Community right to buy: review

There are currently four separate rights to buy that community groups can access, depending on the type of land, the condition of that land, and whether it is a compulsory purchase or not.  It is not always clear which of these four rights is the best option for a community group, and the procedural requirements for each are not identical.

In the interests of simplifying the right to buy process for applicants we are considering whether   the four rights should be merged into two, one compulsory, and one non-compulsory.  If we did this, we would ensure that the specific rights in the Crofting Community Right to Buy, which protect other rights afforded to crofters, are protected in the same way as at present.

At the moment, the three compulsory rights require different levels of information from the applicant community group, which reflects the differing level of “interference” in the owner’s legal rights.

Under the Crofting Community Right to Buy, amongst other things it is required:

• that it is in the public interest that the right to buy be exercised
• that the exercise of the right is compatible with furthering the achievement of sustainable development

The Community Right to Buy Abandoned, Neglected or Detrimental Land requires, amongst other things:

• that it is in the public interest that the right to buy be exercised
• that the exercise of the right is compatible with furthering the achievement of sustainable development
• that the achievement of sustainable development in relation to the land would be unlikely to be furthered by the owner of the land continuing to be its owner
• that the exercise by the community body of this right to buy is compatible with removing, or substantially removing, the harm to the environmental wellbeing of the relevant community,
• that the community body has, before the application is submitted, made a request to
  • a relevant regulator (if any), or
  • where there is more than one relevant regulator, to all such regulators, to take action in relation to the land in exercise of its (or their) relevant regulatory functions that could, or might reasonably be expected to, remedy or mitigate the harm, and
• regardless of whether or not a relevant regulator is taking, or has taken, action in exercise of its relevant regulatory functions in relation to the land) that the harm is unlikely to be removed, or substantially removed, by the owner of the land continuing to be its owner.

These four additional requirements are because this right to buy is about addressing issues with the condition of the land, that are not being addressed by the owner—but which potentially could be.

The Right to Buy Land to Further Sustainable Development (Part 5) requires, amongst other things:

• that it is in the public interest that the right to buy be exercised
• that the exercise of the right is compatible with furthering the achievement of sustainable development
• that the transfer of land
  • is likely to result in significant benefit to the relevant community to which the application relates, and
  • is the only practicable, or the most practicable, way of achieving that significant benefit, and
• that not granting consent to the transfer of land is likely to result in harm to that community.

These two additional requirements reflect the fact that this compulsory right is not about the condition of the land, but about the benefits that the transfer of the land could bring, balanced with the harm that could be caused if it is not.

If these three compulsory rights are combined, a consolidated set of requirements for the merged right will need to be proportionate to the full range of potential interference in the owner’s rights.  In addition, any protection of crofter’s rights currently in Part 3 would be retained.  For example, in the other compulsory rights, there is a ballot of the community to determine if they are in favour of the application.  Under Part 3, not only do the community have to be in favour, but the majority of crofters in the community also have to be in favour.