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DRAFT LAND REFORM (SCOTLAND) BILL: Consultation Paper

6 CONSULTATION ON THE DRAFT BILL

6.1 The draft Bill follows in Chapter 7. Comments on the draft are welcome. Chapter 8 mentions the period of the consultation and arrangements for commenting. While the Scottish Executive will be pleased to receive views on any aspects, the following issues are drawn to the attention of respondents. They include, in respect of each of the 3 Parts of the draft Bill, matters which may be of particular interest or in respect of which some background information might help commentators in considering the proposals.

Part 1: Access rights

Purpose of rights

6.2 Section 1 of the draft Bill creates a right to be on land for recreational purposes, and a right to cross land. This reflects the advice received from Scottish Natural Heritage that a right of access should be created for the purposes of informal recreation and passage. However, the draft Bill does not include the word "informal" because this would have no clear legal meaning in this context, nor does it define "recreation". We should welcome comments on this approach and, in particular, whether "recreation" requires to be limited e.g. to exclude certain activities such as ball games, or organised events.

Farm steadings

6.3 Ministers announced some time ago that the right of access should not extend to farm steadings except where they are crossed by an existing right of way. Section 4 of the draft Bill includes provisions to exclude buildings and the curtilage of a building or group of buildings from the new right. It is considered that this would have the effect of excluding farm steadings from the right, but we should be interested to receive comments on whether this would apply in all cases.

Crops

6.4 Section 4(1)(i) of the draft Bill provides that the right of access should not apply in respect of land on which crops are growing. Section 4(5) expands on this to exclude grassland from the definition of crop, and also to make clear that the right does extend to headrigs, endrigs and the unsown margins of fields in which crops are growing.

6.5 The draft Scottish Outdoor Access Code addresses the issue of crops and one approach would have been to rely solely on the Code and to have made no reference in the Bill to crops. However, it was apparent from the responses to the consultation on the White Paper that access to enclosed land, and possible damage to crops, was of particular concern to farmers and other land managers. Ministers decided, therefore, to address this matter in the Bill but would welcome comments on this approach as opposed to relying solely on the Scottish Outdoor Access Code.

The Scottish Outdoor Access Code

6.6 Section 7 of the draft Bill would require Scottish Natural Heritage to draw up, issue and publicise the Scottish Outdoor Access Code. Under sections 15 and 16 of the draft Bill, a police officer may require a person to leave land, or a local authority may exclude a person from land, who has persistently contravened the Code.

6.7 The draft Code sets out a range of advice to those exercising access rights and to landowners. Some of the advice is more specific and some is couched more in terms of "must" rather than "should". It has been suggested that the Bill should distinguish between those parts of the Code that are purely advisory and those that are mandatory, in which case the powers referred to above in sections 15 and 16 might apply to a person who "has persistently contravened the Access Code or seriously contravened one or more of its mandatory provisions". We should be interested to receive comments on this suggestion.

Temporary suspension of access rights

6.8 Ministers have made clear from the outset that the new right of access should not compromise the ability of land managers to manage their land. Section 9 of the draft Bill provides for the temporary suspension of access rights by the owner of land if a lawful activity likely to be interfered with by the exercise of access rights is taking place on that land, or if the activity is likely to constitute a danger to a person exercising those rights on the land.

6.9 Comments are invited on the need for these provisions. If it is accepted that landowners should have a power of this sort, is there a need to constrain it in order to avoid abuse? For example, should the Bill make clear that any suspension of access rights should be over the minimum area of land, and for the minimum time, necessary to complete the operation? Should the landowner be required to indicate alternative routes avoiding the land in question?

Core paths

6.10 In its advice to Ministers, Scottish Natural Heritage identified the provision of core paths as an essential element of management of access rights, particularly over enclosed land. Section 24 of the draft Bill requires local authorities to compile and maintain a list of core paths which, taken together, give a reasonable provision of access throughout the area. We should welcome comments on the adequacy of this provision given the importance of core paths to the management of access. In particular, comments are invited on the definition of core paths, and on the need for some form of appeal mechanism against the inclusion or omission of a particular path from the list compiled by a local authority.

