Feb 12, 2021 • 1HR 5M

Landscapes Episode 1 - The Parable of Portobello (Malcolm Combe)

 
1.0×
0:00
-1:05:28
Open in playerListen on);

Get on Apple Podcasts

Episode Description

Notions of Land Reform, especially when looking historically, bring forth images of mass upheaval and unrest associated with nationalization and redistribution of resources—as it should. Yet, as the favored option to shift land use, where property entitlements are left unchallenged, continues to deliver watered down results, it seems to me it’s worth willing to experiment with reshaping the concept of property, while still respecting deeply entrenched social and legal norms of property.

There may be no better case to critically think this through than by looking at what’s happening in Scotland, where a set of fairly recent Land Reform Acts have come into force. And I can’t think of a better person to discuss this with in detail than Malcolm Combe, a senior lecturer in Scots private law at the University of Strathclyde. Malcolm has long been writing on Scottish Land reform, including a new book, "Land Reform in Scotland" edited with Jayne Glass and Annie Tindley. In this episode, we`ll talk about the Scottish Land Reform Acts, but also why they may have been started, and how they operate in the law.

We end up focusing on a really interesting case of these new legal entitlements in action—when a local church was put up for sale in a place called Portobello, just outside Edinburgh, the local community attempted to use the new powers available to try and bring the asset into their control.

Episode Notes

Lovett, J. A., & Combe, M. M. (2019). The Parable of Portobello: Lessons and Questions from the First Urban Acquisition Under the Scottish Community Right-to-Buy Regime. Mont. L. Rev.80, 211.

BBC Documentary Series on the potential for a community buy out at the Bays of Harris

Land Reform in Scotland: History, Law and Policy

The Morven Woods buyout story

*Since recording of interview, Andy Wightman no longer serves as MSP for the Scottish Green Party

Transcript

*The transcript has been lightly edited for clarity and comprehension

Adam Calo: Land use contributes to 23% of all human generated greenhouse gas emissions, says the Intergovernmental Panel on Climate Change. The panel goes on to urge policy makers to prioritize a new land use paradigm that both meets human needs AND mitigates and adapts to climate change. I like to think about two contrasting ways to achieve this goal. First, introduce an entirely new regulatory regime, where the vast and complex network of landowners and managers are somehow constrained, nudged, or incentivized to change how they use land.   

Despite the many challenges of tweaking and regulating many, often competing landowners ... it nonetheless appears the most attractive option for governments. The marginalized alternative is to shape who the land managers are. To set up new pathways to bring in new owners or managers who have different skills, different visions, and different powers to implement the types of land use that would reign in the out-of-control emissions associated with the business-as-usual land use activities.

Notions of Land Reform, especially when looking historically, bring forth images of mass upheaval and unrest associated with nationalization and redistribution of resources … as it should. Yet, as the favored option to shift land use, where property entitlements are left unchallenged, continues to deliver watered down results, it seems to me it’s worth considering a third option … one willing to experiment with reshaping the concept of property, while still respecting deeply entrenched social and legal norms of property.

There may be no better case to critically think this through than by looking at what’s happening in Scotland, where a set of fairly recent Land reform Acts have come into force. And I can’t think of a better person to discuss this with in detail than Malcolm Combe, a senior lecturer in Scots private law at the University of Strathclyde. Malcolm has long been writing on Scottish Land reform, including a new book, "Land Reform in Scotland" edited with Jayne Glass and Annie Tindley. In this episode, we`ll talk about the Scottish Land Reform Acts, but also why they may have been started, and how they operate in the law.

We end up focusing on a really interesting case of these new legal entitlements in action … when a local church was put up for sale in a place called Portobello, just outside Edinburgh, the local community attempted to use the new powers available to try and bring the asset into their control.

I think the case really demonstrates the challenge of negotiating the many, often competing interests on an asset like land but also presents a fascinating scenario ... what if the use of all land or other assets that have public impacts were subject to a true, meaningful democratic oversight? What would change?

Adam Calo: Why don't we start with something that seems basic. But I think as you know is a little bit more complex. What is property?

Malcolm Combe: Jenks! Now there's a, there's a few ways I can take that question.  I'll not go for a full-on theoretical answer as I don't want to lose listeners at the start. And also, because I didn't bury myself in Marxist theory or anything like that as prep for this podcast. But what is property? It's a rubbish word in the English language property can mean two things. At least two things. It can mean the physical object, or it can mean property as a right in terms of I have property in ... a car a house whatever. And so let’s try and avoid getting confused at the, at the very outset.

But essentially, property is a scarce resource. Um, it's something that's, we'll normally be thinking about things that are tangible, but also you might conceptualize debts and claims that people owe to one another as patrimonial objects. But again, I'll, I'll slow down and just roll back and say the, way we conceptualize property and Scots law drawing very heavily on what the Romans did was its part of private law. And you've got rules relating to people and how they regulate their day-to-day life sort of family and domestic relations, that kind of thing. You've also got rules relating to obligations.

 And then you've got rules relating to objects -- 

Adam Calo: It kind of sits in between all of those in some way, right? Because it can order how we interact with things, but also the relation to things.

Malcolm Combe: Absolutely. Absolutely. And I mean, obviously, it's not objects that go to court is it? It's human beings that might go to court and argue about things.  So absolutely it's about human relationships.  But, in terms of coming back to the fundamental of "what is property?" it's whatever people are willing to, to recognize as property and, regulate it and subject it to that sort of system of private regulation.

