Legislating for community land rights

Combe, Malcolm M.; Combe, Malcolm and Glass, Jayne and Tindley, Annie, eds. (2020) Legislating for community land rights. In: Land Reform in Scotland. Scotland's Land . Edinburgh University Press, Edinburgh, pp. 154-176. ISBN 9781474446860

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The Scottish Government recently reiterated its commitment to bring one million of Scotland’s acres into community ownership by the end of 2020. The policy shift towards community ownership, and the legislation that accompanies that shift, is a relatively new development in the Scottish land law reform process, operating within a mature system of property law that has traditionally afforded a great deal of importance to the entitlements that flow from ownership. Legislative routes for communities to acquire land are set out in the Transfer of Crofting Estates (Scotland) Act 1997, the Land Reform (Scotland) Act 2003, the Community Empowerment (Scotland) Act 2015, and the Land Reform (Scotland) Act 2016. Whilst the 1997 Act is about communities in the Scottish Highlands and Islands acquiring crofting land that happens to be in public sector ownership in a manner that is mutually beneficial, and there are certain similar rights for communities to request assets from a range of public bodies in the 2015 Act, the net effect of the 2003, 2015 and 2016 legislation opens up four methods for a community to acquire land from a private owner, in a manner that (on the assumption the legislation is complied with) either: forces that owner to deal only with the community as and when the owner decides to sell; or forces that owner to sell to the community as and when the community wishes to acquire. These are striking and important powers, which are designed to play a role in Scotland’s drive towards community ownership. This chapter considers the framework for and the practical impact of this approach to date, with reference to examples of acquisitions which have variously taken place in accordance with such statutory schemes, been driven by the prospect of those schemes as a fall-back position, or occurred on ad hoc bases without any apparent reference to the modern legislation.