Land Reform (Scotland) Act 2003 (Post-legislative Scrutiny)
Agenda item 2 is post-legislative scrutiny of the Land Reform (Scotland) Act 2003. I welcome our three witnesses, who are Tim Braunholtz-Speight, Dr Calum Macleod and Derek Flyn. I realise that, to an extent, you have already been through this exercise with our predecessor committee, but we have to take matters forward now, so we are pleased to have this opportunity. It is great to have you here. Derek Flyn is a crofting lawyer.
I am a retired crofting lawyer. I now call myself a croft consultant, but I am not connected with any legal firm.
Thank you.
Dr Calum Macleod is deputy director of the centre for mountain studies at Perth College and the University of the Highlands and Islands. Tim Braunholtz-Speight is from the centre for remote and rural studies, also at the University of the Highlands and Islands. Does any of the witnesses wish to make initial short remarks before we move to questions?
Dr Calum Macleod (University of the Highlands and Islands)
I would welcome the opportunity to do so, convener. I thank the committee for the opportunity to speak to you about the report that we produced for the previous committee and to look forward to how land reform and the land reform agenda will develop. It is fair to say that this is potentially a pivotal moment in how that agenda moves forward. We look forward to contributing to the process, and we hope that our report has done that to a modest extent. Although the focus is on the Land Reform (Scotland) Act 2003, that is but one important part of the much broader jigsaw of how land reform moves forward. It is important to bear that in mind. Perhaps we will explore some of those issues later.
To be tidy, it is best if we deal with the three parts of the 2003 act in order—first access, then the community right to buy and then the crofting community right to buy. We will wrap things up after that. We start with a question on access from Jim Hume.
First, I declare an interest as a farmer. My question is on the responsibilities of access. I seek our witnesses’ views on liability, as I believe that there have been quite a few cases in which irresponsible access has resulted in a farmer having to take responsibility for dealing with, for example, dog fouling or gates being left open, which can lead to accidents.
How the access provisions are implemented in practice is an important question. The responsibilities sometimes seem slightly unclear or problematic from a landowner’s perspective. One point that came through in our report was that responsibilities are placed on landowners in managing their aspects of the access rights, but recreational access users and other access users do not necessarily have those responsibilities in the same way.
Where the balance lies can be a problem in that regard. There is guidance in the access code itself, which is well received as a piece of guidance, but there are some grey areas. Potentially, the issue could be addressed in more detail in the review of the legislation to which the Government has committed itself. As with many aspects—or some, at least—of the access provisions, there are grey areas in the interpretation of particular issues and there would be benefit in considering that area in more detail in that context.
The other piece of relevant legislation is the Dog Fouling (Scotland) Act 2003, which does not cover farmland. Therefore, a disease that can be carried by dog faeces, which causes abortions in sheep—
Indeed. That has been a significant and understandable concern of the farming community. One of the issues in co-ordinating the legislative framework is how part 1 of the Land Reform (Scotland) Act 2003 ties into other aspects of the statutory framework. Is there a clear read-across in that context? I am not convinced that there is. That needs to be taken forward as well and addressed in a systematic fashion. That ties in with a lot of other issues, of which planning is one. I take your point about the co-ordination aspect.
Good morning. I want to ask about access rights. You mention in your study that
“There had been slippage in some Access Authorities’ progress in drawing up their Core Paths Plans”
as set out in part 1 of the Land Reform (Scotland) Act 2003. I would like an update on that. Is it still an issue? What progress has been made on it? The development of the core paths so that they link up with, for example, the long-distance walks and coastal paths that link the coastal communities is very important.
It is very important. I am not in a position to give you definitive figures for how many of the core paths plans have been accepted and should, ultimately, be implemented. However, I suspect that, overall, huge and significant progress will not have been made on that. Many of them were accepted, finalised and ratified, but some were not.
The key issue is that although a great deal of resource, time and money was invested in developing core paths plans—the process took up an awful lot of local access authorities’ time—the only duty on the local access authorities relates to the planning process: there is no power to have the plans implemented in practice. The report highlights a good deal of frustration on the part of access authorities about the resource implications of implementing and maintaining the networks in practice. A significant amount of energy, time and effort has been invested in the planning process, so there is a lost opportunity if the resource is not available to implement the networks in practice. There are also all sorts of implications for the wider agenda on health, inclusiveness and so on.
I am sure that progress will have been made. I cannot give a definitive figure for that, but the relevant Scottish Government directorate can. The issue of where core paths plans sit and what they contribute to the whole agenda is significant in that context.
On funding, you say in your executive summary that
“The Scottish Rural Development Programme should pay the full costs of access promotion”;
that there should be
“a budget for legal costs in the eventuality that”
access authorities
“lose a court case”;
and that
“specific funding”
should be made
“available for the implementations of core paths [plans]”.
That is quite a big ask.
It is a big ask. However, before I come directly to your question, I should clarify that what you have just quoted are proposals made by the study participants in relation to this part of the report, not specific recommendations that we made about the legislation.