Adam Calo: Is this something that you teach to undergrads? You know, when I was,  teaching at UC Berkeley,  I would, would do a little bit on property to try and , work towards figuring out what are the assumptions and the power that's underwriting, the concept of being able to own something.

Malcolm Combe: So in terms of how I go about teaching it, I can kind of cheat a little bit as a law lecturer or a law teacher in that it's about what is justiciable.

It's about what people can go to court regarding, so we tend to focus on that aspect at least to start with and sure, we'll also explain what people can have rights in, but it's, it's all about sort of showing how people can enforce rights or defend positions. And we, we tend not to think, too much about where ownership comes from conceptually or indeed practically at the beginning of the course that comes later when to try and sort of blindside them with some chat about land reform.

Adam Calo: I think that’s really powerful to think about.  To what extent there is a powerful authority that will protect some kind of claim to property.  In the end, if we take this to its conclusion trying to take something that is socially agreed that it's owned eventually the state, will back that up, via a police action, essentially. And so property is, is deeply bound up in the law and in the states idea of who has the right to own certain things.

Malcolm Combe: Absolutely. Absolutely. So, you're getting it to the sort of fundamental questions of what, what properties for what does it serve? What does it do?  And yeah, I mean, it's sort of. Prevents the law of the jungle operating, to use a, a bit of a bit of a trope.

Adam Calo: So, as an American, I think, my conception of property for a long time before I started and studying these things and looking around was that it's just a thing that you own.

That might be considered—and this is something that you've written about—is kind of the in quotes castle-and-moat model of property or the ownership model. Is it fair to say that that model is dominant both legally in certain parts of the world, but also, in the social mind?

Malcolm Combe: I think so, whole kind of, Englishman's home is his castle and the Victorian ideals almost of having a, uh, sole despotic, right, in relation to and well it actually goes way back to before Victorian times. But yes, the idea that sort of having control of something allows for, people to maximize the usage of that valuable resource.

And as I say, prevent competitions and ensuing and the, the law of the jungle operating and competitions and emerging in relation to objects in a way that won't serve anyone. And that's why the state tends to sort of accept that you're essentially giving monopoly power to people when you recognize property rights.

Adam Calo: So it's in a way it's kind of the, almost an absolute right to exclude? 

Malcolm Combe: That is one of the sort of things that people focus on as the nub of what property is, which makes for sort of quite an interesting sort of potential discussion angle, which might be for another talk in terms of how does that work in terms of traditions of public access to land?

Can, can people exclude people from, can an owner exclude other people from an asset. Under what circumstances can they do that?

Adam Calo: Well, I think that's actually a really good point because I think if we're thinking about an object, like a cell phone or a car, the absolute right to exclude, it has strong coherence in my mind. Right? That makes a lot of sense. and in fact, the cars and phones are designed to support that, with our security codes and our keys, but then when we started exploring it to other areas and in particular one that you and I share, which is the land or the landscape, or other dimensions suddenly it gets a little bit more tricky.

Malcolm Combe: Absolutely.

Adam Calo: What, what could be some of the challenges or what are some of the conflicts that emerge in your mind when you're trying to apply that ownership model “castle-and-moat model” of property to a thing like a landscape or, or land?

Malcolm Combe: The panoply of people who are interested in a landscape is completely different to someone who's interested in the mug that I'm holding at the moment as I slurp some coffee surreptitiously in the background. And yeah, with land, it's the classic sort of, sort of framing of ... “You're not making any more of it.”

So, it's a finite resource. Subject to volcanic eruptions and other geographical events. It's not that you can just rustle up some more land in the same way that you could replace, um, a mug that someone breaks or something like that. And then you get sentimental attachment to land.

You've got people who might have traditional connections to a place you might have. Um, certainly over lockdown I think people have realized that people need local opportunities for recreation. And if you exclude people from land then that's not necessarily going to be good for the wellbeing of society.

So, there's a balancing act, to, to strike when it comes to land and land use that you wouldn't find in relation to ownership of a car or ownership of a musical instrument or ownership of a piece of crockery.

Adam Calo: When you look at it that way, as you so eloquently framed it.  What did you say? “The panoply of interests on land.”

Malcolm Combe: I've quite liked that.

Adam Calo: It's so clear that that is acting on the land.  But I think, you know, as one of the scholars who I really appreciate, Tania Li says, you know, “Land isn’t a mat. You can't roll it up and take it away.”

But these kinds of visions, duelling visions are placed on it by different actors at different times. And you talked about a balancing act, but what tools are available to try and achieve that?

Malcolm Combe: Good question. So, you start off with a conceptualization of what ownership is, and it's the strongest right that's normally recognized in a, in a, in a system that, accepts private property. Then any, any sort of interaction with an object by a non-owner has to come at it from a, it's almost like a sort of reserve model, so, ownership is the sort of starting point anyone else has to be able to show that they've got some kind of exception that allows them to be able to influence the owners right.  I mentioned responsible access to land but also there might be situations where neighbors or, someone's obnoxious use of the land, whether it's sort of use that create fumes or noise or whatever. And in that situation, the law will absolutely say, “well, actually, wait a minute. Your absolute right of ownership is, is qualified here.”