Role of the courts

6.11 The draft Bill affords local authorities and local access forums the major role in the local management of access rights, and in the resolution of any disputes that might arise. However, it is recognised that where a dispute cannot be settled through discussion and arbitration it might be necessary, as a last resort, to seek judicial resolution of whether a particular piece of land, or a particular activity, falls within the new right. Section 29 provides for the resolution of such issues by application to the sheriff. It is considered that sheriffs are likely to have knowledge of local circumstances that might prove helpful, but it has been suggested that other courts, for example the Scottish Land Court, might be more appropriate and comments would be welcomed on this suggestion.

Liability

6.12 During the consultations leading up to publication of the draft Bill, landowners and managers argued strongly that those exercising access rights should do so at their own risk. Ministers have given careful consideration to this issue and agree in principle that those exercising the rights should do so at their own risk. However, they do not consider it appropriate to amend the duty of care imposed on occupiers of land under the Occupiers Liability (Scotland) Act 1960. These current arrangements are considered to work well and, therefore, the draft Bill proposes no amendments to the provisions of the 1960 Act. The draft Bill does not, therefore, extend the liability of landowners.

Part 2: The community right to buy

Registrable land

6.13 The draft Bill, at section 41, provides for Ministers to make an order which will define registrable land for these purposes.

6.14 As mentioned at paragraph 4.5 above, Ministers propose that the order will apply a population threshold to exclude those larger settlements which are not to be treated as rural land for these purposes. This approach makes use of the very latest work by the General Register Office for Scotland, which has developed a methodology that defines settlements in preparation for this year's Census. The methodology is designed to present accurately an up-to-date account of Scotland in terms of its rural and urban character. This work updates the General Register Office for Scotland's 1991 Census definition of rural Scotland, reflecting recent building and other relevant developments. Explained simply, settlements are groups of postcodes with high densities of residential addresses and, therefore, of population. Densities of non-residential addresses (e.g. shops, factories, etc.) are also taken into account.

6.15 For more information on the General Register Office for Scotland's approach, see its recent publication "Scottish Settlements: Urban and Rural Areas in Scotland"; ISBN number 1 874451 60 5, explaining its definition of settlements; listing all defined settlements with their respective population figures; and providing indicative settlement maps. The population threshold Ministers propose to apply to determine which of the smaller settlements shall be counted as registrable land under the Bill will exclude all settlements with a population of more than 3,000. The General Register Office for Scotland's publication is also available on their website at www.gro-scotland.gov.uk/grosweb/grosweb.nsf/pages/scosett .

6.16 The Annex which follows this Chapter lists the settlements which are likely to be excluded when the threshold is applied. Any areas not excluded will be included as registrable land. Ministers also propose that foreshores should be included within registrable land, where rural land, as defined above, abuts the foreshore. Detailed maps will be produced in due course to support the order; those seeking further information now should consult the General Register Office for Scotland's publication.

Ancillary land rights

6.17 Section 41(6) provides that registrable land includes salmon fishings and mineral rights. It will be open to a community body to register an interest in these ancillary rights as long as it is also registering, or has registered, an interest in the land to which those rights relate, or if it is seeking to acquire or has already acquired that land (section 46(1)(c) refers). The exercise of the right to buy such rights is covered in section 65.

6.18 The salmon fishings in question are those which are on, or contiguous with, the land in which an interest is being registered. For example, where a river runs along the boundary of the land, the salmon fishings in which an interest can be registered will be the fishings on the bank of the river which is on the boundary only so far as the boundary extends. (Water rights and riparian rights run with the land and are included in these provisions.)

6.19 The mineral rights in question are those which are exercisable within the land in which an interest is being registered. The mineral rights which cannot be registered or acquired are rights which are usually separated from the land and held by the Crown or subject to specific statutory arrangements.

6.20 The community body therefore has a choice as to whether or not it wishes to register an interest in those ancillary rights which relate to land in which it registers a community interest. If it does not, as long as its interest in the land remains registered, it may seek later to register an interest in the ancillary rights.

6.21 When land in which the community body has a registered interest comes up for sale, the body will have to purchase the land as lotted - including the ancillary rights if included in the lot for sale - unless the landowner and the body come to a mutually agreeable solution regarding the lot(s).

6.22 If the ancillary rights are not acquired from the owner of the land at the same time as the land they may, as long as the interest remains registered, be acquired later when the owner decides to sell the rights. Such further separate application will also be required if the salmon fishings and mineral rights are in separate ownership from the land.

