5 Other issues arising from the analysis
5.1 Differences in barriers by community activities
Consistent with expectations, the key informants confirmed that certain types of land ownership barriers are of particular importance to certain types of community activities.
Community housing projects frequently struggle to access the level of funding required (Barrier F.1, Table 2). Planning also represents a structural barrier to housing developments in many places and interacts with the willingness or unwillingness of a particular landowner to release land for sale for community-led housing.
The informants confirmed that multiple ownership (Barrier C.2) is a particular problem for footpaths or cycle paths in rural areas but also many different types of urban community proposals.
Renewable energy projects are also likely to come up against barriers around the assembly of rights across multiple owners, as well as issues with ransom strips (e.g. to secure wayleaves). This is often because landowners have high expectations regarding the income from renewable energy projects and may seek to use the leverage of their landownership to secure income from the project. Community-led renewable energy projects (like owner-led schemes) struggle with the uncertainty of 'where the wire needs to go' and this complicates the process of securing land rights. On the positive side however, the key informants suggested that there is a perception that advice and funding support for community renewable energy projects is strong.
Community growing projects have specific needs for fencing and services (e.g. running water), provision and maintenance of which may be considered inconvenient to the landowner, therefore might lead to their unwillingness to sell or lease to community groups (Barrier E). Sites for community growing activities may also require testing for contamination, as well as subsequent decontamination and future monitoring, which again incurs costs (typically on the previous occupant accountable for the land contamination, if identifiable).
Mountain bike trails are considered of higher liability risk than say paths developed for walking and thus more likely to suffer from liabilities being considered disproportionately high relative to benefits (Barrier G.1). Finally some community activities for example onshore windfarms (as compared to, for example, community woodlands), are considered more divisive and thus liable to barrier G.2 due to their visual or infrastructural impact.
5.2 Rural urban differences
In general the interviewees felt that urban communities would have less experience in developing land-based community activities and, as a result, are more likely to be unable or unwilling to buy or lease land (Barrier G). This they attributed to the stronger community ethos in many rural areas. Geographical communities are often clearer in rural areas and partly through need, they tend to be more proactive in delivering public good services. One interviewee noted that the general decrease in public sector funding and centralisation of services had resulted in rural communities almost being expected to be proactive in terms of coming up with new community -driven initiatives despite the fact that they comprise fewer people and often have a greater of older residents than their urban counterparts.
Some informants argued that, because they comprise fewer people, there is more likely to be consensus in rural communities on their priorities, however, it follows that any differences in opinions will be more transparent. Importantly, it was acknowledged that in many rural areas the landowner(s) are known and indeed part of the community. This can help to facilitate negotiations in terms of agreeing acceptable terms and conditions for the transfer of property rights.
There were a number of specific barriers that were considered to be more of a problem in urban areas compared to rural areas regardless of type of proposed activity. These included barriers associated with land owner identification, divided ownership rights (securities and real burdens), multiple ownership, constraints associated with planning and higher community liabilities (associated with higher use and potential vandalism etc.). It was suggested that reaching acceptable terms would be more problematic in an urban context as a result of higher land values and greater alternative competition for land use. Associated with this, as illustrated by several of the case studies, rural communities may have a wider range of alternative sites on which their activity can take place. Within this context, the increased policy attention and support being given to urban communities in the Community Empowerment (Scotland) Act 2015 is well directed.
There was less of a clear view on which types of community land-based activities were more or less likely to face barriers as a result of their geographic context. The only suggestion was that housing projects might be easier in urban areas as a result of existing service provision and housing association models of development. More clear was the suggestion that the urban versus rural distinction was too blunt a distinction and that within both types of areas there were likely to be major differences in the significance of barriers as a result of interests and culture (e.g. Western Isles versus Northern Isles), land tenure (e.g. crofting versus non crofting areas) and the attitudes of key stakeholders in Local Authorities.
