Kirsty Glennan, senior solicitor at Burness Paull, writes on impending changes to Scottish land law
Every day on my way to work, I pass a bare and neglected plot of suburban land. It is unremarkable but for one feature: it has a sign bearing the name of a local housebuilder. In 15 years, it has not changed. I am curious. Does the builder own the plot? Why has it remained vacant and neglected? What do the people living in the houses nearby think? Developers often hold land until circumstances improve or opportunities arise. However, a change in the law means the present might be a good time to audit all those “land-banked” plots out there.
New rights created under land reform legislation come into force tomorrow. They provide for communities to acquire “abandoned, neglected or detrimental” land where to do so would benefit the community. In a departure from existing powers allowing community buy-outs, the new rights can be triggered at any time. The community does not need to wait for the landowner to sell.
New regulations set out broad criteria to establish if land is abandoned, neglected or detrimental and eligible for acquisition. The criteria fall into four main categories for the land: physical condition; designation or classification; use or management; and whether such use or management causes harm to the environmental well-being of the community.
Landowners will be able to challenge the proposed exercise of the community right to buy. It is expected they will focus on the fact that the legislation is not absolutely definitive on what is “abandoned, neglected or detrimental land”.
Human rights concerns over the removal of ownership of land will also come into contention while an individual’s home is not eligible for acquisition unless occupied by a tenant. So what does this mean for landowners and developers? Some points are worth considering.
- Don’t panic: for the community body to register a right, it must first go through a rigorous procedure. To succeed, a community body must be well-organised and be well-advised on the intricacies of the process. That includes demonstrating the land’s eligibility, for example establishing that it is either “wholly or mainly abandoned” or that its use or management is such that there is environmental harm and detriment to the community. Carrying out a land audit enables the owner to establish what might be “eligible”.
- Engage with the local community: Listening to and considering concerns or problems and addressing these might make communities less likely to exercise right-to-buy powers. An active community body may have a website, social media pages and or a local office. Do your research. You might decide selling excess land to a community is a positive process beneficial to all.
- Act early: Consider the impact of the right to buy when negotiating sales and purchases of land. If a landowner can demonstrate that “harm” will be “substantially removed” by upcoming development, Scottish ministers will have to take account of this.
- Look after your land: Take care to ensure any land you own does not appear run down and doesn’t harm the environmental wellbeing of the community. Wellbeing is likely to be interpreted widely and include boarded-up shops, unoccupied housing or algae-filled ponds. Maintaining land and remedying any issues can ensure it does not become an eyesore and eligible for buyout.
I’ll be keeping an eye on that neglected plot of land as I walk to work, and using it as a barometer to measure the success of the Government’s latest change to land law.