6.23 Section 65 also provides for a community body to acquire the tenant's interest in a sporting lease in the land if its community interest has been registered, if the lease comes up for assignation before its expiry. (Sporting rights cannot normally be separated from the land unless they are leased out and, even when subject to lease, when the period of that lease expires, they will revert to the owner.) The intention is that this provision should only apply if the land to which the sporting rights relate has previously been acquired by the community body. The drafting of this provision is subject to further consideration; consultees' comments are welcome.

Definition of the community body and the local community

6.24 At section 42, the draft Bill provides a definition of a community body which, subject to Ministerial discretion, is the only body which may register a community interest in land under this Part of the Bill (see section 45(1)). As signalled in the July 1999 White Paper, the Executive proposes to develop framework documents which community bodies can use as a model for the development of their individual company constitutions. Section 42 also provides that the local community to which the community body relates is defined as comprising those on the electoral roll for the polling district or districts in which the land is situated. (The polling district is consistently the smallest unit for which data are publicly available.) Again, there is some scope for Ministerial discretion; this approach aims to combine the necessary objectivity with some flexibility.

Register of Community Interests in Land

6.25 Section 44 of the Bill sets down the proposed contents and access arrangements for the Register of Community Interests in Land. In short, all key dates and documents will be kept in the Register, which will be available for the public to consult free of charge. It is also proposed, and the final Bill will make clear, that electronic access is to be provided.

6.26 Consultees will note that subsection (3) allows for the protection of information provided by community bodies concerning their proposed land use and business plans and how they intend that these will be funded. This information may well be commercially sensitive. (The effect of section 58(3)(d) is to require that land use proposals are submitted to Ministers for their consideration before they consent to the exercise of the right to buy.)

Registration when owner is not traceable

6.27 Section 45(4) addresses the situation where an owner of land in which a community body wishes to register an interest cannot be traced. Other legislative approaches to this scenario have also been considered (for example, the Bankruptcy Acts, the Sheriff Court Ordinary Rules and certain Conveyancing Acts). An alternative approach would be to give powers to a body such as the Lands Tribunal for Scotland to order what is required by way of service to satisfy the requirements of the Bill. Yet another procedure has been adopted in the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (section 36) which relies upon the Extractor of the Court of Session. Comments are welcome on the approach taken in the draft Bill. Ministers are clear that registration should not be blocked because a landowner is not traceable.

Criteria for registration

6.28 Provisions for the registration of a community interest in land are set out in section 45 and the criteria for registration are in section 46. It should be noted that subsection (3) of section 46 provides that in exceptional circumstances Ministers may enter a community interest in the Register although certain criteria are not met. Consultees may have views on this provision and on which criteria Ministers should have discretion to waive.

6.29 In describing the criteria for registration, section 46 also specifies the important link between the land to be registered and the local community. Guidance will be prepared to assist those using the legislation when it has completed its Parliamentary passage and becomes law. This will explain the kinds of "substantial connection" between the community and the land which Ministers will look to see, for example, do members of the community live and/or work on the land in question? However, the draft Bill also provides that land which is nearby may be registered if the community body can demonstrate a direct connection showing, for example, how the purchase of the land would support the community's sustainable development.

Time limit for registration

6.30 Section 47 makes provision for 'late registration' by a community body where, for example, a transfer of land is proposed but for some good reason no action has been taken by the community body to apply timeously for registration. As these provisions are only intended to be used exceptionally, additional conditions require to be satisfied. On receipt of such an application, Ministers may (under section 48) send a notice to the owner prohibiting further action on the proposed transfer, and postponing any closing date set for 30 days. However, land changes hands in many ways, e.g. by auction or roup, not all of which involve the setting of a closing date for offers, and we should welcome comments on how the prohibition would function in practice. For example, do other scenarios require to be addressed and, if so, in what way?

Transfers of land

6.31 Sections 52 and 53 describe, normally by means of exemptions, those transfers which will serve to activate the right to buy land in which a community interest has been registered. In developing these provisions, the Executive has consulted expert opinion, and considered existing legal provisions relating, for example, to family units and groups of companies. The guiding principles in determining which transfers to exempt are that they should either have no value attached (e.g. gifts), constitute no material change to the nature of the landownership (e.g. transfers between members of the same family or between companies of the same group), or relate to legal (and related) process which overrides the normal operation of the property market (including transfers required by an order of court, those implementing compulsory purchase or other statutory provisions or rights to purchase, and those which vest land in an insolvency practitioner). We should welcome any comments on the draft provisions.

