Rural Affairs and Environment Committee

Meeting date: Wednesday, February 9, 2011

Official Report 561KB pdf

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Land Reform (Scotland) Act 2003 (Post-legislative Scrutiny)

Item 2 is—at last—post-legislative scrutiny of the Land Reform (Scotland) Act 2003. We have wanted to have this item on our agenda for a long time. We will take evidence on the research that the committee commissioned into post-legislative aspects of the act.

I welcome to the committee three people who were involved in that work. Dr Calum Macleod is deputy director of the centre for mountain studies, Perth College, University of the Highlands and Islands; Dr Isobel Macphail is a researcher at the University of the Highlands and Islands centre for remote and rural studies; and Derek Flyn—who is not known to the committee at all—is a croft consultant and retired crofting lawyer. I bet that he is back here with some trepidation, and is saying, “What am I letting myself in for this time?” I thank you all and everyone else who was involved in conducting the research on behalf of the committee for producing such an informative report, which we read with great interest.

To make the most of the time that is available, we would like to move straight to questions. As time is limited, I ask members and witnesses to keep their questions and answers reasonably short, if possible.

I want to ask about the access part of the act. My questions come in four parts, which I will deal with separately, if I may.

What recurring and regular research would be reasonable to understand how well or otherwise the access provisions are working, given, in particular, that there is very varied terrain and there are very varied situations in Scotland?

I thank the committee for the invitation to participate in the session.

There is probably a significant need for research into the access part of the 2003 act, not least because the research that exists is relatively piecemeal. The Scottish Natural Heritage recreational survey, which takes place periodically, is important but, from other perspectives, the academic community has largely left statutory access rights untouched. That is in sharp contrast with the community right to buy part of the legislation in particular.

On the areas of research that would be useful and beneficial to find out whether the legislation is being effectively enforced, one issue is the enforcement processes, how they are being undertaken in practice, and what the implications of those processes are in the context of the act’s aims. That is fundamentally important. We should bear in mind, of course, that the ethos of the legislation is, generally speaking, about enabling and effecting a cultural change.

Another aspect is the links between the access legislation and wider public policy objectives. That is fundamental in relation to the transport, health and planning agendas. If, to a large extent, the 2003 act was about achieving sustainable development in different contexts, we must ask how that will happen in practice, what evidence we have that it is happening, and where links that are potentially weak can be strengthened. Consideration of the three areas that I mentioned would be of benefit in that context.

Do you have evidence of difficulties with core paths plans? If so, how have difficulties been overcome? Also, given that the act added to existing access rights, will you talk about the interplay between the access rights that previously existed and what is in the act?

We touched on core paths planning relatively briefly in the report, as you are aware. It is an important aspect of how access rights are implemented in practice. You might be aware of SNH-commissioned research on core paths planning, which will shortly reach the public domain.

There are significant issues in relation to the planning of core paths and the implementation of the approach. Part 1 of the act placed a statutory duty on access authorities to undertake the core paths planning process and gave authorities the power to manage and maintain the core paths networks.

Among the groups that we surveyed—access authorities, the national access forum and local access forums—a big concern, which emerged strongly in the research findings, was about where funding is to be found to manage the process in practice. There is strong concern among a variety of stakeholders that, to some extent, expectations have been ramped up to a significant degree by the process, which we should not forget has been time consuming and resource intensive for a variety of actors. The ramping up of expectations has implications for how the core paths approach is implemented and how the networks are managed. Where are the resources to be found, given the current difficulties for the public sector in Scotland? What are the issues to do with joining up the core paths? There is a bit of fragmentation in that regard. The issue is fundamental.

I am aware that funding was originally allocated on a per capita basis but, of course, there is not necessarily a direct correlation between head count and the location of core paths. Has that issue been fundamental to the problems that you talked about, or is it more complicated than that?

We touched on the matter. The data that we have suggest that some of the issues have been to do with where the core paths are situated. Some local authorities received more significant objections than others did about where the paths would be—that is still an issue for some authorities.

