As a result of these changes, communities in Scotland now have fairly significant powers and rights to buy land, although to date these powers and rights have been put to limited use.
The newest right to buy, the right to buy land to further sustainable development, was introduced in 2020 under Part 5 of the Land Reform (Scotland) Act 2016 (the 2016 Act). In essence, this right allows community bodies to apply to the Scottish Ministers for consent to compulsorily purchase land or property for the purpose of furthering the achievement of sustainable development.
In order for community bodies to be successful in an application, the Scottish Ministers must be satisfied that all of the following conditions are met:
- The transfer of land is likely to further the achievement of sustainable development;
- The transfer of land is in the public interest;
- The transfer of land is likely to result in significant community benefit, and is the most practicable way of achieving that benefit; and
- If consent were not granted, it would likely result in harm to the community.
Amy Entwistle, Partner in MFMac's real Estate team has previously written about this right to buy here.
Last year, almost five years after it was introduced, a community body called Poets' Neuk became the first successful applicant. The application concerned a neglected and overgrown area of ground in the centre of St Andrews, which the community group wished to turn into a public poetry garden.
The landowner challenged the Scottish Ministers' decision and in a significant case for community groups across Scotland (Forthtay Limited Employee Trust v The Scottish Ministers), it was held that the Scottish Ministers had acted lawfully in approving Poets' Neuk's application. This is the first appeal to a Sheriff regarding a decision of the Scottish Ministers under Part 5 of the 2016 Act and, as such, it provides useful guidance as to how the 2016 Act will be construed.
The landowner argued, amongst other things, that in approving the application the Scottish Ministers had failed to ask whether the transfer would be of greater or lesser benefit to the goal of "sustainable development" than the status quo. The landowner wanted to open a café on the site (although a planning application for this had been refused) and argued that this would achieve the aim of furthering a sustainable economy.
Although "sustainable development" is not defined in the 2016 Act, the Sheriff was of the view that the concept of "sustainable development" was to be derived from the five principles expounded in the United Kingdom Government Sustainable Development Strategy:
- Living within environmental limits;
- Ensuring a strong, healthy and just society;
- Achieving a sustainable economy;
- Promoting good governance;
- Using sound science responsibly.
Distinction between sustainable economy and sustainable development
Whilst the landowner focused on the sustainable economy principle (arguing that the proposed café would achieve a sustainable economy), the Sheriff was of the view that "sustainable development" was not simply interchangeable with the term "sustainable economy". When considering whether a transfer is likely to further the achievement of sustainable development, all five of the relevant principles should be considered, and it was for the Scottish Ministers to determine what weight, if any, to give to a particular principle.
Scottish Ministers’ consideration of sustainable development principles
Here the Scottish Ministers had considered the relevant principles and given weight to the fact that the garden would promote social sustainability which, opined the Sheriff, fell under the guiding principle "Ensuring a Strong, Healthy and Just Society". Although the application did not have economic activity as its primary motive, there may be positive economic effects on the local economy by using the land in a more productive and community-centred way. It was held that the Scottish Ministers had properly applied the relevant tests.
Challenge to property rights and allegations of bias
The landowner also failed to persuade the Sheriff that the Scottish Ministers had fallen short of the high standard required when depriving a party of their property rights, and that the Scottish Ministers had acted in a biased manner by becoming invested in the success of the application due to it being the first application of its kind in Scotland. The landowner's appeal was therefore refused, and this important decision—which highlights the tension between community ownership and individual property rights—will generate interest not only in St Andrews but also further afield.
Current state of community Right to Buy applications
Although this is a significant moment for community ownership in Scotland, a search in the Register of Applications by Community Bodies to Buy Land shows only one other pending application and six rejected or declined applications. Despite statistics showing that community ownership in Scotland is gradually increasing, the fact that this is the first successful application under Part 5 of the 2016 Act demonstrates that this right to buy is possibly not providing communities with the opportunities envisaged.
Ongoing review and legislative developments
The introduction and expansion of the community rights to buy over recent years may have had the effect of encouraging discussions between community bodies and landowners; however, a search of the relevant registers shows that the legislation is perhaps not working as intended. As a result, the Scottish Government is currently reviewing the effectiveness of all of the community rights to buy, and a report on this is expected at the end of the year.
In addition, the Land Reform (Scotland) Bill, which is currently at Stage 2 in the Scottish Parliament, contains a number of amendments aimed at increasing community engagement and enhancing opportunities for community buy-outs. It will be interesting to see what amendments are made to the Land Reform (Scotland) Bill as it makes its way through the Scottish Parliament, and to see what recommendations are made by the Scottish Government when its report is published towards the end of the year.
The future of community empowerment
One thing is certain, community empowerment and community rights to buy, and the complex and interesting issues and debates that these areas of reform bring with them, will remain in the spotlight for some time to come.
