Official Report 612KB pdf
Under agenda item 5, the committee will take evidence on the Community Empowerment (Scotland) Bill from the bill team. We welcome Dave Thomson, who is head of the land reform policy team, Ian Turner, who is community empowerment team leader, and Rachel Rayner, who is a Scottish Government lawyer. I refer members to the relevant papers.
I will kick off with a question. Land reform is a specific policy area, many aspects of which sit outside the public sector reform agenda, so is the bill team satisfied that the dialogue and consultation with stakeholders on community right to buy and crofting community right to buy has been timely, sufficient and proportionate?
I think that Ian Turner would be best placed to comment on the consultation process, having been involved with the bill team as a whole.
As regards consultation on the bill and community right to buy as it was originally set out, an exploratory consultation was held in 2012. A paper was produced and the minister and officials went on a series of visits, conferences and road shows, which were done in collaboration with the Convention of Scottish Local Authorities and involved a range of people and organisations. The consultation was not just on the community right to buy—it was on community empowerment as a whole, in which the community right to buy was included. We received 447 responses and the analysis was published in 2013.
Following that, a second more specific consultation was done in late 2013 on the topics for inclusion in the bill. Those included improvements to the community right to buy process, extension of the right to all Scotland and the potential to include provisions on abandoned or neglected land. Again, a series of meetings and events were held throughout that consultation, and 424 responses were received overall. An independent analysis was commissioned and was published on 12 June 2014. The majority of the responses in that consultation were in favour of the community right to buy elements being taken forward in legislation. We got to the introduction of the bill at that stage.
We gave evidence to the Local Government and Regeneration Committee in September and we provided further details to the clerk in a letter to that committee following our evidence session. I am not sure whether this committee has seen that letter; I am more than happy to provide a copy of it, as well, if you would like more details.
That would be very helpful. The draft bill did not contain any sections on the community right to buy, which we are discussing in respect of part 4 now.
The consultation included questions on the community right to buy. The draft bill did not have that element.
When you said that a majority were in favour, what size was the majority and what sort of detail is there?
Ninety-three per cent of responses were in favour of extending the community right to buy to all Scotland and 83 per cent agreed that there should be a right to acquire land without a willing seller. There was a set of questions about improvements. The majority were in favour of all the improvements to the bill.
Was it a large majority?
The majority varied, depending on the question, but there was a large majority for most of them.
In that case, because it sits more generally in the land reform agenda, why are the part 4 provisions not being included in land reform legislation?
In the initial phase, there was a commitment to include the changes in the then proposed community empowerment bill. The changes were included because there is a very clear connection between community empowerment and the right to buy. Various studies have provided examples of where it works. It was included in the bill largely because, over the 10 years of using what were parts 3 and 2 of the Land Reform (Scotland) Act 2003, various areas that need improvement had been highlighted and it was felt that it would be better to take action to improve those now, while we have this chance, than to wait until some potential future chance arrived. The community right to buy fits in very nicely with community empowerment as a whole, as a theme.
Okay. That is fine for a start.
I have a wee supplementary on one specific aspect that Mr Turner mentioned: the percentage of respondents who said that they approved of the community right to buy without a willing seller. Did that refer to the terms and conditions that are detailed in the bill, or was it just a general statement?
It was a general statement in response to a question rather than to specific provisions.
Right. So because there was no detail—
There was no draft bill at that point, so the answer was just in those terms.
The respondents were not aware of the provisions.
No.
That question was answered not in relation to the bill, but purely as a general question.
Yes, that is correct.
I just wanted that to be clarified.
Our job is to scrutinise part 4 of the bill effectively. Last June, the convener of the Local Government and Regeneration Committee wrote to the minister in fairly critical terms about the policy memorandum, stating that it was
“little more than a superficial overview.”
Some more detail has since been provided.
On part 4, the policy memorandum contains only three pages in which a large amount of detail is précised in just seven bullet points. Do you feel that enough information has now been provided to explain fully the bill’s purpose and intentions in order to allow us properly to scrutinise part 4?
The short answer is yes.
I thought that you might say that.
Given the additional information that has come through the Finance Committee, the Delegated Powers and Law Reform Committee and the Local Government and Regeneration Committee, and through continued engagement with stakeholders, we have expanded on what was originally in the policy memorandum to allow this committee to undertake a high level of scrutiny.
How do you strike a balance between encouraging public dialogue and participation—which has been a buzzword lately—by making the information simple enough for people to engage with, and providing enough detail to make the intentions clear?
Along with the policy memorandum, the bill team produced an easy-read guide.
We produced an easy-read guide that works alongside the policy memorandum and covers all parts of the bill. It has been broadly welcomed by stakeholders as representing, alongside the accompanying documents, an easy way into the bill.
The financial memorandum states that
“there is a large degree of uncertainty on the level of costs”.
What is anticipated as the largest potential cost area for communities and landowners? Why does the financial memorandum not provide a range of potential costs in different areas?
The overall gist is that the bill as a whole will introduce a much wider range of options for communities. As Derek Mackay told the Finance Committee, the fact that there is such a wide range—the options are not endless, but they are numerous—makes it very hard to say that there will be X instances of one type of community action and Y instances of another type.
On the specific right-to-buy element, we have included an estimate for the additional number of cases that we think will come through. It is only an estimate—it suggests that there will be five to 10 cases a year. The costs of those cases will obviously vary depending on what the community is wishing to purchase. We have based the costs for that particular part of the bill on the previous year’s experience of cases coming through. For example, there is a range of costs for a ballot of between £1,000 and £5,000, but the actual cost would vary depending on how many people were balloted.