An interesting finding came through on the impact of core paths planning on the dynamics of the relationship between access takers and landowners. I would not want to overstate the matter because, on the whole, the core paths planning process has been regarded as a useful collaborative exercise among a wide variety of stakeholders and, to some extent, the local access forums have been important in helping to facilitate that collaboration. However, we were interested to find that, for some landowners, the process of engaging in planning for a core paths network seemed to destabilise their relationship with access takers. They were quite happy for people to have informal access to their land, but having formal core paths has had implications for how they view the process. That is an interesting vignette.

Does that mean that other processes outside the 2003 act were used previously and are continuing to be used, or is all access now within the context of the act?

Different processes with regard to what?

Access and the resolving of issues around access.

It depends on what the access issues are and whether they are contentious. The access authorities have statutory responsibilities, but the local access forums are statutorily framed as entities that help to resolve issues and offer advice, when asked, on how to resolve particular conflicts relating to access.

One of the challenges is that we have a legislative framework that is founded on people exercising their access rights in a responsible way. There is a social contract there, and the reluctance, for a variety of reasons, of access authorities to take formal enforcement powers means that it can sometimes be difficult to find resolutions to conflicts—although, more broadly, there is a cultural aspect to how that process is undertaken.

Are you suggesting that the access code does not adequately define “responsible”? That was something that the Parliament and its committees were considerably engaged in.

I am not suggesting that but, notwithstanding the fact that the access code is well regarded by a range of different stakeholders, it has been suggested—and we document it in the report—that “responsible” is seen as something of a moveable feast. It is not clearly defined, but that was anticipated in the run-up to the legislation. There will be grey areas in the legislative framework which, to some extent, will begin to be filled in by case law, although that has been limited up to now—I think that seven cases have gone to judicial determination.

There are grey areas, and we document where some of those are through the changes that have been highlighted by stakeholders. Responsibility is one, privacy is another and curtilage is another. What constitutes responsible behaviour when someone takes their dog for a walk might be an extension of that. There are grey areas in which there is not necessarily consensus on what is meant in practice.

The Parliament and its committees deliberately decided not to seek to define curtilage, in particular. Every time we looked at it, we found that we would be likely to create more problems than we would solve. You are nodding quite vigorously. Was that decision by the Parliament a correct one? Was the Parliament also correct not to explore in greater detail and put into the bill any definition of privacy?

I sometimes nod even though I do not agree with what is being said, but I maybe do in this instance.

Given the nature of the legislation, we cannot have a tick-box approach that defines every eventuality. Inevitably, as the case law builds, if it comes to that, there will be decisions on how privacy and curtilage are viewed that will create precedents. Equally, to a large extent, the legislation is framed around ideas of cultural change, which will take time. At least one respondent to our survey said that it could take two to three generations to come through, so it is a long-term process. That is significant, but so is common sense and having negotiation and dialogue. To be honest, many of the general indications are that most people who take access for recreation find it a straightforward process, although there are exceptions. I hope that that begins to address your question.

10:15

I have two questions. First, you say in your report that stakeholders have suggested that the act should be amended to place a duty on local authorities to maintain core paths. How would that be financed?

Access authorities are exploring various ways in which to finance such activities. One way would be to get funding through mechanisms such as LEADER. Highland Council, for example, is looking at that as a possibility. There may be other mechanisms for doing that, potentially through the Scottish rural development plan, although the take-up is quite low. Fundamentally, if access authorities took on such a duty, there would be significant financial challenges. I understand that such a duty was not included in the bill because of the financial impacts that it would have. There would be strong challenges for the allocation of budgetary resources, and there would be priorities to be addressed. Another aspect would be the use of mechanisms such as LEADER or alternative sources of funding.

Have you had any discussions with the Convention of Scottish Local Authorities about that?

No. The remit of the study was very much about communicating changes that have been identified by stakeholders, as opposed to our making recommendations.

My second question is about irresponsible access. I am particularly concerned about free-running dogs. When the bill was introduced, I was concerned about dogs running among cattle and people being hurt or even killed. There have been quite a few instances of that since the legislation was implemented—thankfully, more notably in England and Wales, although it is regrettable wherever it happens. Are there any proposals for how such irresponsible access can be addressed?

