Rural Affairs and Environment Committee

Meeting date: Wednesday, March 2, 2011

Official Report 515KB pdf

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Land Reform (Scotland) Act 2003 (Post-legislative Scrutiny)

The second item is evidence from the Government on the research that the committee commissioned into the Land Reform (Scotland) Act 2003. I welcome to the meeting Roseanna Cunningham MSP, Minister for the Environment and Climate Change, and, from the Scottish Government, Barry McCaffrey, from the legal directorate; Helen Jones, head of the national parks and outdoor recreation team; Heather Holmes, head of the community assets branch; and Bruce Beveridge, deputy director of the rural communities division.

I welcome this opportunity to contribute to the committee’s consideration of the research report “Post Legislative Scrutiny of the Land Reform (Scotland) Act 2003”. I was particularly interested in the commissioning of the research and in contributing to the discussion on the implementation of the act. As members may know, I have said elsewhere that it is important that on-going dialogue on the provisions continues, that lessons are learned and that new approaches are considered.

I therefore welcome the report, which will help to develop further our understanding of how the provisions are working and the barriers to their wider use, and to identify options for change. I am pleased that the report recognises that the enabling approach of the 2003 act in relation to the access provisions is working well and that there appears to be little desire among stakeholders for any significant changes.

The majority of the research participants had something positive to say about the community right to buy and the crofting community right to buy. However, they had a number of criticisms, particularly in relation to the complexity and limited flexibility of those right-to-buy provisions. Those are pertinent points. The researchers have made a number of suggestions that would help to move the provisions forward, and I read them with interest.

On the access provisions, I note that a number of the suggestions for change are already included in the legislation, while others are provided in guidance or are being addressed. The same can be said for the two community rights to buy. Members will recollect that the community rights to buy were intended to be a first step and that, in the course of time, they would be revisited. This is an opportune time to review the legislation relating to those rights, with the intention of making things easier and faster for communities.

I agree that community groups should not be put through unnecessary red tape to get them through the rights to buy. Equally, the legislation has to be transparent, legally sound and compliant with the European Convention on Human Rights. A review of the provisions should ensure that they are fully considered and appropriate.

Since I became minister in February 2009, I have had under consideration only about 10 applications under the community right to buy and the crofting community right to buy. My direct experience therefore does not encompass an enormous number of applications but my guess is that that was roughly the average for such a period. The exception is the hostile buyout in the Western Isles, which is pending and, I think, is the first of its kind.

Thank you, minister. I ask Bill Wilson to kick off, with questions on access.

When the legislation was introduced, it was almost a hope that part 1 would enable a cultural change, for instance by encouraging links between the access provisions and the health and planning agendas or between access and transport. Is there much evidence of such a cultural change having occurred?

Yes. There is significant evidence. The problem is that you would have to range across all the portfolios to begin to gather it in. I have been involved in a number of initiatives, particularly ones that relate access to health and mental health.

Equally, the whole idea behind developments such as those in the national planning framework, including the central Scotland green network, is to link access not just to health and wellbeing, but to development and all the rest of it. There are significant ideas out there that are strongly based around the notion of access and the outdoors and which permeate a number of different portfolios. In transport, for example, the most interesting developments are those that are taking place in the cycling sphere.

Although, I dare say, everyone around the table would share with me a desire for it all to be rolled out and sorted immediately, the fact of the matter is that there are quite a lot of developments around Scotland already, which are part and parcel of what was done in the 2003 act.

So you would say that there is still evidence of continuing innovation—we have not lost steam since the passing of the 2003 act. There is still evidence of new, innovative ideas coming forward. Is the framework working as effectively as it might do? For instance, is there any evidence that access is not being taken as responsibly as it might be?

There will always be occasional concerns and complaints about certain issues. Everybody here is probably aware that there is a specific hotspot on the east bank of Loch Lomond. I am not going to pretend that everybody who exercises their right to access does so responsibly, but I cannot imagine that, in 2003, any of us expected that no concerns would ever be expressed. The issue for us is to find ways of managing such situations, as I suspect that they may never go away completely. The answer is not to revoke people’s access rights; the answer is education coupled with some form of management process that means that people exercise their right to access more responsibly.