The report was very important and I hope that it is seen as such. However, it was also quite a curious piece of work because we were not asked to make any recommendations. That is fine, I guess, but what the summary provides is an interesting menu of what should be achieved or supported in the three parts of the legislation.
The request is quite demanding. For a start, where will the resources come from? Ultimately, these are political—with a small p—questions; nevertheless, they are significant to the authorities, because it is up to them to think about where the resources might come from. It does not seem beyond the realms of possibility that the Scotland rural development programme might have such a component in the next financial envelope but we will see whether there is scope in that respect.
One major concern is the financial cost of taking access cases to court. As the report makes clear—and as I am sure you will be aware—access authorities are not keen to go down that route for a variety of reasons. Partly it is because the legislation is all about enabling, not enforcement, but the fact is that there are profound resource issues associated with such a move.
We must look at mediating these matters in different ways in different structures and at a capped cost. That might be bad news for lawyers but it might be good news for other stakeholders.
There have been a number of high-profile court cases involving people protecting their so-called privacy. However, specific changes to legislation that have been recommended would mean more powers of entry for access officers and the ability to order land managers to take down signs that deter access. Do you have any thoughts on that?
Yes. The legislation is clear on the responsibility of land managers and landowners with regard to signs that illegally prohibit access to particular areas and places. That significant and important element could be taken forward.
I started off by very much welcoming the Government’s commitment to reviewing the entire 2003 act, but the fact is that while any such review must address these issues root and branch, a great deal can be amended quickly through secondary legislation. Some of the suggestions are quite technical but they could be resolved to the benefit of the access authorities and, ultimately, the wider community.
On the capping of court costs, I should first of all point out that although I am a lawyer I am not practising and therefore have no personal interest in this. The measure sounds good but, in practice, who will meet the cost of the subvention?
That is a fair question. Reconciling that will be a challenge.
Someone has to pay.
Indeed, but the key question is whether costs are escalating beyond the means of access authorities to pay them and whether that is affecting their—or other people’s—ability to take cases to court. Is the means to pay dictating the pursuit of particular legal avenues? That question raises a whole set of issues.
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Yes, but as you said to the convener, it could perhaps be addressed through existing secondary legislation. If we had a more comprehensive approach, we might find that solutions already exist but are not being used.
It is true that there are structures that exist outwith the formal legal process. The key structure that exists at the moment is the system of the local access forums, which have a statutory responsibility to provide advice where there are particular access issues. However, what they produce in practice is variable: some seem to be working well; some less so. There are various reasons for that, which we touch on in the report.
We need to consider the scope for other structures to be used to address the issues before the last-resort step of court action—I say that as a non-lawyer, although my wife is a lawyer. That would be in line with the enabling ethos of the legislation—it is not regulatory or enforcement based, in that sense.
You said that going to court should be a last-resort action. I would have thought that such an approach would be a good thing, in that it would very much encourage an agreed settlement in the minority, albeit perhaps a large minority, of cases that end up in dispute. Certainly, in the area that I represent, there are a few cases in which agreement is not easily reached and which get a little bit fractious. I suspect that they are in the minority, and that that is the case throughout the country, although you may correct me if I am wrong.
Have you heard any evidence to suggest that lowering the costs of going to court might make it a much easier option? In my opinion, the more that one has to go to court to settle these matters, the more antagonistic the whole relationship becomes. In some ways, therefore, the expense of going to court might not be a bad thing.
I understand what you are saying in relation to costs and the predilection for court action.
You put it much better than I did.
I do not think that I did.
You make a fair point. I agree that the use of formal court action should be a last resort, and I think that it is so viewed by stakeholders, in relation to access rights, as is the case in relation to other aspects of the 2003 act, which I am sure that we will talk about soon.
The culture around the legislation involves the enabling approach that I mentioned, and makes it possible to address conflicts that exist through the structures—I talked about there being liaison within the context of the local access forums.
As we know, there have been about seven instances of court action, so its use has been quite limited. The cultural aspect is important in that regard, as it has helped various stakeholders—land managers, landowners, recreational users and other users of access rights—to get a better sense of everyone else’s perspectives and objectives. Our report shows that, in general terms, part 1 of the 2003 act has been significant in that regard. Recreational access users have a much better sense of landowners’ needs now. There has been a coming together, and there are now much better relationships.
One of the challenges is the relationship between recreational access users. That is one of the hotspot areas where conflict exists. That is not to dismiss the other areas, of course, but it is a challenge that we must address. An example of that is the situation between the angling community and wild rafting people on the river Tummel in Perthshire and on rivers in other areas. As we have said, it would be better if such issues were resolved without the need to go to court. There has to be some cohesion, of course, and the local access authorities have to be able to address those issues. There are capacity issues around that, too.
There are resource implications down the line—or perhaps even sooner than that. In a time of significant stringency in the public sector—I am mindful that the budget announcement is being made later today—there are tough choices to be made about what public support is available for all these areas, not least access. The question then is: what value do we get from the land reform legislation? Like many, I would argue that it has had a profound effect. Its value might sometimes be more symbolic than practical, but the resources must be there to underpin it.
Thank you. We will move on to the community right to buy, on which a number of members have questions. We will deal first with the non-crofting areas.