And there might also be environmental protections, wider societal rules that influence how someone can use property. If you've got a car you can drive at speed, on public highways. if you, if you own fireworks, you can’t set them off, at ridiculous times or in a dangerous way.

So, there's, there's a lot of ways that, other people and indeed the state can, can influence ownership.

Adam Calo: So, it seems just like you have these competing values of what land should be for and at certain times some of these values get expressed more loudly or strongly either through kind of social means or through legal means.

I did want to go back once more to origins of property, because this is something that I, understand, more through a sociologist lens, but not necessarily through a legal lens is: How do you get property? It's not like, you have the right to exclude because you're like the best and most wisest user of it.  How do you, how do you generate a property right?

Malcolm Combe: The two ways that Scots law will say that someone can become an owner is: derivative acquisition where you derive title from the previous owner, or there are some circumstances where there's something called original acquisition.  But that's pretty rare.

Where you create a piece of art and that, that new object is then treated, as a thing that belongs to the person who created it. But in terms of how any human being in Scotland can come to own land. The normal situation would be you take title from the previous, owner that might be through a market transaction that might be through inheritance from someone who's deceased. And then the, the way that you are eligible to acquire that right tends to be connected to cold hard cash. And there are some legal systems where, you might have certain land use rights or ownership. Where, there might be some kind of residency connection or, yeah, just some kind of productive use connection. In Scotland, generally, that's not something that we look at in relation to the right of ownership, you can, as, as long as you are of sound mind and you have legal capacity to acquire the land, then if you've got the money, you're allowed to acquire it.

Adam Calo: I think that's so interesting how, with, the rare case that you presented, which was original acquisition, right?  Where you have to create something. But that's almost the same process as if the land that it was kind of created.  Originally, but really what happened, right?

It was kind of created as a form of property at one point. And then essentially, it's being traded in the marketplace ever since.

Malcolm Combe: Indeed.  It's a reminiscent of the caricature of ownership where someone is taking a walk on an English country estate, and the person says, get off my land. And the guy goes, well, how did you get this land? And he goes, well, I got from my father. How did he get it he got it from his father and keeps going back and eventually it's now, Oh, how did he get it?

Well, he fought with William the Conquer. Oh, how did he get it? … they fought for that. Well, I'll fight you for it now. Obviously, you can't go back that far. And the way property law deals with that as a sort of essentially says, right, well, we'll have a cutoff point where we won’t look further back than however many years ago.

And we'll just look at the situation as it exists now. But yeah, at some point you can, you can maybe ask bigger questions as to, well, is this, is this right? That this has come to pass, that this situation has, has developed? Now obviously you can't just rip it all up and start again without causing huge problems for people in terms of people who might have invested quite happily people, who've made plans in relation to land but that the sort of existence of property law as a sort of bulwark to prevent anarchy, carnage, whatever, yeah, absolutely, that does make sense, but that shouldn't stop people being able to ask questions from time to time to make sure we're getting it right in the present day.

Adam Calo: If you look at recent reports that are concerning climate change, biodiversity, food security. From groups like the UN FAO or the IPCC they all note in their executive summary, that an urgent reform of how use land, is needed.  They don't necessarily talk about how we govern land, but they are very clear that the way we use land has to change, how might property be involved in that dimension?

Malcolm Combe: I feel like I should be asking you this question Adam, but in terms of my take on it, the right of ownership as I've sort of highlighted as is, is obviously an important agenda setting tool.  If you were to blindly accept current conceptualizations of, of property law and not sort of critique that at any point, then you may struggle to manoeuvre the change that is being driven for, by some of these entities that you mentioned. So, there are a few things you could do in relation to property rights. And essentially this comes down to the two broad approaches to reforming land, to land law reform are, you can change how you conceptualize ownership for all the owners or you can seek to change who the owner of an asset is in the hope that any incoming owner does better than the outgoing owner.

Now, obviously you'd hope that in the latter situation, that it wouldn't be, an unfair process that would lead to that and there'd be suitable procedures to follow and suitable compensation, et cetera. But in terms of the right of ownership, having an impact in relation to say climate change biodiversity, Food security …

You have this important sort of agenda setting role as an owner, if you own a large area of land, for example, and you're able to make sweeping decisions, which obviously in relation to, as I say, like other items of property, you would expect to be able to, to make those decisions about food, your weekly shop, your car, a musical instrument that you own, but when it comes to an area that that can have massive impact in relation to say carbon storage or,  the, the habitat of some important wildlife then clearly  the decisions that an owner takes will matter.

And, to come back to a point, I was just making about land governance if you can regulate that land use effectively for all landowners in relation to, for example, habitats, nest sites, whatever. Then maybe you don't need to think about how you allocate ownership rights.

But, if it's something which is bigger than that, or you're not able to directly influence habitat protection.  A way that just doesn't let people railroads their own interests across when it's something as important as climate change is, is surely going to become an emerging part of the property law story.

It's probably the, the biggest contemporary challenge for property, to face up to.

Adam Calo: I think what you're saying is quite profound.  I think what you're talking about is that there are some governance objectives that are incredibly important that will have impact on, you know, the life of the planet, essentially to put it blithely. In which the, the power of ownership of the ownership model, unbalanced stands to defeat. You point out these two these two alternatives: One change the meaning of property for everyone in the law, but also in society and two give someone else crack at it, via an asset transfer mechanism.

