Case Study Three:

BIRSE COMMUNITY TRUST

Robin Callander

Introduction

This case study describes the origins and development of Birse Community Trust (BCT), paying particular attention to BCT's involvements with the ownership and management of land.

BCT is a new community business that has been set up "to promote the common good of the inhabitants of Birse parish and deliver wider benefits". Birse parish covers over 120 square kilometres on Deeside in the Eastern Highlands. The parish has four main parts: the three scattered rural communities of Finzean, Ballogie and Birse and the largely uninhabited Forest of Birse, which covers a quarter of the parish's entire area. The parish has approximately 250 households and a total population of around 700.

BCT is a Company Limited by Guarantee and a recognised Scottish charity. Everyone on the Electoral Registers for Birse is automatically a voting member of BCT and thus responsible, among other matters, for electing BCT's Board of Trustees. BCT's first AGM was held in February 1999, two months before this case study was written. However, despite the fact that BCT has only been established for such a short time, it is already involved in acquiring a range of different rights and interests in land within Birse parish.

The first part of this case study outlines the two reasons why BCT was set up. The second part describes BCT's current and proposed involvements with land. The third and final part then comments on challenges that BCT has faced or still faces in securing these involvements.

Part 1: Origins

1.1 Background

The first of the two reasons why BCT was set up is one which affects many rural communities throughout rural Scotland. BCT is a local response to the changing nature of the support available to rural communities.

Traditionally, in parishes like Birse, nearly everyone was a tenant of a large private estate, and for most community needs the communities turned to the local estates for support. Then, in the post-war period, many estates became less able or less willing to perform this role, and during the 1960s and 1970s communities looked increasingly to the local authorities for support. In recent decades, however, the resources which local authorities have available for this purpose have become steadily more constrained.

This general situation led during the 1990s to growing recognition within Birse of the need for rural communities to take their own initiatives to meet local needs and to cast a wide net to obtain the resources, financial or otherwise, needed to implement these initiatives. One factor behind this awareness was the changing nature of the community itself. While only about 10 per cent of households in the parish were owner-occupied in 1950, the figure was up to 25 per cent by 1970 and has risen rapidly since. Now about 70 per cent of the households are owner-occupied.

Thus the first reason to establish BCT was to have a means or vehicle for carrying out local community projects and accessing the funds available for these from European and government grants, the National Lottery and other sources.

1.2 Impetus

The second reason was, in contrast to the first, very specific to Birse parish and provided the impetus to set up BCT. This was the need to have a local common good trust as part of resolving long-standing local issues about who had what rights over the area known as the Forest of Birse Commonty.

The Forest of Birse Commonty covers nearly all of the Forest of Birse and has an area of over 3,500 hectares. The Commonty is not a "commonty" as defined in Scots law (i.e., the undivided common property of neighbouring land owners), but has a unique legal constitution. This reflects the Commonty's long and complicated history of disputes. These disputes, which can be traced back to Crown and Church ownerships between the 10th and 16th centuries, have included physical conflict in the 17th century, Scotland's highest court (the Court of Session) in the 18th century and Britain's highest court (the House of Lords) in the 19th century.

The Commonty has not been in the courts during the 20th century, but uncertainty about the rights over the Commonty still continued. Two aspects were clear, firstly, that one private estate owned the 'solum' or land of the Commonty (the Hon. Charles Pearson of Forest of Birse Estate) and, secondly, that the sporting rights over the Commonty were shared between that estate and another local estate (the Nicol Brothers of Ballogie Estate). The issue was that an indeterminate number of parties in the parish shared or potentially shared poorly defined ancient rights of land use over the whole Commonty. This meant in particular that there was no agreement about who could manage the native pinewoods on the Commonty.

Thus, the second reason for establishing BCT was to try and secure, in a way that benefited all the inhabitants of Birse, both the survival of ancient shared rights over the Commonty and the management of the Commonty pinewoods.

1.3 Catalyst

The vital catalyst for taking forward the ideas of setting up a local common good trust and resolving the issue of the Commonty rights, was the possibility of funding from the Millennium Forest for Scotland Trust (MFST). This offered the prospect of some funds both to help meet the inherent legal costs of a settlement over the Commonty rights and to engage the local community more fully in the development of the common good trust. The promoters of BCT therefore set out to achieve several objectives through a four-stage process:

firstly - to secure the future of the ancient shared rights over the Commonty by vesting them in BCT as a common good trust to benefit everyone in the parish;

secondly - on the basis of these rights, to secure the sustainable management of the Commonty pinewoods by reaching an agreement with the owners of the solum and sporting rights in the Commonty that enabled BCT to receive the native pinewood grants;

thirdly - to use these forestry grants as matching funding for a wider MFST Project that could also include other woodland-related projects at sites elsewhere in the parish outwith the Commonty;

fourthly - to capitalise on the combination of Commonty rights, pinewood grants and MFST Project by using these as a strong platform from which to develop BCT as a viable and exciting community enterprise delivering increasingly diverse local benefits.