As you know, Dr Macleod, I have been here before as a member of our predecessor committee, so I will not repeat the questions that that committee asked you. Roseanna Cunningham’s recognition, in the session that our predecessor committee had with her after we had spoken to you, that there was a need to review the legislation was welcome, and she agreed with many of your conclusions. We discussed the complexity of using the community right to buy, and the differences between the powers that Highlands and Islands Enterprise has to support communities through that process and those that Scottish Enterprise has. As Scottish Enterprise does not have the same social functions as HIE, it cannot offer the same support to communities.
Do you have any views about how that issue could be addressed? When we spoke to the minister on that occasion, it was not in her remit to discuss changes to the powers of the enterprise bodies under the legislation. How might the extension of the community right to buy in other parts of Scotland be assisted?
I will go first; Tim Braunholtz-Speight might then want to dive in.
The fact of the matter is that the community right to buy is available to communities throughout Scotland, even though it has been portrayed as being very much a Highlands and Islands agenda. It has undoubtedly been extremely important in the Highlands and Islands—you have only to look at the buyouts that have taken place within and outwith the scope of the 2003 act to realise that.
However, the issue goes much wider than that. One of the key challenges is to ensure that opportunities to use the legislation, and the supports that are available outwith the legislation, are accessed as widely as possible throughout Scotland. The report that your predecessor committee commissioned contains various proposals on that—they were not our suggestions, but ones that others identified consistently over a significant period of time.
The key issue in that regard is how the various elements of the land reform jigsaw fit together. I suggest that, up until relatively recently, there was a feeling that a lot of the impetus had drained away from the land reform agenda. The setting up of the community land unit and of the Scottish land fund were significant high points, but there was a feeling that the process had stopped and that the focus had moved away from land reform.
The situation has changed, in the sense that there is now a window of opportunity to address matters. In that context, the review of the 2003 act is highly significant. It should not be a narrowly focused, technical review of parts 1, 2 and 3, but a root-and-branch review of how the act works and what it is supposed to do. Ultimately, it is supposed to benefit communities throughout Scotland. That is one element.
The second element is support. You mentioned institutional support, but what is most fundamental are the financial resources and support that are available to communities when they engage in attempts to purchase land and associated assets.
The Government’s commitment to reintroduce a land fund is most welcome. The broader discussion prior to the election was highly significant in getting that put through.
However, the land fund must have substantial resources. Community Land Scotland has referred to a figure of £10 million over the lifetime of this parliamentary session, which does not seem unreasonable to me. Given all the public expenditure constraints that we have been talking about and the previous demand for uptake of that fund, that figure does not seem insignificant to me at all.
I am sorry that I have taken the scenic route in answering the question, but there is another issue around support mechanisms beyond the fund and who does what. HIE’s corporate framework objectives have a social element, so it has a long track record in supporting community groups in the Highlands and Islands. Whatever mechanism is put in place to administer what we anticipate will be a substantial and significant land fund in terms of resource, we would do well to follow the HIE model. There are different ways in which to do that, so I will not necessarily fly the flag for any organisation—that is not my role. That said, I note that HIE also has a long track record in the administration process.
In general, there needs to be more support and more awareness of the available resources for community ownership. We are embroiled in closely tailgating these issues, so we assume that everybody is aware of what the community right to buy is and what community land ownership is about—but people are not aware of those things. Our report is peppered with quotations from people who say that they used to have a lot of support from various institutions, such as HIE, but that it is not there any more. We must kick-start the process again. If we are serious about land reform and community ownership, legislative mechanisms must be in place to make the process easier for organisations, and there must be sufficient institutional and financial support to enable things to happen. Without all three of those, the process does not work.
Do you anticipate hearing about the land fund in this afternoon’s budget announcement?
I await that with interest.
Tim Braunholtz-Speight (University of the Highlands and Islands)
In the report, we found that capacity issues are significant in relation to enabling people to use the 2003 act. Some groups have legal professionals, land management professionals and accountants on their committees, but others do not. The less free professional advice groups have to draw on, the more crucial it is that they have available to them experienced people, such as those in the community land unit.
I think that I am correct in saying that the first Scottish land fund was administered across Scotland by the community land unit: it provided support to groups across Scotland not just to use the 2003 act but to access the Scottish land fund to buy assets. In fact, groups outwith the Highlands and Islands were involved in quite a few of the first occasions on which the 2003 act was used. They were within the Scottish Enterprise area, but they were advised by the community land unit.
More recently, the use of the 2003 act seems to be a bit more concentrated on the Highlands, although a group in Ayrshire used it to buy some buildings earlier this year. I do not know where they got their support from or how much they needed. Certainly, the capacity issue is crucial. It is one of the three pillars, as Calum Macleod said, and the community land unit certainly has expertise in that regard. I do not know what the best institutional framework is for delivering the fund across Scotland and whether it would be better for Scottish Enterprise to learn from the unit and develop expertise. However, capacity needs to be in the package.
Does there need to be a change to the definition of the size of a community? There was discussion previously about whether it should apply to communities of more than 10,000.
