Whose Economy?UWS and Oxfam Seminar Series

Whose Environment?25th March 2011, Inverness College UHI

Post-legislative Scrutiny of theLand Reform (Scotland) Act 2003

Calum Macleod, Tim Braunholtz-Speight, Issie Macphail,Derek Flyn, Sarah Allen and Davie Macleod

1

Context

Land Reform (Scotland) Act passed in 2003

• Part One - outdoor access rights andresponsibilities

• Part Two - community right to buy

• Part Three - crofting community right to buy

Scottish Parliament Rural Affairs andEnvironment Committee

• looking at “post-legislative scrutiny” of the Act

• This report a first stage in that process

Methods

• Expert interviews

• Online surveys- Local Access Fora, National Access Forum, Local Authorities;

- community groups with various experiences of the Act, andthose who have purchased outwith

• Semi-structured interviews- Similar range to surveys

• Secondary data- e.g. Scottish Government data on Right to Buy registrations

Part One - Outdoor AccessLargely working well….

“The LRSA has assisted in the resolution of localaccess disputes between access-takers and landmanagers”

Local Access Forum members (N=80)

Outdoor Access

• perception that the legislation hasgradually improved relations betweenaccess-takers and land managers.

• Core paths planning has raised the profileof access issues within Local Authoritiesand encouraged community engagementand constructive dialogue betweenstakeholders.

Outdoor Access

…with some reservations…• concerns about funding and maintenance ofCore Paths• Fears that financial risk is deterring AccessAuthorities from pursuing access cases in thecourts• Hotspot issues remain i.e. Irresponsible

camping, fire lighting and inadequate control ofdogs

Outdoor access

Suggestions for change?• There appears to be relatively little

appetite amongst access stakeholders forsignificant changes to specific provisionsin the Act or in relation to the ScottishOutdoor Access Code.

Part Two - Community Right to Buy

Image from www.alistairmcintosh.com

Community Right to Buy - Uptake

Community Right to Buy

One the one hand:• Has been used• Across Scotland

• Has led to land transfersBut:

• Less impact than anticipated• Most land transfers were “late” registrations• Most land transfers involve public bodies aslandowners

Community Right to Buy -acquisitions of public bodies’ land

Community Right to Buy

Maybe greatest impact was before it waspassed?

“Having land reform on the agenda created a goodbargaining environment. Not just the Act but thebroader debates and discussions. It was a good

climate. Estates did not want to appear unreasonableagainst that wider background … [but] the Act hasraised expectations that aren‘t fulfilled (Interview 3)”

Community Right to Buy

Barriers to uptakeCommunity groups had various reasons foravoiding using the Act:• Registering an interest does not force asale

• Administrative burden• Political risk - fear of disrupting relationswith local landowners• Combination of the above = “not worth it”

Community Right to Buy andcommunity relations

Using the Act can be risky for community groups:• “happiness in using it depends how remote the landowner feels to

the community (absentee or state body possibly). A communitywould be reluctant to use the Act against a local farmer who hasbeen previously friendly and co-operative for example. Even if alandowner near the community is unfriendly and unco-operative,using the Act against them can lead to a lifetime of obstruction andpettiness which is unproductive”Land reform outwith the Act might be more attractive:

• “we have been able to purchase a piece of land without resorting to"aggressive" assertion of our rights. This is beneficial for communityrelations with local landowners”

Therefore:• “treating late registrations as exceptions is the major flaw in theAct… the current view - that communities will proactively register aninterest in land when it is not for sale - is either naïve, or suggeststhat the Act is not genuinely designed to encourage communityownership.”

Community Right to Buy

Some suggestions for change fromcommunity groups

• Simpler and more flexible administrativerequirements and definitions - iron out variousperceived oddities and inconsistencies

• Treat “late” registrations as normal - see the Actas an “emergency” tool

• Promote the Act more and fund it better

Part Three - Crofting CommunityRight to Buy

Very limited uptake• 2 applications to use

• 1 group used it in negotiations but purchasedland outwith the Act (Galson Estate Trust)

• 1 group actively pursuing full use at present(Pairc Trust) - seen as a “test case”

• Some other crofting community land purchasescite Act as helpful - but purchase outwith the Actseen as quicker and simpler

Crofting Community Right to Buy

Barriers to uptake and suggestions for change

• Complex and costly administrative requirements- esp mapping

• Legal uncertainty - current case involvingdisputes over European Convention on HumanRights…

• Simplification the major call for change

• Fear that otherwise Part Three may becomedefunct as “unworkable”

So what next?

Roseanna Cunningham 21st March:

• “After serious scrutiny and deliberation, the complex issuessurrounding the Trust's application have now been fully analysedand I can grant approval for The Pairc Trust to go ahead topurchase the land.

"The plans the Trust has should help inject new life into the area,rejuvenate the economy and boost the fortunes of all those wholive, work and visit this spectacular part of our country.

"I wish them good fortune in raising the money required topurchase the estate and every success in shaping their owndestiny."

So what next?Roseanna Cunningham 7th March:

• "It is important that there continues to be an on-going dialogue, thatlessons are learned and new approaches considered.

• "The vast majority of stakeholders who provided evidence to theresearchers of the report were positive about the community right to buyand the crofting community right to buy. However, there were a number ofcriticisms, particularly in relation to their complexity and their limitedflexibility.

• "This is an opportune time to review the legislation relating to these rightswith the intention of making things easier and faster to negotiate .

• "Community groups should not have to negotiate unnecessary red tape toget them through these rights to buy. Equally, the legislation has to betransparent, legally sound and compliant with the European Convention ofHuman Rights.• "I am pleased to note that the access provisions in the Act appear to be

working well"

Watch this space…

Rural Affairs and Environment Committee letter to theMinister (Roseanna again)

• The Committee is clear that solving the main problemsidentified in the report is not simply a matter of improvingthe administration of both sets of right to buy provisionsin the 2003 Act. There are parts of the Act itself thatneed to be amended . We are interested to note that thiswas also your view when you appeared before theCommittee, and that you indicated that there was likelyto be a Government review in the near future. We hopethis work will be taken forward by the nextadministration. We also hope, and expect, that therewould be extensive consultation with stakeholders aspart of it.

Read more:

Full report and Executive Summaryavailable from:

• Rural Affairs and Environment Committeehttp://www.scottish.parliament.uk/s3/committees/rae/curren

tInquiries.htm

• CRRShttp://www.crrs.uhi.ac.uk/publications/reports/reports-and-

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