Should Scottish communities have a right to force a sale of land? A view from 2003

Does anyone remember the time the SNP tried to beef up the community right to buy in the final throes of the (first) Land Reform (Scotland) Act?

To explain, Part 2 of the Land Reform (Scotland) Act 2003 gave rural communities a right of first refusal over local assets, provided the community was properly incorporated and a registration process was followed.

When the Land Reform (Scotland) Act 2003 was still a bill, some thought it should go further.

During Stage 3 of the legislative process at Holyrood, an amendment (amendment 214) was tabled to allow for a forced sale of land – i.e. a transfer that would not require a willing seller – if the land in question was subject to a registered community interest and that registered interest had not been converted into ownership within a 5 year period. That would have been the situation where: a) the landowner never marketed or otherwise sought to transfer the land; or b) the landowner marketed the land, but later decided not to go through with a sale.

This is what was said by the SNP MSP moving the amendment:

The effect of amendment 214 is to introduce a compulsory purchase power to the bill. If community bodies have an interest in land registered for at least five years and the right to buy has not arisen, they might hold a referendum under the terms of the bill and if successful, they might apply to the local authority to purchase the land in which they have registered an interest compulsorily on their behalf. That is what we want to happen.

That amendment did not make the final cut of the Land Reform (Scotland) Act 2003. (31 voted for, 81 voted against.)

This episode might have been lost to obscure Holyrood history, doomed to be of niche interest to people like me and other political geeks. One thing makes this particular amendment just a wee bit interesting.

It was moved by Roseanna Cunningham.

The new Cabinet Secretary for Environment, Climate Change & Land Reform.

So there you go.

Post Scriptum. There are now rights on the statute books whereby communities do have certain rights to force a sale, as a result of the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016, but those rights either require: a) the land in question to be neglected, abandoned or environmentally mismanaged; or b) the community to clear more stringent sustainable development related tests before the right can kick-in. Separately, the Land Reform (Scotland) Act 2003 has been amended to widen the scope of the “pre-emptive” right to buy to urban as well as rural Scotland.

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New global commitments to expose punish and drive out corruption: implications for Scotland?

A mini-blog, on an issue that largely speaks for itself.

Part 3 of the Land Reform (Scotland) Act 2016 has rules about transparency of landownership. These went through several turns of consultation and drafting, to leave us with:

  • Section 39 (headed “Information about persons with controlling interests in owners and tenants of land”), which provides that there “must” be regulations made relating to who controls landowning entities, with a (new) related register for this; and
  • Section 43 (headed “Power of Keeper to request or require information relating to proprietors of land etc.”), which provides a power and a discretion to create regulations allowing for the Keeper of the Registers of Scotland to request information about landowners and then publicise that information in the existing Land Register.

Today, the BBC reports the following:

Foreign firms that own property in the UK will have to declare their assets publicly in a bid to stamp out money-laundering, the government says.

Companies will have to be on a new register if they hold property or want to compete for government contracts.

The statement from the Prime Minister makes clear the plan “will include companies who already own property in the UK, not just those wishing to buy.”

What are the odds of Scotland’s much lauded new transparency measures being overtaken by the UK Government’s just announced measures? The race is on.

AntiCorruption

Image Credit – @Number10gov

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Access to land and access to justice: the #indycamp at the Court of Session (and still at Holyrood, for now)

On 5 May 2016 Lord Turnbull issued his Opinion in the petition of the Scottish Parliamentary Corporate Body against “The Sovereign Indigenous Peoples of Scotland” and a Mr Arthur McManus Gemmell. The petitioner owns the Scottish Parliament’s real estate in Edinburgh. It brought a court action to clear land adjacent to Holyrood Park of people camping there to make a political point, as blogged here.

The #indycamp, as it has come to be known on social media, has been granted something of a stay of execution. This is on human rights grounds, turning on the question of proportionality when it comes to the course of action chosen by the landowner (essentially eviction) in the context of Article 10 (Freedom of expression) and Article 11 (Freedom of assembly and association) of the ECHR.