Through adding up all the elements, which are all just ranges, it is hard to put a cost on the provisions. Ian Turner may be able to go into more detail on the process for the bill as a whole.
That is right. Part 4 contains a demand-driven element, much like the participation requests in part 3 and the asset transfer element in part 5. There is a right for communities, but it depends on what they want to do and how they want to proceed, and which assets they want to acquire in that way.
Local circumstances will dictate how far the legislation will be used. The extension into the urban arena will no doubt lead to a rise in the number of right-to-buy cases, but we do not know what the rise might be, or what the common features might be with regard to asset transfer, which involves acquiring public assets in that way.
The financial memorandum tries to put a unit cost on the various elements, and those costs will apply in each case, but we will not know an overall cost because of the demand-driven elements.
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Obviously, we are always concerned about the unintended consequences of any legislation. What funding schemes are available to help communities with that work? Do you think that an increase in applications may have the unintended consequence of eating into another budget, if there is one?
There are a number of funding openings for community bodies through the likes of Highlands and Islands Enterprise, Community Land Scotland and the Scottish land fund. A commitment to extend the land fund was made at the Community Land Scotland conference this year. We are actively looking at how and to what extent that might be done. Obviously, the community right to buy’s move into the urban situation brings various funding streams that were not available through the community right to buy’s being rural only. There are various options out there, so we are ensuring that, as we actively monitor demand and the types of requests that are coming through, we tailor the funding to suit them.
It is not just about funding; there is also support for and advice to communities to ensure that they take the right options in the first place. It is not necessarily about ownership; other options will be available through the bill. Support and funding for them are actively being looked at, and they will continue to be monitored.
Okay.
I want to consider the costs for public bodies. Obviously, there will be some resource issues for them. Do you have a good estimate of what potential costs there could be for public bodies? What support might there be if demand exceeds expectations?
That issue was raised through the Finance Committee, as well. We do not have clear estimates because we do not know what demand will be or what types of action communities will take. For the same reason, we cannot estimate what additional resource will be required from local authorities. Ian Turner will correct me if I am wrong, but they could not estimate that in their submissions, either, if I remember rightly.
No. The local authorities generally could not provide individual figures, which was part of the difficulty in costing the bill as a whole. COSLA has said that individual elements of the bill will not be overly onerous for local authorities.
Section 72 says that local authorities
“must take reasonable steps to ensure that the number of persons entered in the list”
for allotments is provided for. Have there been any thoughts on going a little bit further and putting a limit on the time that local authorities have in which to provide an allotment? I believe that, currently, it can take up to three years to get an allotment and that the Scottish Allotments and Gardens Society is interested in making it a duty that the maximum wait be three years.
I am afraid that the allotments part of the bill is not particularly my strong point. Ian Turner may be able to give some detail on that.
To be fair, I say that it is the Local Government and Regeneration Committee that is looking at that.
Yes. Allotments are in part 7 of the bill. We will get back to you properly in writing to ensure that we get the answer right.
Okay. Thank you. We will move on to the delegated powers memorandum.
Good morning. The Delegated Powers and Law Reform Committee has raised concerns that proposed new section 97C(3)(a) of the 2003 act, which is on eligible abandoned or neglected land, is very vague in respect of how the power will be used. It also said that the Government’s explanation was
“inadequate in light of the significance of this power and what it appears to permit.”
I would be interested to hear more about what the thinking behind that power is and, in particular, examples that demonstrate how the power might be used in practice and how ministers intend to use it.
The range of powers in that proposed new section is quite wide. We are still actively discussing them with stakeholders to ensure that we cover all the nuances. I am sure that everybody can come up with ideas on what should or should not be included at certain points; views will differ and more will emerge as we go on. At the moment, we are ensuring that we can cover such areas as much as possible.
Rachel Rayner is better placed than I am to comment on what specific powers cover in a legal sense.
Proposed new section 97C(3)(a), which the bill will insert into the Land Reform (Scotland) Act 2003, states that land on which there is a building that is someone’s home is not eligible land, and there is a power to make exceptions to that. Whether there is a need for that is a question that is being actively considered; it is the power about which there was most concern.
Other powers concerning eligible land will be set out in regulations pertaining to land that is someone’s home. That could include private gardens or outbuildings, and we have some examples of how we intend to use that power, but whether it is still appropriate to take the power in section 97C(3)(a) is still under active consideration.
When will we get more detail about that? I sense that you are saying that we might well get more detail, since the matter is under discussion.
The Government needs to respond to the Delegated Powers and Law Reform Committee’s report at the beginning of December.
We will bear that in mind.
Ian Turner has already touched briefly on the nature of the land in which an interest may be registered. At present, as I understand it, the right-to-buy provisions in part 2 of the 2003 act apply only to community bodies that represent rural areas that have a population of less than 10,000. Section 27 of the bill will amend the definition of registrable land and the power of Scottish ministers to define excluded land, which has been mentioned in relation to housing, but there may be other categories as well, so the community right to buy would now apply across Scotland.
I would like to explore further with the bill team how community confidence, cohesion and sustainability will be affected by extending the community right to buy, and what evidence demonstrates that. Although the 2013 consultation demonstrated widespread support, as has been highlighted, for extension of the community right to buy, what evidence is there that the new right to buy will be used? That is a neutral question.