Part 2: Current Position

2.1 Long Lead-In

The promoters of BCT started to try to deliver their four-point plan in October 1995. They recognised right from the beginning that the key ingredient for success would be reaching agreement over the Commonty rights with the two estates that own the solum and sporting rights in the Commonty. Without that agreement, there would be no forestry grants and thus no MFST Project or wider vision.

The expectation was that contact with those estates would very quickly determine whether an agreement was going to be possible or not. Initial discussions were encouraging and led to what was expected to be the deciding meeting in December 1995. However, despite extensive groundwork, the meeting did not produce a clear outcome. Instead, the meeting led to further discussions and these turned into years of complex, and sometimes very difficult, negotiations between BCT and the two estates. More than once the prospect of agreement between the three parties seemed dead and yet each time the discussions were revived.

Remarkably, and historically, the parties eventually reached a settlement in January 1999, three years and three months after the start of the discussions. One illustration of the complexities involved was that, at one stage, six people representing the three parties had to meet one evening and execute 77 signatures between them on various documents forming parts of the settlement. Another complex process, prior to that signing, was the means by which the ancient shared rights were vested in BCT, so that BCT had the rights to be one of the parties to the settlement. This process would not have been possible in the first place without the commitment of two local families, the Farquharsons of Finzean and the Cochrans of Balfour, to convey their acknowledged Commonty rights to BCT as a gift to the community to mark the Millennium. The process itself involved two stages. Firstly, the Farquharsons and Cochrans and other local land owners with acknowledged or claimed Commonty rights formally conveyed these rights to BCT and, secondly, a public notice process ensured that all other land owners in the parish who might have Commonty rights accepted BCT's claim to hold all the Commonty rights, except those of the owners of the solum and sporting rights.

At the same time, two other main processes were going on. The first involved applying for grants, principally two Foretry Commission Woodland Grant Scheme (WGS) grants and the MFST Project grant. These major applications would have been challenging enough in their own right, but the lengthy negotiations over the Commonty meant that each application had to be revised and re-submitted on several occasions. The second other main process was engagement by the promoters of BCT with the rest of the community. This involved difficult balances to avoid raising expectations too far when, right up to a month before the final settlement over the Commonty, the whole package might have collapsed.

2.2 Successful Start-Up

Despite all the difficulties that have had to be overcome, BCT is now successfully delivering the original four-point plan that lay behind BCT's establishment. The long development process and the interlocking nature of the various components has meant that BCT has been involved right from its launch in implementing four major land-based projects. These are:-

• The Commonty Pinewoods

With rights over the whole Commonty, BCT is now involved in implementing two WGS schemes through its management agreement with the owners of the solum and sporting rights. These pinewood schemes involve over 530 hectares of Scotland's most easterly and 11th largest surviving Caledonian Pinewood.

• The Finzean Wood Mills

BCT has started to acquire and restore the three unique 19th century water-powered wood-working mills in Finzean, just downstream from the Commonty. BCT will ensure the continued productive operation of the mills (Sawmill, Turning Mill and Bucket Mill) and the development of their education potential.

• The Finzean Community Woods

BCT is taking forward 25 year leases over three areas. The first is to manage 12 hectares of native woodland as a community wood around the main area of settlement in Finzean. The second is to restore and landscape Corsedarder, a prominent local site that includes the parish's War Memorial. The third is to expand and develop Finzean School Wood, which dates from "Plant a Tree in '73". Many of Finzean Primary School's current pupils are children of the children who planted the original trees in 1973.

• The Balfour Plantations

BCT is developing a partnership with Forest Enterprise over their 240 hectare Balfour Plantation in the north of the parish. The early focus is on improving local access and amenity, but the agreement is to broaden and deepen the partnership. BCT also expects to be able to extend the local access arrangements to an adjoining plantation on Balfour Estate.

All these initial BCT projects are land-based. They are also all based on native woodlands in one way or other. This reflects in part the central role of the Commonty pinewood and MFST funding in BCT's origins. However, it also reflects the particularly rich surviving resources of native woodland and local woodland culture in Birse. These distinctive resources have thus provided the foundations for BCT as a very broadly constituted common good trust, with ambitions to deliver wider socio-economic and environmental community benefits.

2.3 Shared Interests

A particular feature of BCT's initial land-based projects is the range of different rights and interests in land that are involved in delivering the projects. Another feature is the extent to which these rights and interests are shared with other parties. The diversity and shared nature of these rights and interests is illustrated by the following listing:

• Ownership of land

BCT will own the three water mills sites. However, at the Turning Mill, the tenant will still own some of the buildings and at the Bucket Mill, the National Museum of Scotland will still own some of the fixed equipment.