5.3 The influence of land owner types
Apart from a public versus private land owner distinction, few commonalities emerged regarding landowner types. When prompted, the informants recognised that communities dealing with investment owners (see Section 3 above) are particularly liable to be constrained by Barrier D.2: Different valuations. However, this was also highlighted as an issue with other charitable and NGO-landowners. Other owners are unable to sell or lease land to communities due to restrictive covenants based on their acquisition of the land as a gift (e.g. education authorities and conservation owners such as the National Trust for Scotland) and/or tend to be highly risk averse when considering eth transfer of land rights.
Instead, individual personality and attitudes to community engagement/support in general was suggested as critical, in particular with regard to private landowners but also in relation to key office holders in public land holding organisations including local authorities. Key informants stated that private landowners who are 'community minded', act as benefactors and demonstrate proactive land management. Several examples were given where private landowners have helped to drive forward community lease arrangements or have donated land and assets to the community, according to personal wishes.
There was a suggestion that compared to public sector or charities, private landowners can be easier to deal with as they have a tendency for more direct decision making. However, the key informants also highlighted that negotiations with private landowners can be unpredictable and with a higher level of risk, due to potential disagreement, trust and partnership issues. The role of advisors to private landowners was also noted as significant.
Scale of landownership was identified by some interviewees as a factor which influences the likelihood of landowners agreeing to sell or lease land to community groups however the pattern was unclear and no overall trend was identified. For example, some argued that individual private owners of small landholdings are more cautious in engaging with community land-based activities ('not knowing where it is going to end'). A key issue is that whilst in many cases there may be a possibility of finding alternative land for the community activity, a lack of engagement by a single large scale land owner in a locality can lead to disproportionate impacts.
Public landowners present certain barriers to community buyers, in particular regarding restrictive title conditions and 'claw back'. In some cases Forestry Commission Scotland (FCS) is criticised for imposing restrictive conditions on community buyers with regard to commercial activity, which then limits their potential to maintain a viable forestry enterprise (i.e. because profits are required to be returned to FCS rather than reinvested into the community enterprise). There are also concerns regarding State Aid, and the effort required by communities (and advisory support) to fulfil the bureaucracy required in land acquisition from public bodies. Some key informants considered it unreasonable that a community should be required to register their interest in community right to buy if the public body (e.g. the local authority) was already a confirmed willing seller. However, there was recognition that such public bodies were primarily concerned with accountability and transparency, especially where public finances are restricted and affected by budget cuts. Similarly, public landowners, like many NGOs, are also perceived as being more risk averse, especially in terms of losing potential value, asset income, or being responsible for assets if a community enterprise fails.
However, there was broad recognition amongst the key informants that public landowners generally have an ethos of supporting communities and finding routes to community landownership. Public landowners will often give communities more time to develop business plans, and there are positive examples of lease arrangements with communities, facilitating a 'feasibility study in practice' for later ownership. In particular, public bodies are supportive of anchor community organisations, to which assets can 'bolt on' easily and clearly. Again, however, the attitudes of key office holders in public landowning bodies are critical in supporting community land-based activities. Finally, the key informants highlight the role of the Community Empowerment (Scotland) Act 2015 in facilitating the easier and efficient sale of land from public bodies to communities.
5.4 Resolution mechanisms
The existence of barriers to community land-based activities is a potential justification for government intervention. Each category of barrier identified in the classification scheme arises from a different source and thus may require a different resolution mechanism.
Many of the structural barriers facing communities could in theory be overcome by changes in existing funding regulations and/or improvements in advisory services. Similarly, changes in planning regulations could potentially help to overcome any unintentional impacts of planning on land values or behaviour. Elements of the Community Empowerment (Scotland) Act 2015 were expected by interviewees to be helpful in addressing several of the issues identified in relation to community capacity-related barriers, especially in urban areas.
More generally, the case studies highlighted several different resolution strategies which had been used to overcome land ownership barriers to community activities. On some occasions this involved helping communities find alternative locations for their activities. In other cases external mediation and consultation processes had been effective in overcoming problems between particular landowners and communities, allowing activities to proceed.
The classification scheme described in this report provides a basis for better understanding some of the barriers that can occur in developing community land-based activities and thus effective ways of resolving issues should they arise.
Email: Richard Murray