On innovation, some parts of the 2003 act relating to access are still being implemented. I do not know whether another committee member is going to raise the issue of core paths, but that aspect of the act is still in the process of being delivered. Although it seems a long time since 2003, when the act was passed, it is seven years since it was passed by Parliament and about six years since it came into force, so there has not been an enormous amount of time and aspects are still being delivered. As I said with regard to the right to buy, bits of the legislation are only just being tested and we are in a learning process.

Concern was raised at the outset of the bill about access being taken by people with dogs to their own endangerment, especially among cows with calves. Has any further thought been given to how that problem might be resolved? I am not sure whether people in Scotland have lost their lives as a result of the problem, but people in England have lost their lives as a result of it since the 2003 act was passed—not that the two events are in any way related.

No. We would not want to be alarmist about it would we, Mr Scott?

No. I am not being alarmist—it is a real problem and I wonder whether you have given any further thought to it.

My immediate feeling is that the issue is more about responsible dog ownership than about access rights. The many people who access the countryside with dogs—although that tends to be in and around communities rather than in much wilder places—will know that they must keep their dogs under control, especially when there are other animals around. The solution is partly education about dog ownership. The Parliament is considering related issues and has just passed legislation that will enable some aspects to be dealt with.

I do not think that there are easy answers. I suppose that the owner of the cows could provide some helpful signage to warn people that there are cows around the corner. That might be useful. I hope that landowners are thinking about that. They must not be fake signs, though, as those lead to people ignoring signage. They must be real signs that give people due warning that they could be about to face a herd of cows. That would be helpful in letting people know that they should put their dog on a lead at that point.

I do not dispute that there is some irresponsible access, but I believe that most people are entirely responsible. Is the evidence anecdotal? Is any comprehensive evidence gathered on whether access is responsible or otherwise?

We do not have any statistical evidence on the issue. There is anecdotal evidence and it would be wrong to suggest that irresponsible access does not happen when we know perfectly well that it does. The most documented incidents of access causing real difficulties relate to camping on the east bank of Loch Lomond, which most members will be well aware of. One or two other potential hotspots have also been drawn to my attention, such as an area in the Borders where there is a bit of an issue. In the main, however, the issues can be managed on a much more local basis. That is where they need to be dealt with rather than here, at the ministerial level.

As you anticipated, I would like to ask about core paths. What difficulties have access authorities had in implementing core path plans? Why have some been able to take a more progressive approach than others? Has any estimate been made of the cost of maintaining core paths throughout Scotland?

A lot of local authorities are working quite hard on that and we are still getting core path plans through. My officials tell me that 20 are already complete, which is helpful, but not every local authority is going through the process. Some local authorities are finding the process a bit more difficult to handle and some local authorities are dealing with more objections than others. It is difficult to read across from one local authority’s experience to all local authorities’ experiences. Nevertheless, I am content that all the local authorities are working on it.

I was concerned about what we might call connectivity. I could see a core path network developing that was based around the central part of a local authority but less likely to deal with the peripheral areas, meaning that the joined-upness of the core path network might go missing. I therefore asked officials to do a bit of work on that and I am pleased to say that some work has been commissioned by Scottish Natural Heritage—it has not yet been published, but I am sure that SNH will not mind my mentioning it—that shows that the majority of core paths appear to interconnect across local authority boundaries. However, there are still areas where there could be more interconnectedness and we hope to encourage that to take place. It would be a shame if we ended up with a set of clumped core paths that did not link up across local authority boundaries.

In the 12 local authorities that have yet to implement core path networks, is there an obvious barrier to the development of those networks that we would want to know about?

No. We are not picking up on any specific barrier that may be a problem. I mentioned the fact that some local authorities seem to have to deal with more objections than other local authorities, which slows things up. The more objections there are, the longer it will take to go through the process. That may be a factor in some areas, but we are not picking up a specific issue that is holding back any particular local authority.

Given the current spending climate, is there any difficulty in maintaining established core path networks? How is that likely to be dealt with in the future?

09:45

The maintenance of core path networks is for the local authorities to manage. They need to think about how that is to be worked through. The local authority settlement will also encompass that potential.

Most local authorities, and certainly those with which I have had contact, are perfectly well aware that a good core path network is often key to any tourist offer that they are going to make. If they want the tourists to continue to come, they know that they will have to make sure that that aspect of the tourist offer is well maintained.

