Official Report 570KB pdf
Agenda item 5 is evidence from stakeholders on the Community Empowerment (Scotland) Bill. I welcome the panel: Peter Peacock, policy director for Community Land Scotland; Sandra Holmes, head of community assets, Highlands and Islands Enterprise; David Prescott, chair of the board, Holmehill Community Buyout; Duncan Burd, rural affairs sub-committee, Law Society of Scotland; and John Watt, specialist in community land ownership. Welcome to you all.
The sound system is operated by the sound technician, so you do not need to press any buttons. I will indicate whom I am asking to speak; if you want to speak on a particular area, please indicate to me. We look forward to gaining the benefit of your wide experience in these matters.
I will kick off by asking about how the dialogue and consultation on the community right to buy and the crofting community right to buy have been conducted. We are told that there have been various elements to the consultation but, as far as we know, the provisions in part 4 have not been consulted on in the same way that provisions in other parts of the bill have been. Has the consultation on the part 4 provisions been suitable?
Community Land Scotland has been making submissions about part 3—the crofting community right to buy—since 2012, when the first consultation on what was to become the Community Empowerment (Scotland) Bill took place. We made representations on the need to undertake work on part 3, which was followed up by our representations in the more formal consultations. We have actively made the case for change for about two and a half years, and we have had dialogue with officials and the Government on that.
As you will be aware, the Scottish Government has published a short consultation paper on part 3. We have made written submissions and I know that others have, too. A series of meetings have been taking place—Sandra Holmes was probably at one in the past week. There was one in Inverness and there was one in Harris earlier this week.
That consultation has been happening and we are not unhappy about it at all. We are very pleased that the matter has been picked up in the bill, because it requires attention. The consultation is well targeted and what is proposed seems pretty spot on, although one or two things need to be tidied up.
I point out that you are talking about part 3 of the Land Reform (Scotland) Act 2003.
Yes, that is what I am talking about.
I know that you are, but I am explaining that for the benefit of my members, since we are dealing part 4 of the Community Empowerment (Scotland) Bill. That is why it is necessary for us to have a copy of the Land Reform (Scotland) Act 2003 beside us.
Does anyone else want to comment on the process so far?
Since the Community Empowerment (Scotland) Bill was first talked about and before it was drafted, Highlands and Islands Enterprise has engaged strongly and actively in the process. I have lost count of all the submissions that we have made at various stages. We very much welcome the bill and, like Community Land Scotland, we welcome the recent proposals to include amendments to the crofting community right to buy at stage 2. Last week, along with civil servants from the Scottish Government, I took part in a discussion on those proposals that was hosted by Highland Council. We have submitted written evidence on the crofting community right to buy amendments. We think that it makes a lot of sense to pull everything together, particularly given that parts of the community right to buy in proposed new part 3A of the 2003 act are based on the existing crofting community right to buy.
Very good. That opens up the question whether those provisions should be part of the proposed land reform legislation, but Sandra Holmes says that they are naturally part of the bill. Are we agreed?
Yes—absolutely.
In that case, we can move on to the policy memorandum.
This is really just a background question. Back in June, the convener of the Scottish Parliament’s Local Government and Regeneration Committee wrote to the Minister for Local Government and Planning to seek clarification on some points relating to the policy memorandum. In what could be seen as fairly critical language, he said that the policy memorandum appeared to be little more than a “superficial overview” that did not supply sufficient material to allow for part 4 to be properly scrutinised. Correspondence took place and further detail was provided, but at the end of the day the policy memorandum devotes fewer than three pages to part 4 and at one point summarises 20 sections of the bill in just seven bullet points. Are you truly content that you have been provided with enough information to fully explain the purpose and policy aims of the bill? My guess is that you will say yes.
As I said to the convener, there has been dialogue on the issue since 2012. To be frank, I was quite surprised by that letter from the Local Government and Regeneration Committee to the Government. That was principally a surprise to me in the sense that, although I can understand why the Local Government and Regeneration Committee might have been less sighted on the matter than this committee, as Mr Fergusson knows, in a past life I sat roughly where he is now, and the then Rural Affairs and Environment Committee carried out an independent inquiry into the workings of the Land Reform (Scotland) Act 2003. In effect, the debate has been going on since 2010-11.
Community Land Scotland was not unhappy with the policy memorandum. It gave us enough to work on and it clearly reiterated the purpose of the Land Reform (Scotland) Act 2003, which is to further the achievement of sustainable development and to remove barriers to it. That is the core concept. Once we get that, all the provisions in the bill make sense. Therefore, we were not unhappy with the policy memorandum at all in that sense.
Some members obviously felt that a case could be made that there were not enough details but, basically, you guys in the field were content with what came your way.
Absolutely.
That is fine—thank you.
It is complex to look through the proposed changes and the existing act, as that involves cross-referencing and looking at lots of documents. However, we are satisfied that there is a lot of good stuff in the proposals and we are keen for them to progress. After going through the details of what is in, what is out and the proposed changes, we see the outcomes as helpful and enabling and we are keen for them to be taken forward on the proposed timetable.
In that case, we will move on to the financial memorandum.
There seems to be a degree of uncertainty regarding the financial memorandum. Highlands and Islands Enterprise has stated that it agrees that there are difficulties in estimating demand, for example. Bearing that in mind, what specific costs does the panel anticipate for communities and landowners, and what costs might public bodies have to bear?
I will wear my hat as the chair of the Scottish land fund committee. The committee has the responsibility of managing the Government’s Scottish land fund, and many of the cases of communities wanting to acquire property and land assets come to us.
Prior to this meeting, I submitted information about where we are and the number of cases that have come to the land fund that have gone through the community right to buy process to date. I included the national forest land scheme, which is a kind of community right to buy of a public asset.
The detail is in my paper, but I can tell you that we have a healthy pipeline of projects. We have £9 million over three years—the last tranche being £3 million for the next financial year. There is pressure on the budget, but we are managing that at the moment. Some of the changes that will happen if the bill is enacted might increase the pressure. For example, the extension of the community right to buy to urban areas will have an impact.
However, at the moment we are projecting that we will manage the pressure on the budget. We are careful about assessing the outcomes that each case will bring in relation to sustainable development and resilient rural communities, and we will continue to do that.
Committee members have your paper, which gives a broad outline of what the budget is, but I want to bore down into where the budget goes. I want to know what types of costs—rather than the overall budget, which we appreciate—public bodies, community bodies and landowners face.
Do you mean the applicants or the landowners?
I mean applicants, landowners and public bodies. My question is for the whole panel.
I will stick to the land fund for the moment. A team of public sector officials assists communities in the development of good projects. Sandra Holmes heads up the team. There are obviously costs to the public sector in relation to the development and application process—Sandra might comment on that.
We put in a submission to the Finance Committee on HIE’s corporate perspective on the part 4 provisions on the community right to buy. We see no significant direct costs coming to HIE. We will update some of our guidance and there will be a modest one-off impact on the organisation.
We support communities in their aspirations to own and manage assets, and that is where the bulk of our efforts go. We are already doing that, and most of the support that we offer goes to communities that are not planning to use the legislation because they have other routes to ownership.
John Watt mentioned that we support the Scottish land fund. That is a Scottish Government programme, which we deliver on the Government’s behalf in partnership with the Big Lottery Fund. The Scottish land fund currently applies only to rural areas—that is, communities with a population of up to 10,000.
The bill will extend the application of the community right to buy to all communities, so it will take in communities with a significantly higher population. Our sense is that there will be a rise in interest in using the community right to buy, with a knock-on effect on demand. Some of the difficulties in trying to articulate the overall cost lie in the fact that the system is so demand led.
The key thing is to put the issue in perspective. The Land Reform (Scotland) Act 2003 was enacted in 2004, so we have had its provisions for a decade. I believe that there have been about 18—fewer than 20—applications under the provisions but, from my rough calculations, I think that there have been 110 acquisitions in Scotland on top of that. The 2003 act is enabling and it creates a positive environment, but most stuff happens outwith its provisions.