And I'm here in Scotland and I know a little about what’s going on and almost come to internalize some of these things. But as an American, those, both of those strategies although you said them very calmly appear to me as extremely radical.

Malcolm Combe: Yeah, and I, I completely get that.  Especially if you've got a tradition of suspicion of government and need to have property as a conceptualization of your own dignity, your own way of expressing yourself a foundation of your liberty. Yes. The idea of anyone coming in and mixing that up is bound to be challenging.

And, and frankly, it should be challenging because you don't want settled possessions to just be ripped up.  But if it's something that is as fundamental as climate change, or if there's other things at stake, if there's issues of concentration of ownership and that's something that's again, why we're speaking from a Scottish context.

So, so we've got our own story here.

Adam Calo: I wonder if, if we could get to brass tacks and, and explain what, what some of the moves here in Scotland are about.

Malcolm Combe: There are reports of concentration, of land ownership, being a particular issue in Scotland.  There are a number of writers who've, who've commented on this probably following on from John McEwen and the seventies, and you could people most notably in the present day, Andy Wightman, who is, an MSP in the Scottish parliament, for the Scottish green party, have identified issues where they think, hang on a minute, there is, there's a striking concentration of land ownership here.  At some point, if just because someone happens and own a lot of any particular asset, the economists would see, well, where's the market failure? What's the problem?

And, and Scotland's geography is such that there are certain, areas. Where an economy of scale suggests that you should perhaps have a larger area to make it viable.  That's absolutely fair enough for to run that as a counter argument, but there might also be situations where actually, the way that land is concentrated and decisions that are, that are made can have something of an impact. And there's a new entity that was set up, after our second Land Reform Act was passed in Scotland called the Scottish Land Commission that has been looking at things like concentration of land ownership.

Adam Calo: What are the, actual tools … the main legal manoeuvres of the Scottish Land Reform Acts?

Malcolm Combe: This is where suddenly I, I fall onto home territory as it were as a, as a Scots lawyer.  There are four community rights to buy that exist in our various land reform acts. So, we've got a community right-to-buy, which was introduced by the Land Reform Scotland Act 2003, which allows communities to get first dibs on an asset.

They get a right of first refusal a right of pre-emption so they can register an interest in land that is local to them and say: If and when that land is ever exposed for sale, we as a community will be able to buy that before anyone else can buy it.

This used to be a rural only right, but in 2016, the law was changed to all over that to also be used in urban areas. And, uh, we'll maybe talk about that a little later. I think?  There's also the 2003 legislation allowed for communities in the Highlands and Islands of Scotland, Crofting communities to buy their crofting land. If we start talking about crofting, I'll be here until next week.

So, we might want to just gloss over the back story of crofting. But the, the interesting thing with that crofting community right-to-buy is, it's a stronger right. It's not a right to first refusal. It's a situation where you can actually force the landowner to transfer the assets so you can choose when the sale happens.

In terms of, analyzing that then sort of justifying what the, why that might be the case, you might look at the particular demographics of the Highlands and Islands maybe justifying that, the crofting story that's led to that form of land tenure to be in existence.

But I suppose the, the key difference with crofting law and crofting land and non-crofting land is, crofting law really dictates what that land can be used for. So actually, changing who the landowner is, is probably not going to change a huge amount. Certainly not as quickly.

Adam Calo: Because to be a croft you have to adhere to a variety of kinds of, use activities, and other, other regulations.

Malcolm Combe:  Exactly. Unless you can follow a recognized legal process to “decroft” the land and sort of bring it out of crofting controls, then yes, you've got to essentially live and work in the land and follow certain traditional use, as you say, use rights have existed since the system was introduced in the late 19th century.

So that's the Crofting community right-to-buy. And then more recently there was a bit of legislation called the Community Empowerment, Scotland act 2015, first of all, changed the earlier community right-to-buy to apply to urban areas, but it also introduced a right for communities to buy land that was categorized as, abandoned neglected or environmentally detrimental land.

So in these situations where there's been some issue with, the current owner, essentially, leaving the land to be underused or actively doing something that's caused a problem, then a local community in that circumstance in relation to that narrow class of land is entitled to stake a claim for that asset and then force a transfer from the land owner.

That has not been used all the way to its logical end point of a force transfer. Yet there has been some attempt to use it, but it's not, it's not actually been deployed officially yet.

Adam Calo: That's one of the things that I've been finding interesting about these new legal entitlements is that essentially the threat of it going to its fullest expression creates new types of relations and interactions.

Malcolm Combe: I think that's right. And actually to come back to the crofting law, right-to-buy situation, it's there has been some litigation about it, but again, it's never actually had to go all the way through. The, the formal process it's been, it's been possible for the, the community and the landowner to get to eventually come to an agreement, albeit with this right-to-buy in the background that could force something through.

