Having had time to digest the recent decision to refuse the right to buy to the Machrihanish Airbase Community Company (see post of 13th August) I am astounded at both the decision and the implications. It has become very evident that over the course of the past 6 years, applications to register an interest in land by communities under the community right to buy provisions of the Land Reform (Scotland) Act 2003, have been thwarted in too many cases by a systematic bias in the way civil servants have discharged their duties. Put simply, if there is even a hint that a landowner might challenge a registration, then every effort is made to pore over the application and reject it on a technicality. Where such concerns do not arise on the other hand, no such thing happens and applications which are in many cases technically invalid end up being registered.
In the case of Machrihanish we now have the same logic applied to the actual right to buy process. The Machrihanish Airbase Community Company decided to proceed with the right to buy when the MoD put the airbase outside Campbeltown up for sale earlier this year. It then held a ballot of 5945 electors who voted 97.4% YES on a 67.35% turnout to proceed with the buyout. So what happened?
Well, Scottish Ministers decided that such enthusiastic support was to be quashed by refusing to consent to the right to buy on the basis that there had been technical breaches in the ballot. These are spelt out at length in the Refusal Notice. They are, frankly, bizarre. For example, the fourth point is that the community body failed to ask an accurate ballot question since it suggested that the “people of Kintyre” were being given the opportunity to acquire the airbase. Wrong…! As the land reform police at Victoria Quay are quick to point out it is not the community that is being given the right to buy it is the community body – Machrihanish Airbase Community Company. The distinction is of course important but also utterly irrelevant.
But the fiasco does not stop there. Disappointing as this is for the community in Kintyre, the decision reveals an aspect of the Act that has as yet escaped my attention and which renders the law something of an ass.
If a commmunity is given the right to buy (sorry, I must remember that communities cannot be given the right to buy – it is community bodies) and fails for whatever reason to conclude the sale within 6 months, then the right to buy is extinguished and their registration of interest is deleted (section 56). This is quite correct and logical.
If, however, as in the case of Machrihanish, the community body is refused consent to buy then the Act is silent on what happens to their registration. That being the case, therefore, the registered interested remains (since there is no provision in the Act for it to be deleted). But that leads to an interesting and crazy situation where the MoD is prohibited from taking steps to sell the airbase without providing the community body with an opportunity to exercise its right to buy. Having been turned down the first time, let us suppose that the community body decides that it will have another go. It organises another ballot and sends the results of this to Scottish Ministers. They then find that one voter has been omitted from the ballot (echoes of the British Airways cabin crew strike ballot here) and refuse to consent to the right to buy. But the MoD is still prohibited from selling and, when it decides to put it on the market again, the community body decides for a third time to exercise its right to buy. Ministers again refuse.
This could go on forever. Such a situation is, I should stress, particularly unfair on the landowner whoever they might be. It is only reasonable I suggest that a community body be given one chance to acquire land and, if consent is not forthcoming from Scottish Ministers, the landowner should be free to sell. Instead we have a situation of potential stalemate.
The case emphasises once again why, as many have argued, there should be a thorough review of how the community right to buy is being implemented. Scottish Ministers have consistently refused to agree to this. Might this be because such a review would expose the inadequacies and inequities in Ministers’ own decision making processes?
From my reading of the Refusal Notice there were some rather substantial problems with the buy out bid, beyond simply a few technicalities.
Interesting post, Andy, thanks for bringing it to my attention. I’m not sure if you’ve stumbled across it yet, but I had a piece in this year’s Edinburgh Law Review (“Access to Land and to Landownership”, (2010) 14 Edinburgh Law Review 106) which focussed on the experience at Kinghorm Loch, with a bit of access rights discussion thrown in for good measure. Hopefully you will find something of interest in there.
I’m not particularly au fait with the ins and outs of this ballot, but the analogy with the recent trade union ballots seems striking. A lack of strict compliance can be quickly seized upon, but compare the recent general election where voter disenfranchisement in certain English constituencies did not affect the validity of the ballot.
Andy, on your point about the LR(S)A 2003 being silent as to what happens to a community’s registration in a situation other than failure to meet the specified period (section 56), look to section 52(2) [right to buy extinguished if ballot not conducted as prescribed] and section 54(3) [notice from community body to ministers that community body is not to excercise right to buy land extinguishes right to buy]. I think these two provisions prevent the limping title your post worries about. Happy to discuss if you want to get in touch.
The analogy may be striking but I’m not convinced it’s warranted.
you may be interested to know that a right to buy in comrie for the comrie development trust phrased its question in exactly the same way as yours and was approved with the wholehearted support of the scottish government and in particular roseanna cunningham.. you should ask her why the cultybraggan army camp ballot question was approved where yours failed