on that. Expanding on this, there were concerns that if condition was the primary focus, then the land could be superficially improved by the landowner without any long-term intention to remedy the perceived problem. However, there were also concerns from the opposite perspective that where there are in fact long term intentions to develop the land this can sometimes create the short-term impression that the land isn’t being used to its full potential.

“We would favour a merged compulsory right that is based on a public interest test, as is currently the case under Part 3. Issues such as the current condition of the land and the potential benefits to the community from a change in land use are both relevant considerations. A public interest approach would allow both scenarios to be assessed effectively.” (Highlands and Islands Enterprise)

Similarly, in the event of a successful community purchase, the focus on ‘condition’ as opposed to ‘use’ could create the problem of land not actually being used to its full potential as the future use of the land was not sufficiently planned for at the application stage. Concerns were noted that promises by community groups might not be met.

For differing reasons, therefore, “use” was the preferred primary factor amongst such respondents.