• Ownership of rights

BCT has rights over the Commonty, while Birse and Ballogie estates also have rights over the same area. BCT also has a right of servitude for weir and lade over Finzean Estate land.

• Leases of land

BCT's 25 year leases of three sites in Finzean each represent a shared interest with the landlords of the sites.

• Contracts over land

BCT's North Hill Management Agreement with Birse and Ballogie estates over the Commonty pinewood sites is a legally enforceable contract over land.

• Other Arrangements

BCT's partnership with Forest Enterprise (FE) over the Balfour Plantation will be a legally constituted agreement of a different character to that in the Commonty, while BCT will also have a formal access agreement over 150 hectares of plantations on Balfour Estate adjoining FE's plantation.

Part 3: Comment

3.1 Past Legacy

Delivering the settlement over the Forest of Birse Commonty involved substantially more time and resources than BCT (or the other parties) ever imagined. Early on, BCT had to run up significant debts to put the forestry and Millennium Forest grants in position. Securing these grants involved making two large WGS applications, including a major Environmental Statement, together with the complex requirements of a MFST application. At the same time, BCT's debts for legal advice and other professional services continued to grow larger and larger, the longer the negotiations over the Commonty went on.

BCT had already been involved in this process for over a year and a half when the Highlands and Islands Enterprise (HIE) Community Land Unit was set up in June 1997. However, Birse is 30 kilometres outside the HIE area. BCT was also excluded from another important source of funding by being 3 kilometres outside the Grampian European Objective 5B area. Two and a half years into its negotiations, BCT did receive a fairly modest but vital grant from the Cairngorms Partnership. This was the only public funds BCT received in its entire development phase of over three years.

The Cairngorms Partnership payment was a crucial element in BCT's survival and eventual success. Another even more important factor was the willingness of BCT's lawyers and other professional advisers to carry forward BCT's debts to them and to be prepared to undertake further work, despite the risk that they might never get paid if a settlement over the Commonty was not reached. The flexibility of MFST and Forestry Commission staff in helping BCT to keep those grant schemes alive also needs to be acknowledged. However, much of the long saga over the Commonty depended on a substantial voluntary effort from within the community.

3.2 Implementation

With each of its four initial main projects, BCT is converting local issues into community opportunities. Implementation is very positive after the years of negotiations when there was no certainty that anything would be achieved. However, implementation has posed a new set of challenges for BCT to add to the legacy of its long and complicated development phase.

BCT had to start implementing its projects within a few weeks of knowing it finally had agreement over the Commonty. The trust was poorly positioned, however, to upgrade rapidly its organisational capacity. The continuing uncertainty over an agreement until so late, combined with the substantial debts built up over the three years spent reaching that agreement, meant that BCT could not afford to spend any money preparing for implementation. These difficulties have then been compounded by the requirement for MFST projects to be run on 'deficit funding' - which means BCT has to spend more money before being able to claim any grant.

In addition to coping with debts and deficit funding, BCT's progress has also been hampered by a lack of development funding to enable the trust to grow and diversify into new projects. Existing grants have tended to be focused on physical works for specific projects. One part of this problem has been the difficulty BCT has faced in obtaining any support from the enterprise network. Initially this was because there was considered to be no mandate for the network to support community land initiatives outwith the HIE area. Then, in January 1999, the government announced that Scottish Enterprise was also to establish a community land unit. BCT was the first community group in Scotland to register an interest with Scottish Enterprise. However, over three months later, the unit has still not become operational.

3.3 Way Forward

BCT's first AGM in February 1999 was a very well attended and positive event. This augured well for BCT's future and in the two months since, BCT has made major progress on many fronts. As part of that, BCT is already starting to develop new projects that are not related to woodlands. These projects will deliver an increasingly diverse range of local benefits which will balance and complement the existing projects within BCT's overall community enterprise.

Some of the new projects will involve the acquisition of further rights and interests in land within Birse. Acquiring such rights and interests is not an end in itself for BCT, but sometimes a necessary part of delivering projects. This may well be something which BCT shares with many other community land initiatives in Scotland, but there are some interesting features to note about BCT's position.

BCT is responsible for a mosaic of community involvement in land across the parish. The trust has legal rights and interests in the management and use of over a quarter of all the land in what is one of Aberdeenshire's largest parishes, yet it owns only a few hectares. This approach may offer a different type of starting-point for communities in many areas like Birse, where community buy-outs of estates is an unlikely prospect.

BCT's situation also contrasts with the conflict associated with the most prominent community buy-outs of recent years. Although there were long, and at times difficult, negotiations between BCT and the two estates over the Commonty, BCT was careful, for example, that the discussions never spilled over into the media. At the same time, final agreement was due to the willingness of the estates to persist in trying to reach a settlement that genuinely benefited the local community. Thus, despite the ups and downs, the agreement over the Commonty was reached in a spirit of local partnership.