However, the extension from rural communities to urban communities is a key change, and it is pretty challenging to quantify the demand that is likely. If communities require public funds to enable acquisitions to progress, that will be a limiting factor. The right to buy is one thing; communities must then secure funding.
Since the Scottish land fund came on stream in 2012, there has been, as John Watt said, a very healthy pipeline. That is the enabling factor that instigates communities to be proactive and to see a route and a means to generate the finances that are required to enable a purchase. Within that, private financing is featuring to an increasing extent. Communities are getting commercial borrowing to make up the funding packages.
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In previous evidence, we have said that we want to see all of this advance but, as John Watt and Sandra Holmes indicated, urban communities will come into the equation under what is proposed, which will mean that the potential demand on the land fund will grow. We are under no illusions, because we know that that must be cash limited at some point—that is a budget matter for Governments over time. We are not arguing for an open-ended chequebook, because we recognise that there are public expenditure constraints. Although we might argue for the budget to be nudged up, we recognise that it competes against other things.
That is useful.
As no one else wants to comment on that, we will move on to Cara Hilton, who has a question about the 2003 act.
Good morning, panel. Given that the primary objective of land reform is to remove land-based barriers to the sustainable development of rural communities, how well has the 2003 act worked in practice? Have aspects of rural Scotland changed as a result of the act? Have the experiences of the 2003 act and land reform to date informed the drafting of the bill?
We tried to buy land, but the legislation did not work for us. However, it made us form a group, which was a huge positive. We will celebrate our 10th anniversary in January with a ceilidh—we are not giving up yet.
The legislation did not work for us for a variety of reasons, which I can go into but which are well documented on our website and which there is a bit about in our submission. I am no expert but, as far as I can tell, the changes that the bill proposes seem to deal with some of the problems that we had when we failed to secure our registration.
I admit that some of the things that have come out subsequently have made me worry about how we will go forward. We are continuing to go forward positively but, unless we can secure ownership of the land, we will have no community control over it at all—I can go into that in more detail. However, we have been through the planning process and have retained the original designation of the land as public open space in case somebody wants to try to buy it for its development value. The valuation is a big concern financially.
We have secured the land in the local plan as public open space, defeated one planning application and had another one withdrawn, as we had the support of Stirling Council’s planning department. However, we have not been able to move forward and use the land, which we would like to do for the community. We would like to engage with the community and have a dialogue about how it can best deal with the land. We have ideas, but there will be lots of other ideas.
The bill is a good start, and the group and I are really pleased that the committee invited us to the meeting, although it is a bit frightening. However, we would like to work with the committee on the basis of our experience and help if we can.
Will you briefly tell the committee about the couple of things that got in the way of the legislation working for you?
The first one was that we were refused in the first instance because we were not timeous and did not register beforehand. The land was in the local plan as public open space and it was always treated as that. However, the owner sold it as land with development potential and somebody bought it for that. He thought that he was on about a 5-1 win, but he had to overcome a group. Our first failure, though, was not securing the use of the land. As you probably know, we used the appeal process, but it was pretty hairy and did not take us very far forward.
In fairness, we were encouraged to reregister. I would not say that the process was easy—I did not do most of it—but we managed it. What killed it for us was that the owner had sold an option. We saw a piece of paper with “Option” on the top and practically everything else redacted, apart from the solicitor’s name. We know not to whom that was sold, for what value, when that happened or whether the option is still extant. As a result, we have taken the view that we will not seek to reregister until we are in a position to know that we will not end up in the same situation. The stuff that has to be done—going out to the community, going through all the support processes and writing the document—is a big exercise. It is not a good idea to go to the community too often. People should really go to the community only when they have to.
Those are the two big issues that our experience has identified. I believe that the bill seeks to address them, but I am not qualified to say whether it will be successful in how it is framed.
Your evidence is extremely valuable.
Cara Hilton asked about three points: whether the 2003 act has worked, whether it has changed rural Scotland and whether the bill has been informed by that. My experience of community land owning goes back to a past life, when I was involved with the Assynt crofters in the buyouts of Knoydart and Eigg before the 2003 act was passed. As you know, I got diverted into other things.
I have come back to the issue 15 years later, and I can honestly say that the landscape—in the broadest sense—has been transformed from the position at the time of the Assynt crofters buyout. In certain places, community confidence is much higher than it used to be. People are doing the most remarkable things that, frankly, I would never have believed were possible back then.
That has happened partly because the 2003 act gave consent to communities to want to own their land and gave them a legal framework to do so. In a sense, through the act, Parliament and Government said, “We want you to do this and here’s the law to help you do it.” From that point of view, the act has been transformational. Notwithstanding that a lot of people do not use it, it has changed the environment in which such matters are dealt with, which has been excellent.
However, we know from experience that the 2003 act is hugely cumbersome, difficult and bureaucratic in a variety of ways, to the extent that communities find it almost impossible to deal with. That is why we now have a bill to revise it. For the most part, the bill is well targeted and picks up on the issues that communities have expressed concern about over time.
I have quite strong reservations about aspects of proposed new part 3A of the 2003 act, which might not be as helpful as they could be. We will undoubtedly come on to that. Part 3 of the act purports to provide an absolute right to buy. It is not actually an absolute right to buy, but it gives a community a chance to buy land that is not for sale.
The crofting community right to buy has completely changed the environment in the Western Isles. We have moved on from communities thinking about exercising their rights to compulsorily buy land and going through the process, which is horrendously complex. The mapping requirements in particular are horrendously complex; the committee might want to come back to that.
Nonetheless, one community took forward its case and another one started to take forward its case. That has led to a complete change in the environment. Now, landowners and communities in the Western Isles negotiate the future; they do not use the act, but they would not be negotiating but for the act. It has become hugely important as a backstop to allow negotiation to continue. I can pick up other points of detail, but that is the context.
We will come to some of the detail very soon.
Before I bring in John Watt, Dave Thompson wants to ask a quick supplementary.
My question relates to Peter Peacock’s references to complexity. I noticed that, in its submission, the Law Society of Scotland said:
“There are multiple amendments to certain sections of the 2003 Act of the Bill which are rather difficult to follow and this does not seem to sit well with the aim of empowering communities. The Society suggests that it would be simpler to repeal and re-enact part 2 of the 2003 Act.”
It is slightly concerning if the Law Society finds the provisions difficult to follow.
I do not think that Law Society members find the provisions difficult to follow, but we have tried to put ourselves in the position of the common man in Scotland. When he sits down to look at such a cumbersome piece of legislation that cross-references different acts, that becomes difficult. We encourage the Parliament to make the legislation as simple as possible so that the man or lady in the street can pick it up. If the legislation for a bureaucratic process is heavy and cumbersome, it will frighten off a lot of people and you really do not want to do that.
Do you stand by the suggestion or recommendation that the 2003 act should be repealed and re-enacted rather than amended?
I recently attended the WS Society and crofting law group conference in Lochmaddy, at which we looked at the problems caused by the Crofting Reform (Scotland) Act 2010. When layers and layers of amendments are made to legislation, it eventually breaks down and becomes a money-making exercise for my profession. I take it that you do not want that.
Most certainly not.
Peter Peacock has said almost everything that I was going to say. I am almost as old as him, so I remember the Assynt crofters process.
So am I. We should have an Assynt fest.
When the 2003 act came in, the process was soon found to be difficult. My colleague Sandra Holmes has helped a lot of communities through the process, especially under part 3. Many of the big projects did not even attempt to use the act but, as Peter Peacock said, it was a useful piece of legislation to have in the background as a backstop if other things did not work.
I do not have the exact statistics in front of me but, under the first Scottish land fund, which was established in the early noughties, very few projects went through the community right-to-buy process. Most were negotiated settlements or sales. As the committee can see from the figures for the more recent Scottish land fund, only four or five out of 28 projects have gone through the process. It was useful to know that it was there, but it was complicated to use and it is good that some of the difficulties with it are being addressed.
Indeed. I suspect that we will have to talk about that in more detail.
I thank any of you who have found something positive to say about the 2003 act, as I was convener of this committee’s predecessor when the act was passed. I assure you that any impediments were not placed there on purpose. That is just a light-hearted comment.