The final thing to mention very quickly is this newest right-to-buy which has only been on, on the statute books since April 2020.  This is the right-to-buy to further sustainable development. That was introduced by the most recent Land Reform Act in 2016.  It took a few years for it to come on stream and yeah, this similar to that

other right-to-buy, you mentioned the right-to-buy for abandoned, neglected or detrimental land it will allow for a sale to be forced. Where, the landowner doesn't necessarily plan to sell, but the community can, because of the particular circumstances, if they can make a sound enough case, and there are a lot of things they need to do, to do that for any right-to-buy any of these rights to buy that I mentioned the community has to show that

their scheme will comply with local, sustainable development goals as it were, and also need to show that the scheme is in the public interest and, and that the community is on side with it. And they've got local buy-in and approval for it. But with this newest right-to-buy the community is also got to show that not allowing a transfer

will cause the community harm and that there really is a strong, profound case for this transfer and that's a really high hurdle to clear.  We'll see whether or not that actually gets deployed in the future as I say, it's early days yet, but it wouldn't surprise me if that's more a background feature.

Adam Calo: That's a great summary Malcolm. There's a lot in there.  Just trying to summarize in my head, there is a couple of ways that this type of objective, which is diversifying land ownership.  And changing some forms of land use, for example, clearly it's that vacant and derelict land is not prioritized. That's not a value that the government would like to see.  What I'm interested in, in focusing in on …  And getting towards the case is the different, the mechanisms that have been chosen to try and deliver this. So one, it's by preferencing this idea of community and community ownership.

So that's a certain ownership that's clearly … the finger is weighted on the scale in terms of that form.  The other is that it still preserves ownership. It's not like these are being passed to kind of collective or commons or public lands.  And then third that, compensation is always at the end.

 Regardless if it's a forced sale or if it's a willing buyer.

Malcolm Combe: So there's a few things to sort of jump in on there in terms of you're absolutely right. That doesn't sort of create a common resource. It doesn't transfer into public ownership. It stays within the uni-titular or one title, one landowner model. And what the community has to do is become a legal form that then owns the land as if it was any other owner, albeit its structure is such that it is locally accountable, and it's got to govern the land

in terms of its own constitutional documents in a way that is suitable for that area. The third point you mentioned, you're going to have to remind me exactly what you said. Cause it was going to say something really profound and I've no forgotten what that was.

Adam Calo: Compensation. I think

Malcolm Combe: Compensation. Thank you. Yes. That just shows you how zany I am at the moment.

Compensation is absolutely crucial in human rights law terms. There is something called the European Convention of Human Rights. It's actually just celebrated its sort of 70th birthday. It came into being in the aftermath of the second world war.

And there was a heck of a lot of nasty things happened in the second world war. You don't need to listen to this podcast to tell you that, but amongst some of the horrible things that were happening, there were a lot of forced takings of property.  There was a specific provision brought in: Article One of the first protocol, the European Convention of Human Rights, which guarantees the peaceful enjoyment of possessions.

And if you want to deprive someone of ownership or if you are to somehow denude the right of ownership so much that it's worthless, then that would be a problem that would engage, the European Convention of Human Rights, unless it somehow in the public interest and also the proper process has been followed,

it's not arbitrary, it's not discriminatory. And when it's certainly when there's a deprivation involved, when you're taking someone's property away, compensation should be in the frame. And the way Scotland's lawmaking works at the moment. We've got a devolved Scottish parliament. That is the delegated lawmaking body in Scotland, which has had power transfer to it from the UK parliament. And there are certain things the Scotch parliament cannot legislate on.

Some of these things have been expressly reserved to the Westminster parliament. Other things though, the two key examples that were mentioned in the statute when it was passed was anything that went against European Union law and anything that went against human rights or European Convention on Human Rights.

Obviously, the EU points has moved away some work with the Brexit vote, but the European Convention of Human Rights is absolutely still there and if the Scottish parliament was to do something that engaged any of those rights in the European Convention of Human Rights, then it wouldn't be law. So that's why the Scottish parliament, it will, it should have been actively concerned about human rights anyway, but it's particularly concerned about anything in the European Convention, Human Rights, cause that's hardwired to a constitutional settlement.

Adam Calo: So, then the strategy becomes focused on that second clause, or I don't know if it's the second clause focus on that clause, which has in the public interest and with just compensation.

Malcolm Combe: Basically. Yeah. So we don't see just compensation in quite the same way that, um, the Americans do, but yes, particularly if there's a taking, if there's a, someone's been deprived of ownership, then you should be compensated in an appropriate way. And also it's the public interest.

 There are, there are some human rights where it's just absolute. So, prohibition of torture or there's no, there's no qualification in relation to that in the European Convention of Human Rights, but when it comes to property, that's not absolute, in the same way. So, if you can make a case that it's in the public interest, then you can reform the law without engaging, and tripping the European Convention of Human Rights.

Adam Calo: I wonder if we could get to a case to actually put some of these abstract concepts into more tangible means.  You recently, wrote a paper about one of the cases, which is the case of Portobello. Do you think you could, you could walk through this case of an asset that's important to a variety of web of interests, a community group, trying to assert their rights to that asset and, and the various, tapping into these new laws that ensue?

Malcolm Combe: I'm conscious that I must show respect to the people of Portobello who were involved in that transaction. And if any of them are listening, I do apologize in advance if I, uh, comment like an outsider on anything, but the, the key interests that myself and it's a chap called John Lovett.

Who's a professor of property law over in Loyola, New Orleans, Louisiana. He has a huge interest in Scottish land reform, which just shows you actually quite a radical, some of the, the Scottish land reforms are, if it's caught the eye of people, not just yourself from over the pond and other people as well, Adam.