I cannot see a good reason for excluding urban areas from the definition. The people we spoke to made a number of points about the definition of a community. For example, the idea of using postcodes to define a community is convenient.
Not in some areas.
Yes, sometimes it includes places that do not feel part of the same community and sometimes it leaves people out. Interestingly, people from somewhere in the north-west asked whether they could include people who had moved away but wanted to come back. The idea is that the community consists of more than just those on the electoral register.
I do not know what is the optimum size for a community body to be formed to control an asset. Certainly the 10,000 figure seems to fit with the Scottish Government’s urban rural classification. One group from Neilston—a small town, effectively—used the 2003 act to buy its bank and turn it into a community centre. It was very clear that the legislation operates in a small urban environment, so if that can work there, why not elsewhere?
So a part of a city could form a community group.
10:30
In practice there are lots of examples of community groups in cities doing things anyway, such as running community centres or housing associations—I know that there is a Scottish tradition of that; it happens elsewhere, too. They will be seeking funding and advice on what legislation they can use. I do not see any particular reason not to include them.
I want to touch on the practical problems that community bodies encounter in progressing applications. I was interested in references to problems accessing the electoral register, ballot turnout requirements and, specifically, timetabling. The cover note states that
“Ten Community Bodies have reached purchase stage but failed to complete within the timetable set out”
and that several of the successful applications have been late. Is there a timetabling issue here, too?
There is. There are a few issues bundled up in that. Many of the community bodies that had successful applications but failed to purchase failed to raise the funds within the timetable. We cannot be certain that having more time would have allowed them to raise the funds; the funds may just not have been forthcoming at that juncture for what the body wanted to do. However, we certainly heard time and again that bodies have very little time from when they know they can go ahead to the end of the period. I think that bodies have six months from getting approval to raise the funds and conclude their purchase but, at the beginning of that six months, they do not know what the price will be, because the valuer has not been to set it.
It is very difficult to go to any funding body and say, “Give us an unspecified amount of money for this project—we’ll tell you how much in a month or two.” Seven weeks is lost waiting for the valuation, which leaves about four months to get the funding in. Typically, a funding body takes at least that long to turn round an application. Obviously, a group will be working on its application before it puts it in, but the timing is still pretty tight. With late registrations, it can be even tighter.
Many groups contrast that with the national forest land scheme whereby, when the Forestry Commission Scotland wants to dispose of assets and make them available to community bodies, it gives those bodies 18 months to raise the funding. I have not studied the information to see how many bodies fail to complete within that timescale. Of course, the dynamic is different where it is a public body that decides to dispose of an asset rather than a landowner whose land might be their only asset. However, from the perspective of the community body, that longer timescale is a lot more practical. Some groups include experienced community development workers who bang off funding applications all the time, but others do not and it is a big undertaking for their members to work on funding applications in the evening on top of their other work.
The late registration issue is important. It is a wider issue than just lack of time. Late registrations are treated more strictly under the act. A late registration simply means that a body applies to register an interest in land after it comes on to the market. There is a presumption in the act that bodies will be proactive and will not wait for land to come on to the market but will set out their stall and register an interest when the land asset is sitting there. Some groups do that, but many have commented that it can be quite difficult to do, especially in a small community. If the landowner or asset owner is a local resident, it can seem quite aggressive to say, “If you ever try to sell this, we want it.” All that can be quite delicate in terms of community relations. If someone is interested in community development, one of the things that they want to do is try to preserve harmonious community relations generally.
Many of the groups that we surveyed that had not used the act to purchase land said that the idea that they could go out and register an interest in someone else’s property was politically impossible locally. Most successful uses of the act have taken place when a public body owned the land, so there was no local dynamic, or when there was an absentee landowner who already had a bad relationship with the community and had burned their boats. There were many comments about this. Someone said to me, “What responsible community body would try to buy a building that is still in use?” Another said that it would be a bit naive to expect many proactive registrations.
However, in a recent decision, an application to register late interest in a bit of land that is for sale on the Cowal peninsula was refused because the community had not put forward plans before the land went on the market. There are some other issues with that case, and I am not commenting on whether that was the right decision. The general principle for late registrations seems to be that a community should publicly register its interest in an asset before there is any suggestion that it is going to go on sale. In some cases, communities might be willing to do that but, in others, it might be an unreasonable thing to expect. That is why a common recommendation—again, not our recommendation—from the participants in the survey was that, if the act is to be an act of last resort for communities when an asset is under threat, they should be able to use it without prejudice when the asset is for sale.
It is no secret that one of the main criticisms of the act is that it is too complicated to use. Those looking at the localism agenda in England look first at what has happened in Scotland and say, “Oh, only nine or 10 organisations have used the community right to buy in practice—that is surprisingly low.” The second thing they say is, “My God, this is incredibly complex to use, so why would you if you could explore another avenue?”
