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CHAPTER EIGHT CROFTING COMMUNITY RIGHT-TO-BUY

Introduction

8.1 This chapter addresses an assessment of the socio-economic impact of land reform as it relates to crofting. The two principal pieces of legislation of direct relevance to crofting and land reform are Section 3 of the Land Reform (Scotland) Act 2003 (the Crofting Community Right to Buy) and the Crofting Reform Act 2007. ¹¹ Assessment of the impact of reform is substantially conditioned by the early stage of implementation, the very limited level of formal activity undertaken to date and consequently the very limited evidence of directly attributable impact which is available. Relevant literature is extremely limited with very little of direct and current relevance, so a narrow range of evidence and its specificity to particular cases further constrains the ability to draw general conclusions.

The land reform measures

8.2 Section 3 of the LRSA provides for a Crofting Community Right to Buy ( CCRtB). The principal differentiating factor between this and the Community Right to Buy (CRtB) provisions of Section 2 of the Act is that this is an absolute right to buy, that it is a right which can be exercised at any time which does not depend on the land being for sale, which in effect is a forced sale and therefore has something in common with a compulsory purchase. The intention was that through crofting trusts communities should have the same basic rights to acquire their croft land as are already available to the croft tenants through the provisions of the Transfer of Crofting Estates (Scotland) Act 1997 ( LRPG 1999).

8.3 This new provision reflects the differences in the nature and extent of the crofting community's vested interest in the land. The need to reflect these differences arose as a result of the implications of crofting tenure in terms of the de-facto ownership of interests in the land by crofters and of the requirement for legislation to comply with the European Convention on Human Rights.

8.4 A further key factor differentiating the CCRtB provisions from CRtB is that it only applies to 'crofting communities' as defined under the terms of the Act as those persons who:

• are resident in the crofting township which is situated in or otherwise associated with the croft land which the crofting community body has a right to buy under this Part of this Act; or
• being tenants of crofts in that crofting township, are resident in any other place within sixteen kilometres of that township; and
• who are entitled to vote in local government elections in the polling district or districts in which that township or, as the case may be, that other place is situated.

8.5 The Act therefore provides for a 'Crofting Community' right to buy, not a crofters right to buy, by those who are resident in the township associated with the croft land in question. A common perspective which emerged from the interviews with those involved in drafting the legislation, public agencies and crofting community stakeholders suggests this provision is designed to ensure broader community interest and involvement in croft land in such a buy-out. This is attributed in part to the difficulties experienced in the Assynt buy-out and the positive experience reported of wider community involvement in North Harris (Mackenzie 2006).

8.6 The rationale for the Crofting Community Trust approach can be traced to the recommendation in 'The Future of the DAFS Estates in Skye and Raasay' (Arkleton Trust 1990) which 'supported the transfer of land and related assets to local crofting trusts set up as non profit companies with democratic constitutions (Bryden and Geisler; 2007).

8.7 The objectives of the CCRtB legislation are consistent with those for land reform in general to remove the land-based barriers to the sustainable development of rural communities, increase the diversity ownership and use and increase community involvement in land use and ownership. In the case of crofting communities it was further intended to empower those communities in their negotiations with crofting landlords by altering the balance of power.

Methods

8.8 This chapter draws on three main research activities. A desk-based exercise was undertaken to consider the legislation and the background to its development, the limited relevant data regarding formal applications under the legislation and the identification and review of relevant literature. Secondly, a series of telephone and face-to-face interviews and discussions were conducted with selected stakeholders and key informants from crofting communities, landowning interests and relevant public bodies. These were structured around topic guides which focused on the nature and extent of the role and impact of the legislation. These were supplemented through further informal discussions with those involved in the stakeholder workshop, which formed the final element of this study.