John was over in Scotland a few years ago and he's been over it a few times and was really interested in the, the land reform goings on. And this was roughly at the time when the community right-to-buy was being expanded to not just apply to rural areas, but also to urban areas of Scotland.

And he was based in Edinburgh, at the time I was up in Aberdeen at the time. And we took a trip out to the Bellfield church over in Portobello. So, this is, to some, they would just quietly say it's in Edinburgh, others that would be an anathema. No, no it's definitely not part of Edinburgh. Anyway, it's, let's just say it in the Greater Edinburgh area, up towards the Firth of Forth. And there were three churches locally in the Belfield area and or the Portobello area and all, all Church of Scotland churches to the extent we have an established church in Scotland, but that's the sort of the main, uh, Protestant denomination in Scotland.

And in terms of the demographics of the Scottish religious community. It's fair to imagine that there are less people going to church now than there were, in the past.  Be that as it may, there have been a few instances where the church of Scotland is essentially sort of rationalized its estate. The village where I grew up had two Church of Scotland kirks and has now got one. That’s in a village called Kilbarchan in Renfrewshire and the church of Scotland in terms of divesting itself of these assets has done what anyone on may want to do and basically just sold them. The first of the three churches to be sold was sold on the open market. The community was aware of what was happening with this. And when it came to the second church also being sold off, I think there were a few people in the area,

were, well keen not to lose what they thought was an important community asset to another private scheme, which might've just been more converted flats.  And there was a degree of serendipity that the, this expansion of the right-to-buy, to cover urban areas coordinated with the second sale.

Or the second church being put on the market. So, they took steps to acquire it for the community and they eventually were successful in doing so. 

Adam Calo: So, the community forms a community group of the right as you write juristic persona. And they have a different vision of what they would do with this, this thing, which is a building that's been in their social lives for a long time. What is that vision that they would hope to do with it? If they did have more power to decide what to do with it?

Malcolm Combe: So, it would have been used as a sort of community venue. There could be childcare facilities, there could be sort of sports events.  I know shortly after the buy-out was sort of used as a Fringe event that has the Edinburgh Fringe, the sort of festival of culture that happens in Edinburgh when there's not a pandemic on.

And essentially, they just wanted to have a community space that would not otherwise have been available to them.  And they, rather than just have the sale proceeding to someone who would not have shared the local’s views of what was needed they thought, well, you know what, we're going to form a community body.

Try and work out if there is a viable scheme here and local support for it, which evidently there was, there was the sufficient sort of local social capital to demonstrate that. And then as you say the, the associated together formed a juristic persona and said to the Church of Scotland, “We'd quite like to buy this, please.”

And then, initially I think this is not to criticize the Kirk in any way, shape or form.  But I think they were initially of the will. We've got a duty that we just need to sort of maximize the bottom line here. So we are not sure that we're going to embrace your scheme straight away, but the expanded community, right-to-buy allowed the local community to say, well, actually we are the only show in town for the time being.

So you need to talk to us and we can show we've got local people who are interested and we're going to proceed with a scheme. Thank you very much.

Adam Calo: So, I think land owners, asset owners, is probably faced this dilemma or scenario many times where if the point does come up to sell, there are many competing interests, but ultimately they have a variety of,  values and interests that they would like to see accomplished through the sale.

And so it's just … that's the power of property is for them to decide.

Malcolm Combe: Exactly. And so you mentioned the right to exclude as one of the key aspects of property ownership.  Another key aspect of property ownership is the right to dispose and the right to choose if and when you transfer and on what terms and, the land reform act schemes, they, they do tweak with that right, to dispose. And that's why to some, it's "hekka" radical.

Adam Calo:  I'd like to turn to a quote that you and John Lovett write about this case in Portobello: "It gave marginalized communities a reason to believe that they could become players in the marketplace for rural and urban land. These communities can now bring property owners, whether they're owners of large rural estates, or even an entity as historically powerful as the church of Scotland to the bargaining table to discuss the transfer of property. Either in the shadows of the new legislation or under the formal auspices of that legislation."

Can you describe that a little bit more? What you mean by that?

Malcolm Combe: Yeah.  That sounds quite nice, doesn't it? Probably John rather than me.  The point being that suddenly with these sort of legislative routes to allow a community to acquire land. They can't just be dismissed out of hand. They can't just be ignored and sure, you would expect someone like the church of Scotland to be more sympathetic to community than other landowners or whatever, but then again, they were, their trustees would have just been thinking, we need to maximize a return here.

So, without this right they would have been able to just go "thanks, but no thanks." They would have been able to not bother with the community's plans and that's a huge shift. Even if you might sort of say that this right is slightly bureaucratic or this right, it's not as powerful as it might be in terms of it's only a right of first refusal.

It's still absolutely profound in terms of the way it can change the dynamic or at least it can, it introduces a dynamic that previously wouldn't have been there.

Adam Calo: What you just said is part of the reason that I was interested in learning from the Scottish case, because what you mentioned there is a change, in, to talk more specifically about power relations. And property is only as good as powerful actors of authority are to legitimize that property.

So, while some of these moves appear to be legal, they are also cultural and social in a way that is subtly shifting the power relations about what, what property is.

Malcolm Combe: I again, I'm not sure I can follow that up with a response. That's a really fitting way of describing it.

Adam Calo: In your paper you mention these three pillars, that you say happen in the Portobello case. And then you draw from that, that must be there for a community land acquisition. So there has to be the legal tools that you mentioned there has to be the financial support, and there also has to be the social and cultural support.