There is no ring fencing for that—there is no ring fencing for anything. Local authorities have to manage within the budget that they have agreed. At the moment, I do not detect any significant difficulties. If there are any in the future, I have no doubt that they will be drawn to our attention in the usual way.

So core paths are on track, in a manner of speaking.

Well, yes.

It just came out.

I suppose that someone had to say it.

Since the core path network was established, we have also had coastal paths, pilgrim ways and so on. Are you content that the coastal path network is progressing at a reasonable speed? What about pilgrim ways?

I am a great supporter of long-distance footpaths, which is why I specifically queried the connectivity of core paths. The core path network can be part and parcel of a long-distance route.

Yes, work is going ahead. SNH is working hard to develop a long-distance route strategy. Again, that is a very big part of a tourist offer. An enormous amount of money can be had from people who like to walk on their holidays. Generally, they are folk who like to stay in comfortable bed and breakfasts and small hotels, and who spend money in local restaurants. There is a lot of tourism potential there.

Long-distance route networks are important in any country, but that is particularly true for Scotland. SNH and all the local authorities recognise that as well.

On the success of the coastal path network, in a debate some years ago, in which I spoke, your colleague Alasdair Morgan raised the roll-out of that network as a way of linking many of the maritime local authorities. Have you any views on an around-Scotland coastal path network? How is the network working?

I know that quite a lot of it is in place already. As with any path, whether it be short or long, there will always be small issues. For example, specific ownership issues might mean that there is still a bit of joining up to do. However, we are well on track with that. I understand that Alasdair Morgan is leaving Parliament this year; I am sure that he will be happy to see the coastal paths come to fruition.

Within the 2003 act there is no definition that supplants the previous definition of curtilage. The definitions of curtilage and privacy are two key definitions that matter in this context, and neither of them appears to have been significantly challenged or tested in the courts. Is that an issue for the taking, restricting or providing of access?

In relation to the influence of privacy and curtilage over access, is there a role for Government? In light of some of the work that has been done on arbitration, is there a role for arbitration in sorting out the difficulties that can arise?

I would never want to dismiss the potential for arbitration, but like mediation, arbitration has to involve two willing partners, and that is where it can sometimes break down. At the time, Parliament made a conscious decision not to try to define those issues. The report that the committee commissioned said that that was probably the right thing to do—I think that Dr Calum Macleod said that to the committee—because the minute that we start to define such things, we get into all sorts of trouble.

There was considerable nervousness around the first big case, which happened to emanate from my constituency, and the decision in that case. That was of course followed by a second case that did not go exactly the same way. That suggests that each case will be judged very much on its specific merits, which is the right way to proceed. There is guidance in the Scottish outdoor access code on land that is exempted from access rights. The issue takes us back to the responsible taking of access. Most people who are out walking know perfectly well that tramping past somebody’s bedroom window is hardly responsible access—people taking access in those circumstances would be considered to be in the wrong, and rightly so.

For most folk, it is pretty obvious what the private part of any property is and what is not private. However, in relation to judicial guidance, we have had only a couple of cases. That suggests that, in the main, the legislation is working fine, but it also tells me as a lawyer that we cannot yet draw very much from those cases.

We move on to part 2, which is on the community right to buy.

Minister, you acknowledged in your opening statement that concerns have been raised about the complexity and lack of flexibility of the community right to buy. We are probably all heartened to hear what you said about the need to put in place a system that is easier and faster and meets the needs of communities that want to pursue that route. You will be aware that, in the written evidence that we received from the researchers, following on from their oral evidence, they suggested a number of ways in which an easier and faster approach might be achieved. They talk about

“Increasing the flexibility of what constitutes eligible ‘community bodies’, simplifying ballot arrangements, recasting time-frames associated with the process in favour of community organisations and reducing the burden of mapping requirements”.

All those were suggested by participants in the study that the researchers carried out. You have commented on the issue in general, but it would be helpful for the committee to hear whether you have specific views on where improvements can and should be made.

