Defining Sustainable Development What can the Land Reform (Scotland

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					SUSTAINABLE RURAL COMMUNITIES:
PARTICIPATION IN THE COMMUNITY RIGHT
TO BUY




   Dr Aylwin Pillai, School of Law, Rural Law Research
                                                Group
                            Email: a.pillai@abdn.ac.uk
Introduction
   Land Reform (Scotland) Act 2003 Part 2 Community
    Right to Buy (CRB)
   Underlying policy goal: “sustainable development
    of rural communities”
   Within that overarching goal 2 specific goals:
    Community empowerment and diversification of
     ownership (LRPG, 1999, para.1.3)
   CRB creates a form of qausi-public ownership
   Community and wider public participation in the body
    and land management crucial
Research Questions:
   How significant is community and wider public participation as
    a procedural means of delivering sustainable rural communities
    in the CRB?
   Who directly participates in community ownership schemes
    under the CRB?
   Which wider interests are reflected in the CRB and how?
   How effectively does the company limited by guarantee
    deliver community participation?
   Alternative legal models? Non-legal responses?
   Do the mechanisms for community and public participation help
    to deliver sustainable development objectives?
Methodology
   Legislative analysis – who are the different actors?
    Legal role?
   Analysis of the legal vehicle of ownership – the
    company limited by guarantee
   Examination of the company structures and
    purposes of selected individual community bodies
    under LRA 2003
   Analysis of policy and ministerial decisions under
    the CRB
   Stakeholder interviews
Background
   Complex land reform debate
   Central issue: Concentrated pattern of ownership -
    control rests with limited number of private
    landowners
    Debate united by common goal: sustainable
    development?
   Empower communities by facilitating acquisition and
    community driven management
   Diversification of ownership limited due to pre-
    emptive right
Register of Community Interest in Land:
Status of schemes at 25 August 2009


               Entries       Distinct
                             schemes
Exercised /    7             5*
Activated
Registered     56            32*
Deleted        45            34*
Pending        1             1
Total          109           61
Scottish Executive described CRB:


“The essential core of land reform... necessary to
  empower communities, give them real rights and
  thus create a more modern relationship between
  landowner and community”

(Land Reform (Scotland) Bill Policy Memorandum, SP Bill 44-PM,
   Session 1 (2001), para.22)
Environment Minister, Michael Russel (January
2008):


“Rural communities throughout Scotland are continuing
to recognise the real benefits of the community right to
buy legislation. Giving communities control over the way
their land is managed inspires greater power to help
them shape their own futures, creates a strong sense
of ownership and provides rights and opportunities to
help them realise local ambitions”
SD and Public Participation
   SD involves consideration of the social, economic
    and environmental spheres of development and
    requires the integration of the environment into all
    areas of development activity.
   „[T]he government believes that improved access to
    information and wider participation of the public in
    decision making are essential for building trust
    within communities, increasing public authority
    accountability and making better environmental
    policy.‟ DEFRA
Effective community participation?
...[A]lthough sometimes presented as homogeneous
    units, communities themselves can encompass diverse
    views and preferences and indeed degree of
    interest. Not all members of a community may have
    equal access to a “community” asset, and the
    strategy adopted in its management may limit its
    benefits to a narrow section of the community or
    extend its benefits more widely. This can be
    manifest in differences of opinion regarding asset
    management... (Slee et al, 2008, para 7.45)
Example from Isle of Gigha
Heritage Trust:
   Contrasting views of a community meeting:

     Ordinary   member “I didn‟t realise when we went there
      that they had already decided what they were going
      to do. We got to ask questions and things but when I
      got home and read the thing I thought „They‟ve already
      decided and they‟re just saying this is what‟s going to
      happen, do you all agree?‟ Nobody said I disagree but
      people did ask questions and there were some pretty
      strong opinions”
Company director:
“We have great participation. The residents are
 asked about every major decision. It‟s absolutely
 amazing the way it happens. If you have something
 really important to discuss then everyone sits down
 and the board says „this is what we reckon. What
 do you reckon?‟ Everyone says „aye, aye, aye that‟s
 fine, we‟ll do that.‟ I‟ve never seen democracy like
 it.”
LRA 2003, Part 2, CRB:

   Operation of the CRB dependent on key tests:
     Sustainable   development (s.34(4), s.38(1)(b)(ii),
      s.51(3)(c))
     Public interest (s.38(1)(e), s.51(3)(d))

     Majority community support (where minimum electorate
      is 50%) (s.51(2))
Public participation and accountability

   Effect of the CRB is to create a publicly accountable
    body / land ownership scheme
   Structure and operation constrained by company
    law and by the LRA 2003
   Company constitution cannot be altered without
    Ministerial consent ( LRA 2003 s.35(1))
   Community body can be struck off register s.35(3)
   Communities‟ ultimate accountability: s.35(3)
    compulsory purchase power
Community bodies under the LRA:
   Company purposes consistent with sustainable
    development
     Requires  explicit reference to principle of SD
     Majority follow model based on Brundtland definition
      (only 2 exceptions)
     General charitable purposes not consistent

     Commitment to community benefit and public benefit

     Social inclusion (10 bodies)

   Strategic partnerships with conservation groups e.g.
    JMT (15 bodies)
Complex interests reflected in CRB:
   Public interest
          Scottish Ministers discretion
          Appeal process
          Planning process
          Accountability of community body
   Landowners interests
          Notice and consultation process
          Lands Tribunal
          Appeal process
          Community body?
   Local interests
          Community Body (Directors / Committee members / Members)
          Wider local community
          Role for Local Authority?
          Planning process
   NGOs
        Community body
        Planning process
   Funding bodies
        Legal interest (standard security over property)
Concluding observations
   Radical shift from traditional rights-based landownership and tenure
   Places responsibility on community landowners to promote
    sustainable development
   Checks in place to ensure commitment to sustainable development
    and to the public interest
   Communities take on quasi-public body role with enhanced public
    participation and public accountability
   Constrained self-determination
   Complex range of interests reflected in the CRB both pre and post
    purchase
   Encourages wider interaction with discourse of sustainable
    development
   Pillai, „Sustainable Rural Communities: A Legal
    Perspective on the Community Right to Buy‟ Land
    Use Policy 2010. In press.

   „Justice and Sustainable Development: Compatibility
    or Conflict? A Scottish Case Study‟ in D. French,
    Global Justice and Sustainable Development, Brill,
    Leiden, 2010. In press.
Rural Law Research Group

   Rural Law Conference „Land Reform in Scotland: 10
    Years of a Scottish Parliament‟, September 2009
    http://www.abdn.ac.uk/rural-law/

   Planned Conference 2011:
    „Agriculture, Diversification and Sustainable Rural
    Development‟, May 2011