What Duncan Burd just said highlighted that it might have been better to introduce the proposed provision as a separate piece of land reform legislation rather than to tack it on to the bill.
The bill’s overall aim is such that it is the appropriate place for the provision. It does not need another piece of legislation that will simply frighten people away.
Correct me if I am wrong, but you said that we are adding amendment on amendment to existing legislation and that that is not very satisfactory.
That is not ideal. From my experience of acting in a lot of buyouts, I know that people are incredibly nervous of the explanations that we lawyers give, whether it be to the landowner or to the prospective community group.
That is fine. I just wanted you to clarify that.
Let us move on to more detailed issues about land in which interests may be registered.
The panel will be aware that the right-to-buy provision in part 2 of the 2003 act applies only to community bodies that represent rural areas. Section 27 of the bill will amend the definition of registrable land and the power of Scottish ministers to define excluded land to allow the community right to buy to apply throughout Scotland.
Duncan Burd might wish to expand on the written evidence from the Law Society of Scotland, which states that there are
“marked differences between a right to buy exercised in rural Scotland and one now to be exercised with regard to land in an urban setting which may well have a higher acquisition and development consequent cost.”
Furthermore, there is a requirement to
“restrict the application of community right to buy in urban areas where there is an active development proposal. If such provision is not made then an unrestricted community right to buy could have unintended but significant adverse effects on investment decisions.”
How will community confidence, cohesion and sustainability be affected by extending the community right to buy? Could there be different issues in an urban context?
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The Law Society’s membership includes landowners from across the rural and urban spectrum. The concern is that a small community in an urban environment might be interested in a particular asset that is part of a larger asset that is capable of development. In such a case, the development could become blighted and there could be a scenario of competing interests. It is important for the committee, as legislators, to include a safeguard to balance out the greater development good to the community. We have suggested one or two technical measures that could be added to give developers comfort. Development projects can take time to reach fruition; in the commercial world, time is important.
That is clear.
Highlands and Islands Enterprise would like parity of opportunity to be extended to all—communities are communities, whether they are rural or urban. It seems right that the opportunities should be open to all communities. We welcome the proposed amendments, which offer more flexibility in the structures to extend the opportunities even further.
It could be argued that land and building costs in an urban area might be at a premium in comparison with those in a rural area, but that is a secondary issue. We are talking about giving communities their rightful opportunity to engage, become empowered and, where they can, take control of assets to add to their empowerment.
The community right to buy seems to be working in many rural areas and, if that is so, why should the same opportunity not be available more generally? I see no reason in principle why it should not be available to all, and I see a reason in principle why it should be.
The community right to buy is almost certain to play out differently in an urban context. The situation is more complex, as it is more difficult to define the boundaries of an urban community and we are probably talking about much smaller landholdings and about sites that might be abandoned, neglected or in need of further development. I am sure that we will come back to this point, but I am thinking of individual buildings or gap sites that might fall into that category. The right will play out differently but, in principle, there is no reason why it might not play out properly in an urban context.
Blight is an interesting issue. When I spoke at a conference last week, a question about it was put to me. I answered in this way: the blight that we experience in the areas that have bought their land in rural Scotland is not being caused by the community purchase; rather, the community bought the land to get round the blight that it felt was there, because the land was not being developed to its full potential by the current ownership structure. The communities that Sandra Holmes and John Watt help, through their roles, are interested in developing their assets, because they feel that that has not happened in the past. I am sure that the technical points that Mr Burd raised are worth considering, but it would be wrong to characterise the communities as causing blight, because that is not necessarily the case.
I will follow up on the point about blight. The land that we sought to buy, along with certain other sites in Dunblane, has been blighted by inactivity by the owners, in some cases over many years. I am thinking of sites in the High Street that have been left completely empty for the 17 years that I have lived in Dunblane. That is a key issue.
On the rural-urban split, we are considered to be a rural community—I think that we have just under 9,000 inhabitants—although I do not think that we thought of ourselves as a rural community until we engaged with the 2003 act. Certainly, the population is not substantially involved in rural activities. We were fortunate; a slightly bigger community would not have been in the same position, although I cannot see why such a community should not have had the same role. The fact that the issue is addressed in the bill tells us why the provision should be there: it is a means of enabling communities to empower themselves.
The planning process governs the value of a site. In our case, we think that the value has reduced. I would perhaps like to explore at some point how value is reflected, against planning provision, given that a gamble by a developer can inflate the price.
We are talking about ensuring that the community engages in the wider process of managing its community. In all fairness, a number of us who have become involved in the process have done that and are continuing to do so, including in the context of aspects of built development around the site in which we have an interest. We are trying to work with the developer—a housing association—to secure the best outcome for all parties. The process has become much more inclusive.
It will be interesting to hear more about that in response to subsequent questions.
I am wearing another hat now as a member of the Scottish committee of the Big Lottery Fund. The fund’s growing community assets programme assists communities to acquire properties in urban contexts, through negotiated purchases. We are seeing that that approach has significant benefits in communities. The properties are usually small—sometimes they are even single buildings—but the community thinks that they can be put to a more positive purpose than is currently the case.
I agree with Peter Peacock that defining the community is more challenging in urban areas. We need structures that are broadly representative of the community, and acquisitions must be in the public interest—they must be for a positive community purpose. The cases that we process through the Big Lottery Fund are assessed on public interest and positive community benefit. If communities are given more rights to register an interest in properties in urban areas, it will be interesting to see whether there is a significant increase in demand.
You said that defining communities in urban areas is a challenge. Do you foresee unintended consequences—if such things can be foreseen—or practical problems as a result of extending the community right to buy?
One always has to deal with a legal entity in such situations, and there are basic rules about the nature of the legal entity, which bodies must and do follow. For example, there are rules to do with having open membership, having democratic control, not bringing about personal gain, not distributing profits to one another and the like. Such principles have to be there.
Communities in urban areas can begin to define their boundaries, as they do in rural areas, although doing so is more challenging because there are a lot more people in urban communities. I suppose that minority interest groups might try to usurp the process, but we can build safeguards into the system, in relation to who can apply and the structures that they use to apply, to overcome that particular unintended consequence.
Can you give examples of safeguards?
I meant in the type of legal structure that the applicant must have: open membership, democratic control, non-profit distributing—those kinds of principles.
We might continue in that vein with Claudia Beamish.
Thank you, convener, and good morning to the panel. The definition of community is a very complex issue, and it would be helpful for our discussions if we explored it.
I will build on what John Watt said. The panel will know 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. What type of entity should the bill enable to register a community interest in land? What are the practical implications of extending the bill to Scottish charitable incorporated organisations? What other types of bodies should be included by regulation or specified in the bill?
After the panel has answered those questions, I would like to move to issues of the extension or limitation of postcodes.
We welcome the proposals to include SCIOs, because the SCIO structure can exhibit the characteristics that are exhibited by existing communities. As John Watt mentioned, a key tenet of companies limited by guarantee is their open membership.
We have been advocating that two-tier SCIOs should be included. There are two kinds of SCIO and a two-tier SCIO has a wider membership, which elects the board of directors for the day-to-day running of the organisation. That approach parallels companies limited by guarantee.
We are aware that there have been discussions about including bencoms—community benefit societies. We are definitely seeing more community groups considering becoming a bencom. We have not fully thought through the issue, but we will do if including bencoms is discussed at stage 2. We welcome in principle the extension of the provisions where that is appropriate and where there are safeguards of democratic and community control.
A benefit of a bencom is that it can generate private finance for its members. Currently, communities are looking to raise funding to develop the funding packages that are required for their purchases. A significant local benefit of funding from bencom structures is that they build in loyalty and give people a stake in the overall success of the business. People feel connected to and part of something when they have contributed to it.
Although we have not looked at the suggestion in detail, we welcome it in principle. We will give it further consideration if it appears at stage 2.
Perhaps it will make the discussion easier if I highlight a couple of the other definitions of community, such as communities of interest, or wider definitions in relation to geographic area, equalities groups such as ethnic groups, or definitions of place such as allotment societies or community councils. Should those definitions be considered for use in the bill? How do they compare to postcode definitions that have been used in the past?