There are lots of nice questions about those provisions and the application of them to this situation, especially as the indycampers did not exactly push the human rights issue before Lord Turnbull, but I am not going to explore them. I am going to focus on the topic of my original blog post, the Land Reform (Scotland) Act 2003, which got a few honourable mentions in the Opinion.

Trespassing in Scotland

The first mention the 2003 Act gets in the Opinion is in the context of how it amended the Trespass (Scotland) Act 1865, a measure which remains good law today. The discussion of this legislation followed on from the oft quoted Lord Trayner formulation from a 19th century case that it is “loose and inaccurate” to say there is no law of trespass in Scotland. All of this was in response to (see Paragraph 31 of the Opinion) a:

contention that the law of Scotland does not recognise the concept of trespass [which] was advanced despite the contrary explanations in the passages which were read in court from Rankine, The Law of Land Ownership in Scotland and W.M. Gordon, Scottish Land Law.

This case is an object lesson in the dangers of blindly asserting there is no law of trespass in Scotland. Of course a landowner can take steps to retain and regain possession in many circumstances, but there are sometimes entitlements for others to be on land, and where there are none there are procedural hurdles to clear (or human rights issues to consider) before a court will allow a landowner to remove the person or object that has come to be on its land without permission.

How I tend to explain this to my students is that Scots law does have a law of trespass, but without a capital “T”.

There are also various situations where certain activities on land are criminalised,  including the already mentioned 1865 Act (which regulates occupation, encampment and lighting of fires where those activities are not within the scope of the Land Reform (Scotland) Act 2003).

Is the indycamping allowed under the 2003 Act?

Lord Turnbull is pretty succinct on this. His words (from paragraph 58) follow:

Given that no direct reliance was placed on the 2003 Act, it will be sufficient to note that the right of access given by section 1 is a right to be on land for limited purposes, as defined within that section, none of which are present in the circumstances of the occupation by the Camp.

Those limited purposes are: a) recreational; b) educational; or c) making a profit.

I pondered previously that there might have been a recreational angle, but Lord Turnbull does not even consider that option. Six months of camping later, any claim of recreation would be tenuous.

There is no educational angle: for the purposes of the statute education is linked to expanding someone’s knowledge of “cultural or natural heritage”, and those terms are defined and the definition would not stretch to educating someone about Scottish independence. (No comment is offered on whether the encampment might be a staging post for guided tours of Salisbury Crags.)

There is no commercial angle. The indycampers are not trying to make money.

And anyway, the indycampers are on the land with motor vehicles. That is not allowed in terms of the legislation.

What next for the indycampers?

There will be another day in court, but it seems fair to say arguments will not be as wide-ranging (and perhaps not as colourful or well-attended) as they were earlier in proceedings, as the focus will be on proportionality. This is all that is left in the case: at paragraph 70 Lord Turnbull states: “I should emphasise that the only remaining issue is proportionality.

I understand a date for the future hearing has not yet been fixed.

Access to Justice

From access to land, to access to justice. Lord Turnbull showed great patience at earlier stages of proceedings and he signed off his Opinion by encouraging the indycampers to obtain some kind of qualified legal assistance (via legal aid).

The legal aid budget is strained at the moment. The Law Society of Scotland tried to make this an election issue.

Amidst talk about schools, healthcare and the constitution, access to justice did not always make the headlines in the recent Holyrood campaign. Okay, you would be hard pressed to find someone more concerned with access to justice than access to cancer drugs, but please leave your false dichotomies at the door. Not having proper legal aid also costs money, because (amongst other things) it eats up court time. To demonstrate that, I will leave the final words of this blog not to Lord Turnbull, but to the English judge Sir Alan Ward in Wright v Michael Wright Supplies Ltd and Turner Wright Investments Ltd [2013] EWCA Civ 234:

The [problem] is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.