I cannot comment on that in detail. The national access forum will consider a discussion paper on issues relating to that at its next meeting, which will take place next week. I agree that access with dogs, whether they are under control or not, is a contentious issue, but I do not have any feedback on the cattle issue.

I want to return to the issue of funding for local authorities and the desire of some stakeholders that local authorities should have a duty to maintain core paths. Do you know whether any estimate has been made of the financial cost of maintaining the paths throughout Scotland?

I do not have any figures, as it is difficult to get reliable data on that.

I presume that, especially at the moment, stakeholders are concerned that, if maintaining the paths is not a duty, not doing so is a potential saving that local authorities could make reasonably easily in times of financial restriction.

Indeed. In these times of constrained resources, there is concern across access authorities about the implications of that for the whole infrastructure of delivering on the access agenda, the statutory framework and the access rights contained within that.

There are issues about access authority posts and the ability to deliver. It is probably fair to say that there are criticisms in some quarters of the priorities that access authorities have and the types of access issues that they are seeking to resolve. The issue is that some of the more problematic aspects are not being addressed as rigorously as they might be, for all sorts of reasons. The issue of how the framework is resourced has significant implications.

The 2003 act is seen as a flagship piece of legislation and the access component is seen as a touchstone for progressive access legislation. We are rightly proud of that in Scotland, and it attracts a great deal of interest from elsewhere, with countries considering how the framework could be introduced in other contexts. However, taking on board Mr Scott’s point about resources, I think that the important and clear challenge is to ensure that we do not simply tick the access box and then fail to move beyond that and provide resources, find innovative approaches and engage stakeholders to push forward the progressive agenda and ensure that the framework functions as effectively as possible, albeit with the strides that have been made by introducing the legislation in the first place.

Is there a great deal of variation among local authorities in taking forward the agenda on access? If so, does that tend to be because of internal problems, such as a lack of enthusiasm in the authorities, or because they have attempted to take forward the agenda and have had so many problems that they have just thrown up their hands?

As I did previously, I add a caveat to my answer by saying that the issue was a small element of our work and that further, more detailed research will be done on it. Our finding on the data is that some authorities appear to have taken a lighter touch, shall we say, than others in the routes that they included in the core paths plans. We mention that in a couple of quotations in the report. Some authorities kept their plans to well-established routes with hard-top paths, whereas others took a more progressive approach. I cannot name names of particular authorities because, apart from anything else, I do not have that information. The rationalisation from our findings generally is that some authorities have taken a more progressive approach than others. That might be down to funding issues or there might have been disputes about particular proposed parts of a network being incorporated in a plan. We are aware that some authorities had substantial objections to their proposed plans. There is a mix of issues.

We will move on to the community right to buy.

I turn to part 2 of the act. You are aware that, of the proposed purchases under the community right to buy, seven have purchased, 10 have failed and some are on-going. Why have more community bodies failed to complete purchases than have been successful? What are the barriers?

Are you asking about how the legislation works in practice in going through the process?

Why have 10 failed? Of 17 in total that set out with that aim in mind, only seven succeeded. I want to know what the barriers are.

Some of the barriers are financial and are to do with getting sufficient resources to finalise the purchase. Some barriers relate to technical aspects of going through the community right to buy process.

Some people have gone outwith the act and purchased beyond that process. One of the key challenges in relation to part 2—this is hardly a secret—is that its processes are seen as being extremely complex and bureaucratic. The community right to buy is enshrined as almost a touchstone of the act itself, so when we tell people outwith Scotland that only 10 organisations have purchased using the process, it is viewed with some surprise. A lot of organisations are in almost a stacking formation and are looking for permission to land that they might never get. There is a whole set of issues around being able to purchase the land when it has not come on to the market, and there are also some bureaucratic issues and issues with the process.

I am very aware that we have not heard from Derek Flyn or Isobel Macphail. Do you have views on this point?

I am sorry—could you say that again?