Yes, I do, in some cases—this is probably the point at which some of my officials might wish to search for pencils under the table. The process, which was probably constructed with the best possible intentions, has become so convoluted and arcane that fairly experienced people find it difficult to navigate. I said that I have dealt with about 10 applications in the two years since I became minister—[Interruption.] I have somehow lost the list that I had drawn up, but about three or four of the 10 were late applications. They were late because the land had already been put on the market. There are a variety of reasons why an application might be late, but it seems to me that we have made the process difficult for many communities, as they discover the potential only when something comes on the market.

I understand why the process was set up in that way, but it creates a difficulty for communities. In effect, we ask them to go through a procedure that involves formalising their situation to register the right to buy based on an entirely speculative possibility that, at some indeterminate point in the future, a piece of land might or might not come up for sale. In many communities, it might be possible to ascertain through the grapevine that that might happen but, in many other communities, that is not possible, particularly if the owner of the land happens to be resident outside Scotland.

We need to look closely at that to see whether we can allow communities a simpler process for forming the initial formal community, if you like, or slightly more leeway on when they must submit an application for the right to buy. The process has two stages.

I do not remember whether you were still the committee’s convener or whether you were a minister when the committee expressed concerns about the reregistering process, but you will recall that discussion.

I remember it.

Registration is onerous, arduous and complex enough, but the reregistration process layers more complexity on top.

I think that I was the convener when that was discussed.

I think that perhaps you were.

Our attempts to address the issue when it was previously before the committee did not necessarily meet with the success that we would have liked. Has further thinking been done about how to streamline the process in a way that meets the legal requirements but does not add to the burden?

The difficulty is in ensuring that we meet the legal requirements and do not inadvertently end up being challenged on another set of methods.

When we examined reregistration initially, we considered whether the legislation provided scope for making the process easier and simpler or whether parties had to follow the whole registration process again, five years on. After our previous visit to the committee, we put in place an administrative system to get the parties through the reregistration process a bit more easily.

One year before a registration is to expire, we send letters to the community body and the landowner to say that a year of registration is left. At that point, we try to get the community body thinking about whether it wants to reregister an interest and about how things have changed for the community. We hope that the body will think through what it wants to do and will come back to us.

Nine months before registration expires, we send the body a copy of all the documentation that it submitted for its registration and a blank application form in which we populate the section that relates to the basic land in which the body has registered an interest. The body can start work on the form then—or before then, if it wishes. Six months before expiry, we tell the body that—as the legislation says—it can reapply to register its interest in the land. By that time, we are usually in close contact to find out whether a body wants to reregister. We give bodies a year’s window.

Five community groups have had the opportunity to reregister their interests. Off the top of my head, I think that one body decided that it would not reregister, one is reregistering and another has reregistered its interest. I think that two groups have missed their deadline. Their first registrations have lapsed, so they are making new applications to register their interests in the same land.

I appreciate that that sample is small and is a bit of a snapshot, but it suggests that the efforts that have been made to streamline the process have produced a mixed bag at best and that more work needs to be done.

10:00

To be honest, we are a little bedevilled by quite small samples when we consider such issues. It must be accepted that not reform, perhaps, but changes can be done in two ways. They can be made in the context of existing legislation, but some tasks might require the legislation to be revisited—in effect, a land reform (Scotland) act mark 2 or a land reform etc (amendment) (Scotland) act would have to be produced.

If you were to ask me at this stage, I would say that my feeling is that the latter is probably going to be what is needed. In the current set-up, we end up having to go through the process that Heather Holmes has just tried to describe when, instead, we might want to carry out a slightly more radical consideration of how community bodies are constituted in the first place and whether it should be made easier for existing community bodies to turn themselves into potential land-buying bodies.

To be fair to all of us and to the Government of the day, in 2003, some of the issues are things that we could not have understood in advance. Often in such situations, it is only as we try to work through the existing processes that we realise how difficult they have become.

It is also fair to say that, in that period of time, we have all become more defensive about challenges.

We have been told that

“to some extent the momentum and the political momentum has drained away from community land ownership and asset ownership.”—[Official Report, Rural Affairs and Environment Committee, 9 February 2011; c 3842.]

I will not ask whether you think that that is true. However, it tends to support the view that, rather than a mend-and-make-do approach, what is needed is a more comprehensive and overarching consideration of the legislation.

I currently have two applications pending, or three, if we count—

There are three sitting in the office.