It is important for us all to understand how we can empower communities. I throw that comment in at this stage.
We have a company, and I am the chairman of the board. We are also registered as a charity. Our main fundraising is to pay the accountants to do the accounts for the company and the charity. We looked at becoming a SCIO and we concluded that, given our position, it was not worth us changing.
We have managed with the current system. It caused us a few problems: we had to change the memorandum and articles of association at one stage to meet one requirement, and for people who are not routinely involved in the bureaucratic processes that can be quite hard work.
On the definition of community, we took Dunblane as the community because the land that we have sought is right in the heart of the town. It was not easy to translate that into postcodes. Achieving 10 per cent of the people on the open register—we were not allowed to include people who had taken themselves off the register—was, in itself, a major task. Several people spent quite a long time in the library going through the electoral roll knocking out people who had signed who were not eligible under the definitions.
11:45I believe that you should try to define the community in a more free-form fashion. It might be entirely acceptable to use postcodes, but perhaps it could also be defined by community council wards, for example.
This all comes back to something that I think important. I declare a slight interest: I am an honorary member of the Association of Community Rail Partnerships, which will tell you a little about where I come from. You have to leave the community to define the community interest. You then have to say whether it is the right definition and whether it represents vested interests or something inappropriate—I will not try to define that in any way.
You should set a much more diverse framework rather than say that the community has to tick certain boxes. It should enable people to understand that they must be inclusive, follow equality legislation and have open membership but also enable them to define their community by the need that they perceive and the way in which they would progress matters.
I will not try to be clever and say how that should be done; I leave that to others. However, if anybody wishes to develop any of those ideas and there is a dialogue about it, we would be happy to participate. It is a matter of coming up from the bottom and not down from the top. The bill should be entirely enabling legislation. I genuinely think that the bill is groundbreaking, which is why I have spent quite a lot of time trying to contribute to it.
That is helpful.
I echo everything that has just been said about helping communities to define their own place. The bill seeks to address the criticism that the postcode definition is too restrictive, open up more possibilities and give ministers power and flexibility to consider other things for which a community might argue. That is right and helpful.
On SCIOs and bencoms, SCIOs did not exist when Alex Fergusson dealt with the matter as convener on the Rural Development Committee. They now exist and it is right that the bill recognises that. However, it is equally right that other forms evolve. The sector is dynamic, and who knows what will emerge in the next wee while? Again, ministers are rightly giving themselves powers to update the legislation on that constantly.
The question on communities of interest is a good deal more complex. The bill comes from a concept of place and how we develop it; it is not about interest. However, within a place—in particular but not only in an urban context—if a local dramatic society or whatever wanted to purchase a piece of land to develop something or a building to convert it, it would be able to try to move that through the processes that are being developed. There would be no inhibition to that, but ministers would ultimately have to define whether such a registration of interest in the land was in the public interest.
Communities of interest are not excluded, but the bill comes from a different perspective: it is about place, not interests.
The structure of the bodies that can apply for funding and use the right has evolved over time. For a long time, it was almost exclusively companies limited by guarantee. That was in a period in which public funding was perhaps more available. Some of the changes to bencoms, for example, are designed to allow such companies to raise private capital as well as to apply for public funding, which we all welcome given the difficulties with public funding. There are ways of achieving both flexibility in capital-raising ability and the community and public interest, and the challenge is to find them.
The bencom model is evolving. Again wearing my lottery hat, we have recently funded the community shares Scotland service, which advises communities on how to raise community shares for a variety of activities. You will probably see various prospectuses from community organisations that are raising money through that mechanism for projects. In many cases, there is a remarkable degree of success.
I ask Sandra Holmes to keep me right if I am wandering, but I recently came across one case in which the company that raised the shares was a bencom—it was an industrial and provident society—but it had built into its memorandum and articles of association the objective of transferring its surplus profits to a community-based charitable organisation. That link between a trading activity, which could be based on owning a land asset, and a community benefit charity is important. There are more complex models than those that have been seen in the past, but we have to look at them carefully, and the legislation should enable that to happen.
Sandra Holmes can correct me now.
There is nothing at all to correct.
As time has moved on and communities have become more innovative, we need more sophisticated approaches. It is difficult to be prescriptive in primary legislation about entity types. We have advocated that, rather than limiting the provision to companies limited by guarantee, SCIOs and bencoms, the bill should set out the required characteristics. If we get the characteristics right, it will then be up to each applicant to demonstrate that its structure fits with the characteristics that are detailed in the legislation.
That approach would be more enabling and would accommodate future developments that we cannot anticipate at this stage. It would also allow communities to see clearly what is needed and it might help to take into account communities of interest.
Communities of interest have a legitimate role but, under the existing structure, the definition of “community” is centred on a geographic community. Currently, the geographic community has to be described using postcodes—although that might change—and the membership of the community has to be established to demonstrate that a majority of them are in favour. It is difficult to get a constituency of voters for a community of interest—how do we determine where the community of interest is and who would get a vote in a ballot?
The current provisions are based on a geographic community, but it might be more enabling and accommodating of future needs if the bill referred to the characteristics.
To follow up on the issue of bencoms, would the bill have to be amended to enable the transfer of assets if something came to a different organisation, such as a charitable organisation, as Mr Watt described?
On Sandra Holmes’s point about a community of interest, I can give an example from my region, where there is a choral society in one town and people travel a considerable distance to it because of its reputation. If the society was to consider purchasing a building to be a venue for an arts hub, we would not want to restrict it. Therefore, Sandra Holmes’s description of a way forward is useful.
Some of my colleagues have probably read the bill more carefully than I have—
They have certainly read it more carefully than I have.
I think that it contains a provision that gives ministers flexibility on other legal structures, which we should welcome.
The emphasis should be on the people rather than the geographic place. The real community is the people, and the place that they live in is secondary, although I hate to say that and I do not mean it like that. The guiding principle should be to look after the people, and the rest will follow.
I have a point that follows on from something that David Prescott said earlier. We have the kinds of constitution that are demanded of different sorts of organisations, and we have the kinds of constitution that are acceptable to the Big Lottery Fund. For example, a body in Evanton, where I live, had to change its constitution three times in order to access the funds that it finally got. Our discussion has not touched on that issue, but I wonder whether the bill will make the process involved simpler and whether we can recommend ways to make it simpler.
That is a very challenging question. I have two thoughts about it, one of which is that the issue could be dealt with by administrative means in the sense of getting together the Big Lottery Fund, Government officials and the Scottish land fund and ensuring that they are all asking for broadly the same thing.
Secondly, the flexibility that, as I understand it, ministers will have to add to the bill’s proposed list should not be used sparingly when there is a need, as it would help to avoid the need for people to have to do very cumbersome and difficult things. In fact, one part of the bill that we might come to implies that people have to do more of those things in order to comply with the bill’s requirements, which will take up a lot of energy and effort. However, I think that flexibilities are emerging that will help.
I am on slightly dangerous ground defending the Big Lottery Fund.
Definitely.
However, we have always attempted to ensure that our programmes are aligned with the legislation. Therefore, if the legislation changed and constitutional models that were more flexible were to be used, I am sure that the Big Lottery Fund would be enthusiastic in entering into dialogue about alignment.
That would be very helpful indeed.
We hold template articles for communities. HIE set up that facility and manages it—we update the articles if there are any changes to company law. We went to some lengths to consult the Scottish Government to ensure that our template articles fitted with the community right to buy provisions. We also checked them with the Office of the Scottish Charity Regulator because of certain provisions in charity law.
We have a template on our website that anybody can access. If people do not deviate significantly from the template, it will meet the community right to buy provisions and should get an organisation a long way towards getting charitable status if it believes that that is appropriate for it. If any changes come through from the process of this bill, we will update the template accordingly. We can do quite a lot of enabling activity outwith the legislation. Clearly, we are all looking to smooth the path as much as we can.
Thank you. That is a helpful point that we will bear in mind as we go along. Have you finished your questions, Claudia?
