May 5, 2020
The term sustainable development must be one of the most used but hard to pin down phrases in the lexicon of the policy maker. And in the field of land reform it may soon become the most contested. Introduced by the 2016 Land Reform Act as another mechanism to permit community ownership, the question of what does and doesn’t constitute sustainable development is set to become the most radical (and contentious) provision yet by which communities can assert their right to buy. Radical because this is an absolute or compulsory right to buy. Land Commissioner Megan MacInnes explains.
With the Community Right to Buy for Sustainable Development coming in to place this weekend, Land Commissioner Megan MacInnes looks at what it means for communities and for land reform.
Today marks the launch of the latest in the Scottish Government’s land reform toolkit – the Community Right to Buy for Sustainable Development. This is the most radical and final part of the measures to promote community ownership introduced by the Land Reform (Scotland) 2016 Act.
Building on the original community right to buy powers introduced in 2003 and the right to buy abandoned and neglected land in 2018, this new measure gives community bodies the right to buy land or assets if – in doing so – they further the achievement of sustainable development. Unlike the already-introduced rights though, this new one focuses on the aspirations and concerns of the community rather than the condition of the land, and most importantly doesn’t require a willing seller. The right to buy is absolute; a compulsory purchase power granted to communities.
This right has been much anticipated across the country. It applies to rural and urban areas and is applicable (within certain limits) to both public and private land. To understand why it is so needed, we only need to look back at the evidence we at the Land Commission published as part of our review of the impact of the scale and concentration of land ownership in March 2019. This included evidence of the concentration of decision-making power and reports of some landowners obstructing the expansion of local businesses and restricting the supply of land for housing for local residents or those who wanted to move in.
The Commission made a number of recommendations to address these adverse impacts, including a public interest test for significant land transfers, a statutory review process based on the Land Rights and Responsibilities Statement, and that decisions related to the right to buy for sustainable development take account of the effects of concentrated land ownership.
Fundamental to the future of our most fragile communities is that they are able to sustainably develop. This doesn’t just mean survive in inadequate housing, with insecure jobs, on the fragments of land in between larger holdings, but that these communities – my community – are able to set their own course and have access to and control of the assets they need to do so.
However, this new right to buy is not a blanket compulsory purchase power. There are a number of steps and conditions community bodies must meet and Scottish Ministers, who will ultimately decide to grant this right or not, will have a reasonable amount of discretion. Communities will need to be able to demonstrate that alternative ways to buy the land, such as through a negotiated transfer with the current owner, have failed. If exercising the right is the only route available to them, they will also have to meet a number of requirements. These include being able to demonstrate that the transfer will further sustainable development, it is in the public interest, it will result in significant benefit to the community, and that not granting consent to the transfer is likely to harm the community. The mechanism also contains a number of safeguards and appeal opportunities, to balance these private and public interests.
It may in the end be that these new powers are rarely applied, and rightly so. This tool is designed to operate within the much broader framework of existing community empowerment and land reform measures. This begins with the Land Rights and Responsibilities Statement, which includes provisions to strengthen community engagement over land use decision-making, and is now being supplemented by our Good Practice Programme and series of protocols. When these softer engagement and negotiation-focused tools are seen as part of the spectrum of rights that ultimately provides communities with compulsory purchase powers, then each one of them is strengthened as they help encourage land owners avoid a forced sale.
Another question the launch of this final piece of the community right to buy puzzle leaves us with is: where next for community ownership? We’ve previously emphasised the need for the normalisation of community ownership and the support community groups receive across the country; in urban and rural areas, and in the south as well as the north. As we’ve seen from the slow uptake in communities using the right to buy for abandoned and neglected land, these new measures take time to settle in and for communities to feel confident enough to start to use them. A period of implementation of these new measures, and reflection on what works and where gaps remain, is definitely – in my view – time well spent.
Nevertheless, the impact of COVID-19 and the restrictions have many of us re-focusing locally to our own communities for help or to offer help as a volunteer and has reiterated the importance of communities and community resilience. It has never felt so important that communities are able to exert influence and control over the things that matter to them with community ownership as a routine option. This suggests to me that we are only just beginning to grasp the impact increasing community ownership of land and buildings can, and will have, on shaping our futures.