Can you describe those three pillars a little bit more? Cause we didn't touch on that financial one necessarily.

Malcolm Combe: Indeed. So. That the community would like to, by legislation says that you've got to buy the land at market value essentially, and, the vendor and the community are happy to agree a value between them. If they can't, then there's a process for that to be set, but there is no mechanism for an automatic funding mechanism built in for the community.

But there is separately something called the Scottish land fund. That's been in existence for a few years in Scotland in a few incarnations and it can be approached for grants. They will not 100% fund anything. They will always want to have the community, having a certain amount of skin in the game to make sure that they are serious. I think is the way they approach it, but this is the sort of internal processes rather than any legal point. And then that would also mean that, well, the community has got to find other income from somewhere else, which might be partnering up with someone. It might be local fundraising, and then they've got to within a certain time limit have that money available to allow for the transfer to take place.

Then in terms of the local support essentially, you've got to go out and say vote for me and canvas locally to make sure that people are in favor of a scheme and that when you are using a formal, community right-to-buy route, then you've got to have sufficient turnout and have that sufficient turnout, at least 50% of the community being in favor of the scheme.

Adam Calo: What you're saying is in the law, there's a geographic restriction on who can be a community, and that there's, a legal requirement to meet some kind of democratic approval of actualizing the right.

Malcolm Combe: Yeah. So within the legislation your community, is demarcated by geography, as you say. So initially it was done rather crudely by postcode units. Now there are different ways that you can identify the community. If it's, if it's an island, that could be the boundaries of the Island.  If there's a local community council, you could, you could use that as a, as a way of marking it.

 But within that area, then those who are eligible to vote in a local election are also eligible to approve or otherwise a scheme that's been put forward. And that basically means that you need to make sure that you're taking the community with you. And it's not just one or two loudmouths in the community who've got a scheme.  No, that it's got to be everyone on board with it.

Adam Calo: But Isn't that how these kinds of community actions work is a, is a loudmouth with energy and free time, you know, and, and perhaps enough capital to spend on, on these kinds of acquisitions. I think what the case of this paper really points out to me is that, yeah, I can imagine a rural area, a big hunting estate where the tenants who've been there and would like to see the land use differently implement these rights, but in an urban area with, with so many different competing interests, it's hard for me to imagine that successfully expressing the values of "a community" in quotes.

Malcolm Combe: Understood. And this is not to diminish the important role of loud mouths they absolutely have a place. It's just, they can't be a solo loudmouth. They've got to make sure that they've got others who will take what they're seeing on board. And as you say, in an urban area, where often people's associations and modern Scottish cities are going to be more like communities of interest than communities of place.  So, you're right, that you can imagine a difference between urban and rural areas. But here, it was an example of nevertheless, an urban area coalescing and saying but wait, we've got a resource here. We've got a common plan for what we're going to do with it. And, they were able to do that.

Adam Calo: I'm just starting to, I'm formulating a thought now, which has to deal around that kind of community of interest versus community of geography, because in some of the issues that I'm interested in, which is these landscape level land use changes.  The community of geography might be at odds with the community of interest.

You might have a group of urban consumers who want different food to be available in their schools, for example. But the land base from where that food is coming from is well outside of their geography. Even if it's rather close, it's still outside that limit. So there seems to be, there would need to be a lot more work done ... community building to, to generate the, that same feeling of the Portobello case, but across broader geographies, it seems to be a limitation with changing the landscape there.

Malcolm Combe: Again, you've explained something quite nicely without me needing to do much else.

Adam Calo: That also brings me to something that I just saw recently in the news, which is the Morven Woods buyout.  I was following it just loosely, on Twitter and headlines, it was a. Well, a quote unquote rural case where, it looked like the community was doing what they seem to do because they have some of the lottery fund, but now they need to raise, obscene amounts of money to buy this large estate.

They're doing everything they can to get it, including concessions from the vendor. There they do a public financing campaign.  And then at the last moment they didn't get enough votes to implement it.

Malcolm Combe: Yeah. So, a few interesting things to comment on in relation to that. And I similarly am outside looking into this.  But the key point to note was that scheme wasn't making use of any of the legislative routes. So, the need for a community ballot was not a legal one. It was either a funder requirement or a vendor requirement, or just a local sort of community building requirement.

Someone thought it would be a good idea to make sure that everyone was on side with it. Now, I'm not sure whether—I didn't see this Scottish land fund parameters in terms of any grant they would have got, I'm not sure of any, I wasn't party to any discussions between the vendor and the community, but had that ballot not taken place.

I mean, that's not a European Convention on Human Rights issue or anything like that. And there was actually one of the few cases to do with the community, right-to-buy, in crofting areas was a buyout up in Park and the East coast of the Isle of Lewis, they'd been a, a challenge in relation to the way the ballot process had run.

But, the relevant judge, Lord Gill  at the time said, But the ballot, it's not needed in terms of  the European convention of human rights, it, that sort of almost like a Rolls Royce, just to make sure that everything's a A-OK. So the Crofting community right to buy process does need about built-in. To come back to, to Morven what you've got there, is no legislative requirement for a ballot. And then for reasons that I'm not sure about, I don't know for why, that the scheme just didn't win the day.

