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A Consultation on the Future of Land Reform in Scotland

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Chapter 3: Proposals for inclusion in a Land Reform Bill

36. Land reform covers a wide range of policies and issues across Government. As highlighted above, many of the aims of the Review Group's recommendations will not require legislation or can be addressed through other Bills, either currently before Parliament or due to taken forward separately as part of a wider package of reform.

37. We have identified a number of desired outcomes within the Review Group's recommendations that are likely to require a legislative solution and could form part of a stand-alone Bill within this Parliamentary term.

38. This is why, as part of our early response to the LRRG Report, we committed to the ambitious target of laying a Land Reform Bill in the Scottish Parliament within this Parliamentary term.

39. Initial responses to the LRRG report, together with the level of engagement and debate on all sides of the referendum debate, show that the people of Scotland want to engage in the development of ideas and policies that will affect their future.

40. For each of the potential proposals for a Land Reform Bill, there are a number of questions to determine whether you: agree with the aim of the proposal; agree with the suggested method to achieve that aim; if you have any alternative proposals for achieving the aim; and whether you have any comment on the potential impacts of the proposals.

This chapter is split into 5 sections to reflect the proposed aims of the Bill as highlighted above:

A. Demonstrating long term commitment to land reform;
B. Improving the transparency and accountability of land ownership;
C. Addressing barriers to sustainable development and begin to diversify patterns of land ownership; and
D. Demonstrating commitment to effectively manage land and rights in land for the common good; and
E. Addressing specific aspects of land ownership and rights.

A. DEMONSTRATING LONG TERM COMMITMENT TO LAND REFORM

Proposal 1: A Scottish Land Reform Commission

41. Both the Land Reform Policy Group, chaired by Lord Sewel, and the recent Land Reform Review Group were clear that land reform is not an event but a process. As land is a vital and finite resource, land rights policies that impact on ownership, access and use of land are of significant importance within Scotland.

42. The creation of a Scottish Land Reform Commission would allow for valuable oversight of the wide spectrum of land reform issues, ensuring Scotland continues to make progress to address current and emergent issues.

43. While the exact structure and remit would need to be defined, this Commission could have responsibilities such as: promoting land reform; collecting evidence and carrying out studies; and monitoring the impact and effect of law, policies and practices on landownership in Scotland.

Q. 4. Do you agree that a Scottish Land Reform Commission would help ensure Scotland continues to make progress on land reform and has the ability to respond to emergent issues?

Q. 5. What do you think the advantages or disadvantages of having a Scottish Land Reform Commission would be?

Q. 6. Do you have any thoughts on the structure, type or remit of any Scottish Land Reform Commission?

B. IMPROVING THE TRANSPARENCY AND ACCOUNTABILITY OF LAND OWNERSHIP IN SCOTLAND

Proposal 2: Limiting the legal entities that can own land in Scotland

44. The Scottish Government understands that, in some cases, it can be difficult to trace and contact landowners and that this can lead to practical difficulties for those seeking to engage with land owners, or enforce fiscal or environmental obligations.

45. The Review Group recommended that the Scottish Government should make it incompetent for any legal entity not registered in a Member State of the European Union (EU) to register title to land in the Land Register of Scotland, in order to improve traceability and accountability. While the aims of this recommendation are supported, it does raise several policy and legal issues that require careful consideration.

46. The Scottish Government is, therefore, considering how any potential measures could work in practice and how they could be designed to help deliver the policy objectives of improving traceability and accountability of landowners and certain leaseholders in Scotland. It is important that any proposals taken forward are proportionate, effective, and comply with the requirements of EU law and the European Convention on Human Rights (ECHR) as well as other international obligations.

47. The Government's view is that it would be difficult to apply the proposal to existing landowners. Instead, it may be preferable to apply any restrictions to entities seeking to own land or buildings in Scotland, or take on a long lease,[4] after a date to be laid down in the future. As the Land Reform Review Group indicated, the restriction would just relate to entities: it would not relate to private individuals. As a result, private individuals, whatever their nationality, would still be able to own land.

