Community Housing Trusts
a Sustainable Community Housing Policy
(Revised Version Sept 2004)
discussion paper from Alastair McIntosh,
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.
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:
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.
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; indeed, it has always been this way, as a croft was never intended to be enough to live from. 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.
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. Consistent with the Biblical land ethic, land could not be “alienated” in perpetuity. To do so would have sowed the seeds of disrupting community.
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.
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!
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”. 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.
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. 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.
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:
(“Land Reform … the Next Stages”, The Crofter, No. 63, May 2004, pp. 9 – 10)
of the Centre for Human Ecology
of the GalGael Trust
of the original Isle of Eigg Trust
Version September 2004 (with postscript)
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 This paper may be freely circulated. It should not be assumed to reflect the policy of any of the organisations with which I am associated. I have called it a “consultation” paper, though it is more a matter of flying a kite in the hope that others may pick up and run with anything they find worthwhile. This text is also available online at www.AlastairMcIntosh.com/publications.htm.
 Other reasons why the crofter “right to buy” has never really taken off are that it can lead to problems with procuring agricultural grants, and, more deeply, the fact that many traditional crofters, rooted in the land ethic of Leviticus 25 (“thou shalt not own the land in perpetuity…”), have an intrinsic distaste for the notion of absolute private ownership. It is seen, with some justification, as alienation of the land from the community – a community that entails tripartite relationship with one another, with the soil, and with God.
 Hunter, James, The Claim of Crofting, Mainstream, Edinburgh, 1991.
 Hunter, James, The Making of the Crofting Community, John Donald, Edinburgh, 1976.
 Green, David, “Commission ‘Can’t Direct a Tenancy’”, Letters to the Editor, West Highland Free Press, 20 June 2003, p. 14.
 McIntosh, Alastair, “The Case for God: Carbeth Hutters’ Feudal Defence against Eviction”, Ecotheology, Sheffield Academic Press, Issue 8, pp. 86-110.
 In commenting on this paper the Rev Mike Edwards, C of S community minister in Govan, draws attention to the “Agenda for Communities” in Isaiah 65. Here, he suggests, we find four objectives: 1) Children do not die, 2) Old people live in dignity, 3) Those who build houses live in them, and 4) Those who plant vineyards, eat of their labour.
 www.isleofeigg.org . For full background on the Eigg community buyout and some discussion of Scoraig, see McIntosh, Alastair, Soil and Soul: People versus Corporate Power, Aurum Press, London, 2001.
 See Fairlie, Simon, Low Impact Development: Planning and People in a Sustainable Countryside, Jon Carpenter Books, Charlbury, 1997, pp. 72-76.
 McIntosh, Alastair, “It’s all about putting people in their place”, Irish Examiner, 21 June 2002.
 Rosegrant, Jane Katherine, Rural Resettlement Ireland: an Example of Assisted Counterstream Migration, its Impact on Participants and Communities, PhD thesis, Centre for Human Ecology and University of Edinburgh Institute of Ecology and Resource Management, completed 2003.
 It should not pass unnoticed that while what is proposed here would be in the interest of communities if exercised by landowning communities, it could open the door to feudalism by the back door if applied by private owners. This requires to be a matter for political awareness.
 I am grateful to Paula Cowie of the Sustainable Communities Initiative for prompting me to put on paper these ideas that have been developing for some time. Also, to Rupert Hawley, who undertook his recent MSc Human Ecology thesis under my supervision in the field of sustainable housing, and to various individuals who have commented on an earlier draft of this paper.
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10 July 2003