James MacKessack-Leitch leads the Scottish Land Commission’s work around land and human rights, governance, and ownership. This touches upon a range of land reform issues from developing policy and legislative proposals to reforming Scotland’s land market, to articulating the nature of carbon rights and what ownership means, to modernising the Common Good property regime, to improving access to land for new entrants to agriculture.
Ahead of the Scottish Land Commission’s webinar on the ownerless properties and new routes to publish and community reuse on the Tuesday 29th of November, James MacKessack-Leitch from the Scottish Land Commission explores ownerless land and its impact on the public sector, and shares details of a new consultation aiming to tackle the issue.
In October 2020, the Scottish Land Commission published the recommendations of the Vacant and Derelict Land Taskforce. The Taskforce brought together senior representatives from around 30 businesses, public bodies, and third sector organisations spent the previous 18 months working through some of the most challenging issues blocking the productive reuse of almost 11,000ha of vacant and derelict land across Scotland.
Much of this land is a legacy of de-industrialisation, and issues preventing bringing it back into use range from contamination to uncertain ownership. In this blog, I will focus on some of the ownership issues, and the progress that’s been, and is being, made.
Uncertain ownership of land and buildings often arises where the company that owned the site has ceased to exist. This can happen if the company has been taken over, but poor record keeping often over decades and further company take-overs means that a link to a current extant landowner is missing.
For example, in our work to support the Vacant and Derelict Land Taskforce, the Scottish Land Commission investigated a sample of sites with unknown ownership, and we found one plot that had the “Dingwall and Skye Railway Company” listed as the last known owner from 1869! This company was absorbed by the Highland Railway in 1880, and it’s likely, but by no means certain, due to the nature of historic record-keeping that the modern inheritor of the site would be Network Rail.
In other cases, a company could have been dissolved, and forgotten assets were lost in the process, or land with no ‘commercial value,’ for example green space within housing developments, was ignored. One case the Commission has been involved in previously is that of Culduthel Woods in Inverness, a small area of woodland leftover from a housing development which became ownerless after the development company dissolved in 2002.
In both cases, such ownerless sites are not uncommon, but because they lack any real commercial options for reuse, they tend to get ignored.
Where an owner can be identified, there are often options available to bring these sites back into productive use, or to move them on by transferring ownership or selling them, and a range of good practice support is available to help, not least that provided by the Commission through our Land Rights and Responsibilities protocols.
Where land is found to be ownerless, there is a more challenging path to productive reuse, and that’s where the current consultation by the King’s and Lord Treasurer’s Remembrancer (KLTR) is opening up new options especially for communities.
The KLTR is the Crown’s representative in Scotland, with authority to deal with ownerless land and buildings. Types of properties referred to the KLTR include highly problematic sites such as opencast coal mines, shale bings, harbours, and landfill sites, but they also encounter land and buildings with greater potential for public interest or commercial use or redevelopment, for example industrial property, retail, woodland, listed buildings and undeveloped areas of land.
Historically, the KLTR’s focus was on the feasibility of selling such properties at full market value and returning proceeds to the public purse. In recent years, however, the KLTR has been taking an increasingly proactive approach. In collaboration with the Commission and public sector partners, the KLTR has been looking at ways to help surmount some of the challenges and barriers to dealing with ownerless land, particularly where there are significant liabilities. They have also been looking at how to better facilitate disposals for the public benefit.
Having contributed to the work of the Vacant and Derelict Land Taskforce, and recognising that the KLTR had a “pivotal role to play” in bringing land and buildings back into productive use, the Taskforce made a number of recommendations to guide this ambition.
The consultation on the KLTR’s Ownerless Property Transfer Scheme (OPTS) is the next step in this work. In broad terms, the OPTS will allow the KLTR to transfer ownerless land to another public body at below market value or at a nominal value: either to use that land itself for local public benefit, or for onward transfer to an appropriately constituted community body demonstrating purposes aligning with local aspirations. It is expected that the receiving public body would ordinarily be the local authority, but other public bodies may be more appropriate in particular cases.
While this will inevitably involve a bit of extra work for relevant local authority officers, the benefits and long-term savings could be significant. Many of the sites the OPTS covers will be known, and many will feature on the Vacant and Derelict Land Register. In some cases the local authority may have already had to step in, perhaps repeatedly, to deal with dangerous buildings, tackle environmental health issues, or manage the consequences of anti-social behaviour, without hope of recovering costs.
The OPTS would provide local authorities with a straightforward route to take on sites, and then either make use of them or move them on to someone who will. As noted previously, many of these sites will lack any real commercial prospects, but their community impact could be significant. The Commission has identified a range of case studies where such sites can make a real difference, and with a bit of support, where communities can take on and create assets of real local value.
The OPTS consultation closes on the 16th of December, and full details are available from the KLTR’s website.
In partnership with the KLTR, the Scottish Land Commission is hosting a webinar on the OPTS on Tuesday 29th of November, details and sign up are available through our website. Join us to find out more about the KLTR, ownerless land, and how the OPTS could help you to address this in your area.