48. While it is important to be conscious of concerns about inward investment, restricting entities not formed in accordance with the law of a Member State of the EU would not hinder inward investment. In particular, it is straightforward and low cost to set up a company registered in the EU, e.g. in the UK. Therefore, a restriction could be considered that in future land could only be purchased, or a long lease only be taken over land, by individuals or legal entities formed in accordance with the law of an EU Member State.

49. Imposing restrictions through the Land Register (or the General Register of Sasines) would raise issues around the interaction between the rules for entering into contracts to buy and sell land and the registration process for obtaining a real ownership right in land. Further consideration needs to be given on exactly how the restriction would operate and be enforced, including what consequences, sanctions or penalties might follow if the restriction is breached.

50. Some other exemptions might be needed, e.g. for foreign Governments (so they could establish consulates in Scotland) and international organisations (e.g. the United Nations or the Commonwealth). It will also be necessary to consider the position of legal entities from the wider EEA and Switzerland, due to the fact that Single Market arrangements generally extend to the EEA and to consider arrangements existing with other countries such as Switzerland.

Q. 7. Do you agree that restricting the type of legal entities that can, in future, take ownership or a long lease over land in Scotland would help improve the transparency and accountability of land ownership in Scotland?

Q. 8. Do you agree that in future land should only be owned (or a long lease taken over land) by individuals or by a legal entity formed in accordance with the law of a Member State of the EU?

Q. 9. What do you think the advantages or disadvantages of any restriction would be?

Q. 10. How should any restriction operate and be enforced, and what consequences might follow if the restriction is breached?

Proposal 3: Information on land, its value and ownership

51. Clear and up-to-date information about land, its value and ownership provides a good basis for open and transparent decision making - for both the private and public sectors.

52. Understanding the impact of public policies on land ownership, transactions in land and land values also helps Government design systems that help promote desired outcomes for planning, housing, agricultural and general land use policies.

53. At present there is a wide range of information on land ownership and land values held across the public sector. Examples of the wide range of organisations who hold this sort of information include the Registers of Scotland, the Scottish Environment Protection Agency, Highlands and Islands Enterprise, Scottish Assessors and Local Authorities as well as core Scottish Government and numerous other bodies.

54. Bringing this information together will provide further benefits. While there will be start-up costs, it should allow Government to realise longer term efficiency savings, such as through reduction of duplication data collections. There will also be efficiencies for end users of the information by ensuring that the can quickly locate the accurate information they require, rather than searching across numerous different sources.

55. A central repository may also bring the ability to react quickly to changes in demands from users around, for example, the range of available formats for information. Flexible provision of this sort of information should also allow the property market to develop in a more efficient and intelligent way and help reduce transaction costs for business.

56. Scotland's Digital Future: Delivery of Public Services[5] is a strategy that sets a number of objectives for the effective use and management of public sector data, both to improve service delivery and to promote economic growth. To ensure a cohesive approach is taken across Scotland, the cross sector Data Management Board (DMB) was established (June 2013).

57. The DMB has published A Data Vision for Scotland[6] and associated Strategic Action Plan[7] to provide guidance and leadership so that the effective use of data is engrained in all of our public services. The DMB is also looking to publish an open data strategy, which will open up non-personal public services data for re-use by the end of this year.

58. We are currently working to develop a better understanding of the variety of information sources available across the whole of the public sector and how best information, held by the public sector, can be made readily available and accessible for re-use.

59. As part of this process, we will consider whether any changes to legislation are required. Any proposals taken forward would have to be considered carefully to ensure sufficient safeguards are in place to protect personal and commercially sensitive information.

60. There will also have to be further consideration on the potential costs and savings. However, we would welcome your thoughts on the aim of this proposal.

Q. 11. Do you agree that better co-ordination of information on land, its value and ownership would lead to better decision making for both the private and public sectors?

Q. 12. Do you hold data you could share or is there any data you would wish to access?

Q. 13. What do you think the advantages or disadvantages of wider and more flexible sharing of land information would be and do you have any recommendations about how this can best be achieved?

C. ADDRESSING BARRIERS TO SUSTAINABLE DEVELOPMENT AND BEGINNING TO DIVERSIFY PATTERNS OF LAND OWNERSHIP

Proposal 4: Sustainable development test for land governance

61. The vast majority of land in Scotland is owned by the private sector. Landowners are instrumental in promoting sustainable local development and supporting communities.