It wasn't carried. There have been other close votes in the past I know the Wanlockhead Buyout, I think it was a big 52, 53% to 47 or 48%. But it just got through where does this scheme at Killundine didn't get through and the community, or whether it's the funders, whether it's the vendor that that was enough to say well, actually we need to, we need to take this off the table for the time being.

Adam Calo: What it made me think of is, just going through an election in the US when we're recording this. And my home state is California and we have the propositions there, where if you have enough signatures, you can put a proposition on the ballot, which is essentially a kind of a citizen way of, of rulemaking and lawmaking.

 And one thing that always comes with those ballots is tons of gamesmanship. So the different interests that might serve to win or lose, if that proposition becomes law, both sides spending a lot of money to try and get the greater public to vote yes or no on these propositions. And so, I was wondering if that's something that you've observed in this process.

Malcolm Combe: It's obviously, there's going to be a need to, take people with you. And this has been the first situation where, that effort has noticeably failed. Another interesting analogy.  The BBC, their Gaelic documentary program, Eòrpa, did a study from the Bays of Harris, which is in the outer Hebrides and the community there was going through the machinations of whether this would be a place for a community buyout to happen, and both sides were put across and it looked very finely balanced. As it happened, with the arrival of COVID-19 everything got put on the back burner I'm not sure the situation of that at the moment. But that report, would be worth a look if anyone's interested in, in some of the challenges that communities face to, to make sure that everyone's on side.

Adam Calo: Sometimes I might look at these processes with a little bit rose-tinted glasses. What, what does it actually mean for the individuals who are deeply involved in these places and who the transfer of ownership might change their livelihoods and in a variety of unknown directions. I think that's part of what you mentioned that the Scottish Land Commission is doing is trying to study and understand that the purpose of these types of transfers are actually meeting their goals.

Malcolm Combe: Yeah. And conversely, I just, through an item, there might be some people who are like, well, I don't think this does make any difference to me. So why should I vote for it? And these are people who would need to be convinced.

Adam Calo: There's also this other kind of critique, which is if you do have the land fund spending money. So, this is a public fund.  Why not just spend it on the community, why do you have to change ownership? You know, why don't we just build a road or, or build the school that the community hopes to produce, if they gain ownership?

Malcolm Combe: Correct. And that's something that John and I made a point of highlighting with reference to the Ulva transfer and some of the correspondence that was seen in the press at the time of the Ulva transfer or the Ulva funding. So the Scottish land fund give a lot of money to the, Isle of Ulva community group, that that was allowed to proceed with, an acquisition scheme.

It actually reminds me a bit of some of the work that was done on the difference between fragmented ownership versus concentrated ownership in terms of the, patchwork of who, who would own land, in a local estate or a local area, and how that would impact on the vitality of life there. and studies would highlight, well, actually, maybe it's whether or not there's a local post office that's really important. And again, that’s someone you're going to have to get a different guest and for a different podcast, Adam. 

Adam Calo: So we started talking about kind of what is property, and I feel like talking to you, you've helped explain how property can be many things and it serves, many roles.

Do you think property is taking on new meaning in Scotland compared to what it was, or perhaps compared to other places in the world?

Malcolm Combe: I think Scotland is currently more willing to look at property than it was. And even relatively recently, people are willing to critique it and think about it. Why that is? it's a good question. Is it the fact we've got a relatively young parliament? Is it  the fact that it was unfinished business? There's a really great chapter, in the collection that I edited with Jayne Glass and Annie Tindley by Ewen Cameron from the university of Edinburgh, on the strange survival of the Scottish Land question, he looks at some of the reasons why we're still pondering and still happy to look at these things.

Other people have pondered that Scotland didn't exactly have its sort of French revolution moment or American revolution moment where things got critiqued and stress tested that other nations would have had, hence why we're doing things now, as opposed to say what Ireland did about a hundred years ago.

For whatever reason I think Scotland is, certainly in a UK context, in a European context, it's doing more than other jurisdictions seem to be at the moment. And from my perspective, as a scholar of land law, it's a really interesting place to be.

Adam Calo: Well, me too. I mean, I think I always find that idea that, Oh, Scotland is just behind, other nations in terms of redistributing and, and reshaping its property rights, because at this moment, for folks who are really worried about land use, landscape decision-making, people are looking to Scotland saying, well, what, what are they doing?

How have they brought a willingness to critique property into a slightly more, friendly space that's not taboo?  I think that's where, where it stands for me. I mean, the first thing that I was aware of was walking out, in a semi-rural place and coming to a fence and my Scottish partners, you know, just going through the fence and me getting very worried that I was suddenly trespassing, but that's a whole different sense about, being an owner doesn't necessarily mean an ultimate right to exclude, but a responsibility to provide access as well.

Malcolm Combe: There you go. You'll be one of us soon, Adam.

I suppose the, the final point to try and sort of draw the, the various threads together is we need to have a bit of a pause, I think, to just see what these newest rights to buy do in the, in the coming months and years. This newest right-to-buy for, further sustainable development. It's, it's only been there since April. So, let's see what happens with it.  And maybe having this discussion in three, four- or five-years’ time would be a worthy thing to revisit.

Adam Calo: Thank you, Malcolm. This has been great.

Malcolm Combe: I hope so. And I apologize for my usual across so many different areas in my responses. I hope I've provided the odd insight amongst that.