Findings

Progress to date

8.9 Implementing the legislation is seen to be a complex and resource heavy process which involves significant financial and transactional overheads; these make it a highly unattractive option for crofting communities and landlords to engage in. The extent of activity which can be identified as having taken place as a direct result of the legislation is therefore very limited and is restricted to formal applications which have been pursued. To date there have been only two cases which have gone to full formal applications, one of these remains pending the other went ahead as a negotiated settlement between the community and landlord. In the two other communities where the exercising of the CCRtB was seriously considered negotiated settlements have been preferred and secured. There is therefore insufficient data or other evidence available upon which to make any substantive assessment of the direct effects of the legislation at this stage.

8.10 A significant number of factors emerged from the interviews and desk review which may appear to militate against the wider implementation of the formal process provided for under the legislation.

Variations in the population:

• The absolute right to buy relates to whole estates and there is clearly significant variation in the population of crofting estates across a wide range of social, economic and environmental factors.
• Few of these estates are homogenous entities of solely crofting tenure, many demonstrate considerable complexity in nature, resources and tenure.
• Crofting communities are not homogenous and there may be different interests with different aspirations and attitudes between crofters and between crofting and non crofting members of the community with some evidence cited of the interests of 'incomers' being unduly strong ( e.g. in relation to wind farms). There may therefore be difficulty in mobilising the wider crofting community as defined and required.
• There is therefore no all-encompassing approach possible given the degree of variation between communities and crofting estates.

Availability of resources:

• In general crofting communities lack the technical skills and resources to engage in such a major purchase and bureaucratic process. For example, in Galson just one essential element of this formal process involved the Trust in mapping 600 crofts over 56,000 acres.
• Estates often posses or engage appropriate professional support ( e.g. in Galson where negotiations were conducted for the landowners by land agents and by the Trust Chair and Vice Chair), a heavy demand on community capacity and resources.
• There are very significant costs involved in pursuing an application through the legislative process.
• Time is the critical finite resource identified by communities and is finite, particularly in relation to the availability of people with the requisite skills.
• There is nevertheless a tendency for crofting communities not to fully appreciate the demands and engage the appropriate professional support early enough.
• There is also a lack of any direct financial subsidy to mitigate the costs of mounting such an application and therefore a degree of risk involved.
• Fund raising represents a significant challenge and there is a dependency on discretionary ( e.g. lottery) funding to raise the purchase funds.

Predisposition to negotiate:

• The relative attractiveness of the negotiated approach is demonstrated by the number of examples which have already progressed or are now progressing down this route (this is a general view gleaned from the interviews.
• Landlords are demonstrating a willingness to negotiate (for a variety of reasons).
• Individual crofters already have strong entitlements and rights in relation to right to buy, croft assignation and security of tenure, this legislation adds further strength to their negotiation position.
• A large proportion of crofting communities and estates operate on a fundamentally cooperative basis. Where there is a benign or benevolent landlord there is therefore no demand as demonstrated by the contrasting experience of North Uist and South Uist. That none of the Government owned crofting estates have asserted their right to buy under the 1997 provision also suggests that such landlords are valued.

8.11 This low uptake of the formal legislative process is thought not to be an unintentional result; parallels with similarly unattractive compulsory purchase legislation are relevant here and are understood to have been a consideration in drafting the legislation. A number of stakeholders asserted that there was little expectation that the legislation would be fully implemented on any scale. A small proportion (principally from crofting communities) of those interviewed or otherwise consulted suggest the contrary view and that the legislation was thought to be workable until the Community Land Unit began to uncover the difficulties, the effect here may therefore be seen to be fortuitous rather than designed.

8.12 Given the seriousness of the issues involved even those involved in buy-outs suggested that it was right that the process should be onerous and demanding. It is therefore suggested that the original intentions of empowering crofting communities and changing the balance of power are being achieved through the leveraged activity which has resulted.

8.13 The experience to date appears to be consistent with LRPG expectations:

"It is doubtful whether many communities will exercise a right to bring land into community ownership. However there is general support, even from some crofting landlords, for the view that legislation should be available although it is unlikely to be much used".

