An analysis of case law under Part 2 of the Land Reform (Scotland) Act 2003: an unfortunate trend for community bodies?
By Malcolm Combe - Posted on 3 November 2023
Land reform in Scotland is something of an old chestnut. I’ve also described it in the past as a “hot potato”, and no doubt other produce-related analogies can be put forward in an attempt to simplify what is quite a complicated issue.
Every time I write a new post about Scottish land reform I find myself struggling to do justice to the various valid perspectives about the topic. I also face the challenge of, hopefully, not just repeating myself. As such, for this relatively targeted blog post I am just going to launch straight into the meat of the matter. Forgive me for doing so without the usual disclaimers, padding or wistful imagery about hills and glens.
Since Devolution and the creation of a law-making body at Holyrood with certain powers – including powers in relation to Scotland’s land – there have been two titular land reform statutes: the Land Reform (Scotland) Act 2003; and the Land Reform (Scotland) Act 2016. A third Land Reform Act is expected soon. This post is not about the forthcoming Land Reform Act, important as it may be to the future of land use and land ownership in Scotland with its anticipated rules in relation to the transfer of large-scale landholdings and regarding the obligations of those who own such tracts of land. It is not about the second Land Reform Act either. Rather, it is about the first Land Reform Act, which I will refer to as the 2003 Act, and in particular the community right to buy regime that it created.
Part 2 of the 2003 Act confers a pre-emptive right on certain community groups to buy land that is local to them. Having first dibs on a strategic asset can be important to a community for all sorts of reasons. The inevitable corollary of giving someone first refusal over an asset though is it can interfere with someone else’s plans to dispose of an asset – notably the existing owner’s opportunity to maximise a financial return with an open-market sale. As such, whether the Part 2 scheme should be allowed to operate has been a point of contention on several occasions. Six of these occasions, to my knowledge, have resulted in litigation.
Community Land Scotland – a charity which describes itself as “a collective voice for community landowners throughout Scotland, representing and supporting land reform through community land ownership” – contacted me earlier this year to look into what the various land owner challenges that have been made to a community’s efforts to use the Part 2 scheme. Having completed that task, I have now published the resulting note online through the University of Strathclyde's academic repository with their permission. This blog post seeks to distil some of the points from that note.
It should be acknowledged that there are three other community rights to buy that now exist in Scotland, which can apply in relation to croft land in Scotland’s crofting counties or in specific circumstances when the existing use or non-use of land by a current owner might serve to force a sale to the community. My research focussed on the right to buy which is of more general application, and as such the one that community groups are most likely to interact with.
To explain a little more about this community right to buy, it provides a scheme that allows properly constituted community bodies to register a community interest in land with Registers of Scotland that will then afford that body a pre-emptive right – or a right of first refusal – over the targeted land in the event the owner decides to transfer that land. Scottish Ministers are involved in this process at various stages, such as confirming that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development and consenting to any registration and ultimate exercise of the right to buy in light of various considerations (including whether the registration/acquisition is in the public interest). Those affected by the Scottish Ministers’ decisions can "appeal" to the sheriff under section 61 of the 2003 Act within 28 days; such an "appeal" is actually better thought of as an objection to the actions of the Scottish Ministers, rather than an "appeal" in the usual legal sense of asking a higher court to reconsider a legal judgment.
In every scenario identified and analysed in my research, being situations where the Ministerial decisions to register a community interest in land have been challenged by a land owner or (in two cases) where the Scottish Ministers’ decision to refuse to register such an interest was challenged by a community body, the relevant community body has found itself without a registered interest in land at the end of the court process. That is to say, the community has not established a pre-emption over the targeted land, leaving the owner to deal with the land without any restriction.
It is of course acknowledged that this a relatively small dataset. This makes it virtually impossible to draw a scientific conclusion as to why this pattern has emerged. Furthermore, it is tricky to tease out overarching themes for this pattern given the highly contextual nature of each community scheme. What might be noted though is that where a community body has fallen foul of the procedural provisions of relevant legislation, or indeed the Scottish Ministers have been slipshod in their decision-making processes, little in the way of leeway or sympathy has been offered by any judges. Further, when public interest has been at issue, community bodies have struggled to manifest their preferred positions as far as any sheriffs were concerned, whether in terms of challenging a Ministerial refusal or in terms of a land owner challenging a Ministerial decision that had initially allowed for registration.
Granted, it is perfectly understandable that suitable levels of scrutiny are applied to the operation of the community right to buy scheme, especially as a registered community interest in land can constrain a land owner from performing what would normally be a lawful act (namely an open-market sale). Such constraints need to be considered against the backdrop of the protection of property that is afforded by the European Convention on Human Rights. That being the case, the community right to buy was enacted by a Scottish Parliament that was cognisant of such human rights, and the overall purpose of the legislation is to facilitate the redistribution of land to communities. If aspects of the legislative scheme are bogging down communities and derailing what could be viable community projects, it may be appropriate to revisit the drafting of the 2003 Act; whether this is the case is something I offer no view on here, but others may wish to run that argument, and it can be surmised that this is why Community Land Scotland commissioned this research in the first place.
Those wishing to read my findings in more detail are invited to look at my paper on Strathprints: The University of Strathclyde institutional repository. For now though, I will offer one separate thought in the context of the anticipated and eagerly awaited Land Reform Bill: it’s all very well getting distracted by the prospect of something new, but maybe you also need to think about (and offer some care and attention to) something that is already established. Or to put it another way, don’t forget about your old chestnuts.