I will hand over to Ian Turner to comment on what emerged during the consultation process. In general, submissions on the bill that have been sent to the Government or through the likes of the land reform review group give us the overwhelming feeling that the power is exactly the kind of thing that communities would like in order to—to use a buzzword—empower themselves. Essentially, it will give them the right to decide what they want to do with their future and the means to effect that. Ian Turner will be able to comment more specifically on what was found during the consultation.
It is a difficult question to answer with evidence, because it depends on what communities themselves want to do with the power. Community empowerment as a whole is about devolving as much power as possible to communities so that they can take the decisions that they want to take. However they want to do it, we want to ensure that it is for them, and not for authorities or other people, to set their agenda. In general, the community right to buy in the 2003 act has been seen as a success for rural Scotland, so it could also be a success for the rest of Scotland. During the consultation and discussion with stakeholders, it felt as if people see it very much in that way. As for actual evidence of whether that will happen, we will see that in practice only when the legislation is in use.
I have two brief supplementary questions. First, are there any practical problems with extending the community right to buy to urban areas? For example, how will ministers differentiate between conflicting applications for the same piece of land or building?
The more obvious practical issues are that there will be more people in an urban situation than there might be in a rural one, so more people will need to be balloted, and there is more likely to be more than one owner in a block of offices or whatever. Practical difficulties such as that may occur, but they are recognised and they are by no means insurmountable.
The bill allows for duplicate applications to be dealt with, essentially by putting the two applications that come in side by side, comparing them and seeing which will produce the better public interest and, at the same time, benefit the community. Such overlap may well occur more often in urban areas than it would in rural areas, simply because there are allotment societies, toddler groups, local councils, village councils and whatever else. We cannot say for sure that it will happen, but the bill allows for it to be dealt with through side-by-side consideration of the two applications.
I can add a little more detail. In new part 3A of the 2003 act, on the right to buy neglected and abandoned land, new section 97K sets out what will happen where two bodies have applied to buy the same land. It requires ministers not to decide on one application until they have considered all the views that they have had on both. They then have to make a decision and tell both bodies what they have decided. As Dave Thomson said, the process is reflected in the bill.
That clarification is helpful. Thank you.
My other question is about the time within which community bodies must re-register. The land reform review group suggests in its written evidence that re-registration be required every 10 years rather than every five years. Do you have any comments on adopting that longer timeframe? Are there any other ways in which we might make re-registration of land less onerous, bearing in mind that we are talking about community groups?
We are certainly taking steps to make the re-registration process less onerous, which might involve simplifying the form somewhat. On the timescale, however, we feel that five years is about the right length of time for us to take account of any changes in what the community needs and how it wants to take things forward. Ten years might be too long, as there might be too many changes. If we were sticking with what the community agreed 10 years ago, we would need to ask whether the position was the same 10 years on.
We feel that the five-year timescale is adequate, but we are still taking stakeholder opinions on that. Some say that it should be five years, some that it should be 10 years and some that it should be less. We are considering it, but at the moment we are sticking with the five-year timescale.
So it is still under consideration.
Yes.
Thank you.
It seems appropriate for us to move on to questions on the meaning of “community”. Angus MacDonald will lead on that.
Good morning, panel. We know from our briefing that section 34 of the 2003 act provides that the only type of legal entity that can apply to register a community interest in land is a company limited by guarantee. The 2003 act also provides for the use of postcode units in order to define the community that a community body can represent. Section 28 of the bill allows for Scottish charitable incorporated organisations—or SCIOs—to be included, stipulating that they must have no fewer than 20 members.
What are the practical implications of the extension to include SCIOs? What other types of bodies might ministers specify by regulation?
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First and foremost among the practical implications of the extension to SCIOs is that community bodies will be given flexibility in how they wish to go about the business of setting themselves up. There are considerations in relation to the protection of individuals on a community body in ensuring that assets are dealt with appropriately should that body be dissolved, for example.
We have sought the opinion of stakeholders on the additional bodies that could be included. Those that have been suggested include bencoms—community benefit societies—and community interest companies. We are considering what other bodies could be included but, as you said, there are provisions that allow bodies to be added. If there is a strong desire for specific bodies to be added, we can look at that again. Apart from SCIOs, bencoms are the other main type of organisation that has been put forward for consideration.
Is the use of postcode units too general or too restrictive a way of defining a community, particularly in light of the proposed extension of the community right to buy to urban Scotland?
That is certainly the opinion that we have been hearing. We propose to allow other options, such as settlements or locations as defined by the General Register Office for Scotland. We are talking about not a more general term but an alternative to identifying all the postcodes. For example, a village is a location or settlement. The same is true of urban areas—parts of the city of Glasgow are settlements or locations in their own right and can be identified in that way.
Essentially, the idea is to give communities some flexibility in how they define themselves. There is provision in the 2003 act for a community to use some other means, but a community must let us know what means it is using and why, and that will have to receive ministerial approval.
In relation to the requirement that a body must have a minimum of 20 members, there is provision, in particular circumstances, to have a smaller number of members, but the body would have to explain why that was the case. That is probably more relevant to a rural body than it is to an urban one.
Those changes will be made to section 34 of the 2003 act. As Dave Thomson said, ministers will have more flexibility to make regulations that prescribe a type of area. The fact that that does not have to be done by postcode will provide more flexibility. However, it will still be done by area.
I want to explore the definition of “community” a bit further. Are there other methods by which a community might be defined? I am thinking of arts organisations, for example. An arts organisation in my constituency is a keen supporter of the bill. Charities and ethnic groups are other examples of communities of interest. I think that you have already mentioned allotment societies, and I would be interested to hear your view on the inclusion of community councils or common grazings committees, which might have some abandoned land nearby.
