Land Reform legislation contains many and various references to the concept of sustainable development. If private owners of land are to be deprived of their property rights, then there must be some form of wider community benefit – in the form of sustainable development - to keep the law on the right side of the European Convention on Human Rights.
The modern law on the subject goes back to 1986 when the Trustees of the Second Duke of Westminster challenged the rights of tenants to buy their homes in Mayfair and Belgravia which were rented out on leaseholds by the Duke’s Trustees (James –v- United Kingdom). The European Court of Human Rights drew two interesting conclusions from the English legislation which permitted the right to buy. The first was that: “…the compulsory transfer of property from one individual to another may, depending upon the circumstances, constitute a legitimate means for promoting the public interest”. The second was that, The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being in the public interest. On the basis of, essentially, the greater good, the European Court of Human Rights held that the right of tenants to force their landlord to sell the tenanted house was lawful.
In the Scottish Land Reform context, the wider benefit which needs to be demonstrated in order to ensure that a forced sale is lawful, is the concept of sustainable development. Hand in hand with the concept of sustainable development comes the concept of the public interest. The community body that wishes to buy land from a private owner needs to show, amongst other things, that the purchase will promote sustainable development, and that it will be in the public interest. But what does that actually mean?
Sustainable development means development that is sustainable. Development means that something happens. Sustainable means that the things that happen can be maintained and upheld. So if a community body wishes to buy some land, it needs to show it they will make something happen, and it will sustain whatever it makes happen. If only things were that simple.
The difficulties in pinning down the meaning of sustainable development are obvious. Considering things in the abstract may be relatively straightforward but ascertaining whether a hard and fast proposal in the context of an actual area of land promotes sustainable development is a difficult job even from a policy perspective. It is an even harder job from a legal perspective.
The problem, however, is not peculiar to Land Reform legislation. There are many instances of legal interpretation where hard questions arise due to vague and nebulous concepts. Constitutional law is full of concepts relating to the “public interest”, which by nature is a very wide notion that could be applied in many and various ways. Administrative law (that is, the law concerning how government organisations exercise power) is littered with requirements of “reasonableness”, which is possibly the hardest of all to translate into legal rules that are certain for the parties seeking to rely on them.
Prior to the introduction of the community right to buy in 2003, the possibility of a private owner losing land lay in the realms of compulsory purchase legislation. There are clearly good reasons why, in principle, certain public authorities should be able to purchase land in order to carry out public infrastructure works. Considerations of public interest at that level are relatively easy to pin down. However, a typical compulsory purchase by a public authority for a public infrastructure project is quite different from a typical community right to buy application. The purchase under a compulsory purchase is usually for a single purpose, the benefits of which are relatively obvious – a new road, school, hospital, or similar. Further, if the planned purpose goes wrong and the development never happens, then the owner of the land can expect to require the land back under the “Crichel Down” rules.
What makes a typical community right to buy application more difficult for landowners to deal with is that rarely is there total clarity as to what the incoming purchasers will actually do, or how they will achieve it. There can be a disconnect between the stated aims of the community (which can be numerous and expressed in the alternative) and the actual deliverability of the aims. And if the aims are not fulfilled, then there is no prospect of the land coming back to the private owner as would be the case in an ordinary compulsory purchase.
If the law can, at times, be grey, then the courts have to define shades of clear white and solid black. In the context of a detailed assessment of the crofting community right to buy, Lord President Gill had the following to say in Pairc Crofters Limited –v- The Scottish Ministers:
“…the expression sustainable development is in common parlance in matters relating to the use and development of land. It is an expression that would be readily understood by the legislators, the Ministers and the Land Court.
The public interest is a concept to be found throughout the statute book. There is no need for a general definition of it. It is for the Land Court and the Ministers to assess the public interest on the facts and circumstances of the case. A general statutory definition of the public interest, if one could be devised, would be unhelpful….”
Lord Malcolm went on to state:
“At its broadest, sustainable development has been defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (Brundtland Commission). In the planning sphere the concept of sustainable development is well established and, amongst others, covers the following factors: protection and enhancement of the natural environment and the cultural heritage; promotion of rural development, regeneration and recreational opportunities; and the efficient use of land, buildings and infrastructure.”
At one level, the job of proving that development is sustainable will always be an uncertain task. Some points of law are dealt with in a mechanical way: either a deed was signed properly, or it was not; either a formal notice was served in time, or it was not. The inherent problem for providing definition to the concept of sustainable development is that it cannot be applied or analysed mechanically so as to provide a concrete answer.
All is not, however, lost for an owner of land faced with a right to buy issue and the possibility of a forced sale to a community organisation without a free negotiating hand. The fundamental requirement is that sustainable development will happen, and there have been situations where the courts have held that a community endeavour does not promote sustainable development. The case is Holmehill Limited –v- The Scottish Ministers, where an attempt by the community to register a right to buy was denied by the Sheriff. The community’s objections to housing development on the site of the Dunblane Hydro Hotel were brought out in the litigation, and the Sheriff held that the aim of the legislation was not to block development, rather the aim was to promote it.
Whilst the law is no doubt difficult to translate into solid answers, it should not be forgotten that there are legal principles which must be considered in ascertaining whether the test of sustainable development is truly met. The courts have already shown that they are prepared to engage with the question, albeit it is probably true to say that the balance of convenience is tipped in favour of communities, given the definition is wide and unspecific. Ultimately there is a means of obtaining a definite answer, but that only comes from a court. Most cases do not reach court. Most owners of land simply wish to know whether their land is susceptible to a right to buy. The answer to that probably lies in whether the community will carry out sustainable development. Simple!