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This Is Our Country. Let’s Walk It.

Rights of access to the outdoors are a big deal. To deny access to the outdoors could exclude sections of society from natural heritage and open air recreation, together with all the (difficult to measure) benefits that flow from that. To allow unfettered access can lead to conflicts between an access taker and landowners, land managers or other access takers. Different legal systems approach this balancing act in different ways. This has been analysed, from a North American perspective, in a recent New York Times piece by Ken Ilgunas.

This Opinion – and a related book – is based on the author’s trek along the route of a proposed pipeline. That allowed Ilgunas to compare the various approaches in Canada and the USA, but Ken did not stop there. He sought guidance from other access regimes, particularly from Scandinavian and UK jurisdictions, to counterbalance the rules he encountered that might be characterised as unfriendly towards access takers.

As readers of this blog will know (see my posts on disputes between access takers, camping, charging for access to a park , a road closure by police after a fitba match, the implications access (and other) laws might have for the reintroduction of wolves, and an older post about a Scottish Government consultation to tweak the law) Scotland has a statutory framework for such access rights. Those rights to cross and to be on land for certain activities overlay long established public rights of way and loose traditions of customary access. I had a very interesting Skype conversation with Ken in the lead-up to his article to try my best to explain this and it is great to see Scotland being held out as something of an exemplar here. (This follows on from the work of Professor John Lovett of Loyola University, New Orleans, who was kind enough to direct Ken in my direction.) Naturally, Ken’s analysis is tailored for an American audience, but it is worth reading by those in the old country and beyond. Without further ado, I will curtail my own blog post and encourage you to read the article.

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The Environmental Implications of Redistributive Land Reform

This is first and foremost a signpost blog, to link to the open access version of an article I recently contributed to the Environmental Law Review. Here is the abstract, which sets out the coverage of my analysis.

Ownership of land is important for a number of reasons. One reason is the agenda setting role the landowner has in terms of its use, which in turn has an impact on the environment. Environmental law plays a role in regulating the use of land, as do other devices such as planning law and private law controls including the law of nuisance, but absent such regulation the decisions of the owner are crucial. Land reform, by which it is meant the process that is geared towards the reallocation of property rights, either: changes who is invested with that crucial decision-making power; or influences the decision making of an existing owner, who might act in a way to negate any policy argument for reallocation of ownership. Both of these reactions can impact on the environment. How well are those impacts understood, and to what extent do they feature in the law-making process or the application of land reform measures? This paper will use the contemporary Scottish scene, particularly its two land reform statutes of 2003 and 2016, to scrutinise where the environment sits in the land reform debate there, which in turn will provide an opportunity to assess the environmental impact of specific land reform measures and where the environment has featured in a specific land reform process.

First, a disclaimer. (Sorry: lawyer. It even says so in my bio.) I appreciate the Land Reform (Scotland) Act 2016 does not yet exist. It will only do so when the recently passed Bill receives Royal Assent. I am confident this will happen before my article is printed, hence my clairvoyant terminology.

A more general disclaimer relates to the world of open access publishing, which is increasingly a feature of academia. (You may have noticed my link above takes you to the  institutional repository of the University of Aberdeen.) I am in no way criticising open access: writers like to be read and open access plays a big part in that, and my blog itself has been open access for almost four years. My open access disclaimer is to explain there is still a chance to tweak this paper, which will come after I receive the proofs from the publisher. This means I can catch any errors or perhaps even take on board minor comments. Do get in touch with me if you spot anything or have any feedback. (You may also notice I have left some space to go back and add information if and when it becomes available to me, in case you are worried I have missed something.)

Enough signposting and disclaiming. I will now provide the back story to the article, which might be of general interest and perhaps specific interest for anyone wrestling with an article at the moment.

