Annex C: Historical Development of Community Right to Buy
There are a number of drivers for land reform globally, particularly in less developed and transitional economies. In particular, a redistribution of property rights is often associated with: (i) greater economic efficiency and social equity; (ii) strengthened communities and levels of self-determination without necessarily seeking tangible economic gains; (iii) developing a mechanism for recognising traditional ownership claims made by indigenous peoples; and (iv) improved information for greater transparency and democratic accountability with respect to ownership and management (Slee et al, 2008 Chp 7, Bryden and Geisler 2007, Wightman 2001).
In Scotland, which has one of the most concentrated patterns of private landownership in the world and a dominance of large private estates, highly concentrated landownership patterns are a legacy of the longevity of feudal tenure (Wightman 1997). Set against this backdrop, rural Scotland faces an aging demographic, increasing housing and employment pressures and an ongoing population decline in certain areas (Thomson 2012). In response to these drivers, demand for land reform and community ownership of land and assets in Scotland has often stemmed from a largely rural base (Mc Morran et al 2014). One notable early development (which predates the Land Reform (Scotland) Act 2003) involved the transfer of Lord Leverhulme's estate to the local community resulting in the Stornoway Trust (1923) in Lewis. The majority of community ownership examples in Scotland have emerged in the last 20-30 years, with the Assynt Crofters Trust created in 1992 through a large-scale community buy-out, followed by the creation of the Isle of Eigg Heritage Trust (1997) and the Knoydart Foundation (1999). These early, relatively ad-hoc, community land acquisitions acted as an important foundation for the development of structures and legislation to support future community asset acquisitions, thereby both formalising and legitimising the process going forward.
A chronological summary of reform and the community right to buy: legislation, funding and reviews
The Land Reform Review Group was established in 1997 under the then Labour Government, as a 1997 General Election commitment "to initiate a study into the system of land ownership and management in Scotland". That commitment was met by the establishment in October 1997 of the Land Reform Policy Group. This group reported in 1999, with the recommendations of the Group providing a framework for moving forward. The first Scottish Land Fund (SLF 2001-2006) was launched by the New Opportunities Fund, a National Lottery distributor, in February 2001 to contribute to the sustainable development of rural Scotland. It was delivered by the Community Land Unit (now Community Assets Team) of Highlands and Islands Enterprise (HIE), in partnership with Scottish Enterprise network (SEn). The Fund provided financial resources to communities (of under 10,000 head of population) to support land purchase. Under the SLF, a total of £13.9 million was disbursed, 74% of which was in the HIE area.
In 2003, the Scottish Parliament passed the Land Reform (Scotland) Act. It introduced statutory access rights over most land for "everyone" (Part 1), to purchase the "community right to buy" (Part 2) and "crofting community right to buy" eligible land, salmon fishings and mineral rights and other assets such as buildings (Part 3). The Community Right to Buy was introduced as a mechanism for encouraging opportunities for community ownership of land and land assets in rural Scotland. The Community Right to Buy provisions give community bodies representing rural communities with a population of less than 10,000 the right to register a community interest in land and to obtain first refusal on the land when the landowner wishes to sell. In practice, Part 2 of the Act granted rural communities the right of first refusal on the sale of land through the right to register an interest, rather than giving communities an automatic or absolute right to buy.
Following on from the SLF, the Growing Community Assets Fund (GCA1 2006-10), with a budget of £50 million administered by Big Lottery Fund Scotland under the Investing in Communities Programme, aimed to expand the SLF and give communities more control and influence over their development through ownership of a variety of assets. According to the Land Reform Review Group's final report (see below), approximately £6.5M of the GCA1 budget went to community land purchase (p.105).
The second Growing Community Assets (GCA2) scheme was launched in 2010, giving individual grants from £10,000 to £1million per application. However, note that GCA2 policy is "to invest less of our funding on the purchase of publicly owned assets and more on their future development once they are under community ownership".
A new Scottish Land Fund was set up in 2012, the first fund to be wholly supported with Scottish Government funding. The fund was initially established as a £6M commitment over six years (£1M in 2012-13; £2M in 2013-14, £3M in 2014-15) for grants from £10,000 to £750,000 to fund community purchase of land. On 7 June 2013 the First Minister announced the extension of the fund by a further £3M to cover 2015-16 (bringing investment to £9M over a 4 year period 2012-16). On 7 June 2014 the then Minister for Environment and Climate Change, Mr Wheelhouse, announced that the Fund was to be extended until 2020.
Currently, approximately 500,000 acres (202k ha) of land are in community ownership (as reported by the final report of the Land Reform Review Group [see below], p.87). The Scottish Government stated in June 2013 that its target is to have one million acres (405k ha) of land in community control by 2020.