As Tim Braunholtz-Speight has eloquently said, one of the key elements of the review of the legislation has to be about how parts 2 and 3 can be made much simpler for organisations to use. I do not think that the process has to be so complicated, nor do many of the stakeholders who are mentioned in our report. Not making late registrations go through any more bureaucratic hoops than timeous registrations do is fundamental. Aligning the timeframes for the different aspects of the process more equitably would also be significant because, at the moment, as other commentators have said, the relationships are skewed. There are set timeframes within which parts of the act have to be kick-started, but they can then sit in abeyance with the minister or civil servants while other elements are considered. We have seen that very graphically with part 3 of the act, but it also happens with part 2. Aligning those timeframes with funding timeframes is also crucial if the system is going to be made more cohesive and simpler for organisations to think about using.
What are the problems with ballot turnout and access to the electoral register?
There have been a number of cases of confusion between the edited electoral register and the full one. Obviously, some people are not on the edited electoral register and communities, or in some cases, local authorities or people whom they have hired to run the ballots for them, have used the edited electoral register and sent postal ballots only to some people in the community. That means that the whole thing is invalid and needs to be done again, which leads to a loss of momentum. It is a simple technicality on which there needs to be better guidance. The guidance needs to be very clear about how to hold a ballot.
Another problem is that a community body is not allowed access to the full electoral register. We heard about cases in which people got it only because a friend in the local authority went round to the photocopier for a minute. That does not seem to be a sensible way to work with a piece of legislation; a better mechanism needs to be created.
There is a lot of support among the community bodies to which we spoke for the principle of holding a ballot. They all agreed that they should demonstrate local support and that a ballot had been a valuable exercise for generating local momentum and support and concentrating people’s minds on the project.
In the larger communities, it was felt that a 50 per cent turnout was quite a high hurdle to pass. A majority is needed on a turnout of 50 per cent of the electoral register. They come quite close to it on occasions. In smaller communities it is not such an issue. Generally, the people who vote are the ones who want the thing to go ahead, so it is typical to get an 80 or 90 per cent yes vote; the issue is whether you can get half the people to turn up or post the ballot paper off. There were various comments about the local authority elections, and whether they are subject to the same demand, to which the answer is no. Whether turnout is in the way is an issue that should be looked at. In England, it was initially suggested that about 75 per cent of the local population would have to vote before anything could go ahead under what they talk of as the community right to build. That was abandoned as completely unrealistic.
I have the great privilege of being involved in a community buyout. I am a resident of Comrie and worked closely with—and for a while for—the Comrie Development Trust at the time of its community buyout. As the witnesses will know, although members may not, it has been a very successful project, which has gone from strength to strength. Many people in Comrie were delighted at the success of the buyout and the idea that whereas, down through the generations in Perthshire, they had seen various things happen to the land around them, now they owned a bit of that land. It was a special moment, particularly for the older generation.
Having worked with the development trust, I have seen at first hand the enormous difficulty that the timescale presents. Comrie was very lucky in that the trust had at its disposal a wide array of skills and people who devoted hours of their personal time. If the trust had not had that, it would have been in serious difficulty.
In the timescale, completely unanticipated things can happen. For example the Comrie buyout was of the former Ministry of Defence base at Cultybraggan, including a nuclear bunker. That presented some challenges, including obtaining insurance cover. Your run-of-the-mill private insurance sector does not really cover nuclear bunkers. That presented a challenge at the last minute, which the trust successfully dealt with. However, it could have taken the trust beyond the time limit and it would have fallen foul of the whole process.
Many other issues have been referred to this morning that cause difficulties, many of which can be addressed fairly straightforwardly. What would be a reasonable timescale to move towards from the current six months? I would imagine that the approach would require some indication of timescale for legal certainty for the landowner.
A nuclear bunker might sometimes have been extremely useful in the land reform agenda over the past 10 years. Do you still have the key?
I did have it for a while.
A timeframe of six months is short. As Tim Braunholtz-Speight said, quite often funding bodies are not even getting round to finalising decisions by then. Between eight and 10 months would at least give a little more breathing space. It is easy for me to pluck four months out of the air, but that is just my opinion. There needs to be wider consultation in the context of the review. I am sure that there would be many views about what might be realistic—from community groups, Community Land Scotland and, to be fair, other stakeholders; I am sure that landowners have clear views on what is a realistic timeframe. Broadening that out would be welcome. The timeframe should be extended, but who can say by how long? The answer will be different for different organisations. The question whether the timeframe is right at the moment in the opportunities that it provides for community organisations is prescient.
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Would it be simplistic to say that, if a review considerably simplified the process, six months might turn out to be perfectly adequate? Is it not the compilation of the process that makes the six months a little arguable?
How the act is set out complicates that process. However, in particular circumstances, it would not be unwelcome to have more leeway on the timeframe in order to address those issues. I would not dismiss lengthening the timeframe; in fact, I would advocate it.
I have had direct experience of that. Even where we exclude finding insurance cover for a nuclear bunker, the key issue is the community obtaining funding. Funding bodies do not work according to this timescale and, although Comrie had experts who anticipated these problems and managed to find their way forward, such expertise will not be present in every community seeking to use the act. Therefore, six months precludes a lot of activity.