Rachel Rayner is probably better placed to answer on what is and what is not allowed.
At the moment, new part 3A of the 2003 act just provides for a community body to be a company limited by guarantee. It is always an option for an existing group to form a specific company. As Dave Thomson said, we are considering what other bodies could be added. As has been mentioned, there is a power for ministers to make regulations that set out other bodies, should that be considered appropriate. In addition, that power allows ministers to set out the requirements that a body needs to meet to ensure that it is an appropriate community body to own land.
At this stage, the definition is still based on a geographic community, rather than a community of interest.
Should the definition that is acceptable to ministers be in the bill?
Do you mean a definition of “community” in general?
Yes, and the specific organisations that would be acceptable.
Some element of that would be acceptable in the bill, but it would depend on how many organisations would be listed, because the length of the list could be significant. If ministers were minded to do that, it might be more relevant to list the acceptable characteristics. We are not considering doing that at this point, but as more and more bodies are added to the list the issue might come back.
Flexibility is useful. A few years ago, SCIOs did not exist. We need flexibility to deal with changes and types of entity that will exist in future.
I know of communities that have attempted to buy land and found several chapters in the approach that required them to change their constitutions to meet the funding criteria. Can that be addressed in this context? Have you taken the issue into account?
The terms that a community body must meet are largely dictated by the type of entity under which it chooses to function. For example, a company limited by guarantee will have a different set of regulations from a SCIO or a community benefit company—or bencom. Equally, different funders will have different requirements that must be met if funding from them is to be obtained. I do not think that that is something that we can try to cover across the board in the bill.
We are changing one element in relation to the rules on the memorandum and articles of association, for bodies that are not actively involved in an application. Currently, if a body changes its articles of association during the period between approval of registration and the point at which the right to buy under part 2 of the 2003 act is triggered—during which period, in essence, registration is there but not active—it has to inform the minister, and we have to approve every change. We are removing that element. There is therefore some movement to allow bodies to change their articles of association in that period, as long as they are not actively taking forward an application.
It would be interesting to know whether the time that it takes to purchase land has increased significantly because community bodies have been required to change their constitutions by the bodies from which they have sought funding. I can think of at least three changes in constitutions in a 10-year period, in Evanton in Ross-shire, where I live.
I can certainly find out about specific cases. You mentioned three, so if you pass them on, that would be great. I can take that forward.
It would be handy if you knew of some, too.
I do not, off the top of my head. I will ask the community right to buy team for examples that they have. They have been dealing with the issue day in and day out for the past 10 years, so if there are examples they will know about them.
Okay. We move on to late applications.
I want to pick up on two or three points. First, will the panel explain what the reasoning is behind the requirement to register in the first place? Would it not simplify things a great deal if communities did not have to register early and could just get involved when they became aware that land was available, which often happens quite late in the process? Why do we need a registration process at all?
The main thrust is to do with interference in the land market and the individual’s right to sell land. There are European convention on human rights considerations in that regard.
Rachel Rayner might know exactly where the rights and obligations lie in terms of the ability to pause or freeze the process of selling land and at what stage that is appropriate and balanced.
The application allows us to consider whether the community has a valid—for want of a better word—plan, so that the registration is not simply being used as a blocking measure, for example. If the application is valid, it will proceed. It is, in essence, a way for us to gauge whether the registration is not just a knee-jerk reaction but a viable prospect.
There is lots of land all over the place—hundreds and thousands of hectares of buildings and land—and communities will often think that a particular piece of land will never come on to the market because it has not done so for 500 years and there seems to be no likelihood of it coming on to the market in the next 500 years. There might be some obvious examples of a community being able to anticipate a bit of land or property coming on to the market, but there must be numerous situations in which communities would have no legal reason to believe that that would happen. Therefore, why would a community spend a great deal of time putting together a registration and planning what it would do with the land if, in 99 per cent of the cases, there is no real chance of that land coming on to the market?
You mentioned blocking. People could block with a pre-emptive registration just as easily as they could with a reactive, knee-jerk registration. That is not a strong argument. I want to tease out why we need early registration. Why not allow communities to register an interest once they see that land has come on to the market? That might spark in their minds the thought, “Oh my goodness, we never thought that that bit of land would be available but we could really do something with it now. Let’s get our application in.”
It is a fair point. The main thing is the balance between, on one hand, the community’s aspirations and what it can do with the land—which, as you say, might only appear when it realises that the land is available—and, on the other, interference in the owner’s right to try to sell the land.
We have made changes to the late applications process to assist communities that might have done preparatory work in the lead-up to submitting an application. At the moment, the process is relevant only if work on an application was begun before the land went on sale. The change is that the community will be able to show relevant work—for example, it might have identified a need for land but not exactly which land, or it might have sounded out funders on whether there is potential in an application. Some element of work will still be required, but it is right that the focus will move away from having started the application process to having started relevant work.
Yes.
We are expanding it slightly, but there is a point at which we have to balance the owner’s right to sell the land and the community’s aspirations to obtain it.
Rachel, are you any better placed to comment?
No, I do not have anything to add.
That neatly moves us on. I hope that ministers and you will think about whether the bill could be simplified by taking out the need to register early but, if it is felt that there is good reason for it, it is needed and it should stay there, we can talk about that later on.
You mentioned the need for a community to show that it has done earlier work—that
“such relevant work as Ministers consider reasonable”
has been carried out—before it makes a late application. You propose to remove the good-reasons test, which is in the current legislation.