8.14 The LRPG expected crofting community ownership to contribute to a vision of more sustainable crofting communities through giving them the right to take control of croft land and encouraging greater community involvement in land management. In doing so they clearly identified anticipated advantages and disadvantages which are now reflected in the experience.

Advantages:

• Encouragement of greater self sufficiency in crofting communities;
• Crofting communities having greater control over development.

Disadvantages:

• Communities might not have adequate resources to exploit their asset effectively;
• That this was likely to be vigorously opposed by land owners;
• There is likely to be limited interest from crofting communities (although this did not anticipate the renewables influence).

8.15 The uptake of the full Part 3 CCRtB process therefore appears to be substantially conditioned by the relative attractiveness of the negotiated approach to crofting community buy-outs as opposed to the more confrontational, complicated and expensive formal approach. This view was shared by various types of stakeholder interviewed. It therefore appears that the real effects of this legislation are more likely to be indirect and that the clarity with which any causal link is established is likely to vary significantly by the individual community circumstance. In addition to the leverage effect discussed above, the research suggests that there are a range of observable effects which may be arising as a result of the legislation to a greater or lesser extent.

8.16 Bryden and Geisler (2007) suggest that 'hope (of community land ownership is) rekindled in proportion to the success of community claims'. This may reflect a building on the 'prior momentum of crofting communities', intent of regaining their collective land rights which it is thought contributed to community based land reform permeating Scotland's political climate well before the 2003 Land Reform Act. They also suggest that the new land reform law is the result of a multi-stage historical process and that, if so, numerous prior communities and their advocates have moved the legislation forward in its conceptualisation and completion over generations. The major effect identified in this research is the catalytic role which the legislation plays in stimulating, facilitating and underpinning crofting community buy-out activity. As such it appears to be one further element or tool contributing further to a long established momentum for crofting land reform.

8.17 Stakeholders contacted for this study suggest that through this catalytic role the CCRtB has contributed to moving the agenda further forward although there is no basis for establishing a counterfactual position against which to assess these effects.

8.18 As there is scant literature or empirical data on the early effects of crofting reform, the material used in this study was ultimately subjective, although where possible literature has been cited. The points below are not meant to be authoritative or conclusive comments on the impacts of reform, but serve to convey recurrent views, often impressionistic and experiential, drawn from material gathered and reviewed for this project:

Community involvement and engagement

• The legislation has resulted in a heightened interest in land ownership by crofting communities with increased community awareness of the possibilities to undertake a buy-out. This has pump-primed activity and built momentum overall.
• Community interests in land ownership have been broadened within crofting communities (as defined). The community perspective is that there is noticeably increased diversity of involvement and deeper engagement and greater empowerment within individual communities or estates. (In this case there may be some counterfactual evidence in earlier buy-out examples which involved exclusively crofter shareholders).
• Conversely, it was suggested by land owner interests that there is little effect directly attributable in terms of diversity and participation beyond the existing trends towards conservation body and community ownership.
• There is generally thought to have been a particular effect of increasing the involvement of the young.
• Wider community involvement is perceived to be more beneficial than was anticipated by crofters and their representatives at the outset. They originally favoured models such as the Assynt Trust which were exclusively crofter stakeholder. It should be noted however that the Assynt Trust recognises the contribution of the wider community both to the buy-out process and the ongoing management of the Trust. They highlight issues over the inability to involve the community more directly and the divisive effect of this (Chenevix Trench and Philip 2001). The Trust is now actively seeking to address wider representation (Mackenzie et al 2004) towards the North Harris approach where, in response to public funding requirements the community was defined as comprising all residents (Mackenzie 2006).

