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 Community Housing Trusts

Towards a Sustainable Community Housing Policy

for Scotland  

(Revised Version Sept 2004)

A discussion paper from Alastair McIntosh,

Centre for Human Ecology & GalGael Trust [1]

Summary

Past land ownership and planning policies have worked against the provision of socially and environmentally sound community-based housing in Scotland. However, by understanding and modernising the traditional principles of crofting tenure, where houses may be sold but the land on which they sit is merely leased, Community Housing Trusts, developing out of community land ownership, might be able to retain the control they need to prevent future speculative undermining of new holdings intended to serve local residents. Such a tenure-based approach to land use could, through the charging of a local land rent on the lease, make the ongoing administration of community landownership self-financing.

The Problem

It is virtually impossible at present in Scotland for new rural settlements to be established. Many people would like to self-build or community-build, but find that the obstacles are, in practice, too great. Planning polices (which are not the same as the planning system that administers them) have been stitched up to keep the countryside, and even many facets of urban renewal, for the relatively well-off and corporate development. Scotland’s ecological architects who specialise in housing that has a low environmental impact, consistent with wider policy objectives for sustainable development, report massive interest. But equally, they report very little delivery. As Howard Liddle of Gaia Architects told me recently, “If I had £1 for every enquiry I receive, I’d be a rich man by now.” He’s a leading figure, and has built about 5 in the past decade!

There is a need for housing policy, rural but also urban, that offers:

1. Opportunity for people deriving from or committed to permanently living and working in a place (i.e. a “bioregion”).

2. Opportunity for communities to ensure that new holdings are not lost to the resident community by being sold on to become mere second homes.

3. Opportunity for low-impact, low energy-consumption, aesthetically attractive ecological housing.

4. Opportunity for participative community building and self-build.

5. Opportunity for low-income people to gradually build up their homes in the traditional manner as financial and time resources permit: perhaps starting in a caravan, then one room, then adding a room at a time as the family grows.

6. Opportunity for developing skills that express creativity and beauty rather than concrete box prefabrication.

7. Opportunity, in urban areas, for communities to design convivial neighbourhoods in brownfield redevelopment areas. (I note that Community Self-Build Scotland which was doing this appears to be no more).

8. Opportunity for “rural resettlement” in depopulating areas, especially where schools and other vital services are under threat so that the existing community is actively inviting new blood and willing to integrate respectful incomers.

9. Opportunity for people to live with the land, if not actually from it, thereby cultivating a sense of belonging and consequent wider civic responsibility.

In the past, we have often blamed the lack of these opportunities on a land ownership regime whereby nearly two-thirds of Scotland is controlled by just 1,000 proprietors. But land availability is not actually the biggest blockage. The real obstacle are British planning policies laid down (both in Britain and Ireland) in an era when local and national politicians were often drawn from the landowner interest groups. This has left a legacy where the countryside has been structured, in effect, as the preserve of the relatively rich and their servants. A slightly different problem afflicts urban areas. Here redevelopment tends to sidestep authentic community participation, being led by corporate developers able to exert disproportionate leverage on democratic structures. The current redevelopment of the Clyde is a case in point: as I saw at a recent housing association meeting, Govan residents fear being cleared from Govan as the area is shifted upmarket with little reference to themselves.

The Land Reform (Scotland) Act (2003) will create new rural opportunities, but equally, planning policy must be reformed. The one cannot work without the other. Already a number of Scottish communities have acquired their own land, but the development of new holdings in such places is being retarded - substantially because points 2 and 5 above remain obstacles – i.e. there is no mechanism for community control over resale of the property, and planning and mortgage facilities are inflexible towards gradual self-build approaches. These are not matters that individuals can resolve. They must be tackled by communities, local authorities and the Scottish Parliament together, and the planning system used actively to promote sustainable and community-based development.

To explore this matter in a way that might take a stagnant debate forward, I think it is instructive to look at the pattern of tenure inherent to Scottish crofting (i.e. smallholder community-based agriculture).