And they have not come to me yet.

That is correct. They will come to you in the next week.

I can only go by the ones that reach my desk, of course.

I indicated roughly how many I had dealt with since I became minister in February 2009 just to flag up the issue and to give you an idea of what the process has been like—that was not the official statistic; we have official statistics for the four-year period. Given the number of pending applications, it looks like the process is steady.

Those who were looking for much faster and bigger change as a result of the legislation might be disappointed. However, it looks as though the legislation, as it is currently designed, is never going to deliver much faster change. It is difficult to say whether it is the complexity of the process that is putting people off. We have not conducted an analysis in that regard—you would have to go around all the communities that had not formed themselves into bodies and made registrations to ascertain why they had not. In some communities, it is not the legislation that is the problem but the fact that, often, what is required is a couple of key, dynamic individuals to make the running. That is where the reregistration process is interesting because, in some cases, the original dynamic individuals have moved away and some of the stuffing goes out of the desire.

However, it is fair to assume that the general perception of the complexity and lack of flexibility of the process is certainly not going to encourage people to engage in the process.

Absolutely, which is why I mentioned that in my opening remarks. I am conscious that there are some people who are involved in the process who have considerable experience of dealing with vast bureaucracies and are still having problems. That tells us that the process cannot possibly be ideal. Again, it was put in place with absolutely the right intentions but it is only when you begin to crunch through the bureaucracy that you realise that what you have erected is not delivering quite what you want.

I want to consider closely the question of how we define what a community body is. Two processes are involved: one involves a group becoming the kind of community body that can get engaged in the process; and the other involves the registering of an interest. Usually, those two processes have happened at the same time, as the desire to get a bit of land triggers the establishment of the community body as well as the race to submit the registration with regard to the right to buy within what is perceived to be an ideal timeframe. I suspect that the fact that communities are trying to deal with the two things at the same time will not have helped the situation.

If we could separate things out, it would help communities and might lead to fewer late applications. The process of getting from zero to 10 in a short time is often what defeats communities, leaving them having to argue that a late application should be accepted.

I wanted to pick up on something that the minister said about the owner of land being outwith Scotland. In such cases, real difficulties can arise in making contact. Is it time for the Parliament and the Government to consider whether it should be required that the owner of land, if not resident in Scotland or the United Kingdom, have a contact point or an agent within that jurisdiction, so that the owner can be contacted by communities that might want to buy the land? That issue goes well beyond the issue that the committee is considering today, but it touches on it.

Many landowners will have agents, factors, or what have you, and people in communities will know who they are. There are different kinds of landowners, including institutional owners and absentee owners, and it would be very helpful if all were required to have a known point of contact. That would help everybody, including us. Off the top of my head, I cannot see how that could give rise to legal problems. I do not see how it could be challenged, and I think that it is a perfectly legitimate issue for us to raise. It would make a big difference.

In one case in my constituency, it took us five years to find that there was an agent for an owner who was resident in Panama. We then had to correspond with him in Spanish. The land in question was simply a piece of ground on the high street of a village, on which was a derelict cottage that the community wished to do something about. I imagine that that sort of case will be repeated elsewhere.

I suspect that that is an extreme case, but it nevertheless makes the point that some change to the present situation would be advisable. I would certainly want that to happen.

Bruce Beveridge will know that the land in question might receive integrated administration and control system payments or single farm payments through the Scottish Government rural payments and inspections directorate. All the phone numbers are available. When I had to be contacted because of foot-and-mouth, I was contacted on the afternoon of Easter Sunday by mobile phone. They can find you when they want to.

In the vast majority of cases in which a residential property has become derelict, the details are registered with the Registers of Scotland and are publicly accessible. Ninety-nine per cent of the time, one has a contact address for the registered proprietor, even if they are not in Scotland, and even if it is not an IACS case.

Out of the 128 registrations currently in place with us, in only two cases are the landowners not known. In those cases, we cannot go through the legislative process.

That is a small number, but it should not exist; there should never be a situation in which one cannot act because an owner or an agent cannot be contacted. That is not the biggest issue. The bigger issues are to do with the timescales, the deadlines and the speed with which people have to act to meet deadlines. We can look directly at those matters and consider whether we can do something about them.