Yes.
We have a question from Dave Thompson on detailed procedures and requirements.
A number of the witnesses mentioned in their submissions issues to do with registration. Holmehill Community Buyout said that
“The requirement to pre-register for a right to buy is unrealistic”
and HIE stated that
“late registrations are very much the rule rather than the exception.”
Community Land Scotland said that
“It would be best to accept late registration as the likely norm and of itself need not be justified by any prior action or lack of action”.
I am interested in all of that because I wonder whether we should have early registration at all. Should we not just have a registration system that kicks in when a community is made aware that land might be available, rather than communities having to do an awful lot of work beforehand in trying to identify what land might be available in the future, which would be pretty difficult? I would like to hear your views on whether we need early registration. I think we should still have quite tough rules on registration. Perhaps they should be even tougher—which, I think, Community Land Scotland recommended in its submission.
12:00
It is a hugely important issue, because what is emerging—Sandra Holmes will be able to comment on this much more than I can, because she has seen an awful lot more cases—is that communities do not approach the world by thinking about the land around them in the abstract. They do not think, “Is there anything that we need to think about here?” or, “What land do we have to register an interest in?” That would be quite cumbersome for the reasons that we have heard, and it is not the real world of communities. Experience shows that. It seems to me that the norm will increasingly be that communities will pay attention to such things only the minute that the land comes on the market. We should accept that as the norm. Therefore, the challenge is in finding the right tests and hurdles while not ruling out that situation.
I was interested in the dialogue that went on last week between Dave Thompson MSP and the bill team’s Dave Thomson—it became a bit confusing. Dave Thompson MSP asked why early registration is necessary. I went back and read the policy memorandum to the 2003 act, and it became clear to me that there were two things at work in requiring early registration. First, at the time when the policy memorandum was written, there was real concern that having a free and open right to buy without people having to register would have a universal impact on property rights and the property market. The logic of having people register was that the right to buy would apply only to those who had registered—it would not be a universal right. Secondly, it is bureaucratically tidy to know in advance what land is likely to have to go through the process. I think that those are the two reasons for that requirement.
The other thing that was interesting in the dialogue between Dave Thompson and Dave Thomson was that the bill team’s Dave Thomson made it clear that the situation that Dave Thompson MSP was referring to—which I think you called a “light-bulb moment”, when people suddenly think, “We’re going to have to do something about this”—is not provided for in the bill. The key question is, how do we provide for that situation? Also during the dialogue last week, I was struck by the thought that what is now proposed—that a community must show that it has taken prior steps or done prior work sufficiently in advance of the land coming on the market—is potentially difficult and damaging because that requirement will be impossible to meet. I think that the bill team has constructed a mechanism simply to deal with situations in which a community has taken prior steps and done prior work, which makes it easier for that community to get registered. However, the key question is this: what about communities that have not done that? They will be the norm.
In my view, late registration must be allowed to happen in that situation, but there must be suitable tests to make sure that it does not just happen automatically. The challenge is in finding the right tests. Two of them are in place already: an application has to show both greater community support than would be required for a normal registration, and that the proposal would be in the public interest and would further sustainable development. Another test could be added, as we have suggested. It is a very important issue. If we do not get it right, communities will automatically be excluded from using the provisions in the 2003 act.
I was going to raise this issue later, but Mr Peacock has raised it just now. Community Land Scotland has suggested that the 2003 act could be amended to state that
“eligible land would be land, the sale of which to a community body, would contribute to the achievement of a greater diversity of ownership of land in Scotland.”
I assume that that is the additional test that he just referred to.
No. That would be further on in the process.
In that case, I will leave my question until later. I am sorry—I thought that that was what you were referring to.
I am glad that we have got advance warning of that question.
The light-bulb moment for Holmehill was when the “For Sale” sign went up on a piece of land that was in the planning process and that we had free rein to wander over. Everybody regarded the land as being ours—that is, as belonging to the community. When the land suddenly went up for sale with development potential—whatever the term is—we thought, “Hang on a minute—that’s not what we’ve got.” However, there is no way that the community would have found a way to register, particularly as it needed to get a petition, membership and voting numbers. Also, it would need to register again every five years, with everything that goes with that. Ours was a typical experience.
I am quite sure that many communities, if we expand the provision to urban environments, will start to have those light-bulb moments, as community facilities that they have enjoyed for many years are suddenly turned off or shut. I can think of a few examples—I am sure that all of you can, too—in which something has been provided to the community by the private sector and suddenly the private sector stops providing it. It might be of community value and the community might wish to retain it, but it cannot register somebody else’s property. People do not go out registering somebody else’s property on the off-chance that such a thing might happen.
I think that you are going to see an awful lot more such responses. If a community is going to be empowered to look after itself and develop itself and therefore to become much more financially, emotionally and generally sustainable, you genuinely want those facilities to be taken into a form of ownership that may be able to survive when the private sector has not been able to survive because that form of ownership uses a different form of provision of labour through volunteering, and all the things that go with that.
I can offer a slightly different take on things. We would certainly support communities being proactive and putting steps in place in advance of something coming on to the market. That is how things have been in relation to the 2003 act. The reality, as has been borne out, is that communities respond to opportunities. That is partly because the process of timely registration is quite onerous; it means forming a company and getting support from 10 per cent of the community. Also, the application pertains only to one asset—it could be one building or one bit of land—when it might need multiple assets. If the community just wanted to get a couple of acres of land, it would have to do multiple applications. It is a lot of work to go through when the community is not guaranteed success in the process.
The difficulty with a late registration is that when a community applies late, it has at the moment to satisfy the good reasons test. My understanding is that the good reasons test was put in to enable the 2003 act to work in the earlier stages of the process. Good reasons were used later that had perhaps not been envisaged. We welcome the removal of the good reasons test, but we are a bit concerned about the proposed replacement provision, which talks about “relevant work” and “relevant steps” being needed to show that a community is being proactive.
We envisage that there could be a bit of a hybrid. If a community is being proactive—if it can demonstrate in community council minutes or through a development plan that it has aspirations to own a building or a development plot and it can articulate that—later on, if that asset comes up for sale, the community has put that marker down. That would hopefully enable the community to demonstrate that it has taken relevant steps and carried out relevant work because the process of responding to a late application is quite challenging. Within a very short period, the community would potentially have to form a company and get members of that company. It would also have to get signatures from more than 10 per cent of the community, because it would be a late registration, and then the community would have to make an application.
Assuming that a late registration application is accepted, the community is then straight into having to raise the funds for the purchase. That is where the current part 2 of the 2003 act gets quite a lot of bad press because that is a very onerous process. I think that something can be done to change that. We can still ask communities to be proactive but from a more general, strategic point of view. Those “relevant works” and “relevant steps” requirements could fit in with that approach, so the community could have that marker down. That would open up greater opportunities. I think that approach would be more workable for communities—as well as for the supporting agencies, because it is quite difficult for us to be able to respond very quickly when something is going through a late procedure. At the moment, there is a good chance that late procedures will not be successful.
I want to come back on that and to answer Mr Fergusson’s question that I did not answer. The issue is sortable; indeed, it is not too difficult to sort. Sorting it would require—notwithstanding what Sandra Holmes said, which would be the preferable position—that when a community has not registered its interest it should nonetheless be allowed to make its case to the minister, and there should be criteria against which the minister can judge such cases. For example—I know about this because I attended a meeting about it—we had phone calls from people in Blairgowrie when suddenly, overnight, the Co-op’s farms came on the market. No one would have expected that, so why would they have registered an interest? As soon as the farms came on the market, people thought that they should do something about it.
I also had an email from someone in Donside who said that a piece of land that was central to the community had suddenly come on the market. They had never in their wildest imagination expected that to happen and they were now thinking about what they could do about the situation.
All that we are arguing for is an opportunity for such matters to be properly considered, and for there not to be just a simple test. To look at the matter from a landowner’s point of view, they may have done a lot of work to prepare the ground for a farm to come on the market, so they would want the sale to be expedited. There must be some pressure to do that.
