Community right to buy land to further sustainable development: Forthtay Limited Employee Trust v Scottish Ministers

Community rights to buy in Scotland are not a new concept, but a recent case has shed new light on how they operate in practice.

Forthtay Limited Employee Trust v Scottish Ministers has provided a welcome insight into the right that enables communities to purchase land to further sustainable development, even where the current owner does not wish to sell.

The case is believed to be the first of its kind in Scotland, and following the refusal of the appeal, we have sought to set out a brief overview of the right, summarise the main points of the case and provide some closing remarks.

Community right to buy framework

Other community rights to buy

The right to buy to further sustainable development is the third (non-crofting) community right to buy which has been implemented since the re-establishment of the Scottish Parliament in 1999.

Communities may also utilise the following:

• The Land Reform (Scotland) Act 2003 allows community bodies to register an interest in land, and if ever put on the market, they would have the first option to purchase.
• The Community Empowerment (Scotland) Act 2015 introduced a separate right to buy, even if the owner does not wish to sell, where land has been abandoned or neglected and it could cause direct or indirect harm to the environmental wellbeing of the community.

Right to buy to further sustainable development

The right is set out within Part 5 of the Land Reform (Scotland) Act 2016 and can enable the compulsory purchase of privately owned land or a building to a community. The application must be taken forward by an appropriate community body and satisfy the following criteria set by Scottish Ministers:

• It would likely further the achievement of sustainable development
• It would be in the public interest
• It would likely result in significant community benefit, and is the best means of achieving that benefit
• If consent were not granted, it would likely result in harm to the community

Most land is regarded as eligible under the right (whether urban or rural), however, there are exceptions for crofts, private homes, and land which forms part of the curtilage to private homes (unless the property is occupied under a tenancy). Furthermore, for this right, no consideration is given to the state or condition of the land in question.

The case

Overview

The case concerned a plot of land located in Greyfriars Gardens in St Andrews which had been in a state of prolonged neglect. Poet’s Neuk, a company limited by guarantee, who wished to transform the area into a public poetry garden, were successful in their application. The landowner, Forthtay Limited Employee Trust, appealed the decision claiming that Scottish Ministers had not fully considered the impact of the proposed purchase and were influenced by irrelevant considerations.

The point of contention was whether Scottish Ministers had appropriately determined if the purchase would be of greater or less benefit for sustainable development than the existing circumstances. Reference was made to the UK Sustainable Development Strategy, and the five principles cited therein:

1. Living within environmental limits
2. Ensuring a strong, healthy and just society
3. Achieving a sustainable economy
4. Promoting good governance
5. Using sound science responsibly

Submissions were made by Forthtay that only principles three and four were relevant. This tied into the numerous planning applications they had submitted to commercially develop the site, albeit these were all refused. The view was taken however that whilst Scottish Ministers may attribute more weight to certain principles, they all had to be considered. Therefore, it was held that Scottish Ministers had adhered to the legal framework and applied the correct legal test to the necessary questions. There had been no irrationality or bias in granting consent to Poet’s Neuk, and subsequently the appeal was refused.

How we can help

It is still too soon to determine if the case will encourage more applications to be submitted from community bodies. What is clear, however, is that it places the Scottish Ministers in a challenging position of having to balance the likely effects of allowing community ownership to proceed, against what may happen if consent was denied. This is particularly sensitive and contentious when it concerns the deprivation of private property rights.

The law in this respect remains onerous and unclear, and it can be reasonably expected that other successful applications may be subject to appeals from landowners who believe that furthering sustainable development is best left in their hands.

To discuss any of these issues, contact a member of our expert team or email paul.henderson@andersonstrathern.co.uk.