Governance

• Adjusting to being governed by a board of peers rather than a single (often more remote) landowner was seen to be very challenging by crofting communities and landowners alike (Chenevix Trench and Philip 2001).
• Some concern over governance was also evident amongst communities and landowners over inclusivity and the level of community buy in, in some cases almost seen as a swapping of one factor for another (the South Uist buy-out was cited as a case in point).
• The required time commitment to management prevents some from being involved and this can lead to difficulties within the community.
• Even in the best managed examples this may have resulted in both positive and negative effects on community cohesion with undercurrents of dissatisfaction, described by one respondent as the 'community nettles and thistles'.
• The legislation is thought to have disenfranchised good land owners as well as those targeted; the good are not sufficiently appreciated or protected by legislation (a view held by landowners and crofters alike).

Asset management

• Communities have been influenced to consider the opportunities facing them and their sustainability. The process has resulted in more open discussion of resource use and management, e.g. the pluses and minuses of wind farms with people more able to participate in decision making.
• This may have resulted in a more rational approach to the ownership and management of resources in the wider community.
• The process has resulted in an enhanced ability for communities to manage their own affairs advantageously in a way which suits them (the Galson experience is cited as an example by a number of those consulted).
• Prior to the Act crofting community buy-outs were largely opportunity driven, e.g. in Assynt the estate was put up for sale and from the community perspective was seen to represent an opportunity. Crofting community interests consulted suggest that post the Act this activity may be more issue or dissatisfaction-driven as this can now be addressed by communities from a position of greater strength. The prevalence of wind farm interests in the large scale buy-outs cannot be discounted, however.
• Communities may have made a positive decision that not to proceed with a buy-out is more beneficial or sustainable.

Drivers for negotiation

• Negotiated settlements were preferred by all informants and the evidence of the formal implementation of the legislation appears to support this; the 'Sword of Damocles' effect appears to be effective, pragmatism has ruled, as demonstrated by examples such as South Uist and Galson. The legislation may also give communities more power in other negotiations with land owners.
• Negotiated settlements were seen by those interviewed as more beneficial with a lower cost burden through sharing of risk and opportunity and the establishment of a common interest; thus they are more sustainable in the long term.
• It is suggested by those interests most directly involved in buy-outs that the CCRtB is more than just a catalyst. In some cases the use of the legislation has been very significant ( e.g. in Galson where the full application was developed in tandem with the negotiations and retained as a bargaining chip until the agreement was concluded and the Trust had to assert this on more than one occasion). The critical stages of the process offered opportunities or milestones in developing the approach and the negotiations.

Human assets

• An overall increase in community confidence in their dealings with landlords and other forms of authority more generally is thought to derive from CCRtB-related activity.
• This has encouraged engagement with other interventions in the sector and the uptake of a range of development support (levering in resources).
• Negotiated settlements have contributed to the development of new skills and capacities within crofting communities and the better mobilisation and utilisation of existing skills within the wider (non-crofter) community, thus contributing to a more sustainable long term approach.

8.19 Many of these effects are qualitative or relate to processes involving aspects of behavioural change which enable communities to act in their own interests, and can be seen to relate most strongly to human and social capitals (in common with the CRtB findings). These effects appear likely to be more sustainable in the longer term and to contribute more significantly to crofting community sustainability. This suggests that there is increased community involvement and diversity in land ownership although this cannot be directly attributed to the legislation on the basis of the available evidence.

8.20 From the initial identification of issues by the LRPG, policy has concentrated firmly on community interests and empowerment in contrast to conservation (or environmental) interests, prioritising socio-economic objectives (Chenevix Trench and Philip 2001).

Other influences

8.21 The momentum for crofting community buy-outs is documented in the (limited) literature referred to earlier in this chapter and the benefits of community ownership are discussed in the CRtB chapter. That there are multiple social, political and economic drivers pushing this agenda forward is self-evident. There are a number of more specific influences which emerge from the research which merit discussion in the impact of this reform.