We might also need to look again at the length of time that we allow people to raise the money, because the deadline comes soon after the completion of the other end of the process. When there is a successful application, people then have to get the money. Money is not easy to get these days and the timescales are quite short.

I can understand why the timescales were set as they were, because land prices were rising as fast as anything else, but I am not sure that the current situation justifies having the same timescales that were set in 2003. I would like there to have been a slightly more flexible approach. The difficulty with the legislation is that not much flexibility was built into it, so making any changes to it requires us to go back to primary legislation. It is maybe an object lesson about not being too prescriptive in a piece of legislation, because it ties you up when you realise that something is not working as well as it might.

As you know, part 2 applies only to rural communities of fewer than 10,000 people. Is there a case for the community right to buy being extended to larger communities?

That is a bigger question, of course, but I am perfectly open to the suggestion.

When we were originally considering the legislation, the figure was going to be 6,000 people, which would have made it even more difficult to qualify. The figure of 10,000 could be increased, but the difficulty is that a process of education of the public has to take place. They have to understand that the fact that they live in the middle of a small town does not mean that they might not have a right under the act, so we have to impress on people that it also applies to them. In some small towns, people would probably be surprised to know that, because they think of land reform as something that happens out there in the green part and not in even a small town.

A bit of work has to be done on our part to get people to understand that, but the figure could be increased above 10,000 people or the definition of community could be changed slightly so that it allows the community to be defined over a wider area, because I know that in some parts of Scotland—I live in one of them—although people live in a small town or village and there is quite a strong small-town or village identity, they nevertheless identify themselves as living in the strath and they think of the strath as the community that they live in. It might help that there are other ways in which we can look at the concept of community.

We also heard evidence that Highlands and Islands Enterprise has been pivotal in enabling communities in the Highlands and Islands to exercise the right to buy. Those of us who represent the rural south of Scotland often look at HIE with rather envious eyes. Does Scottish Enterprise have sufficient powers and a wide enough remit to assist communities in the south or is there an issue with its remit?

I sympathise with your frustration. Most of rural Scotland outwith the Highlands and Islands has probably cast envious eyes on HIE’s powers from time to time. The fact is that Scottish Enterprise does not have the same set of powers, so we would have to consider whether enabling Scottish Enterprise to do what HIE does would be advisable. I would certainly like to see an equivalent of HIE that covered most of rural Scotland. I know that HIE does not extend to Ayrshire.

It extends to Arran, though.

Yes, Arran.

Significant parts of rural Scotland lie outwith HIE’s remit. There is also a psychological issue. Many people in Scotland think of land reform as a Highlands and Islands issue—I have spoken to people in the Highlands and Islands who think of it in those terms as well—and tend to forget that there is an opportunity for the whole of rural Scotland to be part of it. However, some parts of rural Scotland do not have quite the same psychology.

10:15

Just as a matter of interest, given your enthusiasm for extending powers similar to HIE’s to Scottish Enterprise and the rest of Scotland, do you have any figures for what that might cost?

As you well know, that is not part of my portfolio. It would take a good bit of consultation and an estimate of how it would work in practice would have to be included in that. Scottish Enterprise covers big, urban areas. I have not pressed my colleague the Minister for Enterprise, Energy and Tourism on such an extension in the short span for which I have been in the Government.

We will leave that point because we need to move on.

Minister, you have already spoken about the relative success of late applications under the 2003 act. As well as that, quite a number of communities settled completely outwith the act. Is the act an enabler; does it concentrate minds so that communities find other ways of acquiring the land? Is it possible that the other methods work with late applications?

I am not sure that we have enough information to be able to say that with certainty. The bit of the report that I found interesting was the enabling scenario. The researchers said that the existence of the legislation had allowed communities to have conversations with landowners that they otherwise would not have had. In some cases, landowners have simply gifted land—we saw a recent example of that at Scalpay. Not all community land ownership has been mediated through the legislative processes that are laid down in the 2003 act. It is great that we have created the climate in Scotland whereby that can happen outwith legislation.

There is a formal process for late applications. A late application is not necessarily a fatal application, if you see what I mean; it can be taken into consideration. Indeed, I have given different determinations depending on specific circumstances. The problem often occurs—this goes back to the earlier part of the conversation—when a community is not under the apprehension that a piece of land will ever be sold and then suddenly discovers that it is on the market. The law says, in effect, that there is nothing that the community can do about it at that point.