6.32 Where a landowner intends (or takes action) to transfer any piece of land which includes registered land, and the transfer is not exempt, this will trigger the legislation and section 56 will require the landowner to notify that fact to the community body and to Ministers as appropriate.

Anti-avoidance

6.33 Section 55 addresses circumstances in which action is taken with the purpose or effect of avoiding the requirements or consequences of the legislation.

6.34 To give an example, where a firm or trust owns land in which there is a registered interest, there may be changes amongst the partners or trustees resulting in a change of ownership of the land, but the nature of the landownership remains essentially unaffected. Section 52(4)(g) provides that such transfers are exempt from the effects of the legislation. However, where such changes are part of a scheme or arrangement avoiding or evading the effects of the legislation, section 55 provides for the Lands Tribunal for Scotland to order that Ministers may take action to compulsorily purchase the relevant land. Subsection (1) of section 55 also mentions that a series of transfers - e.g. incremental share transfers - when undertaken with the purpose or effect of avoiding or evading the legislation, will also be subject to these provisions.

6.35 Consideration is being given to the links between these compulsory purchase arrangements and the provisions in section 72, e.g. as regards process; and further development of section 55 is intended. Comments are welcome on these provisions and on whether (and how) other forms of avoidance should be addressed within this section.

Assessment of value of land

6.36 Section 63 provides for a valuer to be appointed by Ministers to assess the value of the land to be purchased. The criteria developed for assessing the "market value" of land for these purposes have been informed by consultation with experts in this field. They are based on well-established existing approaches, applied as appropriate to these provisions. They aim to ensure that the assessment will not be distorted by factors unrelated to the sale in prospect or by factors associated with the operation of this Part of the Bill. The procedure for valuation is covered in section 64, which provides for the valuer to invite views from the landowner and from the community body. This gives the landowner an opportunity to ensure, e.g. that the extent, development status, and characteristics of the land (and any moveables) lotted for sale are known to the valuer. The community body may also have views about the value of the land. It will then be up to the valuer to apply his/her independent professional judgement, considering any views or representations received, and to make an assessment of value. We should welcome any views concerning these provisions.

Effect upon other rights

6.37 Section 66 of the draft Bill explains the effect of the community right to buy on other rights. These "other rights" include rights of pre-emption, redemption, reversion or rights relating to options to purchase. The effect upon specific pre-existing rights to purchase, namely: the individual crofter's right to buy under the Crofters (Scotland) Act 1993 (and court orders granted under that legislation); and the housing tenant's right to buy under the Housing (Scotland) Act 1987, is also described. The same effects will apply to a crofting community body's right to buy under Part 3. (However, where a community body and a crofting community body are both seeking to purchase the same piece of land, using Parts 2 and 3 of this legislation respectively, the Ministers must choose between the bodies; see section 61.)

6.38 The effect in all cases is that these other rights are suspended from the date the community body confirms under section 57 that it intends to buy the land. Rights of pre-emption, redemption, reversion or those relating to options to purchase are extinguished when the transfer to the community body is complete. (See also section 70(4), which makes provision for compensation). However, the specific rights to buy are revived on completion of the transfer to the community body. All these "other rights" are revived if the transfer to the community does not proceed. (The community body, or the landowner, may at any stage withdraw from the purchase; if the community body does so, the registration is cancelled and the landowner can then proceed to dispose of the land as he/she wishes. See section 60.)

6.39 Part 2 of the Bill does not affect the operation of an inhibition on the sale of the land, or prevent an action of adjudication from proceeding.

6.40 Comments are invited on these provisions concerning the interaction of Part 2 with other rights.

Appeals

6.41 Section 68 provides for appeals to the sheriff against Ministers' decisions regarding whether or not to enter a community interest in the Register and whether or not to consent to the exercise of the right to buy. Appeals on these aspects are provided to landowners, community bodies and to community members and third parties who have a legally enforceable interest in the land which is the subject of an application to register or to purchase under this Part of the Bill.

6.42 The grounds of appeal are focused on procedural matters and/or the registrable status of the land in question. Comments are invited on these provisions: for example, are the grounds adequate, or is there an argument for expanding them?

Compulsory purchase of land transferred in breach of this Part

6.43 Section 72 provides for a new compulsory purchase power exercisable where it seems to Ministers in the public interest. It is intended that this power should be used to deter evasion of the legislation; and it is envisaged that the very existence of this power should in most cases be enough to discourage evasion.