8.22 Some interviewees expressed a view that high levels of interest in wind farm developments is perhaps a more significant driver of community buy-outs. There are many facets to this, both positive and negative. Positive aspects include stimulating interest and providing potentially sustainable income streams (certainly a major factor in the large scale buy outs where this income is essential in offsetting high purchase prices); negative factors identified include the development of pre-emptive protectionist behaviours and causing splits in crofting communities ( i.e. wind farm rights are more of an issue for non-crofters as crofters would have a direct interest in any case).

8.23 Although the CCRtB has a role as a lever to tame landlord powers, it could be argued that the Act has in fact led to an increase in the barriers to community ownership and management of resources. In a form of pre-emptive protectionist behaviour it appears that there may have been some fragmentation of crofting estates as a result of the legislation with estates being split in order to protect assets such as fishing and sporting rights. The Act may also have sharpened landowners' appreciation of assets and contributed to an increase in the use of interposed leases to place economic resources outwith community reach or into a new frame of negotiation. In the highest profile case to pre-empt any forced community purchase, Pairc Estate set up a separate company called Pairc Renewables. The estate leased the energy rights to the new entity which subsequently signed a lucrative deal with Scottish and Southern Energy to erect a giant windfarm. Ruled legal by the Scottish Land Court, the interposed lease would mean the estate could hold on to the windfarm profits into the middle of the century while the new community owners would only receive £1,000 annually. (Further amended legislation means that such leases can now be bought but cannot be backdated. Again it is too early to see any results.)

8.24 According to those interviewed the role of the Community Land Unit has been pivotal in performing a facilitation and animation role for crofting communities. This is not thought to have extended to advocacy but has provided a significant resource of capacity for rural communities considering buy-outs. This support has been provided through direct involvement and an approach providing capacity and support throughout the life cycle of the initiative to maintain momentum. The CLU is seen to act on behalf of the community rather than as an instrument of policy or the state. It is suggested that the guidance and advice given have steered communities towards the negotiated approach and away from implementing Part 3 applications. There have also been some limited effects in building links with other buy-out groups but little sharing other than this is reported.

Summary and conclusions

8.25 Given the low level of activity under the legislation, there is little recorded data which relates directly to this legislation beyond the formal record of applications. The main effect identified is that of the legislation and any steps taken towards its implementation acting as a lever or catalyst for the various parties involved. It therefore appears that there is insufficient directly relevant data available yet on which to base any conclusions or recommendations. In fact given the pattern of activity to date, most relevant evidence is likely to arise in relation to those crofting communities which have considered or undertaken community buy-outs but have not progressed full formal applications.

8.26 A key consideration here will lie in establishing the extent of any deadweight, recognising the effects of the existing momentum for reform and that observed changes may be the effect of other developments, interventions or policy. This may include other elements of land reform, taxation issues, availability of funding, identification of new assets or potential revenue streams (particularly wind farms) or the relative attractiveness of other forms of investment ( e.g. the shift of Lottery funding to support the London Olympics). Disaggregating these effects is likely to be a complex and highly subjective process. Picking out or disaggregating that which may justifiably be attributed to this legislation is therefore the core issue here.

8.27 The extent and nature of the effects which can actually be attributed to the legislation appear likely to vary significantly by case, by community and within the communities. This will reflect the diversity of the sample and the causal factors information is likely to be substantially qualitative in its nature and based on the perceptions, level of involvement and knowledge of respondents.

8.28 On the basis of the work to date, it appears likely that the main influence or effect of this legislation appears to be in terms of the social and human capitals. With respect to actual buy out activity it may best be demonstrated in terms of additionality. Such an effect is likely to be more evident over a lengthy period in terms of trends and momentum at a high level. Employing indicators based on the nature and level of associated activity and the variable extent to which it appears this may be attributed to this legislation appears unlikely to be meaningful.

8.29 The research suggests that the human and social capital effects are strengthened post acquisition as a result of increased community confidence having motivated involvement. This supports the view that the buy-out is, in the words of former MP Brian Wilson, 'not the end of the process, but merely the beginning' when referring to the Bhaltos Community Trust area (Mackenzie et al 2004).

