Clan Donald and the Land Reform (Scotland) Bill

UPDATE 28 March 2025 – the Clan Donald Estate is now being advertised at offers over £6,750,000. A sales brochure can be downloaded here (2.9Mb pdf).

The Stage One debate on the Land Reform (Scotland) Bill took place on Wednesday 26 March. The Bill passed by 91 votes to 29. You can read a transcript of the debate here.

I will examine some of the claims made in the debate in a later blog as well as some thoughts on human rights implications of the Bill and why the provisions about prior notification may fall foul of human rights law and thus be open to legal challenge.

Meantime, in this blog, I want to highlight the sale of the Clan Donald Lands Trust estate on Skye which was announced earlier this week (BBC news report here) and the potential impact the Bill would have were it to have been in force.

The sale was raised in the Stage One debate by Rhoda Grant MSP

Rhoda Grant: This weekend, we heard that Clan Donald Lands Trust is selling its assets and land in Skye. I am unaware of any approach being made to the community ahead of the sale. It is also unclear what difference the bill would have made to the sale and community involvement.

Mairi Gougeon: The member has chosen a topical example that goes to prove why the measures that we are introducing in the bill are important. They could have prevented the situation from coming about or, at least, the community could have been notified that the land would become available for sale. I hope that she welcomes that. (Col 49 of Official Report pdf)

The Clan Donald Lands Trust was established as a charitable trust in 1971 following the death of the then Chief of the Clan Donald and the subsequent sale of the Macdonald Estates on Skye. The sale was prompted by the need to pay Estate Duty (a useful reminder of the role that inheritance taxes can play in land reform).

Much of the estate was acquired by Sir Iain Noble but a sizeable chunk (around 20,000 acres) was acquired by the Trust for the purposes of establishing a Clan Donald museum. The Trust cares for valuable archives on Clan Donald history including the papers of Lord Macdonald 1462-1955.

The Trust describes the acquisition as a “Clan Donald community buyout” even though the community has no role in the governance of the Trust which is run by self-appointed Trustees.

IMPACT OF THE BILL

Had the Bill been in force last week, the sale of the Clan Donald Estate would indeed have been impacted.

As a landholding of over 3000 ha in extent, the Trust would have had to engage with the community on the preparation of a management plan under the provisions of Section 1 of the Bill. The Trust will probably already have a management plan but I can find no reference to on on its website.

As a landholding over over 1000 ha in extent, the Trust would have been required to notify Scottish Ministers of the proposed sale under Section 2 of the Bill. Ministers could have then chosen to invite a relevant community body to submit an application for late registration under the Community Rights to Buy provisions of the Land Reform (Scotland) Act 2003. Whether such an invitation would have been issued and whether any such application would have been accepted cannot be known.

It is worth noting that because the estate is being openly advertised for sale, there is nothing to stop a relevant community body (most likely Sleat Community Trust) applying for a late registration right now under the 2003 Act. In that sense the Bill makes no substantive difference as it merely brings off market sales within the scope of the right to buy legislation (where any community body would have no knowledge prior to the sale completing and thus no opportunity to make a late application).

As the Clan Donald Estate is being advertised publicly, the only difference is that before doing so, the Trust would have had to notify Scottish Ministers.

In effect, any community body (were the Bill to have been in force last week) would have two routes to submit a late application – one under the existing 2003 Act and one (if invited to do so by Ministers) under Section 2 of the Bill (see final section of this blog for further details).

In each case the community body would have to demonstrate why it is making a late application and why it has not submitted a timeous application. It is worth noting that the community right to buy has been in force since 14 June 2004 and communities have had almost 20 years in which they have been able to register an interest. For whatever reason, no community body in Sleat has done so in relation to the Clan Donald Estate.

In conclusion, the Bill makes very little difference. The Minister claimed in the debate that the measures in the Bill could have “prevented the situation from coming about or, at least, the community could have been notified that the land would become available for sale.”

It is not clear what she meant by “preventing the situation from coming about”. There is nothing in the Bill that prevents the Trust selling its estate. But yes, the Bill would ensure the community is notified in advance of a sale which allows a little more time for them to make a late application (if invited to do so). But even without the Bill, they can make a late application.

The prospects of success of such an application are, of course, unknown.

ALTERNATIVE REFORMS

As I have argued many times over the years, there are many more reforms than can be made to the way that land is governed in Scotland. I outlined some of them in a blog in December 2013.

One of those is relevant to the Clan Donald sale – where charitable bodies own a significant area of land. Charities own over 450,000 ha of land across Scotland – over 6% of Scotland’s land area. Some are community landowners and local people have the right to join as full members. Some are environmental groups such as the RSPB or Scottish Wildlife Trust and, again, anyone can join the majority of these organisations. But some are essentially private charities that restrict membership.

Some years ago I launched a campaign to invite members of the public to apply for membership of the Mount Stuart Trust which owns the Isle of Bute and the Applecross Trust which owns the Applecross Estate. Over 100 people made a formal application for membership including the former MSP and Government Minister Michael Russell (who applied to Mount Stuart Trust in his constituency) and the late Charles Kennedy MP who applied for membership of the Applecross Trust in his then constituency.

All such applications were refused including from those resident on Bute and in Applecross. The action prompted a rapid tightening up of the constitution of the two charities such that they were no longer open to any membership applications.

In relation to the Clan Donald Lands Trust, I wrote to the West Highland Free press following some coverage they had given to governance issues with the Trust (see below). I was encouraged by proposed reforms then out to consultation by Scottish Ministers in 2015. Like so much else, however, they came to nothing. As a result folk living and working on Sleat cannot join the Clan Donald Lands Trust as members. Had they been able to do so, perhaps the estate would not have run into the difficulties that have prompted its sale.