6.44 It is intended that section 72 will be subject to some further development, e.g. to add compensation arrangements. While it is intended that these discrete compulsory purchase provisions will follow the pattern of normal compulsory purchase arrangements, it will be necessary to ensure that they operate compatibly with the rest of the community right to buy provisions including, for example, section 49 which provides that a transfer of registered land other than in accordance with this Part shall be of no effect (in other words, the transfer of title will be void).

6.45 An alternative approach to dealing with evasion might be, instead of using compulsory purchase powers, to give a new role to the Lands Tribunal for Scotland. Under such an approach, the aggrieved community body might apply to the Lands Tribunal with its claim that land had transferred in breach of the legislation. If the Lands Tribunal upheld this claim it could make an order treating the transfer as a 'trigger' under the legislation, and so allow the community body to proceed towards an application for consent to exercise the right to buy. Consultees are invited to comment on this possible approach.

Disposal of land by a community body

6.46 The provisions in section 73, which apply controls to the disposal by a community body of land purchased under this Part, include arrangements to assist victims of fraud (at subsection (10)). It is for consideration whether a further provision is required to protect victims of fraud in other circumstances which give rise to a breach of this Part of the Bill. Should such provision be included? After all, purchasers of land and their legal advisers will have a responsibility to ensure that all legal requirements are satisfied, and can check the Register of Community Interests in Land to see whether or not the section 49(1) prohibition applies. We should welcome comments.

Part 3: The crofting community right to buy

Eligible croft land

6.47 The definition of eligible croft land in section 76 includes common grazings but excludes from the right to buy croft land which is occupied by the owner of the croft. The effect of this is to prevent the right to buy being used to acquire "owner occupied crofts" except where the owner is an absentee who does not use the croft land and never resides on the croft or in any house pertaining to the croft. In addition section 75 of the draft Bill provides that the provisions of the Crofters (Scotland) Act 1993 will apply to land acquired by a crofting community body. So individual crofters will be able to acquire their croft from the crofting community body. We welcome comment on the definitions used and the effect they have.

Mineral rights and salmon fishings

6.48 The effect of the legislative proposals at sections 77 and 80 is to allow the crofting community body choice as to whether or not it will purchase the mineral rights and salmon fishings associated with land it acquires under the crofting community right to buy. If the mineral rights and salmon fishings are not acquired from the owner of the land at the same time as the land, they may be acquired later by means of a further crofting community right to buy application. Such a further separate application will also be required if the mineral rights or salmon fishings are in separate ownership from the land. (There is a timing limitation on acquisition of other interests in land which applies here - see paragraph 6.52 below). Comment on these provisions would be welcome.

Sporting rights

6.49 Sporting rights cannot normally be separated from the land and so the value of the sporting rights, which on some highland properties can be considerable, will affect the value of the land. Given the value and importance of the sporting rights on some properties the legislative proposals provide that where sporting rights have been the subject of a lease which places the control of the sport in the hands of someone other than the landowner (i.e. the tenant under a sporting lease) the crofting community body will have a right to buy the tenant's interest under the lease (section 77). (This is subject to the timing limitation discussed at paragraph 6.52 below.)

6.50 Conversely, because the sporting rights may have a high value which greatly inflates the market value of the land itself, section 89 provides for the possibility of a leaseback of the sporting interests to the previous owner at a nominal rental. The provisions for leaseback of the sporting interests in section 89 will apply where the landowner indicates a desire to become the sporting tenant and the crofting community body wishes to have the former landowner as the sporting tenant. However, given that this can only happen where the parties want it consultees may consider there is a case for leaving this issue to be settled by the parties. It would then be for the parties to draw the valuer's attention to the effect of their agreed arrangements on the valuation of the land.

6.51 The legislative proposals provide that where sporting interests are leased back under the legislation the right of the crofting community body to subsequently buy out the sporting tenant's interest will not operate (section 77(4)). Comment on the provisions relating to sporting rights would be welcome.

Limitation on purchase of other interests in land

6.52 The draft Bill provides (section 77(4)) for the acquisition of mineral rights, salmon fishings or any sporting tenancy relating to land which has been transferred or is being transferred at the same time as that transfer or within a five year period from the date when Ministers consented to the transfer. The five year limitation is intended to allow time for a crofting community body to acquire these interests in land but ensure that the prospect of a subsequent exercise of a right to buy does not permanently impede the development of what are often economically important activities. Consultees may wish to consider whether the period allowed is the right length and whether Ministers should have discretion to set a different period at the time the eligible croft land is transferred.