We suggested to the bill team an extra test that might be put in the bill to cover such circumstances. Applications have to satisfy a requirement for high support in the community and must be strongly indicative that they are in the public interest, in the current basic test. We also wanted something to be included about there being a reasonable likelihood that the community could conclude the deal. The last thing we want is for a community to go through a process in which there is no reasonable likelihood that it will be able to raise the money, or whatever. That test would be another little hurdle that we think would be fair. We can find a workable answer, which is the important thing. We have not got that yet.
I want to table an idea. As you know, the land reform review group of which I was a member produced a menu of rights for communities. The first right that we suggested was a “right lite” whereby a community could simply register an interest. Under the 2003 act, there is a right of pre-emption. However, if there was a right to register an interest and to be notified when land was coming on to the market or ownership was changing, that would trigger the process of the “heavier” right of registering a right of pre-emption. We thought that that might be a way of getting round everything becoming a late registration.
We will be taking quite a bit of evidence on that matter, but it is important to get views on it now as we are getting suggestions for amendments. It is a good idea to get those in at an early stage for the committee to consider before it reports.
I understand that the land reform review group’s written evidence recommended that re-registration of an interest in land should be needed only every 10 years rather than every five years, given how onerous registration is and the complexities for communities. Does the panel have any comments on that?
I reiterate that the process of re-registration every five years is onerous and that 10 years would be a more appropriate timescale.
Holmehill Community Buyout looked at the issue, too. With re-registration communities must, in effect, do the same thing again, so there is a risk of registration fatigue. An issue that we have not perhaps understood properly is refreshing—which is how I would prefer to describe it—of registrations rather than redoing them. In doing that, we would need to ensure that we had obvious community support. It would not necessarily be about finding another 10 per cent of the community who were prepared to sign things, and completely redoing the documentation. In Holmehill’s case, for example, I would expect that to include support from the community council, as elected representatives. If they did not support the case, we would have more difficulty. There is also the general issue of what reflects community support and what reflects community opposition, both of which are equally valid. I see the need to refresh registrations and to make sure that people are still supportive, because of the impacts on someone’s private property, but the measure needs to be proportionate.
12:15
I agree entirely with that. CLS argued in our submission for a 10-year period before re-registration, too. I noticed that, last week, the members of the bill team signalled that they plan to simplify the form and the process. That will be welcome, but that does not negate the point that there should be a longer period. It might be that there should be an honourable compromise.
Another thing in the same area is the bill’s requirement for a community to identify ownership. In some cases, that will be extremely difficult for the community to do. Does the panel have any comments on that?
I agree that identification can be challenging. We would seek a modification to the requirement: the community should be required to try to achieve identification of the rightful owner but, if that cannot be done, it should be sufficient for it to demonstrate the steps that it has gone through to try to identify the rightful owner. That should be deemed to be reasonable.
The issue relates to wider issues in the land reform agenda. It will be interesting if that point is made later today or in detail.
I agree with that entirely. My understanding—I stand to be corrected—is that, with regard to compulsory purchase orders, there is a procedure that allows a local authority to proceed with a compulsory purchase even if the owner cannot be identified, as long as all reasonable steps to identify the owner have been taken. Clearly, however, it is best to identify the owner.
Last week, the members of the bill team talked about an absolute requirement to identify the owner. In response to that, I direct them to the argument that I have just made. However, they also suggested that there is an alternative procedure. I think that they were referring to the Queen’s and Lord Treasurer’s Remembrancer, to whom bona vacantia land falls. The suggestion was that if the owner could not be found and the land were declared bona vacantia, you could approach the Queen’s and Lord Treasurer’s Remembrancer to purchase the land. However, I do not know whether that would work—perhaps it would, but that would have to be checked out. I would prefer it if we sorted out the arrangements in the bill.
Subsequent to Holmehill trying to deal with the registration and so on, I happened to be in Edinburgh, so I went to Registers of Scotland. The system there worked extremely well and was extremely user friendly, and I got all the information that was held there. That information does not necessarily correspond with the owner’s claimed ownership, but my view is that a reasonable test of reasonableness for a community body should involve whatever is on the public record and that, if people want to hide their land ownership, that should not be a way of avoiding being part of the community.
I know that people can get professionals to access the land register if they cannot get to Edinburgh, which costs a little more, but it struck me that that was an extremely good way of moving forward. I was genuinely quite impressed and feel that Registers of Scotland is one of the places where options should be registered. That would mean that options would be held on the public record even if—as I accept might happen—they were redacted in the interests of safeguarding confidential information.
It might be a bit unfair to ask for a lot of detail on the Queen’s and Lord Treasurer’s Remembrancer, but I have a question with regard to a constituency issue that I very much hope will become the subject of proceedings under the community right to buy. My understanding is that, since the establishment of the Scottish Parliament in 1999, land that falls to the ownership of the QLTR effectively falls to the Scottish Government, as Scottish ministers now have control—if that is the right word—of the QLTR. Am I wrong about that?
I simply do not know the detail of that. If it is being suggested that you must know who the owner of the land is or go through the QLTR route, I think that you would have to check out all the details around taking the QLTR route in order to confirm that that would be robust. On the face of it, if the QLTR owned the land, it could perhaps give a first right of refusal to the community, which might satisfy the matter. I do not know whether that is possible.
We will take that on board.
I am sure that we will explore the matter in due course.
Peter Peacock, you mentioned this point; I think is also in your submission. When we get through this process, there will be an act and that is fine. However, you said that a lot of negotiation is going on, with the bill in the background. My point is that, rather than have people go through strict legal processes and procedures, which would make a lot of money for lawyers and take longer, we should facilitate mediation. There are a lot of good mediation organisations in Scotland. Last week, I was at an excellent event, run by John Sturrock with American mediator Ken Cloke, here in the Parliament. We should build mediation into the bill to enable HIE or whoever to facilitate discussion between a landowner and a community so that they are not at legal loggerheads.
I absolutely agree. It is striking that, where a landowner and a community can sit and work things out, that is by far the best way of doing things. However, there are examples where that is really difficult. I will not labour this, but a case has been running for a long time that, ultimately, has been sorted out—I hope it has been sorted out—by bringing the parties together with a trusted third party. That has been done purely on an ad hoc basis, though. The third party happened to live locally to the two other parties and it seems to have worked—or it has certainly added to the process. We have to be much more deliberate.
My understanding is that, although HIE and the Scottish Government team that deals with these things will recommend to a community that it is better that it negotiates, they do not have powers to do anything about that. I would have thought that a simple power to enable a minister to facilitate negotiation would help enormously. That could be by ensuring that a mediator was appointed, or whatever.
There is the Arbitration (Scotland) Act 2010 and the organisation that has been set up to arbitrate in business. That might be something that we can take on board in our report—we could see how that organisation fits in with the concept of mediation in a more formal sense.
Sandra Holmes, you talked about demonstrating reasonable behaviour. There are issues to do with periods of activity, interest, time limits, the appointment of balloters and so on. We have detailed evidence from you on that. Do you want to make any other points on the procedures and requirements?
I have got one point. It is in our evidence, but I would like to raise it briefly. It is to do with section 31(4)(aa)(iii), which I will put into plainspeak. When communities look at taking forward a project, the starting point might be a community council or a group of individuals. It is sometimes later on before the entity—the community body—is set up. Section 31(4)(aa)(iii) says that any work that was done would have had to be done in the name or under the guise of a community body that had not yet been set up. We would really welcome that being decoupled, because it is common for a sub-group of a community council, or interested people who come together, to do the foundation work and the initial feasibility study. That often happens for projects outwith the legislation, but it is tried and tested practice.
We support organisations in those formative stages and our sense is that the work of that organisation or that group of individuals coming together on behalf of the community is no less valid than had it been done under the community body that might be formed later on. There is a time and a place to form the community body, but there will always be preparatory work. It is a minor issue, but it could have quite significant consequences if it stays in the bill.
Thank you for that. We move on to abandoned and neglected land.
We have heard a lot of talk about processes and aspirations, but I would like to look at the text. For the record, I am on page 29 of the bill, which is section 48. However, numbers such as 97C refer to the section that the bill will put into the 2003 act. I hope that anybody reading the Official Report will have a clue about what we are doing.
