Post-legislative Scrutiny of the Land Reform (Scotland) Act 2003 - Tim Braunholtz-Speight

Whose Economy? UWS and Oxfam Seminar Series Whose Environment? 25th March 2011, Inverness College UHI Post-legislative Scrutiny of theLand Reform (Scotland) Act 2003 Calum Macleod, Tim Braunholtz-Speight, Issie Macphail, Derek Flyn, Sarah Allen and Davie Macleod 1

ContextLand Reform (Scotland) Act passed in 2003• Part One - outdoor access rights andresponsibilities• Part Two - community right to buy• Part Three - crofting community right to buyScottish Parliament Rural Affairs andEnvironment Committee• looking at “post-legislative scrutiny” of the Act• This report a first stage in that process

Methods• Expert interviews• Online surveys - Local Access Fora, National Access Forum, Local Authorities; - community groups with various experiences of the Act, and those who have purchased outwith• Semi-structured interviews - Similar range to surveys• Secondary data - e.g. Scottish Government data on Right to Buy registrations

Part One - Outdoor Access Largely working well….“The LRSA has assisted in the resolution of localaccess disputes between access-takers and landmanagers”Local Access Forum members (N=80)

Outdoor Access• perception that the legislation has gradually improved relations between access-takers and land managers.• Core paths planning has raised the profileof access issues within Local Authoritiesand encouraged community engagementand constructive dialogue betweenstakeholders.

Outdoor Access…with some reservations…• concerns about funding and maintenance ofCore Paths• Fears that financial risk is deterring Access Authorities from pursuing access cases in the courts• Hotspot issues remain i.e. Irresponsible camping, fire lighting and inadequate control of dogs

Outdoor accessSuggestions for change?• There appears to be relatively little appetite amongst access stakeholders for significant changes to specific provisions in the Act or in relation to the Scottish Outdoor Access Code.

Part Two - Community Right to Buy Image from www.alistairmcintosh.com

Community Right to Buy - Uptake

Community Right to BuyOne the one hand:• Has been used• Across Scotland• Has led to land transfersBut:• Less impact than anticipated• Most land transfers were “late” registrations• Most land transfers involve public bodies aslandowners

Community Right to Buy -acquisitions of public bodies‟ land

Community Right to BuyMaybe greatest impact was before it waspassed? “Having land reform on the agenda created a good bargaining environment. Not just the Act but the broader debates and discussions. It was a good climate. Estates did not want to appear unreasonable against that wider background … [but] the Act has raised expectations that aren„t fulfilled (Interview 3)”

Community Right to BuyBarriers to uptakeCommunity groups had various reasons foravoiding using the Act:• Registering an interest does not force asale• Administrative burden• Political risk - fear of disrupting relationswith local landowners• Combination of the above = “not worth it”

Community Right to Buy and community relationsUsing the Act can be risky for community groups:• “happiness in using it depends how remote the landowner feels to the community (absentee or state body possibly). A community would be reluctant to use the Act against a local farmer who has been previously friendly and co-operative for example. Even if a landowner near the community is unfriendly and unco-operative, using the Act against them can lead to a lifetime of obstruction and pettiness which is unproductive”Land reform outwith the Act might be more attractive:• “we have been able to purchase a piece of land without resorting to "aggressive" assertion of our rights. This is beneficial for community relations with local landowners”Therefore:• “treating late registrations as exceptions is the major flaw in the Act… the current view - that communities will proactively register an interest in land when it is not for sale - is either naïve, or suggests that the Act is not genuinely designed to encourage community ownership.”

Community Right to BuySome suggestions for change fromcommunity groups• Simpler and more flexible administrative requirements and definitions - iron out various perceived oddities and inconsistencies• Treat “late” registrations as normal - see the Actas an “emergency” tool• Promote the Act more and fund it better

Part Three - Crofting Community Right to BuyVery limited uptake• 2 applications to use• 1 group used it in negotiations but purchased land outwith the Act (Galson Estate Trust)• 1 group actively pursuing full use at present(Pairc Trust) - seen as a “test case”• Some other crofting community land purchasescite Act as helpful - but purchase outwith the Actseen as quicker and simpler

Crofting Community Right to BuyBarriers to uptake and suggestions for change• Complex and costly administrative requirements - esp mapping• Legal uncertainty - current case involving disputes over European Convention on Human Rights…• Simplification the major call for change• Fear that otherwise Part Three may becomedefunct as “unworkable”

So what next?Roseanna Cunningham 21st March:• “After serious scrutiny and deliberation, the complex issues surrounding the Trusts application have now been fully analysed and I can grant approval for The Pairc Trust to go ahead to purchase the land. "The plans the Trust has should help inject new life into the area, rejuvenate the economy and boost the fortunes of all those who live, work and visit this spectacular part of our country. "I wish them good fortune in raising the money required to purchase the estate and every success in shaping their own destiny."

So what next?Roseanna Cunningham 7th March:• "It is important that there continues to be an on-going dialogue, that lessons are learned and new approaches considered.• "The vast majority of stakeholders who provided evidence to the researchers of the report were positive about the community right to buy and the crofting community right to buy. However, there were a number of criticisms, particularly in relation to their complexity and their limited flexibility.• "This is an opportune time to review the legislation relating to these rights with the intention of making things easier and faster to negotiate .• "Community groups should not have to negotiate unnecessary red tape to get them through these rights to buy. Equally, the legislation has to be transparent, legally sound and compliant with the European Convention of Human Rights.• "I am pleased to note that the access provisions in the Act appear to be working well"

Watch this space…Rural Affairs and Environment Committee letter to the Minister (Roseanna again)• The Committee is clear that solving the main problems identified in the report is not simply a matter of improving the administration of both sets of right to buy provisions in the 2003 Act. There are parts of the Act itself that need to be amended . We are interested to note that this was also your view when you appeared before the Committee, and that you indicated that there was likely to be a Government review in the near future. We hope this work will be taken forward by the next administration. We also hope, and expect, that there would be extensive consultation with stakeholders as part of it.

Read more:Full report and Executive Summaryavailable from:• Rural Affairs and Environment Committeehttp://www.scottish.parliament.uk/s3/committees/rae/curren tInquiries.htm• CRRShttp://www.crrs.uhi.ac.uk/publications/reports/reports-and- other-papers

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Post-legislative Scrutiny of the Land Reform (Scotland) Act 2003 - Tim Braunholtz-Speight

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