To conclude on a lighter note, the fact that the Chief Executive of the Trust is Alex Stoddart gives me the opportunity to highlight his criticism of me as a member of “Scotland’s ruling political elite” who have “no shortage of porridge, lamb and potatoes on their Edinburgh restaurant tables whilst sitting on their lazy fat backsides”

He wrote that as Director of the Scottish Association of Country Sports in September 2020.

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The following section does not relate directly to the Clan Donald Estate sale but is important in the context of the Bill and sets up my next blog examining human rights law compliance. If you are not interested in the finer detail of the Bill, you can stop reading now.

THE TWO ROUTES

What follows is a little bit complex but highlights the fact that the Bill creates a new and additional route to making a late application and one which differs from the existing route. This difference is one of the reasons why there might be human rights problem – a topic I shall explore in my next blog.

Properly constituted community bodies have had the opportunity to register an interest in any rural land under Part 2 of the Land Reform (Scotland) Act 2003 since 14 June 2004 and any land (urban or rural) since 15 April 2016.

The 2003 Act provided powers for community bodies to register an interest in land. If Scottish Ministers agree to the registration, then when the land is to be sold, the community body can apply to Ministers for the right to buy. If granted, it has 6 months to conclude a sale at a value set by the District Valuer.

The 2003 Act also contained provisions for late registrations – applications made after land has been put on the market. These were intended for exceptional circumstances and require a higher threshold for approval. Scottish Ministers cannot approve an application for late registration unless both the standard Section 38 conditions for a timeous registration and also the additional late application conditions set out in Section 39 (3) are all satisfied. These are that,

(a) there were good reasons why the community body did not secure receipt of an application before the owner of the land took steps to sell the land (typically putting it on the market) and,

(b) the level of support for the registration is significantly greater than what would be regarded as sufficient for a timeous registration, and

(c) the factors bearing on whether it is or is not in the public interest are “strongly” indicative that it is.

This threshold was then raised further by the Community Empowerment Act 2015 by substituting new criteria for(1) above, viz,

(3) Where this section applies in relation to an application, Ministers shall not decide that a community interest is to be entered in the Register unless they are (additionally to the matters as to which they are to be satisfied under section 38 above) satisfied—

(a) (i)such relevant work as Ministers consider reasonable was carried out by a person, or

(ii)such relevant steps as Ministers consider reasonable were taken by a person,

(aa) that the relevant work was carried out or the relevant steps were taken—

(i)at a time which, in the opinion of Ministers, was sufficiently in advance of the owner of the land or, as the case may be, the creditor taking the action such as is mentioned in subsection (1A), or giving notice such as is mentioned in subsection (1B),

(ii)in respect of land with a view to the land being used for purposes that are the same as those proposed for the land in relation to which the application relates, and

(iii)by the community body making the application or by another person with a view to the application being made by the community body,

(ab)that—

(i)in the period of 12 months before the application is received by Ministers, the owner of the land or, as the case may be, the creditor taking the action such as is mentioned in subsection (1A) did not make an offer to sell the land to the community body or a similar community body, or

(ii)in that 12 month period, the owner of the land or, as the case may be, the creditor did make an offer to sell the land to the community body or a similar community body and, in the opinion of Ministers, there are good reasons why the body did not purchase the land.

This remains the legal position in relation to late applications under the 2003 Act.

But of course a community body does not have the opportunity to submit a late application if they are unaware of the impending sale of land – hence the new provisions in the Bill for prior notification.

But the Bill does not simply bring land that would otherwise have been sold off-market into the scope of the existing 2003 Act land application process. It creates a new process specifically for late applications being made following prior notification. These are set out in the proposed Section 39ZA subsection 3 (which can be found on page 9 of the Bill).

This new process is identical to the original Section 39 (b) and (c) conditions in the 2003 Act (see above) and omits all of the more stringent tests introduced by the 2015 Act set out above (which replaced the original s.39(a).

This new, less onerous procedure applies to to all land sold as part of any landholding that is over 1000 ha in extent. This would apply to a strip of land of 100 sq metres being sold to a company to expand a builders yard, a croft being sold to a crofting tenant under their statutory right to buy their croft, to a tenanted farm where the tenant has registered an interest to buy their farm under the Agricultural Holdings (Scotland) Act 2003.

The new procedure is only for late registrations where Scottish Ministers choose to invite a community body (under S.39ZA) to make such an application. If no such invitation is made the late registration can still be made but under the existing terms of the 2003 Act (with its more onerous conditions).

WHAT DOES THIS MEAN?

It means communities are faced with potentially mind boggling choices. Put simply, they can.

1. go ahead with late registration under existing 2003 Act in the hope that it will be accepted and in the knowledge that the additional hurdles added by the 2015 Act (such as them having already having begun the process of making a timeous application for CRTB) will have to be met.

OR

2. hope that Ministers may issue an invitation under the s.39ZA for an application which will then be subject to a less stringent test (the original test contained in the 2003 Act when passed).

What is a community to do? It is a bit of a gamble and such decisions will be being made in a very tight window of opportunity and in the context of a landowner who may be impatient about securing a sale (to settle debts for example).

It is all a recipe for quite a bit of confusion and stress … but also potential legal challenge which will be the subject of my next blog.

REVISION

(1) 28 March 2025 0913 – Edits to better reflect the modifications in the criteria for late registration introduced by the Community Empowerment (Scotland) Act 2015 – specifically to clarify that the 2015 Act modifications were not additional but a replacement for the original s.39(3)(a).