The Land Reform (Scotland) Act, passed by the Scottish Parliament in 2003, provoked both controversy and enthusiasm. Best known for creating Scotland’s ‘Right to Roam’, – the right to responsible access in rural Scotland, the Act also established what’s known as “the Community Right to Buy”. In light of a research published last month by the Scottish Agricultural College (SAC) it seems like a good time to look into how the Right has worked in practice. But first, the basics:
The “Right to Buy” isn’t quite what it sounds like. Rather than allowing communities the right to a compulsory purchase, the Act allows “community bodies” to register an interest in local land. If, and only if, the land is put up for sale can the community body purchase it, assuming that sufficient funding is there. The ‘community’ in question cannot be larger than 10 000 people and the right only applies in rural areas.
At best, the ‘right to buy’ is a mild response to a serious problem. At present, just 969 people own 60% of the privately held rural land, giving Scotland the most concentrated pattern of land ownership in Europe. Opportunities for redistribution are also limited by the fact that 25% of the estates over 1 000 acres have been held in the same family for over 400 years and, in the Highlands, 50% per cent haven’t been exposed for sale since World War II.
Benefits of the Right to Buy
This isn’t to say that Community Ownership isn’t important. As Dr. Skerratt, the author of the SAC report, writes: “Ownership of land by the community is experienced as the catalyst for collective action, stewardship, and creative, forward-looking development.”
Sustainability and the long-term view is really at the centre of what, in certain circumstances, make community ownership preferable to private landlordism. As the College summarizes Skerratt’s findings, Community Ownership is:
“…contributing to the ‘re-peopling’ of rural Scotland by enabling existing residents to remain in remote areas and encouraging in-migration. This is because ownership is giving communities the opportunity to increase local employment and develop revenue streams through the creation of new business, build affordable housing, sustain rural schools and deliver basic infrastructure such as roads and electricity.”
This is good news, particularly given the small amount of research in this area. It chimes with the Big Lottery Fund’s evaluation of the Scottish Land Fund, a body that formerly offered financial support to these projects. Here, it was found that improved community bonds and a greater sense of environmental stewardship were common outcomes and that economic benefits, while “hard to measure”, can emerge in the larger projects. In Gigha, for example, Community Ownership and the support of the Scottish Land Fund have resulted in 11 new businesses and 17 more full-time jobs.
Community Ownership may also distribute the potential gains from Scotland’s vast renewable energy sector, which would otherwise accrue to private landlords and developers. Far from fostering rustic conservatism, research suggests that in Gigha, more so than in areas with private developments, Community Ownership can create pride in and enthusiasm for wind farms.
Problems with the Legislation
Sadly, this isn’t the whole story and the Act itself has considerable shortcomings.
As an Oxfam Discussion Paper pointed out in 2010: “Since the legislation was enacted there have been over 100 attempted registrations, but only six community groups have proceeded to the next stage and been able to activate the right to buy when a landowner decided to sell.”
This has increased to 7, as of this year, with another 2 buyouts in progress. According to one study, 9 of the Registered interests have failed to make purchase when the land was put on the market, due to lack of funds in 2/3rds of the cases. 2 more bids have succeeded, although outside the scope of the Act. Of the 120 applications to register an interest, there are 50 (plus 1 pending approval) that have not been activated with a further 10 either having resulted in a purchase, pending approval or approved for a sale in progress. By comparison, the other 60 have either been rejected, withdrawn, aborted unsuccessful or expired, as interests must be re-registered every 5 years.
While lack of available land and funding is clearly playing a role, these underwhelming results are, in part, down to the difficulty of using the Act. A report from the Office of the Deputy Prime Minister in 2006, for example, found that “The complexity of the Land Reform (Scotland) Act 2003 is a major disincentive to community groups.”
One study found similar views among those participating in the process. Here, 22 out of 33 respondents identified the perceived length and bureaucracy of the process as a “key issue facing the community land sector at present.” A study by The University of the Highlands and Islands found that the time scales and deadlines required by the Act also present a challenge. Several of the authors of thus study, in a written submission to the Rural Affairs and Environment Committee in the Scottish Parliament, also noted the apparent “consensus of opinion” that future UK provisions should avoid the complexity of the Scottish Act.
This broadly squares with Skessat’s finding that: “although every community has the capability to carry through land purchase and subsequent development of assets, not every community has the resources or capacity within their community.”. In addition to the need for more investment, she argues, “the scale of responsibility and investment for community land ownership is felt to be significant…and for communities enhanced support would be welcome.”
The decision-making process is also problematic. As Andy Wightman has written: “The community right to buy is a complex, legalistic piece of legislation that provides numerous opportunities for bureaucratic nit-picking and fine legal arguments…Such a situation has greatly diminished both the radical intent of the act and its practical utility.” In addition, Wightman argues that Ministers are reluctant to make decisions that might be open to legal challenge from a landowner, resulting in a cautious approach.
Looking at the evidence, then, we see a potentially beneficial method for redistributing land and improving rural Scotland hamstrung both by a lack of ambition and various problems with implementation. While it should not be maintained that the Act is the only option for communities wanting to buy out their land, or that the Act will solve Scotland’s land distribution problem, there are clearly a number of minimal improvement (simplification, promotion) that could improve it’s reach. Skerratt’s report also contains a number of important recommendations, principally reinstating the Scottish Land Fund, recognition of the benefits of community land trusts, some legislative amendments and modifications.
In light of the SAC’s findings, increasing the amount of land owned by communities should be a goal for all those interested in Scottish Land Reform.
 Wightman, A The Poor Had No Lawyers: Who Owns Scotland and How They Got it (2010) Birlinn, pp. 106 and Wightman, A Scotland: Land and Power – the Agenda for Land Reform (1999) Luath Press pp. 30
 Ibid. n 1, pp. 256
 Skerratt, S Community Land Ownership and Community Resilience (2011) Scottish Agricultural College pp. 5
 Browning, Steve Scottish Land Fund: Findings From our Evaluation (2007) Big Lottery Fund Research No. 34 pp. 10
 Warren, Charles R., McFadyen, M Does community ownership affect public attitudes to wind energy? A case study from south-west Scotland. (2010) Land Use Policy, Vol. 27. No. 2, pp. 204-213
 Sayers, M and Follan, E Vulnerable Communities and Community Ownership in Scotland: A review of literature, policy and practice (2010) Oxfam Discussion Papers, Cambium Advocacy on behalf of Oxfam Scotland
 MacLeod et al, Post-Legislative Scrutiny of the Land Reform (Scotland) Act 2003 (2010) Published by Rural Analysis Associates, Centre for Mountain Studies, and the Centre for Remote and Rural Studies pp. 70
 Ibid. pp. 68-9
 Communities Taking Control: Final Report oft eh Cross-sector Work Group on Community ownership and Management of assets (2006) Home Office, Office of the Deputy Prime Minister, pp. 43
 Bryan, A and Campbell, : (2010) Community land organization feasibility study: final report, report to the Community Landowners Working Group by Aigas Associates and Campbell consulting, cited in n. 8, pp. 76
 n. 8, pp. 79
 Rural Affairs and Environment Committee, 6th Meeting 2011, The Scottish Parliament, Post-Legislative Scrutiny of the Land Reform (Scotland) Act 2003, Supplementary Written Submission to Evidence Sessions – 9th February 2011.
 Ibid n. 3. pp. 7
 Ibid. n. 3. pp. 9
Ibid. n. 1 pp. 264
 Wightman, Andy Land Reform (Scotland) Act 2003 (Part 2 The community right to buy) A Two Year Review (2007) Caledonia Briefing no. 6 pp. 14