I was just saying that neither of you has had a chance to say anything thus far. Do you have views on the process? Is it too complex and are there examples of its complexity? I am perfectly happy if you do not want to say anything, but I wanted to give you the opportunity so to do.

My experience is with the crofting community’s right to buy.

The complexity is significant. It helps if you imagine the burden of voluntary activity that is involved in pursuing that path. As you will see from the report, and as Calum Macleod has just mentioned, the creation of the legislation was pivotal to the Parliament and its journey, and it is known outwith Scotland for that. The apparently low use of the process in the act in purchases should not obscure the broader significance and purpose to which the act has been put.

As you will see in the report, many respondents noted that the existence of the legislation has raised the issue of what purchases are for and how to manage them. The catalytic impact of the legislation should not be overlooked, although the numbers going through the process are small because of the complexity of the process and the huge burdens that it involves.

There have also been action and impacts outwith the legislation that were influenced by it. The context is what is happening, what is changing and how people engage with the process.

So, you think that some purchases that were made outwith the act can be regarded as successes that are attributable to the act.

Yes—in the sense that the act had a catalytic impact in starting the process in the first place.

To give you a fuller response to your question, on page 70 of our report, there is a table that details the reasons for purchases not being successfully completed. Six of those come down to the prospective purchasers being unable to find the funding within the registration period. That is a significant issue for a lot of community groups. One failure was put down to competition with another group, so the registration was deleted. There was also an issue around ineligible land being applied for. In the final case, the landowner withdrew the land from the market. There are therefore specific reasons.

If I have understood you correctly, the problems are more to do with funding than with the complexity of the process.

In one case, there was an issue with how eligibility was interpreted in practice, but you are quite right. The bulk of the unsuccessful attempts at purchase were because of funding issues.

10:30

I am trying obliquely to ask whether the legislation is fit for purpose. If funding is the issue, it is not the complexity of the legislation that is the deterrent but the lack of available funds to carry out the purchases.

Indeed—but it depends on what the purpose of the legislation and of part 2 of the act is. Is the act supposed directly to enable community organisations to purchase land and assets? In 10 cases it has done that to a significant degree. Alternatively, is the act acting as a sort of shadow to encourage community purchase through non-legislative means? Some reports, which we mention in our findings, suggest that that is the case and that the primary aim of the act is not necessarily to have a direct impact. You might argue that that is certainly the case for part 3.

The fundamental issue is funding. The Land Reform (Scotland) Act 2003 is significant high-profile legislation, but it is only a small part of the jigsaw when it comes to community ownership. Rightly, all the rhetoric about community assets and community ownership ties in well with notions of community and of communities empowering themselves and achieving what they want to achieve. If you look around the Western Isles and the Highlands and Islands you can see that that has happened in practice, but a great deal of it did not happen in the context of the 2003 act; in many instances it happened before that.

The key issue that is articulated by stakeholders across the board is the notion that to some extent the momentum and the political momentum has drained away from community land ownership and asset ownership. Integral to that are funding and where the resources come from, and the relationships between community groups and how they interact with each other.

That is why I think that the creation last year of Community Land Scotland, partly in response to the feeling that the impetus had drained away from the process, is welcome. It has an important role to play in bringing together good practice in community ownership and in articulating and amplifying the views of stakeholders from the bottom up, both to Government and to other stakeholders.

To answer the question, funding is clearly important.

Does the panel agree that a key thing that the system of community purchase of land has done is to create an environment in which people acquire new skills, become much more engaged in what is going on in their communities so they can ramp up, and that therefore having at the outset a relatively complex bureaucratic process for taking on ownership of land is necessary in order to test whether there are the necessary commitment and skills? If people end up owning land without having the skills to manage it, they will not necessarily be any better off, so it is important that the process ensures that people have the skills, or are motivated to acquire them.

It is very important that members of communities have the skills to undertake community asset ownership and community land ownership. The North Harris Trust and the other organisations would not have undertaken the process lightly. That is fundamental. Our report indicates that there are sometimes issues around capacity and the available skill sets. Some communities are fortunate in that they have those skills readily available, but others do not.