That puts into sharp focus why the wider land reform support network is so fundamentally important. There are capacity issues. Highlands and Islands Enterprise has been able to provide funding and professional support in order to get that capacity. That support needs to be in place as we move forward with the land agenda.
My question follows from what Annabelle Ewing was saying about communities raising funds for the buyouts. Dr Macleod touched on the new land fund that the Government will introduce, which will provide the practical assistance that communities need in order to progress their buyout. Will the fund be as important as the legislative changes—or even more important, given that, as we have heard, the practical issues are difficult for some communities?
Fundamentally, the most important catalyst for land reform and community land ownership is having sufficient resources available to make it happen. That includes the support mechanisms to build capacity in organisations as well as the resources for communities to make the purchases. The act, though important, is a relatively minor part of the process if community groups are not using parts 2 and 3.
I sometimes hear it said at conferences and elsewhere that the community land ownership agenda is about redressing the grievances of the past and addressing issues to do with landlords, particularly in the Highlands and Islands. Frankly, those arguments are facing in the wrong direction. Community land ownership is about investing in the future and ensuring that communities have the resources, the wherewithal and the capacity to make best use of the assets that they have and use in the community. That agenda is internationally recognised. The Organisation for Economic Co-operation and Development talks about the new rural paradigm, whereby the natural assets, the social capacity and the social fabric that exist within communities are used for best effect within those communities. The work by Sarah Skerrat gave a powerful indication of where that has happened in practice within community groups in Scotland.
The legislation is important. It needs to be reformed root and branch to make it more straightforward and to make it simpler for community groups to use parts 2 and 3 of the act.
I keep coming back to the point like a broken record but, ultimately, the most significant aspect is having access to resources through the Scottish land fund. That will require an adequate level of funding. How the fund will be administered and who will administer it need to be clear. We also need to ensure that community groups get access to it easily and quickly but with the caveats of good governance, of course.
Will the land fund allow communities that do not have the resources that Annabelle Ewing said were available to the community in Comrie to access such support?
Who knows? That is the point. All that we have at the moment is a commitment to introduce a Scottish land fund. That is welcome, but we need to get beyond rhetoric and find out what it will mean in practice. The capital element is important, but the support element is also really important for building capacity.
The land fund needs to be more inclusive and to build capacity.
I will make a quick point on the numbers. According to the community land unit database, roughly 150 community groups have bought assets or land over the past 10 years or so. Nine of them have used the 2003 act; the other 141 have not, but most of them accessed lottery or other funding in some way. It seems that funding enabled the vast majority of those acquisitions to go ahead.
There is no question but that the act is of immense symbolic importance and, in some cases, has been of direct practical use. However, most useful of all is having some financial resources with which to sit at the negotiating table.
Like Annabelle Ewing, I have been involved with community issues, having been a trustee with the Borders Forest Trust. I was involved in community land purchases before the act and have been involved in some since—they still carry on—so I am strongly in favour of some of the good work that has happened because of the act.
Four of the committee members represent South Scotland or are constituency MSPs within that region. There is some evidence that some parts of the land reform legislation may have had some unintended consequences. Do you have any evidence of landlords not letting land as they used to before the act because of concerns about the right to buy, for example? That is an issue in my area and others have said the same, but do you have any evidence of that happening in any part of Scotland?
I think that you are talking about a different 2003 act. I do not know whether the witnesses are qualified to comment on that matter or whether they have considered it, but I do not think so. Perhaps you should ask those questions when we come to that act.
My question is aimed at Tim Braunholtz-Speight. The post-legislative scrutiny report says:
“The definition of community members should be widened beyond the electoral register to include non-residents with a significant personal stake in the community. For example, to include all those who pay council tax in an area”.
Would that not take us back to a situation like the English rotten boroughs, with people having a vote in more than one area? I am sure that several politicians in this room would not like people to have votes if they were not on the electoral register. Will you explain that proposal?
The proposal came from a representative of a group in a small coastal community in the Highlands where many people had moved away but regularly came back. He felt that the group badly needed extra capacity. Many of those people could have been very useful in that regard, but they were not allowed to be members because they were no longer full-time residents there—they were the sons and daughters of residents, and so on. The representative was also interested in temporary residents and holiday home owners—he was trying to get as many people in as possible. There is nothing to prevent a group from having such people as associate members, but they cannot become voting members, which is a disincentive to their joining. As I say, the recommendations are not always our own and I have not thought that one through in detail—I just thought that it was an interesting point.
There is a wider point about how we define communities and a community body. There have been some technical issues to do with conflict with charity law, which I think are resolved; people were not always clear about that. To use the act, a group must be a company limited by guarantee—it cannot be a co-operative or another sort of local organisation. Often, long-standing local organisations must go through the process of reinventing themselves or becoming new organisations if they want to register to use the act. A number of them have suggested that that is an extra, unnecessary administrative hurdle, which causes confusion and extra work locally, and that, if they were provided with some sort of test about the democratic nature of the group, that might suffice. That seems reasonable. As for whether only taxpayers would have a vote, I am talking about the membership of groups, not about whether council tax payers should have a vote in local elections.
