Overview of Evidence on Land Reform in Scotland

4. Crofting Community Right to Buy

Summary

Part 3 of the Land Reform (Scotland) Act 2003 introduced the Crofting Community Right to Buy (CCRtB) provisions. Under these provisions, crofting communities are given the right to acquire and control the croft land where they live and work. This does not depend on the land being for sale, as under the Community Right to Buy. The potential benefits of the CCRtB, like the CRtB, include economic, social and environmental impacts. The intention is to remove barriers to sustainable development by empowering crofting communities.

To date, Crofting Community Right to Buy has never been implemented in its entirety to the point where a crofting community body has used it to purchase eligible land and associated rights. It is viewed as onerous, complex and resource-intensive, which may in part explain the rate of uptake, which is much lower than had originally been anticipated.

Other barriers to the successful implementation of the CCRtB include:

• Concerns that the Crofting Community Right to Buy provisions may be unworkable in practice, allied to their function as a 'fall-back position' of last resort;
• Insufficient awareness and promotion of the provisions;
• Lack of funding support and advice;
• Perceived lack of fit between the crofting community right to buy and other recent reforms of crofting legislation and policy, in terms of individual versus community ownership.

Improvements that could help to enhance the uptake and impact of the CCRtB include:

• Reviewing the complex and onerous mapping requirements;
• Improving promotion of the provisions in order to enhance general awareness;
• Improving the fit between the Crofting Community Right to Buy and other recent reforms of crofting legislation and policy, in terms of individual versus community ownership;
• Publish the Register of the Crofting Community Right to Buy online, so that relevant documents and registrations can be easily accessed;
• Make further funding available to assist in achieving crofting community buyouts using the Act and outwith the legislation.

General overview

4.1 Part 3 of the Land Reform (Scotland) Act 2003 introduced the Crofting Community Right to Buy (CCRtB) provisions. These provide a regime in which a crofting community body representing an identified crofting community may acquire eligible croft land (including salmon fishing, mineral rights (except mineral rights to oil, coal, gas, gold or silver), associated with that crofting community, and sporting rights. A Crofting Community Body may also acquire, at the same time, or within a specified period after it has purchased the eligible croft land, the interest of the tenant in tenanted land (interposed leases). This right can only be exercised by a properly constituted Crofting Community Body and also when its application to do so has the consent of a majority both of the crofting community and of the crofters within that crofting community, and is approved by the Scottish Ministers.

4.2 The CCRtB was intended to give all other crofting communities the same basic rights to acquire their croft land as were already available to the Secretary of State's (now the Scottish Ministers') croft tenants through the provisions of the Transfer of Crofting Estates (Scotland) Act 2007 (Policy Memorandum, 2001). The policy aim of the provisions was to remove barriers to sustainable rural development by empowering crofting communities. It was to enable crofting community bodies to buy land at any time, and not only when it comes to be sold. In essence, the Crofting Community Right to Buy is essentially a forced sale of land in which crofting community bodies may compulsory purchase it.

4.3 The guidance on the Crofting Community Right to Buy states that 'crofting communities interested in acquiring their croft land etc should view the use of these provisions as a fall-back position in circumstances where efforts to acquire the land by agreement fail' (Scottish Government, June 2009). When the Bill was passing through the Scottish parliament, the then Executive considered that the formal process would not be used regularly. The then Minister for Environment stated that: 'as with compulsory purchase, once it becomes clear that the crofting community right to buy can be used successfully, it will not need to be used. Instead, an indication that the process might be used will lead to negotiated sales of croft land to the crofting community. However, the bill will give crofting communities the option of buying where their relationship with the landlord is unsatisfactory. That should ensure that the owners of crofting estates who want to continue in ownership will follow more readily the example of those landlords who maintain a good relationship with their tenants'. (Scottish Parliament, Official Report, 20 March 2002, col 10387). The process was also to require a serious commitment from the crofting community to the ownership and management of land as a community asset and also likely to prove a costly and complex process. Its existence was considered to achieve two important objectives: to create a climate in which landowners would willingly sell land to crofting communities by agreement; and to encourage landowners who have monopoly ownership of land in crofting areas to work with and maintain good relations with that community (Policy Memorandum, 2001).