New section 97C(1) of the 2003 act states:
“Land is eligible ... if ... it is wholly or mainly abandoned or neglected.”
In light of the discussion that we have had and the discussion that we had last week, it is still not obvious to me why those criteria should be in the bill. First, can anybody explain or justify the rationale behind them? Secondly, what on earth do they mean anyway?
I will kick off. We very much welcome the principle of part 4. We welcome section 48, because it fills a gap in the current provisions, which is that the public interest in ownership of land cannot be tested other than with crofting land. It is therefore an important principle and we welcome it. We see it very much as a power of last resort, rather than one of first use.
However, as you suggest, the devil is in the detail and we have some serious reservations. I am not clear why the “abandoned or neglected” provision has been introduced. There was a dialogue about that last week between Mr Thompson, Mr Thomson and the solicitor who was at the meeting. I have thought further about it, and there are probably two potential reasons for the provision. One is that it is there for a European convention on human rights reason—to try to ensure that what is, in effect, an interference in a property right is less challengeable under the ECHR than would otherwise be the case.
If that is the case—and I am not clear that it is—I am not clear that the provision is required, because it seems to me to be a substantially greater hurdle than is required, for example, by the crofting right to buy under part 3 of the 2003 act, which is simply founded on whether further sustainable development is in the public interest.
The other reason is an innocent one, if I can put it in that way—not that the other one is sinister. It is simply that the provision is there only to provide for what is abandoned or neglected land. If that is the case, it is not unreasonable. The problem is that, because it is the only definition in the bill, it could lead to the unintended consequence that land that is not
“wholly or mainly abandoned or neglected”
but is nonetheless in need of sustained development is ruled out of consideration. That is the big trap in the bill.
It is important to clarify precisely why the provision is there. I do not think that it is impossible to work through it, but at present it is not entirely clear why it is there.
Until June last year, we could well have defined our land as neglected by the landowner, who had done absolutely nothing for several years. When he came up and chopped down all the trees and suchlike, that was not neglect. What he did was pretty awful. It was illegal and various other things, but it would not fall into the “neglected” definition, and the land was certainly not abandoned, because he did know his property rights.
I agree with Peter Peacock. This is a small and specific example, but my concern is that, in our case, the land is not able to be used in the way in which the planning designation and the community at large have defined that it should be used. The community has set out its stall, but the value of the land is being damaged.
This is an entirely personal view, but I have an issue with the ECHR. There are property rights, but property owners also have responsibilities to their communities, and rights and responsibilities need to be somewhat balanced. I know that this sounds terribly bold. I am not saying that we should be able to take over everybody’s land, but if someone is part of a community, they have a responsibility to try to live and work with it—all of us do. There has to be some kind of balance there, rather than property rights exclusively swamping everything else.
Indeed. Thank you. John Watt wants to comment.
I, too, was surprised to see such a restriction of potential rights. I would prefer to have something in the bill about fulfilling the greatest potential for sustainable development, rather than a requirement that land should be proven to be “abandoned or neglected”.
As Peter Peacock said, the ECHR may have been in the back of the minds of those who drafted the bill. I suspect that they may also have been thinking about the urban situation, in which abandonment and neglect can be identified more easily than it can in a rural situation, especially for larger tracts of land.
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So we are talking about gap sites. The provision was probably written when the drafters were considering extending the bill to cover urban buildings.
I have jumped on to the new section 97G(6)(ii) to be inserted in the 2003 act. I wonder whether the comments that have been made so far also suggest that sustainable development ought to include leaving land wild. There may be areas where one might want a meadow and other things around it to be left alone. Could that be part of the current definition of sustainable development?
Sustainable development is defined in three ways. That is the problem at the heart of the definition of “abandoned and neglected”: it deals with one of the three definitions of sustainable development but not necessarily with the other two.
As the committee will know better than I do, given that it deals with sustainable development all the time, the concept relates not only to the environmental component that Nigel Don has just described, but to economic and social development.
The difficulty with sticking to a definition of abandonment and neglect is that it appears to relate to the physical construct of the land rather than to sustainable development. The whole policy purpose of the bill, and of the original 2003 act, is about furthering sustainable development.
There is a bit of a trap here, given the way in which sustainable development is currently defined. The issue can be sorted—for example, it would be possible to have a third criterion. If the aim of the requirement for a building to be proven to be “abandoned and neglected” is as the convener described—which I can readily see that it is—the bill could specify that a building can also be proven to be in need of sustainable or sustained development. That would allow the social and economic considerations to be taken into account.
There is another way to do it. The bill as it is currently drafted seeks to define some of the factors to which ministers must have regard in relation to “abandoned and neglected” buildings. However, there is a problem, because the phrase “abandoned and neglected” suggests only the physical element and not the wider parameters that I have just described. A third criterion could be added, or abandonment and neglect could be defined in the text of the bill.
Such a definition would allow us to consider economic and social development as well as the physical attributes of the land. There are problems with the definition as it stands, but I think that it can be sorted. The members of the bill team, in their discussion with Nigel Don at committee last week, seemed to say that they were looking at how some of those elements are defined in the text of the bill. The situation will depend on where that consideration takes us, I guess.
I hope that others may have some comments on that aspect. I read the meaning of my discussion with the bill team in the same way as Peter Peacock did, but I think that the team probably needs a bit of help. To be honest, my interpretation—which came up in that discussion—is exactly what we have just discussed.
If there is a gap site in a town, we think that we know what it looks like. It may in fact be an old coal yard or something similar, with a wooded area behind it. It has not been abandoned: that is just the way it has aye been. One can see how, although such a definition would work in many environments, it might have absolutely nothing to do with other environments.
We need to expand the definition, and I guess the bill team would like some help on that. Does anyone else have any comments as to where the team might go?
The view that was presented to us when we started was that development is all about steel, concrete, tarmac, bricks and all the rest of it. That was an issue, because our view was that development is about environmental and social benefit and providing a facility for the community.
We did not intend to leave the land to go wild—in fact, our aim was quite the opposite. We recognise that most of the trees will, in time, need to be cut down because they are reaching the end of their 200 to 250-year lifespan. Therefore, we need to develop, in as much as we need to change and move on and try to maintain and improve the environment.
We had this very real problem: sustainable development is what we wish to do and we believe that is what we should achieve, but unfortunately we cannot get it through the current planning process. Although we have land that is public open space, the only protection that we can secure is a tree protection order. That does not do anything to address the other issues—it just stops the trees being chopped down without informing the council. There is no development capability.
We have a long history of this issue and trying to improve the land and I could explain it in detail if you wish, but now is probably not the time.
Indeed, this is a long and involved process as it is.
May I move on?
Dave Thompson has a supplementary question to ask before we move on.
I want to raise a related point about the ownership of the land. I am referring to new section 97H(c) of the 2003 act:
“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”.
That will be almost impossible to prove. Given that we now have the Pairc judgment in relation to crofting and the minister has approved the criteria laid out to define sustainable development, do we need the section at all?
Rapid comments, please.
Frankly, this is a killer clause. It is a matter of interpretation, but on the face of it, one could demonstrate that a piece of land, in current terms, was
“wholly or mainly abandoned or neglected”,
yet it could also be found that, in itself, the ownership of the land by the current owner was not inconsistent with furthering sustainable development and therefore the minister would be bound to reject the application. That is why it is potentially a killer clause.
I do not understand, although it probably can be explained, why the test is necessary if there is already a series of criteria that the minister must use—such as agreement that it is abandoned or neglected land—to judge whether it is in the public interest to further sustainable development. Would it be wise to leave open a situation where it has been proved that land is abandoned or neglected, but the application could still be rejected because the current ownership was not, of itself, inconsistent with furthering sustainable development?
The two tests seem to be in opposition to one another. There is some tricky stuff in that.
The Law Society of Scotland draws a parallel with the procedure for compulsory purchase. Can you expand on that point and tell us whether there is any guidance on compulsory purchase that might help us in dealing with the question of abandoned or neglected land?
