Land Reform - The Right To Buy Land To Further Sustainable Development

14 July 2015

In the third of our series of blogs on the Land Reform Bill, Poppy Baggott from our Rural team examines the Government's aims to put one million acres of land into community ownership by 2020.

The Scottish Government has stated that one of its main objectives in addressing land reform, is to amend what is seen by some as a ‘feudal and archaic system of ownership,’ (Financial Times 23rd June) whereby 50% of all land in Scotland is owned by under 500 entities. With the Government aiming to put one million acres of land into community ownership by 2020, this element of the Bill has been sensationally branded as ‘a land grab.’

Similar to the proposed introduction of business rates for sporting estates, the proposal has raised hackles to the extreme left and right.  Cited with unfortunate regularity as the stereotypical right wing view is Lord Astor’s repugnant ‘Mugabe’ metaphor, whilst plays on the SNP acronym have seen them referred to as the ‘Scottish Nazi Party.’  On the other side, it is thought that the proposals do not go nearly far enough (The National 24th June) claims that the Bill barely scratches the surface of the equality which the SNP Government aims to achieve.  It is also worth remembering that land reform is not everyone’s priority, and whilst it may be on the tip of some tongues, others (Merryn Somerset Webb in the Financial Times June 23rd) suggest that Scotland’s Government might better serve the population by focussing on areas such as the NHS and education.  This last point is perhaps noteworthy, in that following a public consultation in a country whose population at the last census in 2011 was 5.2 million, only some 1,000 people responded to the Land Reform consultation, and while it should also be acknowledged that perhaps only a tiny number of people will ever respond to a consultation and failure to respond should not always be interpreted as disinterest in a topic, the figures are perhaps food for thought?

The political mechanics of how the Land Reform Bill's proposals will work and the potential powers which will be conveyed, are best looked at in conjunction with the Community Empowerment (Scotland) Bill, which was passed by Scottish Parliament on 17th June 2015.  The Community Empowerment Bill furthers rights to buy for rural and crofting communities through extending the pre-emptive right to buy to include all land, where previously settlements with populations of more than 10,000 were exempted.  It also permits communities (with Scottish Ministers approval) to acquire wholly or mainly ‘neglected’ or ‘abandoned’ land against the will of the owner if it is in the ‘public interest’ to do so. 

So in line with the above, the Land Reform Bills proposal is to provide a vehicle by which communities will have the right to buy land (including bridges and other structures built on land, inland waters, canals, and the foreshore) for the furtherance of sustainable development.  

So far, so fair, but the grey areas are currently all encompassing, and the devil will be in the detail. The success of the proposal could appear questionable while so many definitions are left outstanding; in fact, until some clarity is provided on the definition of ‘significant harm’, ‘significant benefit,’ ‘sustainable development,’ ‘abandoned,’ ‘neglected’ and ‘public interest’, within the context of the Bill, then the main beneficiaries of appeals to purchase land may well be legal professionals!  Whilst definitions of all of the above will be necessary before this Bill can proceed efficiently, it could also be suggested that the concept of what constitutes a ‘community’ should be more clearly defined. The Community Empowerment Bill extends the definition of ‘community’ beyond the use of a postcode, but in the context of ‘sustainable development,’ and its relationship to the ‘community’ who will benefit? A far clearer delineation needs to be made, not only on a Scotland-wide scale, but also within a rural or urban context.  A community could be defined using the Cambridge dictionary definition which is:

“The people living in one particular area, or people who are considered as a unit because of their common interests, social group, or nationality.”

But this interpretation still leaves the definition too open to debate, the delineation of ‘community’ would be multifaceted, ultimately pointing to further complications, legislation, litigation and ultimately expenditure.  At this stage, it is perhaps worth harking back to last week’s blog on business rates for sporting estates, whereby it was discussed that the revenue gained from the reintroduction of these business rates would go towards the ‘community land fund;’ surely a satisfactory end destination for these funds would not be as pocket lining for the legal profession?

The practical process whereby communities will be able to exercise their right to buy will probably be similar to the current Planning Appeal process, with opportunity for representation and consultation throughout.  To counter any danger that the bill will contravene elements of the European Human Rights Convention, land owners will receive market value (value as determined by a valuer appointed by Scottish Ministers,) they will be supplied with the right to appeal both the valuation of their property and the Scottish Ministers decision as regards the final outcome; there will also be a right for landowners to receive compensation for any costs they incur as a result of the transfer.

As change is inevitably afoot, and forewarned should be forearmed, how are landowners responding?  The answer which readily floats to the surface is unsurprising, as it is the way in which landowners have responded to political change over the years; with a touch of resignation, followed by a readiness to adapt, and a search for the opportunities made available by the change.  This flies in the face of some melodramatic coverage which the Bills release stirred up, whereby the rural landowner has been cast as the feudal land baron staring down a one-way street of resentment and stolid opposition.  The truth is that the provisions within the bill apply to all types of Scottish land and property both urban and rural, brownfield sites and inner cities as well as remote hillsides, and as such, the image of the wealthy rural landowner sitting on hundreds of thousands of wasting acres is skewed considering that if Scottish Ministers can force the sale of land where the owner is considered a barrier to sustainable development, the same bill can also force urban owners of vacant lots to sell up.

So the initial furore, with which the Bills release was heralded, while continuing to rumble on, no longer holds the fear of the unknown.  The plausibility of communities suddenly laying claim to vast parcels of land all over Scotland is unrealistic; for one, large areas of Scotland are barren and remote and would not represent the sort of area without which a community would suffer ‘significant harm,’ and secondly, the litigious process could well be dauntingly lengthy and expensive.  However, the zeal with which Land Reform is being approached suggests that inaction will no longer be an acceptable action, and it has been suggested that the financial assistance made available to landowners to subsidise the running of their estates, will continue to create a feeling of ‘unfairness,’ if there is not the opportunity for all to have a share in this.  The ‘right to roam’ does go some way to appeasing discontent, but while landowners are seen to be benefitting from public funds, the ‘right to have a say’ and be involved in how land is utilised is now the goal.

There are of course negatives which could be dwelled upon; land reform is a continuance of the manifest uncertainty created by the ongoing independence debate, and political insecurity goes hand in hand with economic uncertainty.  Investors are likely to be wary of investing in land which could seemingly be taken from them if they are deemed to be managing it inappropriately, and as such, other areas of the UK may prove more attractive to investors than Scotland.

On the upside, perhaps the Bill will encourage landowners and communities to engage and collaborate, and land will be managed to its full potential to the benefit of all, as can be achieved through routes such as the Neighbourhood Planning system which operates in England.  Further to this, perhaps more rural land will be considered or approved for development as local authorities will not want to be seen as acting as a barrier to rural or sustainable development.

The above suggestions are some of the more probable outcomes of the Bill, but other more far-reaching ideas are being bandied about, such as that of George Monbiot (The Guardian 30th June 2015) who suggests that rather than the litigious and potentially small scale changes conveyed by a community right to buy, a vehicle should be created by which landowners can donate their estates to the Country for public benefit, as JD Rockefeller did in Wyoming.

A final word at this stage, on this element of the Bill poses a query on which the wheels may already be in motion; prior to further community buyouts being supported, and further public funds being put aside for future investment of the same sort, shouldn’t there be some investigation carried out and then published for public consumption on exactly how existing community projects and buyouts have fared over the last few years?  Just as the taxpayer has a right to benefit from public funding, they also have a right to know how it is being spent.  

Poppy is part of the Galbraith rural team.

Specialist knowledge and expert advice

Your browser is out-of-date!

Please consider updating your browser to view this website correctly. Update my browser now

×