There are a number of issues to do with timing and the time that it takes to get from the idea to the achieved goal. In my case, in Evanton, the process of getting a small area purchased, cleaned up and turned to community use took 10 years from idea to achievement. There must be a lot of training and resilience issues. Sarah Skerratt points out that there is a
“need for training, guidance and support”.
Some of you are academics. Are the universities and colleges lining up that kind of training at the moment?
There is the potential to do that. There is engagement with community groups in different contexts, but whether hands-on training is happening is variable. Tim Braunholtz-Speight may be able to give more details about that in a moment.
The academic community is ploughing a variety of sometimes disconnected furrows on community ownership. One of the big challenges and responsibilities of academia is to think about how connections can be made between the research community and community land ownership, to help to generate and contribute to the evidence base that is important in ensuring that we know whether and how it is working in practice. The training element is significant, too. Tim Braunholtz-Speight may know whether there is any on-going work.
I do not know of any training programmes, but it is something that we would be interested in doing. As ever, the spectre of having to fund and organise such training raises its head, but it is the kind of thing that universities should do. It is something that the University of the Highlands and Islands should do as part of its regional remit along with other institutions in Scotland. I am sure that community development courses will be run around Scotland. UHI has sustainable rural development courses and so on. There is some activity but nothing targeted at the technical specifics of the process. We have both been involved in round-table events that have brought together academics, community activists and others to discuss the broader issues and the way forward, and I am sure that we would be interested in that.
Building the capacity to engage at a community level is the nuts and bolts of this. There are private providers that do that for a fee and, to be blunt, universities are in that situation as well. However, as Tim Braunholtz-Speight said, the core purpose of the UHI is to serve its region. If there is a means to make that happen, we should be connecting the academic community and the practical elements of community ownership. We would be interested in exploring further how to do that.
11:00
That is something that we might come back to.
I should add that my colleague Dr Issie Macphail, who came to a meeting of the Rural Affairs and Environment Committee in February and is not only an academic and one of our co-authors but a long-term member of the Assynt Crofters Trust, is very supportive of this kind of direction.
I have a question for Derek Flyn on the crofting right to buy. Your report asks for various changes to be made. Clearly, the highest-profile part of the 2003 act has been part 3, which concerns what has been called the hostile bid process. Issues around the Pairc Trust have been central to the debate around that. For the benefit of the committee, could you talk about some of the issues that have made the process so tortuous?
It appeared to me that the intention was that the 2003 act would lie in the background in cases in which crofting communities sought to purchase their own land and would help to persuade landlords that that was the way ahead. The divergence of the community right to buy from the crofting community right to buy has been emphasised by experience. The motivation that some communities might have had has been somewhat deadened by the Pairc experience. Remote communities do not resort to law very easily and the threat of action in the Court of Session is enough to stop a community in its early discussions.
Membership of the crofting community right to buy gives a priority to the crofters. The committee will be aware that crofters can now live 32km away from their croft without being considered to be absent, whereas, in the act, that distance is still 16km.
The two major difficulties were foreseen: the process, and the drawing up of maps, especially if the landowner is not in favour of those maps being drawn. The level of detail that the act requires makes producing the maps prohibitive in terms of not just cost, but the actual drawing of them. We are moving towards the possibility of community mapping, but producing the maps from scratch is still a big burden on a community.
On the process, although there was a divergence of the crofting community right to buy, any legal process that the crofters might embark on would normally involve the Land Court, which is a peripatetic court that goes out to the communities and knows crofting law. That would be a much friendlier method of resolving disputes.
If I can compare the right to buy with the individual right to buy that was given to crofters, the opposition that is available to a landlord would be with reference to estate management or to financial hardship. Those arguments have not been successful to any extent against crofters buying their individual lands. Under the recent Crofting Reform (Scotland) Act 2010, someone who owns a croft of perhaps 10 acres has to live within 32km of that land, or they lose the right to occupy it. Residency and the ownership of an estate are not taken into account at all. One would expect the Scottish Land Court to take into account whether a landlord is managing an estate and living nearby. If someone who has 10 acres is supposed to live within 20 miles of that land, surely someone who has 10,000 hectares should live within range of it. To be precise, perhaps it would be better if 26,800 acres were in the control of the local community than in the control of an absentee.
For communities that cannot even communicate with their landlord, we can see the force of the argument that the process that is involved in the so-called hostile right to buy must be simplified. People are being asked to produce business plans. That has been an issue in Pairc, which we might deal with. In other cases that I can think of, the sheer fact of being free from someone whom people cannot communicate with and who will not communicate back would be an important first step in a business plan.
Yes. I have experience of landlords who buy land without realising that it is croft land. Before they announce to the Crofters Commission that they have acquired the land, they are back into the auction houses of London trying to sell it. They are elusive characters. Our experience with Pairc will perhaps guide us on the changes that are required to certain parts of the 2003 act. It would be nice to have the time to sit and listen to all the arguments, but it is the decisions that we must examine closely when they arrive, so that we can identify what steps should be taken to correct the act if it is faulty.