Subsequent to these legislative and funding developments, the Scottish Government established the Land Reform Review Group (July 2012). In doing so, the Scottish Government stated that they are "committed to generating innovative and radical proposals on land reform that will contribute to the success of Scotland for future generations." The Land Reform Review Group (LRRG) was charged with delivering radical proposals and, specifically, was tasked with identifying how land reform will:
1. Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;
2. Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development;
3. Generate, support, promote, and deliver new relationships between land, people, economy and environment in Scotland.
The LRRG's final report included a section on Local Community Land Ownership and made two Recommendations on community support services for communities seeking to purchase land and/or property: (1) that the types of support services provided in the Highlands and Islands should be made available to local communities in the rest of Scotland and that the Scottish Government should take a more integrated and focused approach to encouraging and supporting the growth of local community land ownership (p.243); (2) that the Scottish Government should establish a Community Land Agency, within Government, with a range of powers, particularly in facilitating negotiation between land owners and communities, to promote, support and deliver a significant increase in local community land ownership in Scotland (p.244).
Scottish Government Ministers have responded to the LRRG final report firstly by asking the Registers of Scotland to prepare to complete the land register within ten years with a target to register public land in the first five years. Further related measures include the establishment of a Crofting Legislation Stakeholder Consultation Group and the announcement of a working group to help plan for the achievement of the million acre community land ownership target for 2020 (see "A Consultation on the Future of Land Reform in Scotland, Scottish Government 2014)."
In response to the LRRG's 62 recommendations laid out in the final report, the Scottish Government introduced the Land Reform (Scotland) Bill on 22nd June 2015. The bill builds on measures laid out in the Community Empowerment (Scotland) Act 2015 (see below) and sets out a broad range of measures relating to land rights and responsibilities, including making provision for (among other aspects): i) establishing a Scottish Land Commission; ii) increasing access to, and provision of, information about owners and controllers of land; enabling certain persons to buy land to further sustainable development; non-domestic rates to be levied on shootings and deer forests; the change of use of common good land; the management of deer on land; access rights to land; and to amend the law on agricultural holdings in a number of specific areas, including providing a new power of sale where a landlord is in breach of certain obligations.
Alongside these developments has been the consultation (2012-2013), on and journey through Parliament (2014-2015) of the Community Empowerment and Renewal Bill, now the Community Empowerment (Scotland) Act 2015 (hereafter referred to as the CESB). The CESB reflects the policy principles of subsidiarity, community empowerment and improving outcomes. According to the Policy Memorandum (hereafter referred to as the PM), the CESB provides a strategic framework which will:
- Empower community bodies through the ownership of land and buildings and strengthening their voices in the decisions that matter to them; and
- Support an increase in the pace and scale of Public Service Reform by cementing the focus on achieving outcomes and improving the process of community planning.
Of particular relevance to this evaluation is CESB Part 4: Community Right to Buy. The CESB makes amendments to the community right to buy provided for under Part 2 of the Land Reform (Scotland) Act 2003. These changes: "build upon the experience gained over 10 years of working with the legislation, extensive post-legislative scrutiny of the 2003 Act, the submissions made to the Land Reform Review Group and the interim reviews of that Group" (PM, paragraph 56). Specific issues noted with respect to the Community Right to Buy included the exclusion of urban areas, limitations around how communities are defined and constituted, the complexity of both the legislation and application process (including the complexity involved in a re-registration) and the lack of available time to complete the process (LRRG, 2014, Macleod et al., 2010). In response, through the CESB Part 4 measures the Right to Buy is to be extended beyond rural to the whole of Scotland (PM, paragraph 60). There will be changes to procedures, including streamlining and increasing flexibility (PM paragraphs 61-63) through, for example:
- making it easier for communities to define their community in a greater variety of ways, not just by postcode;
- extending legal entities that can use the community right to buy provisions to include Scottish Charitable Incorporated Organisations (SCIOs);
- in relation to the ballot required (after the community right to buy has been triggered), providing for the Scottish Ministers to arrange for this to be conducted by an independent third party and for Ministers to meet the cost of this, making the right to buy process easier for community bodies;
- extending the period available to complete the right to buy.
A final part of the on-going, evolving context which is important to consider is the Scottish Government's Land Use Strategy (LUS) which has as its vision: "A Scotland where we fully recognise, understand and value the importance of our land resources, and where our plans and decisions about land use deliver improved and enduring benefits, enhancing the wellbeing of our nation". Of particular relevance to this proposal examining the Community Right to Buy is Objective 3 of the LUS which is: "Urban and rural communities better connected to the land, with more people enjoying the land and positively influencing land use". Within Objective 3 sits Proposal 12 "Identify and publicise effective ways for communities to contribute to land use debates and decision-making." The LUS has not so far actively engaged with land ownership issues per se, it nonetheless remains relevant, due to the emphasis on linking communities to land use decision making, a cornerstone of the land reform agenda.
Email: Graeme Beale
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