Uptake

4.4 Current use of CCRtB is very limited. MacLeod et al (2010) note that, to date, the crofting community right to buy has never been implemented to the point where a crofting community body has used it to purchase eligible land and associated rights. Only two crofting community bodies, The Galson Trust and The Pairc Trust, both located in Lewis, have submitted applications to Ministers under the provisions. In the case of Galson, the application brought the landowner's representative to the negotiating table and, as a result of negotiating with them, successfully concluded the purchase of the land outwith the provisions of the Act. The Pairc Trust submitted three applications to Ministers, one dated 20 May 2005 (for eligible croft land etc on the Pairc Estate) and a further two, dated 26 February 2010, for eligible croft land etc and the interest of the tenant in tenanted land, both on the Pairc Estate. Ministers made a determination on the three applications on 21 March 2011, rejecting the application of 20 May 2005 but approving the two later applications submitted in 2010. These two applications have been appealed by means of summary application to Stornoway Sheriff Court and court proceedings are ongoing. They provide the first legal challenge to the crofting community right to buy legislation. Meanwhile, The Pairc Trust is currently in discussions with the landowner about a possible amicable estate transfer.

4.5 This rate of uptake of the CCRtB is however, much lower than had been anticipated. The Financial Memorandum shows an assumption that there would be 1 application to exercise a crofting community right to buy each year and 1 exercise of the new compulsory purchase every 10 years. This low uptake is also noted for other legislation which aims to give crofting communities basic rights to acquire their croft land, through the Transfer of Crofting Estates (Scotland) Act 1997. To date there has been only one application from an eligible crofting community, The West Harris Trust, which took ownership of the West Harris Estate in January 2010.

Using the CCRtB: user experiences and impacts

4.6 The experiences and impacts have been confined to two crofting community bodies, The Galson Trust and The Pairc Trust, though other stakeholders have also been involved within the legislative process. MacLeod et al (2010) suggest that the Crofting community Right to buy provisions are viewed by community groups and other stakeholders as a complex and resource intensive process. They particularly identify the mapping requirements as in excess of the normal standards required for an estate sale. The process can be a lengthy one, with The Pairc Trust's application of 20 May 2005 not having a Ministerial decision until 21 March 2011, and the appeals of its applications dated 26 February 2010 will mean that there may not be a determination on them for some time to come. From the time The Galson Trust set up its crofting Community Body until it assumed control of the Galson Estate, the full process took three years to complete.

4.7 MacLeod et al (2010) suggest that Part 3 of the Act may have had additional effects on community land ownership. These range from community groups who have undertaken crofting community buyouts within the Act perceiving the legislation as a useful lever in terms of ensuring a successful conclusion to their negotiations. Macleod et al (2010) note that a number of community groups have acknowledged that while this is the case, negotiated sales outwith the Act are more achievable and/or preferable if at all possible. In addition, they consider that the provisions appear to have had little impact on the land market. However, there is variable evidence on this, with Strutt & Parker and The Crofters Commission observing that a two-tier land market is emerging and that estates with no croft tenants have a far greater value because there is no-one available to exercise a 'right to buy'.

Barriers to success

4.8 MacLeod et al (2010) identify a number of barriers, which might help explain this low uptake of the Crofting Community Right to Buy. They include:

• Concerns that the Crofting Community Right to Buy provisions may be unworkable in practice, allied to their function as a 'fall-back position' of last resort;
• Complex and onerous mapping requirements;
• Insufficient awareness and promotion of the provisions;
• Lack of funding support and advice;
• Perceived lack of fit between the crofting community right to buy and other recent reforms of crofting legislation and policy, in terms of individual versus community ownership.

4.9 MacLeod et al (2010) suggest that 'the demands regarding mapping and associated information for activating the crofting community right to buy are not only very difficult to deal with but also go beyond that which is actually needed for a legally competent land sale'. These include the need to incorporate all rights and interests in the subjects of the application, together with all sewers, pipes, lines, watercourses or other conduits and fences, dykes, ditches or other boundaries in or on the land, known to the applicant body or the existence of which it is, on reasonably diligent inquiry, capable of ascertaining.

4.10 These barriers (tangible or perceived) highlight a number of areas where the CCRtB could be reviewed and where improvements might be made to the legislation. The current appeals of the Ministerial decision to approve the two applications from The Pairc Trust, dated 26 February 2010, will provide some lessons learned on aspects of the legislation, which will need to be considered in any review of the provisions.

4.11 The barriers that have been identified raise a number of issues that are also raised in connection with the CRtB.

4.12 They suggest a need to simplify the time-consuming administrative processes involved, including the mapping. In particular, the provisions need to take into account wider changes that have taken place since the Act was introduced, for example in crofting legislation and the modernisation of the compulsory purchase process.

4.13 There is a need for more technical help to be made available in working through the provisions, and to ensure that applications are fully compliant and will not be rejected on a technical point.

4.14 It is also important that appropriate guidance and support is available for crofting community organisations, especially in connection with the provisions and wider issues in relation to negotiating an amicable transfer of land with the landowner.

4.15 There is a need for greater awareness and promotion of the provisions, which could also result in an increase in crofting communities thinking about community ownership of land, even if they themselves do not choose to submit applications.