If you are unable to identify the true owner of the land, compulsory purchase involves an advertising mechanism. Something as open and transparent as that mechanism might help under community right to buy.
That would not specifically address the point about abandoned or neglected land, per se, as it relates only to ownership.
It would in effect identify the owner through advertisements in The Edinburgh Gazette and local newspapers.
Yes, but it does not help us with the definitional aspect of “abandoned or neglected”.
No, and I do not think that the Law Society of Scotland wants to comment more fully on those definitions at this time because it is a minefield.
Okay.
If the committee is willing to grasp the nettle and provide a definition then we will comment on it at that stage.
That is fascinating. We give you minefields, although not intentionally.
New section 97G(5)(b)(i) requires us to specify
“the owner of the land”.
In the light of what has just been said, is that not a problem in itself?
That goes back to the point that we made earlier about identifying the owner. It runs through part 32 and new part 3A. If I understand what Mr Burd said, as long as the community makes every possible effort and follows all the procedures to identify the owner but cannot, that should not be an impediment to the community getting permission to pursue the purchase of the land. It is in the bill.
We have already discussed section 97C(3)(e). I do not want to try the law in Latin. Why should land that falls to the Crown because the owner cannot be identified or because it falls in succession and there is no successor be exempt? Can anybody explain that to me? The answer I got to that question last week was that it is about process, but I do not really buy that. It might be about process, but surely it should be open to the community to have access to that land.
That is my view, but it is in the bill because, by definition, the owner cannot be defined, so the land falls to the Crown. That is why bona vacantia is mentioned. The land is excluded because nobody can identify the owner and if the owner cannot be identified, the land is excluded. The point would be whether a community can exercise any rights over land if it is in the ownership of the Queen’s and Lord Treasurer’s Remembrancer.
Forgive me, but that is the policy point that I want to address. We tend to leave out the Crown. Almost the first lesson we learn in law is that the Crown will be excluded. Why? Why on earth should it matter that the land is known to be in the possession or occupation of the Crown? Can anyone rationalise why that should be the case? No? Thank you. Okay, I will push on.
New section 97G(6)(d) requires us to say that we know about all the rights and all the interests in the land—I am glad that there is a lawyer here—and to say anything we know about the “sewers, pipes, lines, watercourses” and other stuff that is under the ground. Why is that a good idea? Why is it in the bill? Can anybody convince me that it is not a daft idea because it is almost impossible to know what is under the land until it has been dug up, which is a stupid thing to do?
I do not understand it. In our written submission, we made the point that that requires clarification, and that such land should be eligible rather than not eligible.
I am sorry; I am rather feeding you the words, but I am hoping that people will disagree with me.
The Law Society’s submission talks about clean title under a compulsory purchase order and suggests that a community would not get clean title under the bill. Do you have any further thoughts on whether a community should get clean title if it has gone through the proposed process?
It would guarantee that the title was immune to subsequent challenge.
Apart from the obvious opportunity of business for lawyers, is there any real downside to that?
No.
If we remove all the criteria that we have been talking about, how do we ensure that this is the policy of last resort that Mr Peacock referred to in his opening remarks?
We are not arguing that we should remove all these criteria. Mr Thompson made a particular point about one part and having to demonstrate that keeping the land in its current ownership would be inconsistent with sustainable development. It is just not possible to prove that.
Our hope is, and the bill specifies, that the community would also have to show that it had tried all other means to get the land before it made the application. Other means would be things like seeking to negotiate or discuss matters with the landowner, making an offer for the land and so on. Those are entirely appropriate tests. That puts this test at the end of the queue. If the community could not show that it had tried to get the land by other means, it would not be able to progress with the application under the new section 3A. That makes it very much a fallback power. Nonetheless, it is that power that focuses people’s minds and, as we saw in the context of the crofting right to buy, gives rise to the climate in which debate and discussion about negotiated land purchases can proceed. I hope that that answers your question.
12:45
We move on to the interpretation of “sustainable development”, which might offer an escape tunnel to get us away from this debate. Nigel Don will kick off questions on that.
We have probably covered everything that I thought that we needed to cover. I was particularly concerned about wild land meeting the sustainable development test, which I think might be the case in some places.
If no one wants to comment on that, Dave Thompson wants to come in.
I just wanted to reiterate the point that the crofting legislation and the Pairc judgment give us a clear steer on the issue.
I declare an interest, because I have been involved in Pairc—I have dragged it out for 11 years. [Laughter.] It is still in court, so it is sub judice. The 2012 ruling was simply a sideshow to a sheriff court action that is still on-going.
Right. We will not get involved in Pairc—
I think that that is proof in itself that the 2003 act is full of pitfalls.
Yes.
We have teased out issues to do with sustainable development quite well, but it strikes me that we still need to know whether the panel thinks that if ministers are going to find it difficult to satisfy the sustainable development test in relation to land, that will be inconsistent with the aim of furthering sustainable development. Should we put something in the bill about how land is defined in that regard? In the past, there has been a sense that we have not been talking about development of the sort that we discussed in relation to Dunblane. We have to be clear about what we are talking about. There is a much wider approach to defining land that should be in community ownership.
This is really difficult legal territory. The whole purpose of the 2003 act was to promote and remove obstacles to sustainable development. Notwithstanding what Mr Burd said, in the Pairc case the judges commented that sustainable development is a well understood term, which relates to
“the use and development of land.”
I suppose that what it comes down to is how we describe the use and development of land. What ministers thought about that is openly revealed in the early decision letters about Pairc, both when they refused an application and explained why it did not meet the sustainable development test, and later when they approved the application and showed why it did meet that test.
There is quite a lot of case law—I mean that in the general rather than the technical sense—about what sustainable development means. In that sense, the issue is not too difficult. The key thing is to allow a community to make the case that what it proposes would advance or further sustainable development. The problem with the current definitions around abandoned and neglected land is that it appears that such a case cannot be made. However, that can be dealt with.
I feel, having been through it all, that the planning process sets out a framework for the development concepts in a physical community—whether it is truly sustainable development, I will not try to argue. However, certainly in the urban environment the issue is whether the use of the land is in line with the planning designations on the land, which are democratically derived and fully consulted on and picked over, and whether a community’s proposed changes recognise that the current usage is no longer the right one and a second stage is sought—that is probably a bit complicated to work through.
The planning process has a lot to offer in urban areas. I will be quite honest: if the land that we wanted to buy had already been designated as land for building, I would not have expected us to have got the right to buy, and we would not have started. I freely admit that. The land was designated as open space, and that is what we wanted it to be, for the community to use.
There are interesting cases of planning applications for developments that in effect would blight the land, which will keep being rerun—for ever. Such things need to be thought through. The planning process is an extremely strong place from which to start in a more urban environment.
That is a good point for us to take on board. We rely on the planning process to get things right, having taken on board the community’s views. We all know that sometimes planners use wider criteria to override what communities want. I can think of examples of appeals in that regard.
I think that we agree, in general, that the agreed local plans are materially helpful and can back up what ministers have to do when they must make a decision.
I do not know whether we will see all the witnesses again. It is entirely possible that we will do, at another stage in the process. A point that I want to make is that the bill will amend part 3 of the 2003 act with regard to crofting, and I hope that the changes at stage 2 are not so major that they affect the proposed use of part 3 in relation to the community right to buy.
We have seen what the Scottish Government proposed in its consultation, and I know from meetings that have taken place over the course of the past week or two that a pretty clear consensus is emerging across all the interested parties. I hope that I can reassure the committee that it need not worry too much about the issue, which looks like it is heading in the right direction. The Scottish Government is dealing with the matter entirely appropriately, by the looks of things.
Thank you.
We have had a long session, which I will bring to a close, because the committee has other business to deal with.
At our next meeting, on 3 December, the committee will take evidence from the minister on a draft affirmative Scottish statutory instrument—the Public Water Supplies (Scotland) Regulations 2014—and will take evidence on the Community Empowerment (Scotland) Bill from two panels of stakeholders.
12:52 Meeting continued in private until 13:01.Previous
Draft Budget Scrutiny 2015-16