Additional land

6.53 The legislation provides for a crofting community right to buy to be extended to include land contiguous with the eligible croft land which is not croft land but which the landowner and the crofting community body agree should be included in the transfer. It also provides for the inclusion in certain circumstances of additional land at the request of one of these parties and against the wishes of the other.

Definition of the crofting community

6.54 An approach to the definition of community which was entirely consistent for Parts 2 and 3 of the draft Bill would, in some cases, mean that the crofting interest would be represented by a minority. In these circumstances lack of interest within the non-crofting elements of a wider community would be a barrier to reasonable and sensible proposals to exercise the crofting community right to buy. The definition of the crofting community in section 78 is therefore different from that adopted for the local community in section 42. The definition in section 78 seeks to focus more closely on the crofting community.

6.55 The approach in establishing community interest and representation also differs from the one adopted in the Transfer of Crofting Estates (Scotland) Act 1997. The provisions of the 1997 Act operate in a situation where there is unlikely to be a sustained legal challenge to the exercise of the right to buy. Where a legal challenge is likely there must be measurable criteria for establishing exactly who is part of the crofting community and can vote in a ballot. Consultees might wish to consider whether the draft Bill achieves that or suggest alternative approaches which will deliver greater clarity.

Procedural arrangements

6.56 Generally speaking the areas and boundaries of crofts are not well defined on the ground. There is therefore a strong possibility that the extent and boundaries of eligible croft land in a right to buy will be considered inaccurate by the landowner or a third party, such as a croft owner occupier within the crofting community. Since, for the foregoing reasons, it will be almost impossible for a crofting community body to get these matters right in an application the Bill provides in section 80 that Ministers will seek views on the application from the landowner and a range of other parties with an interest in the land. Thereafter comments on these views will be sought from the crofting community body. This is in effect an opportunity to modify the application in the light of the views offered.

6.57 In the event that there continue to be differences regarding the facts relating to the land section 97 provides a mechanism for referring these matters to the Scottish Land Court to be resolved. This will also be a means of dealing with other issues raised, such as those which will inevitably result from the break-up of a larger property e.g. creation of shared responsibilities for services such as maintenance of water supplies, roads and drainage systems which formerly served the whole estate and creation of vehicular access rights over the eligible croft land for the former owner and other parties. The conclusions of the Scottish Land Court and any conditions which it proposes should be imposed in relation to these matters will be binding on Ministers and will be reflected in consent conditions if Ministers consent to the crofting community right to buy application. Consultees will wish to consider whether this approach offers sufficient assurance that these potential difficulties will be properly resolved.

Criteria for consent

6.58 The criteria which will be taken into account by Ministers are set out in section 81. It should be noted that subsections (3) and (4) of that section provide that in exceptional circumstances Ministers may consent to an application although certain criteria are not met. Consultees may have views on these provisions and on which criteria Ministers should have discretion to waive.

Barrier to use of crofting community right to buy to repurchase land

6.59 Consultees should note that the effect of section 81(1)(e) is that consent will not normally be given to the use of the crofting community right to buy to re-purchase land previously acquired by means of that right to buy and subsequently resold.

Barrier to use of crofting community right to buy to buy land which is the subject of an enforceable sale contract

6.60 Consultees should note that the effect of section 81(1)(f) is that consent will not normally be given to the use of the crofting community right to buy to acquire land which is subject to compulsory purchase or which is in the course of being sold and where missives for the purchase of all or part of the land have been concluded. In these circumstances the crofting community body can of course make a new application to acquire the land in question from the new owner.

Balloting arrangements

6.61 These are set out in section 82 and are consistent with the approach under the community right to buy. At least half of the crofting community must take part in the ballot and the majority of those voting must be in favour of exercising the right to buy. Whilst in theory this means that a bid to exercise a right to buy can proceed with support from just over 25% of the crofting community, in practice the over 50% turnout requirement may prove a difficult barrier to overcome if there is not a high degree of commitment and interest. It is likely that some consultees will wish to see alternative arrangements. Any suggestions for workable and robust alternatives would be welcome.