The skill sets and the process being too complex to manage in practice are two different issues, however. It is important that communities have access to the support that will enable them to build up the necessary skills, and an important aspect of that is crossover and community groups being enabled to learn from each other. Highlands and Islands Enterprise has an important role to play in that process through what was the community land unit and is now the community assets unit.

I see no particular logic to having in place for organisations a process that is onerous to the point of exhaustion, even bearing in mind all the issues of transparency, probity, human rights, accountability and so on.

How should we test capacity?

Capacity is tested already to some extent, in the context of how the application is put together and the business planning process, which is important. It is tested in other contexts, too. There are parallels but, for example, the national forest land scheme process is less bureaucratic.

I was interested in your point about momentum and your response to Stewart Stevenson’s question. One of the concerns that was raised with us previously was that identifying the community and establishing the settled will of the community in support of a community buy-out can be quite a testing process. With it not being a pre-emptive right to buy, you are in a sense trying to pull all that together without necessarily knowing when you might be able to initiate a process to buy. Across the Highlands and Islands now there is far greater population in-flow and out-flow than there has been historically. Therefore, the settled will might change, or might need to be reasserted periodically. Certainly one of the concerns that has been expressed to us recently is that that part of the process is almost made more difficult than it needs to be. Is that something that came out of your research?

That came out in relation to the registration process in part 2 of the act and the re-registration of community interest in particular land.

I know that you are not making recommendations in the report, but do you think that there are things that we could be doing to improve the situation?

Our report makes a suggestion for changing the re-registration process. Re-registering every five years is seen as being an exhausting process. Organisations have to go through the various elements of the process again quite soon after having done so initially. The committee might want to think about lengthening the process, just to cut communities a bit of slack.

One of the frustrations for those who do not represent constituencies in the Highlands and Islands is the failure to get momentum on community land buy-out into other parts of Scotland. I represent a constituency in southern Scotland, where we have not really managed to get that momentum. Can any lessons be learned? Does Highlands and Islands Enterprise play a pivotal role in the process? What do we need to be doing? There is obviously land that communities could be buying. There is a case in point in my constituency at the moment.

I think that I have said already that HIE has been pivotal in building capacity, which goes back to Mr Stevenson’s point. There is an issue in relation to the social aspect of HIE’s remit, which Scottish Enterprise does not have. HIE, like every public sector organisation in Scotland at the moment, has been going through a challenging time in relation to its budgets and how its resources are deployed. This point was echoed by HIE’s chief executive and chair during the committee’s inquiry into the organisation. HIE has very much refocused and consolidated its strengthening communities function. The community land unit—or, as it is now called, the community assets unit—has been very important in that context. That source of advice on funding—and, indeed, of funding itself—has been fundamental and unique compared with what has been available from Scottish Enterprise.

Of course, Karen Gillon is right. I speak as someone who is from the Western Isles—the Isle of Harris. I agree that community land and asset ownership are not the preserve of the Highlands or the Islands: far from it. Moreover, one might argue that it is not necessarily the preserve of rural communities. What about assets that could be used in, for example, Easterhouse? There are other communities that want to engage with the process, take control of their own environment and get benefits that are both tangible and in line with sustainable development.

You have noted that late registrations have been more successful than timely ones and that a lot of people have had to re-register. Through timely registering, the community makes a statement to the landowner. Have you been able to uncover any evidence that timely registration dissuades landowners from putting the land on the market?

I do not have any specific empirical evidence on that matter, but the point about the distinction between timely and late registrations is fundamental. The guidance to part 2 of the act makes it clear that communities should submit timely registrations and that late registrations should be the exception, will be subject to additional public interest and will have to be accompanied by evidence. However, the fact is that the majority of successful purchases have come from late registrations. In one sense, part 2 is significant in that it acts almost as a catalyst—or, perhaps, as a buffer—to allow communities to progress their applications. I am not clear why late registrations by community bodies should be subject to more onerous criteria than timeous applications.