8.30 The crofting community buy-out is not the point at which all impact accrues. However, as the research in to possible Sustainable Rural Livelihoods ( SRL) Framework indicators suggests human and social impacts may have arisen, economic outputs and outcomes may be emerging and built and environmental effects are unlikely to have developed at this point.

8.31 To attribute effects to the Part 3 legislation it is necessary to establish the extent to which this has been driven by the legislation. This confirms the common view that it is too early to evaluate the impact of this evaluation and begs questions over whether it is possible to identify the actual impacts of this legislation and when and how to evaluate this?

8.32 Unless there is a significant change in the emerging pattern of activity, assessing the effects and impact of the legislation will require in-depth an investigation of a sample of cases where crofting communities have purchased assets, establishing the extent and nature of the influence which may be attributed to this legislation.

8.33 Given the limited level of activity a more bespoke case study approach possibly using the SRL approach could be employed on sample basis to provide an indicative measure of the influence of this legislation as a contributory factor within the overall trends. This would afford qualitative investigation of the apparently large proportion of more subjective effects particularly in relation to the human and social capitals. As things stand on the basis of existing activity and available data even the ability to identify suitable indicators is constrained as demonstrated by the limited number and distribution of those identified in this research.

8.34 Bryden and Geisler (2007) suggest that for community-centric land reform to succeed, the insights of resident populations, land reform practitioners and scholars will need frequent airing, a process that will thrive only if there are successes among, and evaluations of, the early buy-outs. And that Scotland's land reform law will be amended and improved as community rights and responsibilities are better understood through practice.

8.35 The use of a sample of case studies to investigate practice and better understand the insights of those involved appears to offer the best way forward in establishing the (developing) impacts of this legislation. In common with the approach suggested for CRtB, this sample should include communities which are apparently inactive with respect to CCRtB to identify baseline or counterfactual trends and attitudes and the wider indirect effects of the legislation.

8.36 The table of potential indicators based around the SRL structure in Appendix Seven which appear can be attributed to implementation of the full Part 3 process. In common with CRtB these are concentrated in the social and human capital fields although in this case this concentration is greater and the population sparser mainly because of the lack of actual examples where the legislation has been implemented. To go beyond this takes us in to the realms of making or accepting assertions which would have to be tested directly through in-depth community level research to establish that activity has been directly driven or influenced by Section 3 of the Land Reform (Scotland) Act 2003.

References

LRPG, 1999, Recommendations for Action, Scottish Office, Edinburgh

Mackenzie, AFD (2006), A working land: crofting communities place and the politics of the possible in post-land reform Scotland. Tran Inst British Geographers 31, 383-398

LRPG, (1998), Identifying the Solutions, Scottish Executive, Edinburgh.

Bryden J. and Geisler; C. (2007), Community Based Land Reform: Lessons from Scotland, Land Use Policy 24, 24-34.

Chevenix Trench H. and Philip L, (2001), Community and Conservation Land Ownership in Highland Scotland, Scot. Geog. J. 117(2) 139-156

Mackenzie F. et al (2004), Contesting Land, Creating Community, in the Highlands and Islands, Scotland, Scot.Geog. J. 120(3) 159-180

Annex 8.1 Interviews with Stakeholders

Structured interviews and less formal discussions took place with the following stakeholders and key informants.

Members of crofting communities involved in buy out activity.

Scottish Crofting Foundation

The Committee of Enquiry on Crofting

Scottish Government Crofting Branch Staff

Crofters Commission Staff

Crofters Commission Members

Landowners and agents

Scottish Rural Property and Business Association

There were no delegates at the workshop with a specific crofting interest and none of those interviewed attended. Those involved in specific discussions of crofting right to buy legislation during the workshop included representatives of:

Highland Council

Scottish Natural Heritage

RSPB

National Farmers Union of Scotland

Scottish Rural Property and Business Association

Association of Deer Management Groups

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