It strikes me that it might be awful onerous to show that you have carried out
“such relevant work as Ministers consider reasonable”.
How has the good-reasons test been used in the past, and why do you feel that we need to change things and move to what looks like a more onerous test that might prevent communities from being able to buy land?
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Our intention is certainly not to make things more onerous; in fact, it is exactly the opposite. It might be that in guidance and further regulations we can clarify our exact intention, but the idea is not by any manner or means to make things more onerous.
On why we are moving away from the good-reasons test, I point out that it has been used in quite a few applications—off the top of my head, I think that a third or 50 per cent of applications are late ones—and we certainly recognise that the system needs to be more reactive in its application. After all, although the community might not have actively started the application process, it might have undertaken relevant work that would lead up to that stage, and that is something that we can take into consideration. However, that does not address the kind of light-bulb moment that you have referred to, and we are still talking to stakeholders about what they feel on that issue.
I do not know how the good-reasons test has been applied up to now, but surely one of those good reasons might be that the community just did not know and had no reason to expect that a particular property was going to come on the market. Having to show that you have actually done some work on something that you had never expected to happen will basically be impossible.
If it would be helpful, I could provide examples of cases involving late applications that were either accepted or rejected. That might clarify our thinking behind our approach to the good-reasons test.
That would be helpful, but the general principle of the effect of such a move is important.
The section in question also refers to identifying the owner of the land in question. That, again, might be impossible in certain circumstances, because there could be all sorts of ways in which an owner might not be identifiable. It makes me wonder whether we need earlier registration at all, and it strikes me that, compared with, for example, the provisions that have been in place for some time now for crofting communities, things will be made more difficult for communities.
That is certainly not our intention. With regard to the crofting community right to buy, we are actively talking to stakeholders; in fact, we will be in Inverness tomorrow and in Harris and Skye next Monday and Tuesday talking to particular stakeholders about the changes that they feel could or should be made to that element of the bill. The good-reason and relevant work provisions will be developed and refined as the bill progresses and as we talk more and more to stakeholders about difficulties, issues and, indeed, opportunities that can be taken.
Finally on the issue of late applications, is the timescale for communities complying sufficient for them to be able to put together a coherent and reasonable bid for land if, up until then, they have done only the absolute minimum of the relevant work—whatever that means—that is required under the act?
Obviously we think so, but we can look to change that as we monitor how the provisions are used; indeed, we are already extending the valuation period from six to eight weeks. Even now, we are monitoring whether the time periods in the bill are sufficient.
We think that we have allowed enough time based on the previous 10 years’ experience of what communities can and do do, but we will monitor that as we go. At the moment we think that it is sufficient.
Cara Hilton has a supplementary question on that point, and then we will go to Claudia Beamish.
What would happen to an application to register or buy land if, despite its best efforts, a local community could not find the landowner? Would that kill off the application, or might there be a way of allowing it to proceed if the community could show that it has taken all reasonable steps to identify the owner?
A community would need to identify the owner so that their views could be taken into account and to ensure that the land could be transferred. There are other ways of trying to find owners. I do not know whether the team has come across that problem in practice.
I do not recall any specific examples of not finding the owner at all, but I can double-check that.
It would be interesting if you could check that. The ownership of some areas of land in my area is in dispute so it would be helpful to have that feedback.
That would indeed be helpful. We do not know who owns some large areas of land—even some of the largest landholdings in Scotland—so the question of ownership is pretty important.
Claudia Beamish wanted to ask a supplementary earlier but I forgot.
I want to go back to the definitions of community bodies that can apply. Have you looked at groups that come under the Equality Act 2010? For instance, have you looked at ethnic minority groups who have a wider geographical spread? Has there been any discussion of that sort of issue?
In general terms, yes. What I call interest groups or communities of interest have certainly come up in discussion. At the moment, however, we still require a geographic element in the definition of a community.
I am aware that it has been an issue for other things such as the climate challenge fund.
Yes.
We will move on to talk about abandoned or neglected land.
I would like to start with those words “abandoned or neglected”. As I understand it, those terms are not defined in the bill. Presumably they have some kind of legal usage or possibly even a definition. Could you clarify that and confirm why it is appropriate not to define them in the bill?
Although the approach is to be finalised, we have two things to consider when deciding whether to use “abandoned” or “neglected”. It is whether the land has been cared for and what the effect of that care or lack thereof has had on the land’s condition. That is the issue in the broadest terms. We want to make sure that we get that right and that we do not include or exclude completely inappropriate areas of land.
It might be better to give you some examples of what we think might be covered. Let us take the example of someone who owns land on an island, which has a slipway that has deteriorated to the point at which it cannot be used. If the landowner is not willing or able to address that issue but the community can—either because it has the resources or volunteers to do so or because it has access to a different funding stream—it should be allowed the right to do that. If it means buying and developing the area that includes the slipway, so be it.
Another example might be an open area of land that is overgrown and full of broken glass. These might be extreme examples, but I just want to give the committee an idea of where we are going. Such land is a blight on the communities that surround or are adjacent to it. If all it needs is the grass cut, the glass cleared up and some improvements made, and the owner is not willing or able to do so while the community has made the case that it can make that land into something much more sustainable, we think that it should be able to do so.
We are aware that some circumstances should not be considered to be neglect. There is the case of biodiversity, for example: just because something is not actively being done to a piece of land, that does not necessarily mean that it is abandoned or neglected. There are reasons for not cutting grass or not seeding particular areas. Equally, we are not asking conservation heritage sites to rebuild a ruined castle all of a sudden because the castle is abandoned or neglected. It is a heritage building and it should be kept in an appropriate state. We also need to look carefully at land being held or assembled for future development, for example.