Assessment of value of land

6.62 Section 94 provides for a valuer to be appointed by Ministers to assess the value of the land to be purchased. The criteria developed for assessing the "market value" of land for these purposes have been informed by consultation with experts in this field and by the need to provide a fair valuation. They aim to ensure that the assessment will not be distorted by factors unrelated to the transfer in prospect or by factors associated with the operation of this Part of the Bill. This does not give the certainty of 15 times the rent which is the usual valuation criteria for the individual crofter's right to buy under the Crofters (Scotland) Act 1993. However, none of the provisos which affect the right to buy under that Act applies in this case. There is, for example, no provision for allowing the former landowner a share in development value realised after sale of the land. Whilst this means there is no simple means of assessing the likely price it is normal for prospective purchasers of property to obtain a professional valuation of the property (and in this case some assessment of likely compensation payments (see below)) before making any commitment. Furthermore it is likely that the going rate for croft land will in the normal case have been set by the individual right to buy at around 15 times the rental value. So, in practice, the lack of a fixed rate should not prove to be a problem.

6.63 The procedure for valuation is also covered in section 94. It provides for the valuer to invite views from the landowner and from the crofting community body. This gives the landowner an opportunity to ensure that the characteristics of the land are known to the valuer. The crofting community body may also have views about the value of the land. It will then be up to the valuer to apply his/her independent professional judgement, considering any views or representations received, and to make an assessment of value. We welcome any views concerning these provisions.

Compensation

6.64 The crofting community right to buy is essentially a forced sale of property. As such the draft Bill seeks to ensure that losses and costs are adequately compensated. This is in line with Ministers' intention to ensure that the crofting community right to buy operates fairly.

6.65 The draft Bill provides (section 95) that compensation should be agreed by the parties or, failing agreement, be determined by the Scottish Land Court. Assessment of compensation for disturbance and detriment can be difficult and so in compulsory purchase cases compensation is normally assessed by the valuer with scope for the parties to appeal that assessment in a court (the Lands Tribunal for Scotland). Consultees may wish to offer views on the proposed arrangements for settling compensation.

Appeals

6.66 Section 98 provides for appeals to the sheriff against Ministers' decisions on whether or not to consent to the exercise of the crofting community right to buy. The appeal arrangements are similar to those for the community right to buy discussed at 6.41 above. Appeals are provided to landowners, crofting community bodies, crofting community members and third parties who have legally enforceable rights relating to the land which is the subject of an application to purchase under this Part of the Bill.

6.67 The grounds of appeal are focused on procedural matters and/or the status of the land in question. Comments are invited on these provisions: for example, are the grounds adequate, or is there an argument for expanding them?

Completion of transfer and payment

6.68 The draft Bill provides (section 93) that payment of the consideration for the transfer must normally be made by the crofting community body within 6 months of the date on which Ministers consented to the application to exercise the right to buy. There is provision for delaying payment in certain specified circumstances. However, because responsibility for completing the conveyancing rests with the crofting community body there is no provision for delaying payment in the event that conveyancing has not been completed. Instead it is proposed that the consideration should be paid to and held by the Scottish Land Court until the conveyance has been completed at which point the monies will be transferred to the former owner. Ministers would be grateful for views on this arrangement from consultees who may expect to be involved in providing financial assistance for a crofting community right to buy.

Effect on lenders

6.69 The Bill provides (section 93) that on completion of a conveyance transferring land to a crofting community body any heritable security which burdened the land would cease to do so. This is consistent with what happens on completion of a normal sale of land. However, the circumstances of a crofting community right to buy are different in that the timing of the transaction is not within the control of the owner of the land or any holder of a security pertaining to that land. Consultees involved in the provision of funding for the purchase of heritable property may have views on the approach adopted here.

Compulsory purchase of land consequent on breach of this Part

6.70 The provisions regarding compulsory purchase in sections 79 and 103 are similar to the provisions in Part 2 and discussed in detail in paragraphs 6.43 and 6.44 above. Given the other provisions of section 103, and the possibility thatownership by Ministers may be considered a desirable objective within some sectors of the crofting community, it is for consideration whether these compulsory acquisition provisions are needed.

Disposal of land by a crofting community body

6.71 The provisions in section 103, which apply controls to the disposal of land by a crofting community body, are in most respects similar to those of section 73 relating to the community right to buy and discussed at paragraph 6.46 above; and the question about protection of victims of fraud raised in that paragraph is equally relevant to the crofting community right to buy.

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