Good Morning Scottish Land Question!

On 14 August 2012, I appeared live to the nation on BBC Radio Scotland’s “Good Morning Scotland”. I shall spare you a blow by blow account of the event, although in fairness I doubt I could manage an account with that level of detail. The whole experience seemed to chime with Steve Martin’s reflection on his appearance on the Tonight Show, which he characterised as akin to an alien abduction. First you are about to do it, then apparently you are in the middle of it, then the next thing you know your second taxi driver of the day is driving you away from BBC Scotland’s headquarters on the River Clyde, past Ibrox stadium, all the while discussing the state of Scottish fitba.

Prior to my first live appearance on radio, I canvassed friends and t’interweb contacts for tips and hints as to what and what not to do. Some were useful (speak slowly; avoid jargon). Some less so (make sure you shave). Some flippant but also pragmatic (avoid flatulence; try not to slip into expletive ridden invective). One or two were not so much about the performance, but rather about the aftermath (you won’t say everything you wanted to, but as long as you manage to say most of it, that is fine). With the aftermath in mind, allow me to exercise a right of reply on myself.

A right of reply? Is that not for when someone else slights you? Yes, it is. I hasten to add that no-one slighted me and no aspersions are being cast on the good folks at BBC Radio Scotland. I was given a fine chance to speak, but then again I perhaps convinced myself my first question might be framed slightly differently so on listening back to my voice I can hear crackles of nerves on the recording of my first orations. As it happens, it seems that the show is not available on “Listen Again”, so if you missed it you will have to take my word for it, but those who did hear me have been kind enough to note that I “relaxed into it”, or similar. So when I got going, what did I say? And what did I miss?

Broadly, I was asked onto the show to speak about the proposals for an “urban right to buy”, on the back of an article in The Journal of the Law Society of Scotland (which I mini-blogged earlier this week). There is no such thing as an urban right to buy at present, nor will you find that as a proposed scientific term of art in any Scottish Government proposals, but then again both of those statements are pedantic and/or simplifications. Taking my first point, since 2003, there has been something called a community right to buy, which is targeted at rural areas but sometimes catches areas in rur-urbia. This much I did say on air when I mentioned the successful buyout in Neilston’s main street. On the second point, there are many proposals in the Scottish Government’s Consultation on the Proposed Community Empowerment and Renewal Bill which might become something like an urban right to buy in due course, but much is up for grabs and there is this and then another consultation to follow before actual legislation.

What is up for grabs is potentially huge. The consultation, which opened on 6 June 2012, considers opening up compulsory purchasing and planning reforms for communities, reforms to allow local authorities to deal with derelict buildings and provisions to allow local authorities to dispose of or let assets to communities in a manner that might not quite be the most economically advantageous route for that local authority provided such a use was for the benefit of the area as a whole. In due course these proposals may well be pared back, but the policy as a whole is likely to be popular. Some form of legislation is destined to follow.

The consultation is split into three parts: strengthening community participation; unlocking enterprising community development; and renewing our communities. Show me someone against any of these three parts as broad propositions and I will show you someone who is honest yet unelectable.

Looking now at the relevant parts in turn, participation might be encouraged by way of increased community involvement in planning (through Community Planning partnerships) and more meaningful and accessible consultation. This seems non-objectionable and at the very least a more streamlined and comprehensible system can and should be expected at the ultimate conclusion of this exercise (but compare the comments here).

Enterprising community development might be unlocked by better asset management and increased access to common good land, a greater and more sensible provision of allotments, and some kind of right to buy for urban communities. This is the area I managed to cover most completely on the radio, so I will return to this towards the end of this blog.

The third strand of renewal might see enforced sales or leasing coming into play, or perhaps even existing compulsory purchase powers being brought to bear for the benefit of the community. This last point would be controversial – think of the reports of Trump’s attempt to gain access to compulsory purchase for his plans at Menie or indeed the Commonwealth Games developments at the expense of one feisty Glaswegian in particular – but then again who can be against such powers for the benefit of the community, eh?

That three part breakdown I failed to elaborate on air, but then again I was not quite asked to elaborate it. What else should or could I have said? I mentioned Neilston (a rur-urban success) and Lochwinnoch (a rur-urban flop, after approval from Scottish Ministers for the purchase the landowner said “stop the bus” and decided not to sell to the community, as was his entitlement per Part 2 of the Land Reform (Scotland) Act 2003, with the registered community interest in land lapsing earlier this year). I did not mention Lambhill Stables on the bank of the Forth and Clyde Canal. If anything, this was the paradigm of urban reform I should have mentioned. Then again, the Lambhill Stables enterprise has occured with no specific right to buy, and has recently lost out on Climate Change Challenge Fund support which might threaten their future.

I confess I do not see the immediate connection between CCCF money and Lambhill Stables, but the fact that the community did and at one stage successfully argued for it shows the ingenuity that has been required as things stand. That Lambhill and Neilston have been successes of sorts without a dedicated urban right to buy might well be seen as a ready-made counter-argument to its introduction, but that would be a specious argument. What those examples show is community ingenuity with what limited tools are already there. If something better might be available, that is not restricted to settlements with a population of less than 10,000 people or reliant on grant funding that might be more readily claimed by other not necessarily community oriented operations, that ingenuity should not be used to hamstring future developments.

A comparison was raised with Assynt on Good Morning Scotland, which leads on to a comparison with the community right to buy that I have already mentioned. Admittedly, the first Assynt buyout pre-dated that legislation, but subsequent buyouts in Assynt have used the Part 2 scheme. Would its transposition to cities be a good idea? As I noted on the radio, 11 purchases out of 142 registered community interests in land as at 16 August 2012 is not a particularly great conversion rate. A bureaucratic, repeated every five years process with onerous mapping, incorporation and assorted other requirements seems as likely to scunner communities as it is to empower them, not to mention the fact a pre-emptive right to buy (i.e. a right of first refusal predicated on a willing seller) can be stopped at any time. A tin lid on all of this is that land held by a company at today’s date will remain in the patrimony of that company when shares in that company are transferred (and therefore not trigger the right to buy). Whilst the community right to buy might appear radical, it is not a panacea for those seeking to achieve meaningful redistribution of land.

Assynt might conjure images of crofting, so it is worth flagging the model that exists in Part 3 of the Land Reform (Scotland) Act 2003 that allows crofting communities to buy land from the landowner irrespective of whether he wishes to sell. Some communities have proceeded with a purchase with this in the background, one (Pairc, on the Isle of Lewis) has been obliged to follow the statutory process, which is of course the landowner’s entitlement to insist upon. Introducing such a right to urban areas would indeed be radical. Any legislation would need to balance the interests of the landowner and community very carefully, especially when one considers that the European Convention of Human Rights offers a form of guarantee that an owner is entitled to peaceful enjoyment of that which he owns, subject to deprivations that are in the public interest. An urban right to buy might just upset a landowner’s peaceful plans. Any legislation of the Scottish Parliament would have to undertake this balancing act carefully, lest it be struck down as incompetent.

That brings us nicely to the issue of definitions. What is in the public interest? When is a building derelict? What is community? If the people of Gigha are a community, are the people of Govan? Where do you draw boundaries when there is no coastline? What is underuse? One person’s legitimate land banking might be another person’s stagnation.

Can you see why I needed to give myself a right of reply? There is no way I would have managed to say this in five minutes…

The consultation is open until 26 September, having been extended from 29 August. According to @CommEmpower’s Twitter feed, consultation on draft legislation will follow in summer 2013. Do you want to be empowered? Get involved.

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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6 Responses to Good Morning Scottish Land Question!

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