There are various nuances in the definition; that is why we are taking time to make sure that we get all the representations and get it right as much as possible.
Thank you—that confirms that there is an issue here. It suggests that there is a definition to come but it is not there yet. Is that a fair interpretation? Otherwise, the lawyers are going to have some fun with this.
Rachel, do you want to comment, as a lawyer?
The words have a meaning. The issue is more, as Dave Thomson said, that we are considering whether any refinement would be appropriate or whether what is in the bill is sufficient.
There is a lawyer to my right—Rod Campbell—who I suspect will come in shortly. My position is that, if I were a member of a community group, I would need to have a working definition. Mr Thomson has just told me about a set of very understandable policy considerations, but I do not need to tell you—other than wanting to put it on the record—that we do not do law by making up policy; we do law by writing it down and knowing what it means.
My concern is that the courts will ultimately interpret the words on the page, not the words that you as officials or ministers or I as a parliamentarian might actually want. I am looking for some insight into how we are going to deal with the issue because I am not immediately convinced that what is down on the page is necessarily what we want. I think that, playing back what you have said, you may not feel that it is what we want either.
I agree that the definition should be on the face of the bill. I think that matters that the minister would have to consider in deciding whether that definition applies will be followed up within regulation rather than in the bill, but you are right that the definition should be in the bill itself. We are still actively considering exactly what the definition should be, to ensure that we get it right.
I take it from that that it is a work in progress. I have just one small point of clarification: what is your view on whether the words “wholly or mainly” apply simply to abandoned land or also to neglected land?
They apply to both. It is land that is wholly or mainly neglected or land that is wholly or mainly abandoned.
I can see that some lawyers might argue the contrary. That is why clarity on the point would be helpful.
Absolutely fabulous. Of course, why should we not make sure that it is plain and obvious on the face of the bill? That is where we are.
I will push on with a few more questions. On the topic of eligible land, proposed new section 97C(3)(e) of the 2003 act states that an exception to eligible land is
“land which is owned or occupied by the Crown”.
Why is that? It is an obvious exception and we normally do it, but why?
The exception does not cover all Crown land; the provision notes that it is only the land that is “bona vacantia” or—I will not try to pronounce the other Latin phrase, as I will get it wrong. It is a very specific type of Crown land: it is land that has fallen to the Crown because there is not a known owner. Not all Crown land is excluded.
Again, if I have understood correctly—I also do not want to go into the Latin—either it is land that is of unknown provenance or we have no idea who should own it, due to failure of succession, so it falls to the Crown. I still come back to the question: why can the community not buy it?
There are alternative ways of dealing with land that falls to the Crown, so that issue does not need to be included in the bill.
12:15
In that case, I will push on.
One of the areas of interest is that a community might do exactly what Mr Thomson alluded to earlier, which is to take over an area of land and do nothing with it, apart from cleaning it up. In other words, as far as the community is concerned development might simply be conservation and keeping an area in a natural state. Is that sustainable development? It does not sound like development to me.
I suppose that it would depend on the state of the land beforehand. However, there is a balance to be struck. What we are not trying to do is compare uses, as in “My use is better than your use.” The issue is the sustainable development of the land.
The World Commission on Environment and Development defined sustainable development as
“development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
That seems to summarise it. Land that is just sitting there but is, for example, overgrown or concreted over and has broken glass on it is not meeting the needs of the present. Those needs could be met if, for example, the grass was cut, some benches with a lick of new paint appeared or a nice path to walk on was provided. There is also a health and wellbeing aspect to a community having a nice space that is no longer a blight.
Forgive me, but can I stop you there? I can credit putting in a path or a bench being regarded as development, even though it might be minute. However, a community could decide that it wanted, in effect, wild land—I do not want to define that—so a space could be cleared up but nothing more would be done to it and any paths would be made only by people walking through. Would that be sustainable development? I suspect that in the context of what we are trying to do it ought to be, but I am not sure that the words in the bill have that meaning.
Probably the best answer is that it could be. It would have to be decided on a case-by-case basis. I do not know what the legal or dictionary definition of “sustainable development” would be, but to my mind it means an improvement, even if it is not sustainable. That might not cover particular cases—I do not know.
I suggest to Rachel Rayner that policy is one thing but that the challenge legally is that the bill has validity only if sustainable development has a clear meaning.
The sustainable development of land was considered in the Pairc case with regard to the crofting community right to buy, and the court was confident that sustainable development had a clear meaning.
You gave the example of a community only building a path or putting a bench on a piece of land. The community right to buy being compatible with
“furthering the achievement of sustainable development”
in relation to land is only one test, because it also has to be in the public interest. There are a number of tests that have to be satisfied. It is not the case that showing just that what will be done with land will “further ... sustainable development” will be enough to get a group over the threshold so that ownership of the land is transferred; there are additional tests that have to be satisfied.
Yes, there are. Okay, I need to—
Can we come back to that point in a minute, as Dave Thompson has a supplementary question?
Of course.
The Pairc decision is very interesting because the community was told initially that it was not complying with sustainable development requirements for the crofting right to buy, but eventually the minister said that it was doing so. There was a list of reasons why the minister agreed that that was the case, including that
“there was a credible sustainable plan ... new activities ... potential to diversify”
and
“power to negotiate”.
