When First Minister Alex Salmond announced "a radical review of land reform" last week, many of us could be forgiven for thinking that this is had already happened, less than a decade ago, with the enactment of the Land Reform (Scotland) Act 2003.  The Act, which aroused considerable debate and controversy during its passage through parliament, extended statutory access rights, and introduced a pre-emptive right to buy for communities, and a crofting community right to buy.

Announcing the setting up of a new Land Reform Review Group to conduct a "wide ranging review" of land reform issues implements a manifesto commitment.  The Group is expected to engage with a diverse mixture of interested parties on all aspects of land reform, with a prospect of further legislation, once the Group reports its findings.

The story so far…

Coinciding with the announcement, the Scottish Government published research findings on the success of current land reform aspects to date.  Overview of Evidence on Land Reform in Scotland looks at each of the three elements of the 2003 Act, and considers the funding issues encountered through first, the Scottish Land Fund (SLF), and subsequently, its successor the Growing Community Assets Fund. 

Access rights

Often the subject of high emotion as several high profile court actions a few years ago demonstrated, generally it seems that the arrangements for access rights to land have been largely successful.  Both access takers and land managers are generally aware of, and heed the guidance in the Scottish Outdoor Access Code, which provides practical and clear advice for responsible exercise of the rights and responsible use and management of land over which such rights are exercisable.  

All local authorities were required to produce Core Paths Plans, and while this can be a time consuming exercise, they have enabled better access to and use of the countryside.   It is important however that authorities are able to maintain these programmes and continue to support and foster greater access to the countryside. On the "if it ain't broke, don't fix it" principle, research results demonstrate that significant alterations to the access provisions in the Act are unlikely.

The Community Right to Buy

If access rights of one sort or another had always been enjoyed in Scotland, the Community Right to Buy introduced by the 2003 Act was a new departure.  Designed to encourage community ownership of predominantly rural land in Scotland, the right is a pre-emptive one, in that it can only be exercised if the land in question is put up for sale, and the community has previously registered its interest in a process that includes a requirement to obtain Scottish Ministers' approval. Despite a rigorous application procedure, to date, 145 applications to register a community interest have been made, of which 96 have been approved.  The main reasons for rejecting applications are either that they failed to meet the legislative requirements, or that they were not in the public interest (an essential test that an application to register a community interest must pass), or that the land has already been sold or contracted to be sold.  A number of applications were simply made too late.  

Successful registration is just one hurdle however, as the actual number of successful purchases of community land since the right to buy was introduced is just eleven (with other sales currently pending).  Some successful applications have not proceeded even when the land became available due to inability to raise funds. However it is clear that there is interest across the country for areas of land both large and small, from Sutherland to the Borders, for areas of less than a tenth of a hectare, up to almost twenty thousand hectares in the case of the community purchases at Assynt in Sutherland.  Reasons for wanting to buy the land include creating new facilities for the local community, generating development and employment opportunities, and protecting areas under threat.  That said, overall the impact on land ownership in Scotland of the Community Right to Buy has been relatively minor, and there is no framework in place for a meaningful evaluation of its effect on sustainable development in rural communities.  This is likely to be one area that the Land Reform Review Group will be expected to address.

Crofting Community Right to Buy  

The final element of the 2003 Act was the right given to crofting communities to acquire and control eligible croft land (for example common grazing land) in the vicinity of their crofts.  Activating the right is not dependant on the land being for sale, but can be activated at any time.  The process is however complex, lengthy and demanding.  No crofting community body has yet used the statutory procedure in its entirety to purchase eligible land.  So far, there have been only two crofting community bodies that have applied to exercise the right, which is a significantly lower uptake of the right than was expected.  Results of research indicate that there is a need to greatly simplify the procedure, as well as taking account of concurrent changes in crofting legislation, as well as providing funding support and advice.

Funding issues

The SLF which existed from 2001 until 2006 was intended to be a source of funding for rural communities to assist with the acquisition of land and other resources.  During that period the SLF spent £13.5 million to support 188 community groups.   Growing Community Assets (GCA) replaced the SLF in 2006 and was designed to have a greater focus on helping both rural and urban communities develop.

Although the SLF contributed significantly to community development, it had only a moderate impact on community ownership of land due to the size of the grants it awarded.  GCA is currently running until 2015 and has between £50-60 million to invest in communities.  However, while there is evidence that GCA has had a positive impact in a number of ways, the research suggests that ongoing evaluation of GCA should emphasise that ownership of land or other assets is not the only option for enhancement and development of communities.  

Keep it simple

While the scope of the Land Reform Review Group's review will be wide ranging, it is clear that simplifying many of the administrative hoops; making funding more accessible; and providing greater guidance and support to community organisations, should unlock more opportunities for community projects. 

The Crofting Community Right to Buy is clearly vastly underused, and its requirements should be reviewed and simplified, and awareness of the provisions increased, as well as ensuring a closer alignment with other crofting legislation and compulsory purchase processes.At its most fundamental, the Group must question the underlying purpose of land reform in Scotland, particularly in the context of regeneration and of sustainable community development, and whether the current legislative framework delivers or hinders them.  

To read the Scottish Government publication Overview of Evidence on Land Reform in Scotland click here.