A Precedent – Traditional Crofting Tenure

Crofting law, dating back to the Crofters Act (1886), actually suggests a precedent by which a community might, in principle, address the need for local land for local people.

A common point of confusion is that a croft is, technically speaking, the land and not the house. The house only constitutes “improvements” to the croft. It is these improvements that are sold when a “croft” changes hands. As such, crofting land use is based on the little-understood principle of “usufruct” – the divided use of land (as distinct from outright absolute ownership). Thus, typically, a landowner will own the land and retain certain rights over it such as the right to shoot and fish over the croft, to quarry or mine it, to own any planted trees not covered by the crofting forestry Act, to have an influence in planning matters and to receive rental for mobile phone masts, electricity poles, etc.. Other than these things (actually, quite a formidable list when laid out like this), the landlord has no real control over the croft. The tenant can sell the tenancy and improvements with minimal reference to the landowner, and, of particular importance, the tenancy is protected at a peppercorn rent typically of a few tens of pounds a year payable to the landlord. It is partly because the landlord in practice can do little to touch a crofter that so few have taken advantage of the Croft Holdings Act (1976), which allows croft land to be bought outright at 15 times the annual rental.[2]

It should be remembered that crofting law was established in an era when it was the land that had real value and, as photographic evidence can testify, the house in material terms was often a mere hovel. Today, however, that position is reversed. The house has value and the land has little agricultural worth except as a house site. As pioneering thinkers such as James Hunter have shown, crofting today is about having a diverse patchwork of livelihoods;[3] indeed, it has always been this way, as a croft was never intended to be enough to live from.[4] Crofts, especially today, are valued by those who wish to live with the land but not necessarily from it. This has a wider national importance than being merely a lifestyle choice because, through those that value the culture, it helps to sustain the culture for the nation as a whole.

The Inverness-based Crofters Commission is responsible for the assignation of croft tenancies – that is to say, for assigning the land upon which croft houses, the “improvements”, are situated. In theory, this allows a crofting community, typically via its Common Grazings Committee, to have a say in the matter of to whom crofts are re-allocated and whether persistently absentee or feckless crofters should have their tenancies taken off them and reassigned. In practice, it has become impossible for the Commission (under powers set up when all interested parties would have been indigenous by default) to favour local people. As David Green, Chairman of the Crofters Commission, writes:

The Crofters Commission cannot direct a tenancy. It cannot select the most suitable tenant. It can only consider whether a proposed tenant is unsuitable. If the tenant is deemed unsuitable then the assignation of the tenancy would be refused. Even if the commission rejects a proposed tenant it cannot oblige the outgoing tenant to offer the tenancy to a specific individual. Selecting and proposing a tenant is a matter for the outgoing tenant.[5]

To summarise, croft land is owned by a landlord – typically a large estate owner, part of whose domain comprises the inbye township and common grazings designated by statute as being under crofting tenure. The real “king of all s/he surveys” is the crofter, who has a secure and heritable tenancy over their inbye (arable) land at a peppercorn rent and a share in the grazings. Assignation of tenancies is regulated by the Crofters Commission, which can act in a restraining but not in a proactive manner. Technically, when a croft is “sold”, it is the improvements that are sold - the use of land merely being re-assigned by the process.

This system has its roots in Scotland’s recently-abolished feudal system. Feudalism, at its best (which, in practice, we rarely saw, hence the need for reform), postulated that all land was tenanted – absolute landownership was impossible. Even landowners were tenants unto the Crown and thus, as was implicit in feudal law, to God.[6] Consistent with the Biblical land ethic, land could not be “alienated” in perpetuity. To do so would have sowed the seeds of disrupting community.[7]

Relevance of the Crofting Precedent Today

There are several examples of the crofting precedent in land tenure being updated, by design or default, to address present-day needs. I shall briefly review three.