Following the Pairc case, therefore, there is a model of what constitutes sustainable development, which is a very good guide for us as we move forward.
Having mentioned the crofting right to buy, I want to pick up on the reasons why we need changes. With that right to buy, only two tests apply: it must further the achievement of sustainable development and it must be in the public interest. The bill states that another test is that the land must be
“wholly or mainly abandoned or neglected.”
Another test is added on as well. It has to be shown that,
“if the owner of the land were to remain as its owner, that ownership would be inconsistent with furthering the achievement of sustainable development in relation to the land.”
Therefore, not only must the land be “wholly or mainly abandoned”—and we have had all the discussion about that definition—communities have to show that the current owner would not improve the land. It strikes me that those additional tests, which do not apply to the crofting right to buy, are very onerous and might make it almost impossible for communities to buy.
My worry is that, if this bill goes through in its current form, it could affect the crofting right to buy. I am not a lawyer, but it would be reasonable for folk to say that, if in order to comply with the European convention on human rights we need to put in the bill two tests on top of those that are in the crofting right to buy legislation, maybe the crofting right to buy legislation is not sound in ECHR terms and those same tests need to be added to it. That is my worry if we go down this road. It seems to me to be way over the top.
Rachel Rayner mentioned the Pairc case. The Government won that case; it challenged the decision in court on the basis of the two simple tests that the purchase of the land must further the achievement of sustainable development and must be in the public interest. I fail to see why we have to make the hurdles so high and add in extra tests for the general community right to buy. I worry that, if we do that, it will be an acceptance that we did not really win the Pairc case and that we might need to revisit the crofting legislation. I have a number of concerns around that.
We are content that the crofting community right to buy works and that the current test is appropriate. As you pointed out, the court has upheld that.
Proposed new part 3A of the 2003 act, on neglected and abandoned land, is about deciding the appropriate test for the problem that you are seeking to address. In part 3A, the concern is that neglected and abandoned land can in certain cases be a blight or a problem. It is about deciding what the appropriate mechanism is and when it is appropriate for ministers to decide that that land should be sold without the consent of the owner. It is about making each of the rights to buy fit for purpose for the particular issues that they are dealing with.
I do not think that the test in new part 3A will have any crossover to the crofting community right to buy. The tests for that legislation are thought to be sufficiently robust for that issue.
I am glad that we have that reassurance. However, will the panel comment on the ownership test, which it seems to me would be very difficult to apply in practice? Communities would have to prove that, if the owner of the land were to remain as its owner, that ownership would be inconsistent with the sustainable development of the land. How would they do that? It seems bizarre and almost unproveable.
I will give you an example of what that element of the bill is trying to address.
If the owner currently has a plan in place or on track for a piece of land—a plan that may have been made only recently—and they are waiting for funding, the approval of a planning application or whatever when the community application comes in, that element allows the owner to say, “This is what I’m trying to do with the land and here is the proof of that.” It is about saying that the land cannot be taken out of their hands just because there is a delay in planning or funding.
Of course, everything is relative. If the plan was put in place five minutes before the community application came in, it would be considered as part of the application; if the plan was put in place five years ago and it could be shown that planning permission was being sought but had continually been blocked, that would show that the owner was trying to develop the land sustainably.
It is a matter of allowing the owner to put the case that they have been trying to do something with the land or that they are planning to do something with it, as long as they are not just paying lip service to that and can provide sufficient proof that that has been taking place.
Forgive me, Mr Thomson, but I think that I understood the opposite of what you intended. It seems to me that a landlord putting in an application for something that he is never going to get planning permission for is a wonderful way of securing the land and ensuring that it is never bought out by the community. A landlord applying to do something else for which he will not get planning permission could be part of the very process of not allowing sustainable development.
I wonder what on earth the proposed new section 97C is doing. I still do not think that I have heard a reason why it is there. I understand the logic of why it might be there, but I have not heard a practical reason why you would want it there. The reason that you have just given actually works against the intention.
It is not intended to do so. I suppose that it is a case of looking at the plan and its viability. I hope that it would be obvious if, as you say, a landlord put in a planning application for something that was never going to work, and the issue would then be whether that planning application was put in five minutes before the community application came in.
It is a matter of deciding whether the ownership by the current owner is “inconsistent with” sustainable development. As you say, the fact that a planning application has gone in for something that will never happen does not point to the sustainable development of the land. Proposed new section 97C allows us the time to consider that, as much as anything else.
I seriously suggest that you might like to reflect on what the proposed new section is really trying to achieve. I could take you to the middle of my constituency and show you the land that is involved in the longest-standing planning application in Aberdeenshire Council’s history. It is a large area of land that the owners reasonably want to develop in a way that would probably prevent the local communities from doing anything—it is not an unreasonable planning application. I think that the provision is going to give us problems.
We welcome that view.
We have explored the issue quite a bit.
I have a brief question on the same subject. The witness talked about the land being held for future development by an owner. As we know, land can sometimes be held as an investment to be sold rather than for future development. Will any timescales be set or considered for how long land can be kept that is not being developed but which might fall into other categories, which would enable communities to buy it? How long can the situation that I have described go on? I know of cases that have gone on for decades.
We will have to consider carefully whether that type of land being held for development would be excluded under the definition. The point that you make is a good one. At the moment, we are not thinking of specifying timescales, as what would be reasonable varies quite widely from case to case and from location to location. However, it is something that would be taken into account in deciding whether an application should be allowed for an area of land. As you say, if the land has been held for 10 years and is not moving or being actively marketed, that is a completely different scenario from that of a piece of land that has been on and off the market for five years, with the price being reduced over those five years in an attempt to sell it. We want the opportunity to consider such matters on a case-by-case basis.
