7 Legislating for Community Land Rights

Abstract

The Scottish Government recently reiterated its commitment to bring one million of Scotland's acres into community ownership by the end of 2020. The policy shift towards community ownership, and the legislation that accompanies that shift, is a relatively new development in the Scottish land law reform process, operating within a mature system of property law that has traditionally afforded a great deal of importance to the entitlements that flow from ownership. Legislative routes for communities to acquire land are set out in the Transfer of Crofting Estates (Scotland) Act 1997, the Land Reform (Scotland) Act 2003, the Community Empowerment (Scotland) Act 2015, and the Land Reform (Scotland) Act 2016. Whilst the 1997 Act is about communities in the Scottish Highlands and Islands acquiring crofting land that happens to be in public sector ownership in a manner that is mutually beneficial, and there are certain similar rights for communities to request assets from a range of public bodies in the 2015 Act, the net effect of the 2003, 2015 and 2016 legislation opens up four methods for a community to acquire land from a private owner, in a manner that (on the assumption the legislation is complied with) either: forces that owner to deal only with the community as and when the owner decides to sell; or forces that owner to sell to the community as and when the community wishes to acquire.1 Section 1. See generally Combe, M. M., The ScotWays Guide to the Law of Access to Land in Scotland, (Edinburgh: John Donald, 2018) (with chapter 2 considering the right of responsible access in particular). Much more could be written about the right of responsible access, but for present purposes please see the analysis in Bob Reid's chapter in this volume. 2 See Parts 8, 2 and 4 of the 2016 Act respectively.

10 The Evolution of Sustainable Development in Scotland: A Case Study of Community Right to Buy Law and Policy, 2003–18

“…Part 5 also sets criteria that must be considered in assessing what is or is not in the public interest. Section 56 (10) provides that in determining whether a transfer of land is in the public interest the Scottish Ministers must take into account any information given under section 55(2)(a) which relates to the owner's or any tenant's views on the likely impact on themselves of the community body's proposals for the land as well as their own current or intended use for the land. Ministers must also consider the likely effect of granting or not granting consent to the transfer on land use in Scotland.…”

“…It is unsurprising that Article 1 of Protocol 1 to the ECHR has been used to challenge various land reform measures that deprive individuals of certain property rights or control their use of property. For example, in Salvesen v Riddell the imposition of a potentially open-ended agricultural lease under the LRSA 2003 section 72 (10) on a land-owner without compensation was held to be discriminatory and arbitrary and as such, was a violation of Article 1 Protocol 1 [53].…”

“…In contrast, under section 56 in Part 5 of the LRSA 2016 the public interest is included as one of the sustainable development conditions and is now part of the assessment of what is or is not sustainable development. As discussed above under section 56 (10) the views of existing owners and tenants on the likely impact of the proposal on them as well as the likely impact of the proposal on land use in Scotland more widely are expressly part of the public interest and in turn, part of the assessment of what is or is not sustainable development.…”

“…This chapter refers to these rights collectively as the community right-to-buy regimes. The regimes all share an express requirement that communities wishing to exercise any of the rights to buy must have sustainable development at the heart of their community body and of their proposals for the land [10].…”

“…This is also true for some of the other sustainable development conditions. For example, section 45 (10) provides that in determining what constitutes significant benefit to the community or harm to the community, the Scottish Ministers must consider the likely effect of granting (or not granting) consent to the transfer of land or tenant's interest on the lives of the persons comprising that community with reference to the following considerations- The conditions differ significantly from the Scottish Government's goal of 'increasing sustainable economic growth' and add substantial detail to the wider parameters of the Brundtland definition to prioritise: the sustainable development of land; significant benefits to the community and the avoidance of harm to the community as well as bringing the public interest explicitly back into the definition of sustainable development.…”