1. Crofting on Eigg: The Isle of Eigg Heritage Trust has now taken over the landownership of Eigg’s 7,000 acres on behalf of the resident community, and in partnership with Highland Council and the Scottish Wildlife Trust. The Trust is currently working with the Residents’ Association and the Grazings Committee to address absentee croft holdings and to examine the possible creation of new holdings. Given that crofting is already long established on Eigg, this is proving to be a complex and in some ways, a contentious process, which has only just started to be explored. The hope, however, is to increase the island’s 70-strong population and to do so in a way that offers the community sufficient control over tenancies to avoid future absenteeism or conversion to seasonal holiday uses.[8]

2. Crofting on Scoraig: The crofting community of Scoraig, on Little Loch Broom, can be accessed only by walking 4 miles round a mountain or by sea. Benign neglect by both the landowner and planners has allowed a scattered community to develop on a gradual self-build basis. Using resources from demolition sites and skips, people boast of self-building decent local-stone houses for as little as £4,000, and of not taking advantage of 90% grants because they can do it in their own way for cheaper than what the 10% would cost them. The entire population of Scoraig are incomers as the original indigenous population had abandoned the remote location by the 1960’s. As well as having no road, Scoraig has no mains electricity supply. Electricity is generated from small wind turbines beside every house, batteries being topped up during calm weather by generators. Scoraig appropriate technology is now famous worldwide – many a new turbine design has been tested to destruction in its windy climate before being exported to Africa or wherever. Turbine blades for export are manufactured in the boat-building yard belonging to Topher Dawson. House design shows rich architectural variation based on local and recycled materials, with much simple sufficiency and vernacular beauty. It is said that planning academics use the location “to watch what happens when you don’t have planning”, and are mostly favourably impressed. However, the dangers of operating outwith statutory control and standards were demonstrated three years ago when a house burnt down and children’s lives were put at risk because it had been built without a proper chimney liner. Today, most new buildings on Scoraig have planning permission and the local authority has proved to be accommodating in such regularisation.[9]

3. West Lothian “Lowland Crofting”: In the early 1990’s visionary planning officers in West Lothian developed a policy to allow marginal low-value farms to acquire planning permission for “Lowland Crofting” as a means of revitalising a depressed area between Edinburgh and Glasgow. The principle was that smallholdings of varying size might be created in a clustered or “clachan” style of settlement, with a minimum of 30% of the land being designated to community woodland so that the development would become visually screened. Whilst the objectives were admirable, the result was deplorable. Whether by default or because of partnership with a developer, the “crofts” ended up being mostly what the Irish call “trophy mansions” for the relatively well-to-do. West Harwood, the main West Lothian lowland croft development, exemplifies the importance of having the right community regulatory structures in place before proceeding, otherwise good intentions merely become a short-cut for development that does nothing for social justice or environmental sustainability.[10]

Towards a Way Forward

At a Rural Planning Symposium for Duhallow in Co. Cork, Ireland, 2002, the rural community, planners, and academics such as myself explored many of the issues raised at the start of this paper (above). It was clear that the community wanted “local” people, or at least, locally permanently resident people, to be able to live amongst them in the countryside, but, equally, they wanted an end to the building of domineering trophy mansions on every available hilltop and a drift from permanent residences towards holiday homes.

There was a need for low-impact, low-cost, ecologically and aesthetically sound housing policies, though people generally lacked the experience and thus the concepts to articulate what they had in mind. Considerable warmth was felt towards the traditional notion of a “clachan” – a clustered settlement, able to enjoy common services provision, and where families are close enough for the children to be able to walk between one another’s houses, but far enough away not to hear each other’s rows![11]

This aim would probably be shared by many Scottish communities and, indeed, in the Centre for Human Ecology we have been looking carefully at what can be learned from the Irish pioneering of “rural resettlement”.[12] We have also been closely involved with developments on Eigg, and have observed those at Assynt, Laggan and Gigha.

From these observations I would like to take soundings on the following principles.

1. That Points 1-9 (above) are achievable, but only with community empowerment and participation at their core – this, alongside statutory and, where needed and invited, commercial development agencies.

2. That the core principle necessary to fulfil Point 2 is that the land must be owned by the community, for the community, and never permanently alienated from the community.