On the other hand, it would give the community time to register an interest to buy.
Yes.
12:30
We move on to the meaning of community. We need to clarify whether the amendment to section 53 to include community benefit companies will be extended to legal entities that can use the provisions on community right to buy in part 4 of the bill.
In addition to the inclusion of SCIOs, that is one of the most frequent suggestions for inclusion that is made to us. We are certainly looking at that.
So that would be development groups, for example.
I do not know, off the top of my head, whether they are included—that is just my ignorance of what a bencom is or is not.
In the same way that the articles of companies limited by guarantee have to meet certain requirements, the constitution of a SCIO has to meet certain requirements if it is to be a community body, and if bencoms were to be added, consideration would need to be given to what would be the appropriate requirements of a bencom.
Okay. We will see where that goes.
Given the importance that the land reform review group placed on amending part 3 of the 2003 act, on crofting, why was there not a full consultation on that? Is the bill team satisfied that the dialogue with stakeholders has been sufficient and proportionate? Would it not have been more helpful to introduce these amendments in the forthcoming land reform bill?
The reason why the changes to part 3 of the 2003 act, on the crofting community right to buy, were not included in the initial phase of this bill was largely because all available resources were focused on improving the community right to buy in part 2 of the act and developing provisions for neglected or abandoned land. As the pace of land reform in Scotland increased, with the likes of the land reform review group, it became more and more clear, in conversations with stakeholders, that the changes to part 3 should be included in this bill rather than in any land reform bill that may come along in future. We thought that it was best dealt with now.
The need for consultation is one of the reasons why we have written to stakeholders on the changes that we are considering to part 3. As I said, we met stakeholders last week in Edinburgh, and we are meeting them tomorrow in Inverness and next week on Harris and Skye.
The land reform review group took evidence that we have looked at; for example, Simon Fraser had some very good points to make. We are speaking to Simon next week to get his thoughts on our proposals. Although the changes to part 3 were not part of the first phase of the bill, we are actively pushing that now and getting stakeholder opinions on the issue.
As there are no further comments on that, we move to amendments to parts 2 and 3.
The letter from the Minister for Local Government and Planning to the Local Government and Regeneration Committee states that he
“will also be seeking to make further amendments to Parts 2 and 3A of the Land Reform (Scotland) Act 2003”.
Given that the land reform review group and others have identified flaws in part 3 of the 2003 act, why is the proposed new part 3A based on it?
Based on what?
On part 3 of the 2003 act. There has been criticism of that. The minister has said that amendments will come along. Have those already been taken into account? If so, why is the minister, in his letter to the Local Government and Regeneration Committee on 6 November, saying that further amendments are coming? I am a bit confused by that.
The simple issue is one of timing, as much as anything else. Part 3A was based on part 3 in the first place because of the compulsory element of the purchase. It was felt that the process for the crofting community right to buy was a much better template than the process under part 2, which is pre-emption, so we used that template.
Because the changes to part 3 of the 2003 act are coming in after stage 1 of the bill, yet the proposed new part 3A of the act is in the bill at stage 1, it will be necessary to tie up the two elements where a change is made to part 3. We will need to balance part 3A up to mirror that change, where relevant. It is really an issue of timing—it is almost a catch-22 situation. If you change one, you need to make sure that an equal and relevant change is made in the other. There will be changes, and it will depend on what changes to part 3 are approved.
I think that I follow.
I may not be explaining it very well.
Part 3A is not identical to part 3, so to some extent it is a case of looking to see whether we need to change part 3 to make it consistent with part 3A or whether there are good reasons for the differences. Additional changes to part 3 may be suggested through the consultation, and if we make those changes we will need to reflect back and ask whether we also need to make changes to part 3A and whether that is relevant to part 2, so that we can be confident that there are good reasons for any differences.
When are we likely to see those amendments? They will obviously have to be dealt with at stage 2, so when is the committee likely to see the amendments that are likely to affect us?
It will be about the turn of the year, at the end of December. It depends on the drafting. We have the consultation period for the part 3 changes, and our last visit on that is next week, so we will take people’s views on board in our consideration and will decide what changes, if any, we need to make as a result. That process will need to be concluded and then the drafting will take place. Ian Turner may have a better idea of the timescales.
I think that the turn of the year would be the earliest for some of them. The Minister for Local Government and Planning, Derek Mackay, gave an early indication of the amendments that might be lodged for other parts of the bill, and we will seek to do that wherever we can in respect of the parts of the bill that we are now discussing so that we can let the committee know as soon as possible where we are minded to make changes. It will be for the minister to write to the committee at that point in time.
There are no other points on that introduction to what seems like a complicated set of arrangements. I have no doubt that we will find out more as we go along. I thank the bill team and officials for their evidence. We will be taking further evidence from stakeholders, when many of those points will be teased out with the stakeholders who you seem confident are fully supportive.
We will be moving into private session in a minute or two. At our next meeting, on Wednesday 26 November, the committee will take evidence from the Cabinet Secretary for Rural Affairs, Food and the Environment on an affirmative Scottish statutory instrument, the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2015, and then on the draft budget. The committee will also take evidence from stakeholders on the Community Empowerment (Scotland) Bill and then consider its letter to the Scottish Government on the wildlife crime 2013 annual report.
12:38 Meeting continued in private until 13:08.Previous
Draft Budget Scrutiny 2015-16