Protecting Island Life

Recent developments relative to the new community right to buy highlight the extent to which communities may be able to influence, or hinder, proposed land transactions.

The recent success of a community body on the Isle of Mull in stalling the private sale of its neighbouring island, Ulva, is the highest profile use yet of the Scottish Government’s community right to buy legislation, and is being heralded as a significant moment in Scotland’s land reform movement.

In promoting the different rights to buy it has introduced in recent years, the Scottish Government have said they want Scotland’s land to be used to unlock potential in communities, and also move towards the country’s landholding benefitting the many rather than the few. The efforts of the North West Mull Community Woodland Company to prevent Ulva being sold by its current laird privately, to pave the way for a community purchase, seem to reflect this policy very closely. Those behind the buy-out bid have commented that they want to breathe life back into Ulva – which currently has only 6 residents – and untap its economic potential for the benefit of the island community. The community body plan to repopulate the island slowly and focus on its tourism and fishing potential. However, at present they have only been successful in stalling a private sale of the island, and to be able to realise their aim of buying it themselves will now need to find the funds to complete the purchase.

The community right to buy was first introduced by the Land Reform (Scotland) Act 2003, which gave community bodies the ability to register an interest in land relevant to that community and, if that interest was accepted for registration, the community body would essentially have a right of pre-emption when the property came up for sale. Like a contractual right of pre-emption, the community body would be required to pay the market value for the property, failing which the private sale would go ahead. As such, the North West Mull Community Woodland Company now have 8 months to come up with the circa £5 million required to complete the purchase.

The right of community bodies to buy land within their community has been expanded in recent years through the Community Empowerment Act 2015 and the Land Reform (Scotland) Act 2016. While the original right introduced in 2003 allows community bodies a pre-emptive right when the land is offered for sale, the more recent legislation allows the community bodies to effectively force a sale, as there is no requirement for the land or property to be on the market already. The more recent legislation also expands the right beyond rural areas – essentially covering all property and land in Scotland. The Government have put in place checks designed to ensure that these expanded rights are not used vexatiously, and have stated that the bar for determining whether an interest will be accepted for registration will be set high to ensure ownership rights are not prejudiced. Nevertheless, there have been some concerns expressed in some quarters that the balance between public interest and ownership rights may be tipping too far in the direction of the former.

The story of Ulva is a compelling one and few could argue that the aims of the North West Mull Community Woodland Company to rejuvenate their neighbouring community are not well intentioned. The island was already being marketed for sale by its current laird before the community body became involved and so if the purchase goes ahead, it is unlikely to be under hostile conditions, as the party transferring the land is a willing seller. The same may not be true of all future uses of the community right to buy going forward, given the new rights to force sales of properties which are not on the market. It is therefore important that the Scottish Government ensure their checks aimed at ensuring appropriate and reasonable use of those rights are robust, with a view to achieving the balancing act, under which ownership rights are not prejudiced and communities have the degree of empowerment the Government are seeking.