In some cases, there have been liquidations or landowners have gone into administration. In others, land has suddenly come on the market without any warning or prior understanding. I wonder whether there is an issue in and around that about which we need to think. It seems to me that one way for a landowner to frustrate the act is to keep pretty quiet about their intentions for their land, so that the first that anybody knows about what those intentions are is an advert in one of the posh magazines. I worry a little bit about that.

The other issue, which has arisen more in recent years for obvious reasons, is companies going into administration. That immediately presents a different problem that we did not envisage when the bill went through the Parliament. I want to look closely at how we consider that scenario.

Sometimes, an application is late simply because it has taken a long time to get through the processes, although one has to say that the majority of applications are made in time. We need to look quite carefully at the reasons for lateness and decide whether people have just been dilatory or whether there have been factors that would have been difficult to get round other than through a late application.

We need to move on. I ask people to keep their questions and answers brief. We will move on to the crofting community right to buy.

Like Liam McArthur, I welcome what you said in your opening remarks about now being a time for review. If you think that part 2 is complicated, it ain’t nothing compared with part 3. Some interesting points arise because of the complexity of the crofting community right to buy. In theory, it is a very powerful and radical provision that is there to deal with a particular set of circumstances, but it is being used more as an enabling tool than as a legal tool. The fact that it exists might concentrate the minds of some landowners at particular times, but is it sufficient for it just to be a mechanism to help to concentrate minds, or must it become a workable legal tool?

I believe that it must become a workable legal tool. I do not think that you include a huge part of an act on the basis that it might have a galvanising effect; you intend it to work in practice. The crofting community right to buy is another provision that, in practice, has not delivered what we might have expected, and we must look very closely at why that is. You are absolutely right that the complexities that are involved in the straightforward community right to buy are as nothing compared with the complexities that are involved in the crofting community right to buy.

I have to be a little careful about what I say here, because I have such a case pending. The demands of the act are quite onerous and they create enormous challenges for any community. I am not sure that, at the time, they were understood to be as onerous as they have turned out to be. It probably seemed quite a straightforward idea at the time but, in practice, that is not the case in the way in which the provision has been progressed.

There is a big difficulty because, as usual when an application comes in, it has to be looked at in the context of the current legislation. In order to simplify things, we will have to revisit the legislation. I do not think that there is any way round it. If we are to do something about part 3, I think that it must be revisited.

An interesting thing that emerged from the evidence that we took was that, although there is extremely limited experience of communities trying to use part 3, that experience shows that it is virtually unworkable from a community point of view. It takes a huge amount of time and effort just to get the application to a satisfactory conclusion. An experienced former civil servant—I suspect that it might be the same person of whom you are aware—has been driven almost demented trying to deal with some of this stuff.

You have had to approach the matter not from a community point of view but from that of a minister receiving advice. I have no doubt that you will have to choose your words carefully, but I guess that the provision is difficult to work from a ministerial point of view because the nature of the complexity on the community side is such that, if anything is in any way wrong, any ministerial decision could be challenged by the kind of landowner who wants to challenge such things and take them to their ultimate conclusion. In other words, the provision is just as challenging from a ministerial point of view as it is from a community point of view.

Yes. On the ministerial side, it is necessary to be extremely careful and to make it crystal clear why you are delivering whatever decision you deliver. That does not mean that it will not be challenged. My belief is that that was probably always going to be the case, given the kind of hostile buyout that was envisaged by the act but, because we have not dealt with a large number of cases, the reality of that has not necessarily penetrated.

I am hopeful that we can effect reform that makes part 3 more workable. It is ironic that crofting communities have bought crofting estates under different legislation, which seems to be easier to work with in that regard. Of course, the landlords were more willing to sell in those cases.

Given that there is some, if limited, experience in that regard, can you point to the areas of law that are particularly difficult with regard to part 3 and cause the complexities that must be addressed?

I am getting a bit uncomfortable, because there is a current, contentious case that I must determine and I am a little concerned that anything that I say could be construed as a comment on that case.

I understand.

On timescales for the review, are officials working up the review stuff just now?