Background

The article is tied to two of my previous outputs, one book review and one lecture. In full disclosure mode, this drew (legitimate) comment from one of the two anonymous reviewers. This reviewer gently chastised me for having a wordy introduction (me? wordy?) that was largely about the author rather than the topic. I hope I have addressed that, but the hook for the article was inescapably tied to those two outputs, so I felt the article had to be a bit more personal and chatty than might normally have been expected. In further full disclosure mode, the second reviewer noted that my “chatty” style was “distracting” but also “refreshing” – I hope my revised version tends towards “refreshing”.

The earlier of those previous outputs was a book review of Andy Wightman, The Poor had no Lawyers: Who Owns Scotland (and how they got it). (The book is now in its fourth edition –  I hope my review remains of some use.) That review was in the Environmental Law Review, so in a way I felt it was the logical home for any output I developed in a similar area.

The review also gave me a hook for the later of my two outputs, which was a public lecture at the University of Edinburgh with Dr. Jayne Glass and Dr. Calum MacLeod. The hook was that my book review began with a declaration that I was not an environmental lawyer, so,… eh,… why was I putting a book review in the Environmental Law Review, and why was I asked to take part in a Brodies Lecture on Environmental Law?

Answer: because that legally abstract concept of land ownership can have environmental implications. Hence why my book review of a text about the ownership of land in Scotland found a home in the Environmental Law Review, hence the lecture, and hence this article.

Sure, that might be to state the obvious. Ownership of land has environmental implications, and changing the owner of land can have environmental implications too. How many words do you need to say that?

More than a few thousand words, actually. Those words can be read via the link above or in the next print issue of the Environmental Law Review. I hope they are a useful contribution to the ongoing land reform debate in Scotland.

Which leads to one final observation: my original title was going to be “The Environmental Implications of Redistributive Land Reform in Scotland”. At the revision stage, I changed the title by lopping off “in Scotland”. The article retains a tartan tinge, but I think there is enough there for readers in the rest of the UK and beyond to allow me to remove any perception that this is purely a local study from the title.

That strikes me as enough about the article. I would now encourage you to read the article itself.

For those who cannot face the article, here is the TL:DR version.

If current landowners are looking after the environment, there is no strong environmental case for redistributive land reform (that is to say, land reform that changes the owner). If current landowners are not looking after the environment, rights to acquire from them (which are held by some Scottish tenants and communities) might play a role in: a) encouraging them to look after the environment to try to avoid a land reform event; or b) as part of the equation for any reallocation of ownership to someone who can and will look after the environment.

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Land Reform 2016

As this term of the Scottish Parliament draws to a close before it breaks for the election, important and much anticipated land reform legislation has been passed. There will be a new Land Reform (Scotland) Act, as soon as Royal Assent is applied to the Bill passed by a clear majority of MSPs on Wednesday.

Here is the Bill as passed at Stage 3 (PDF) of the parliamentary process.

This picks up from the similarly named 2003 legislation. That older measure, with its rights of outdoor access and community rights to buy, has a somewhat narrower scope than this new measure. When Land Reform version 2016 and associated regulations are fully implemented, they will continue the 2003 theme by bringing in an additional right of acquisition for communities (to further sustainable development) and making some minor changes to access rights, but there will also be much more. Reforms to deer management, taxation of sporting estates, and agricultural tenancies are all in the pipeline, as are new provisions for community engagement, transparency of ownership, and a new Scottish Land Commission.

My tweeted reaction to Stage 3 can be found here. That gives you an idea of what Stage 3 brought in (e.g. a commitment to review small landholder legislation, and a tie-up of the community engagement guidance to be produced for a landowner’s new duty to consult with a community to the new community right to buy to further sustainable development) and what it did not bring in (community sale orders, taxation for derelict land, restrictions on non-EU entities owning land, and tweaks to the aforementioned right to buy for sustainable development that could have explicitly carved out land being used for agriculture from its scope).

Here are a selection of other reactions.

