Community Right to Buy 13 May 2009

Well, I’ve just watched the proceedings of the Rural Affairs and Environment Committee and there was quite a bit of discussion about the proposed new Regulations (see yesterday’s post). Thanks to Peter Peacock and Liam McArthur in particular for probing Officials on this question though it was disppointing that the Minister left before the topic came up (though I know that it was not on the agenda for her to have been present).

The first thing to say is that I had not appreciated that in order to re-register an interest in land, a community would have, in effect, to go through exactly the same process as it did for its initial application. I had absorbed what the then Scottish Executive wrote in their guidance and what is STILL in the latest guidance published on the Scottish Government’s website on 23 April 2009, namely (and I repeat this from yesterday’s post),

50. We do not expect the renewal process to be burdensome, but it is important to ensure that the initial serious intent to purchase the registered land remains, and you will therefore be required to complete the Renewal of Registration application form. As renewal will not be required within 4 years of commencement, a form will be made available in due course. It is expected at this stage that there will be no major changes to your company’s memorandum or articles of association, as these should have been approved by Ministers under section 35(1) of the Act prior to amending. To simplify this process, you should highlight any changes clearly on the renewal form. Ministers will then consider whether your application continues to meet the criteria set out in section 38 and, if content, instruct the Keeper to renew your registered interest for a further 5 years.

This guidance has led people to believe that the re-registration process would be a “light touch” process essentially re-validating the existing registration. Of course, if any details had changed, they would need to be edited. But there was never any inkling in the minds of anyone I have spoken to over the years that they would have to go through the whole process again. The text does not imply generating fresh petitions or consulting landowners all over again and providing them with the right to appeal the application all over again.

It now appears that the Scottish Government believe that this is necessary because of the terms of the Act which says in Section 44(2) that a community body can, at any time within 6 months prior to the expiry of an registration apply under Section 37 to re-register an interest. The first registration that this will affect is CB00015 (Eilean Glas Heritage Trust – see Register of Community Interests) whose existing registration expires on 30 April 2010 and who can thus make an application to re-register their interest from 30 October 2009.

So, silly me, it was clear all along! I should have read the Act more carefully. A re-registration is, in effect, a fresh application with all that that entails.

This means that a community wishing to submit a re-registration has to complete the application form all over again although some of the hard work such as drafting their Memorandum and Articles of Association, will not have to be done again and finding out if there has been any change in the ownership of the land in question will be simpler than finding it out from scratch. The community body will probably not need to prepare a fresh map all over again (though many of the maps associated with existing registrations are defective despite being approved by Scottish Ministers and can thus be rectified).

BUT, the community will need to seek support from 10% of their community through a fresh petition, the landowner will be invited to comment afresh and will be able to mount a legal challenge if they wish. Now that it is clear that even the tiniest administrative error can lead to a successful challenge, the re-registration process allows for such errors in existing applications to be rectified but it may also allows for others to be siezed upon now that one legal firm in particular has created a specialism in derailing community right to buy applications.

All of which changes one thing but not another.

It changes the scope to in any way amend the proposed Regulation to enable the kind of light touch re-registration that had been anticipated. Thus a consultation on these new Regulations may achieve little as the David Brew stated at the Committee today. I have to say though that I think I was the only person in the whole of Scotland to submit comments on the original forms when they were issued for consultation and there was some benefit in this process. I accept that little may be achieved this time round when all that is involved is some redesign.

It does not change the frustration that the process of applying for a registration of interest should be such a complex a bureaucratic process. It now appears that in order for re-registrations to be light touch, we can’t amend the Regulations as tabled before Committee today and that the Act itself will have to be amended – it is a mess. That, in any event, is something that needs to be done for a whole host of policy reasons that have emerged duruing the first 5 years of its operation.

It also begs the question why those involved in this whole process with Government have not been more open with organisatiosn across Scotland with an interest in how land reform develops. We still don’t have a timetable for a review of the Act despite it being promised by a succession of Ministers. We have no forum in which to discuss where the land reform process may go from here, despite it being clear that what has been achieved thus far is simply the start of a process. A whole raft of emergent topics could usefully be discussed including succession law reform, leasehold reform, common land issues and the ongoing focus on offshore tax havens to name but a few.

My last contact with the Land Reform Branch of the Scottish Government (they have a new name now I think) was in May 2005. I have plenty to keep me busy and am not looking for opportunities to have to give more voluntary time to this issue than is strictly necessary but one can’t fail to get the impression that there is no appetite for taking the land reform agenda forward or making existing measures more straightforward. I’ll relate an anecdote about this in a separate post.

Meanwhile, what to do about re-registrations?

Amending an Act is not something undertaken lightly but in this instance I think that a simple amendment NOW could provide time to sort out the situation with re-registrations.

Section 44(1) should be amended to read 10 years instead of 5 years. This would extend ALL existing registrations for a further 5 years. Thus there would be no need at the moment to address the question of how re-registrations are dealt with.

Anyone up for that?