There are issues relating to Government assets. There have been long-standing attempts to encourage take-up of the crofting community right to buy in the crofting estates. I presume that, in the greatest landlord in Scotland, Stewart Stevenson is now the minister responsible, following on from Mike Russell and Roseanna Cunningham. However, there has been no appetite to take up the crofting community right to buy. Is that an inhibitor to the argument that communities can take control of their affairs?
It seems to me that large chunks of land became estates not because of the people who lived on them, but because an external person was extremely rich. At the time of the Borve buyout, we identified the idea that the correct community for a buyout is perhaps a single township. That is why the community company in that buyout was called Borve and Annishader Township. People in the township could organise themselves in that way and knew each other. In a large estate that has two strong communities in different parts, there will be suspicions about each other. With large publicly owned estates, it would be wise to consider transferring ownership to smaller communities.
That is interesting.
You mentioned some process issues. You said that the requirement to live closer than 32km to a croft needs to be adjusted. However, we know that people can make a case for living further away from a croft if their land is in proper use.
As I understand it, the Crofters Commission can give consent to people who live further away than that distance. That is being dealt with elsewhere.
The issue of late applications has already been mentioned. Would the reinstatement of
“late registrations to use Part Three of the act”
allow those affected to think they will be treated in the same way as those who have already registered? After all, there are sometimes good reasons why people do not wish to register to purchase land.
I do not think that that involves the crofting communities in the same way. Only two communities have moved to registration and, because they are not waiting for any particular trigger or sale, the measure is always available to them. In any case, it is difficult to know how a community would register. I suppose that a community looking for its own land on a publicly owned estate might be interested in setting up its own body for approval.
The report also says that the proposal to extend part 3
“to include the seabed to facilitate off-shore renewables developments”
has been discussed. We received quite a lot of evidence about Marine Scotland in a separate series of evidence sessions. Is it feasible for people in crofting and other communities to manage the sea bed in their locality? Of course, that question is for everyone on the panel.
They should certainly have the opportunity to attempt to do so. Whether it is feasible will come down to their business planning and initiative, which link back to capacity, support and resource issues. Broadly speaking, if assets are in the community and, arguably, should be available to the community, they should be accessed by the community.
When the Abriachan Forest Trust, a local group in Inverness, bought a large area of forest they were not foresters and in fact had no technical expertise in that area. They employed a forestry consultancy company to do that work and have now established a long-standing relationship that has worked very well. Through that approach, they have managed to secure community benefit and very successful development of the forest and have resolved capacity issues by funding the employment of foresters. I am not suggesting that every community would need to have sea-bed engineers living in it in order to manage a marine renewable project, but it could proceed on the basis that I outlined.
If communities are carrying out mapping projects, which they will be, the next step will be community asset mapping. It seems to me that, as the sea-bed interest is part of the community asset, it would be identified as such. It is up to communities to identify their assets locally and the sea bed is obviously an asset of a local community.
Would that apply right across Scotland?
Yes. As Tim Braunholtz-Speight has explained, there are different ways of securing partnerships with other stakeholders. The fundamental point, though, is that the asset lies within and is for the community.
I am sorry to go on about this, but the issue also arises with renewable energy, particularly wind farms. A study that compared the benefits flowing to a community from developer payments with a share of the profits from owning the farm basically concluded that you get much more if you own the farm. Again, the people who live in the village would not build and run the project, but would hire people and oversee it.
To sum things up, do any of you wish to raise, in a succinct manner, any issues that we might have missed?
Are you talking about across the board?
Yes. I must ask you to be very brief.
I reiterate that we are at a pivotal moment for the land reform agenda. The review of the legislation is significant and it will need to be wide-ranging, rather than narrowly focused and technical. It is as important, if not more so, that other support mechanisms, particularly the financial mechanisms through a Scottish land fund, are adequately resourced and managed to ensure that communities can access those resources and kick-start the pursuit of the agenda that the Parliament originally committed to when it passed the 2003 act.
11:15
I echo all that, but I want to make a small point about late registration and the question whether a community is able to challenge a local landowner. It was suggested that the legislation be joined up with other policy areas and that we look at the community planning process and whether it could be changed to allow the incorporation of assets of strategic interest to a community. That would not put the same onus on a community group to stand up and say, “We want that at some point in the future.” Such a move might make it politically easier to discuss such matters. It is something else to consider. There is obviously a tension between the power one gives to a community and the amount of risk and scale of challenge that it can take on. Nevertheless, there might be ways of joining up the aims of the 2003 act with other policy areas.
I am off to a conference in Portugal on common lands. Remote areas that are still in common use are not helped very well by processes and institutions and we are trying to draw attention to the fact that the problem is common across Europe.
In Scotland, the committee was told that the common grazings would be mapped. That is obviously a major exercise for crofters to undertake themselves and I would like to find out how it is progressing. No doubt I will do so elsewhere.
I thank the witnesses for their evidence. We have a lot to mull over and the model in your report with its various proposals, changes to specific provisions and comments on education and guidance provides a template for dealing with many other land matters. We congratulate you on the report and will consider its contents in formulating the recommendations that we will make to ministers before they set up the Government’s land reform group.
11:17
Meeting suspended.
11:21
On resuming—