On agricultural holdings in particular, NFU Scotland is to set up a Short Life Working Group “of all of the interests within the tenanted sector” to think about implementation of the reforms.

Of course, the new titular land reform legislation is not the only important land reform measure. Also approved last week was a measure for the private rented sector, which will bring in a new form of residential tenancy. Scottish Land and Estates reacted to that too, as did Shelter Scotland.

Meanwhile, last week also brought new draft regulations about community asset transfers, under the Community Empowerment (Scotland) Act 2015.

That flurry of activity might mark the end of the land reform story for this Parliament, but there is much more to come. This will definitely be in the form of regulations to build on the new framework; it could also materialise in the form of further primary legislation, depending on the political mix of the Scottish Parliament after the election.

Beinn Dorain

Beinn Dorain, snapped from the side of the A82 on my smartphone

 

 

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Access rights: can a landowner charge for a walk in the park?

This blog is an initial reaction to a story in The Herald, The Scotsman and the BBC about the Duke of Buccleuch’s plans to regulate access to Dalkeith Country Park.

The BBC story says nothing about Scotland’s modern access laws, whereas The Herald offers some analysis and quotes representatives of Midlothian Council and Ramblers Scotland giving their take on the legal position. Also quoted is the Estate Manager, who offers no view on the law. The law also gets a mention in The Scotsman. Here is my tuppence worth.

The Land Reform (Scotland) Act 2003 liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land without the owner of that land’s prior consent, subject to two important qualifications. First, the land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. Second, the access taken must be responsible, and some conduct can never be classed as responsible (such as being on land in a motorised vehicle). The second point is something I have written about before, but the issue at hand here is about the first point. It seems a charge is to be levied against walkers and joggers who are not otherwise acting irresponsibly, so everything will turn on whether an exclusion applies to Dalkeith Country Park.

Is the land excluded?

The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. That land might have a building on it, or it might be a sports field that is in use, or it might be a garden. (How big a “garden” is allowed was a point of dispute in the case of Gloag v Perth and Kinross Council (see my Edinburgh Law Review note from 2008 (£, at 463)).

The operative subsection here is section 6(f). Essentially, it allows for historic charging to continue notwithstanding the passage of the legislation in 2003. This would allow, for example, Blair Drummond Safari Park to continue its commercial operations and charge for access to it.

There are two strands to the subsection, as follows. Land is excluded if it is land to which:

(i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted.

Note the conjunctive “and” (my emphasis above). Both are needed.

Note also “each year” (my emphasis above).

In terms of strand 1, a landowner must have been charging for not fewer than 90 days in the year ending on 31st January 2001, i.e. historic fees in a benchmark year.

In terms of strand 2, my reading is there must have been a charge in each following year. The Explanatory Notes for the legislation do not offer anything more than to say a charge must continue to be levied for the same period [of 90 days] after that date. There has been no litigation on this subsection, so I cannot refer to an authoritative judicial pronouncement.

So does the exclusion apply? It will, if charging has been in place in both the benchmark year and thereafter, and if that is so that is the end of the matter.  One tweet disputes this. If this was to go to court, it would be a matter to be proved (on the balance of probabilities, which would need more than a tweet). I suspect the local authority might have little appetite for litigation and it seems (from The Herald report) that the council has accepted that historic charging during the summer has taken place.

As for me, I am writing this blog post at a desk in Aberdeen. I have no idea if charging was in place in the twelve months up to 31 January 2001 and has been in place through the years thereafter (but I did find this report from 2015). There are policy arguments to be made for and against charging for access (which I will offer no comment on here), but I will comment on the need for the current law to be applied properly. That law is a clear step towards liberalising access and that overall policy goal means exclusions should be carefully considered, to the extent that the rights of owners are not trampled and indeed rambled over.

In terms of what this means for Dalkeith Country Park, if anyone can fill in the blanks about the charging regime feel free to comment below.

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