3. That the crofting model of tenancy and assignation of tenancies can be updated and translated to become a new model for community housing.

I therefore ask: Given that land can now be owned by a community-elected trust in which the community are landowners unto themselves, is it not possible to set up a housing tenure structure whereby land is assigned and leased, as with a croft, and only the “improvements” – the house – privately belongs to and may be sold by the tenant?

This would allow democratically accountable communities (via Community Councils or Residents Associations) to decide under what conditions they wanted to make leasehold assignations. It would then be over to sellers to sell their houses within such an approval framework. The “Community Housing Trust”, as we might call it for the purposes of discussion, could build into the land lease safeguards against the passing on to absentee owners, and could include provision to remove any persistently absentee or otherwise antisocial tenant. In addition, annual rent on the lease could be the basis by which such local democracy finances itself. After all, traditional landowners charged annual rents to finance their interests, so why should communities not do the same – particularly when the benefit is all ploughed back into the community?

The key point being suggested here is that in any creation of new holdings, a distinction might be made between the land and the improvements upon it. The community should continue owning the land, and tenants own only their improvements. Such a system has parallels both in existing crofting tenure and in the English system of 99 or 999 year land leasehold. In what is proposed, the “superior” in question would not be a private landowner, but rather, the democratically accountable local community.

Such a system could be used by community land trusts as a framework for making land available in a way that addresses real need within the community but which blocks speculative reselling. It could, additionally, make it a requirement that incoming tenants are committed to upholding local heritage and cultural values. As such, it can build on local experience and tradition and more effectively integrate incomers with this.

If the principle of division between land ownership and ownership of improvements is potentially so beneficial, how has it not already been widely promoted? I suspect the answer is that we are entering new territory in Scottish land law. In the past, feudal “burdens” could be applied to titles. With the abolition of feudalism, it may be necessary to look at alternative mechanisms for securing long-term concerns for how land is used.[13] The mechanism proposed here will be obvious to those from crofting backgrounds, but it may appear less obvious to others, whose mindset tends to be aligned either to absolute freehold or absolute leasehold, but not to the hybrid system that crofting embodies.[14]

Postscript – The Iona Model

Since drafting this paper, I have undertaken further research prompted by a request for an article from the Scottish Crofters Foundation. I quote from what I wrote for their journal in describing a different model:

The Chair of the Iona Housing Partnership is Dan Morgan, proprietor of the Argyll Hotel. On an island that comprises 40% holiday homes, the community are about to build four new homes for social ownership. These will be on former glebe land, the Church of Scotland having helped them out.

 

Dan is a former student of mine. He did his MSc and PhD in human ecology and politics – making a study of the revolution on Eigg. He’s been a member of the SCU-cum-SCF since 1990.

 

He tells me that one of the approaches they’ve invented for Iona is what he calls the “50% ownership system”.

 

Social housing could be controlled 50% by the families living in the new homes, and 50% by a community trust – the Iona Housing Partnership.

 

This allows people to get a foot on the housing ladder, so paying off a mortgage and accumulating the capital they would need if they move on elsewhere.

 

But because the community remains the co-owner, it plays an equal role if and when that home is sold. This means it can prevent holiday home sales. It can select the best buyer for the community.

 

What’s more, as property prices appreciate the community’s ratio of capital value to outstanding debt will rise. Dan says, “That will mean we can then use our share of the houses to buy out holiday homes on the island as they come on the market.”

 

There are other approaches that could be used too. As part of the Abolition of Feudal Tenure Act 2000 we now have the Title Conditions (Scotland) Act 2003. Whilst I am not a legal expert, I understand that this allows for “rural housing burdens” to be written in to title deeds. These could restrict future sales of a home to conform with community benefit.

(“Land Reform … the Next Stages”, The Crofter, No. 63, May 2004, pp. 9 – 10)

Alastair McIntosh

Fellow of the Centre for Human Ecology

Trustee/Director of the GalGael Trust

Co-Founder of the original Isle of Eigg Trust

Version September 2004 (with postscript)

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Glasgow

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10 July 2003