The dynamic of community group and landowner relations is also significant. A point that comes through strongly in our report is that a community body will probably be reluctant to use part 2 of the act with a locally based landowner, because such a move would unsettle the dynamic and everyone will have to live with a lifetime’s worth of pettiness and difficulty. It is telling that in almost all the cases in which part 2 of the act has been invoked and late registrations have come to fruition, the land in question has been bought from public or absentee landowners. In such cases, there has not been the same local dynamic. Of course, there might well be other reasons that have not come up, but it is an interesting set of issues.

Peter Peacock has some questions on the crofting community right to buy.

My questions are for Derek Flyn. It is nice to see him back at the committee—I think.

Given that part 2 of the act covers broad community purchase, why was part 3 needed to cover crofting community purchase? What is so distinct about that issue that it needed to be provided for in the act?

Why do we have part 3? There must have been a reason for it, given that it was put in the Land Reform (Scotland) Act 2003 instead of being addressed in the crofting reform legislation. Of course, had the issue been left until then, our deliberations might have been lengthened somewhat.

It is difficult to combine the two issues. The committee well knows the debate over the distance a crofter may live away from his croft. In the 2003 act, the crofting community still means tenants who live within 16km of their croft, so perhaps that provision needs to be tidied up in the future.

10:45

The committee is aware that someone who owns and uses a croft is now required to live within 32km of it and to look after it, but no such rules apply to estate owners. That is a big conflict. Estate owners criticise crofting, but the rules of crofting are now clear. Land reform should address such issues.

The development function has moved away from supporting individuals, as has crofting law. HIE is charged with helping crofting communities, but its resources will be limited. The potential of the Crofting Reform (Scotland) Act 2010 for communities would be increased if the Scottish Crofting Federation were allowed to discuss the mapping requirements with the communities. Members will recall the debate about individual crofters having difficulty producing maps and the federation’s desire to involve the whole community in the mapping process, which would allow the community to sit down together. Getting the community to think about the possibilities is a big part of the process.

The provisions of the Land Reform (Scotland) Act 2003 have acted as a catalyst for some estates changing hands, where there is a willing landlord who can be persuaded that communities taking on ownership in the crofting context is a good thing. However, the whole purpose of the 2003 act was to deal with situations in which there is an unwilling landlord. It is failing in the crofting context; in fact, it is the last way in which a crofting community would go about trying to acquire its landlord’s interest. The experience of the Pairc Trust is that, where there is an unwilling landlord, few communities will even consider on embarking on the process. At the moment, fewer communities are looking to purchase, where there is any chance that the landlord is unwilling. As Calum Macleod said, stating an intention creates tension between tenants and landowners.

The crofting community has been widened to take in people who are not crofters; that is how the crofting community body must identify itself. Mapping has also been made very difficult. It is nonsensically difficult to look at an estate; as Simon Fraser said, in many instances of which he knows, it would cost more to create the maps than to buy the estate. Those factors, combined with the lengthy process and uncertainty, where there is an unwilling landlord, mean that people are not even considering trying to buy.

The political purpose of this part of the 2003 act—in fact, of the whole act—was to make it easier for people to get access to the land and, in the crofting context, to mineral rights and so on. Given that the structure of the act is getting in the way of that, as you have indicated, are there things that could reasonably be done to make the process easier? In the final analysis, there will still be situations in which there is an unwilling landlord. The Parliament’s intention was to equip crofters nonetheless to obtain their land in those circumstances. Presumably, some legal provisions need to continue, but is it possible to make the process significantly simpler?

We could look at the issue in another way. It is almost like a compulsory purchase, so—arguably—it impacts on individual human rights. There must, therefore, be some protection for the landowner in that context, although I would not want to stress that. Does having such protection inevitably lead us to where we are, with the degree of complexity that now exists, or is there a simpler way of proceeding?

It seems to me that the more detail that you put into statute, the more chance there is of challenge. For instance, it is almost impossible to obey the mapping requirements completely. A willing landlord may accept the map—in fact, the Registers of Scotland might accept a map with just a red line around the boundary—but that is not what the act says. It requires so fine a detail that an unwilling landlord would find many objections to any map. The more detail there is, the more open the process is to objection. I am not a valuer, and to some extent we are really talking about valuation, but an unwilling landlord is taking a political stance and that is what we must overcome.