I would want to consult on a review within the year.

That is helpful.

I want to talk about the mapping system and why it is regarded as being so onerous. Is the right balance being struck between safeguarding the rights of landowners and enabling crofting communities to exercise the right to buy? How could the processes be simplified? Again, if you feel that you cannot comment because you have pending announcements or judgments to make, we respect that.

There may be another way of phrasing the question. Before the Crofting Reform (Scotland) Act 2010 and the mapping exercise, were boundaries causing difficulties for communities that wanted to buy their land? Is there now a more onerous situation in that regard?

I can comment from a basic land purchase and sale point of view. Ordnance Survey map detail is far more patchy in rural Scotland, which has long been an issue that is more complex for rural land transactions than it is for those involving land that has transferred more regularly or land that is in a more tightly defined mapping system. It is fair to say that there have always been boundary or mapping issues with rural land and property.

Is it a matter of scale? Is the situation improving or deteriorating? Is this one of the barriers or not?

It is fair to say that as much improvement as the map scale on that base can stand has been made. My view is based on recollections from my previous role and I am not an expert on the current state of the OS mapping. However, the question of scale is an issue. In addition, the frequency of updates of the map base tends to peter out for less-populated areas because less detail change needs to be recorded for that base. However, drills and arrangements are in place so that any changes are recorded. It is just that the scale is sometimes an issue as well as the frequency of detail change. That is my recollection from my previous role.

It might be helpful if members think of what is presented in part 3 as part of compulsory purchase rather than as being analogous to the other parts of the act. Members will know that compulsory purchase is incredibly complex. It must be more complex at one level, because it is compulsory purchase and not the same as the other land reform that we are dealing with.

I have an additional point on mapping that might help to clarify a number of issues, including why the mapping is so complex. In my branch, we have recently looked at the mapping requirements in terms of compulsory purchase requirements. If you look at compulsory purchase mapping requirements for local authorities and other bits of central Government, such as transport, you will find that there are similar principles. When the legislation was being drawn up, mapping requirements were pooled from what was already available from other areas in relation to compulsory purchase.

10:30

A case that is in the public domain that illustrates some of the difficulties in mapping was where Highlands and Islands Airports Ltd was required to improve the security fence at Benbecula airport. The map that was in the ownership records for the land was sufficiently imprecise that, when the line that was drawn in big blue pencil between the crofters’ land and the airport was resolved down to scale it was 50m or perhaps even 100m wide on the ground. There ended up being a significant court case about that, because of course the crofters thought that the fence had been put in the wrong place. The resolution of the case is irrelevant; the point was that the problem was entirely down to mapping. Would the minister or an official care to agree that that is illustrative of some of the very real difficulties in using maps that were put in place for one purpose in another age for a purpose that requires substantially greater precision, for all sorts of reasons?

That issue occupied us a great deal when we were discussing the Crofting Reform (Scotland) Bill.

The difficulty is that we are expecting community bodies to be able to deliver what we have imposed, which is taken from bureaucratic requirements elsewhere. We have said that the community bodies have to be able to do the same thing; that is where the problem lies.

I understand the arguments about the nature of this step—we are talking about compulsorily removing land from a present owner, which is a significant step. However, that was the firm intention of Parliament and it should happen in certain circumstances.

Given what you said about the current law simply replicating to some degree current compulsory purchase mapping rules, will there be scope to find rules that would simplify things sufficiently to meet the tests that you are rightly setting out? Community bodies will have to deliver this. In a crofting context, the boundaries might, to say the least, be historically imprecise. For every imprecision, there is a potential court challenge by somebody who wants to take the matter to court. Are you confident that what you are proposing can be done?

As some members know—and perhaps some do not—we are already in a judicial review on aspects of this, which is why I am a little bit concerned about how far we go in what we are saying.

It is difficult for the minister to answer your question, Mr Peacock, as you probably know.

Bruce Beveridge has reminded me that the compulsory purchase regime itself is under review. There is an understanding that the processes that Governments have taken as the norm have become very complex; they have probably grown over the years and need to be looked at again.

I thank the minister and her officials. The minister is staying with us, but I will suspend the meeting briefly to allow the officials to change over.

10:33 Meeting suspended.

10:36 On resuming—