Would it be perfectly conceivable to simplify the mapping requirements of the act while still protecting the interests—to the extent that the act must do so—of the landowner? Is it the case that there is a happy medium to be struck, but we have just not got there yet?

I do not understand what protection the landlord would have through having a detailed map.

It is interesting that the majority of the crofting purchases have been outwith the terms of the act. What has given rise to the success of those, given that the act has not been triggered? Does it simply come down to the landowner’s willingness to negotiate? Does the fact that the act is sitting there in the background assist the process, or is that not the case?

The fact that the act is sitting in the background is helping the landlords to persuade themselves. It is a political decision to oppose it. A landlord of a crofting estate who is told that the crofters can buy the land might accept the position, but someone who does not like that idea and can find ways to stop it happening will do so, as we seem to be seeing.

You touched on the Pairc Trust situation, which is on-going. The lengths to which the landowner is going to frustrate the community are really quite extraordinary and appalling in many respects. I guess, from what you say, that the structure and the technicalities of the act empower him and give him more weapons with which to frustrate the community’s ambition. Is that the case?

That is my understanding.

So part 3 could be having entirely the opposite effect to that which the Parliament intended when it legislated.

Some of the purchases that have taken place happened before the act came into force. Now there is a sea change, in that the act has encouraged landlords to see that that is the way that things are going. At the moment, yes: if we have to use the statutory procedure, it is difficult.

To add to that, it cannot be emphasised enough that the outcome of the Pairc Trust case will have a pivotal impact in terms of how part 3 of the act will be used in practice.

An interviewee in our study said that part 3 is the only radical part of the act, because it gives an “instantaneous” solution to a problem. My god, if the Pairc Trust experience is testament to an instantaneous solution, I am living in a different time zone. It is testament to that community that it has had the tenacity to keep going with it.

There is an example of where the implied stick of part 3 has been a significant aspect in crofting community ownership—it is in Lewis too, and concerns the Galson Estate Trust. You should read the account in our report: it is exhaustive, and exhausting in terms of the process.

If the process can be simplified, why should it not be? There are human rights, but everyone has human rights.

I raise the point because I took part in a discussion on Lewis on those issues. I think that Derek Flyn was there too—in fact, we were all at that event.

The civil servant who was there argued in defence of the structure of part 3 by using the analogy of compulsory purchase. In that context, one must make provisions that fully test the validity of making that compulsory purchase. There is a context in which that is arguably required, but you seem to be saying that the current hurdles in the act are too high even to protect that interest. I see that you are nodding, so I take that as assent.

Yes.

It is worth noting, if anyone is not clear about this, that in terms of protection and balancing needs and rights, the mapping requirements in part 3 are very far in excess of anything that we have required for any other type of normal transaction involving assets of any sort.

Let us not forget that in the south—or any part—of Scotland, it may not always be big estates that are involved. The requirements go way beyond anything else, but they could easily be adjusted to be proportionate and reasonable and far more balanced.

There is another element that will inhibit the use of part 3. As was explored via Galson, and as is being experienced—painfully and not instantaneously—in Pairc, you must bring to bear in going through all those efforts a huge amount of expertise on mapping and searches.

There are all sorts of searches to do: the footprint of the lighthouse and foghorn on the butt of Lewis was one such issue. If there is one mistake, in the landowner’s view, the case will be thrown back out. The process is enormously circular and in excess of what would normally be required from any legal team that is looking for a fair settlement in any sort of sale.

That is very helpful. I have one last point to make. Given the evidence from the experience in Pairc, which is being discussed in communities in the Highlands and Islands, would your judgment be that without reform to part 3, you would simply not get involved because of the drain on your community and your assets and resources?

That would be a very strong conclusion to draw from the Pairc case, which, as I said, has implications in terms of how part 3 operates.

I think that the questions have been exhausted. I thank all the witnesses for their attendance. If you have any further evidence that you think that you have missed, please forward it to the clerks as soon as possible.

10:58 Meeting suspended.

11:07 On resuming—