62. However, in some instances the scale or pattern of land ownership, and the decisions of landowners, can be a barrier to sustainable development in an area. Providing mechanisms to address such situations could allow for potential barriers to sustainable local economic and social development to be overcome.

63. In situations where there was sufficient evidence that current ownership patterns and decisions on land were causing such barriers, then landowners could be directed by Scottish Ministers or other public bodies to take steps to remove those barriers, including working with the public sector body or the local community.

64. Subject to the nature of the barrier, the evidence available and solution required, this may involve the owner being required to release or sell land.

65. It will be important to ensure any proposal complies with the requirements of EU law and the European Convention on Human Rights. The detail of how such a process would work is still being considered and we would welcome your views.

Q. 14. Do you agree that there should be powers given to Scottish Ministers or another public body to direct private landowners to take action to overcome barriers to sustainable development in an area?

Q. 15. What do you think the benefits would be and do you have any recommendations about how these can best be achieved?

Q. 16. Do you have any concerns or alternative ways to achieve the same aim?

D. DEMONSTRATING COMMITMENT TO EFFECTIVELY MANAGE LAND AND RIGHTS IN LAND FOR THE COMMON GOOD

Proposal 5: A more proactive role for public sector land management

66. Just over 16.5% of land in Scotland is owned by either the Scottish Government or local authorities. The Review Group and others have applauded the work of Forest Enterprise Scotland (FES) and Forestry Commission Scotland (FCS) in facilitating the transfer of land into community ownership. Recent work by FES to establish starter farms for new entrants to farming has also been very successful.

67. It is clear public land should be managed for the greatest overall benefit, balancing a number of differing and sometimes conflicting public needs. We believe this should be done in a proactive way across the public sector, to deliver greater benefits across a wide range of policy areas and across the whole of Scotland. However, the legal framework for some public bodies can be a significant constraint on the range of operations that they can undertake to deliver these benefits.

68. Having a Land Rights and Responsibilities Policy will help promote this proactive approach. However, we also need to make sure that public sector bodies have the range of powers and the flexibility they need to take a wider, outcomes based approach to land management.

69. We are considering a range of ways to improve the ability of public sector organisations, such as Forestry Commission Scotland, to manage public land to promote social, economic and environmental outcomes in the public interest. We would welcome your thoughts on how best to achieve this.

Q. 17. Do you agree that public sector bodies, such as Forestry Commission Scotland, should be able to engage in a wider range of management activities in order to promote a more integrated range of social, economic and environmental outcomes?

Q. 18. What do you think the benefits would be and do you have any recommendations about how this can best be achieved?

Q. 19. Do you have any concerns or alternative ways to achieve the same aim?

Proposal 6: Duty of community engagement on charitable trustees when taking decisions on land management

70. All landowners should consider the ways in which decisions they take on land management impact on the local community. Other proposals in this paper consider the role of public and private sector landowners. This proposal considers the relationship between charitable organisations that own land and the local communities who may be affected by decisions taken on the use, management or transfer of that land.

71. Charity trustees are responsible for the governance and strategy of the charity. They are responsible for making sure that their charity is administered effectively and can account for its activities and outcomes.

72. At present, under section 66 of the Charities and Trustee Investment (Scotland) Act 2005 (the 2005 Act), trustees of a charitable organisation must comply with a number of general and specific duties - including a duty to act in a manner consistent with the purposes of the charity. The 2005 Act recognises that other legislation may impose duties on the trustees and the obligation to act in accordance with the purposes of the charity is without prejudice to any other legislative duties.

73. We would propose adding a specific stand alone duty on trustees of a charity that when considering the management, use or transfer of any land under the charity's control, the trustees must engage with the local community and consider the potential impact on the local community before taking any decision.

74. This consideration will require to be balanced with the exercise of their other functions and their duty to act in the interests of the charity and to ensure that the charity acts in a manner which is consistent with its purposes.

75. The details of such a duty and how it would balance with the trustees' other duties and the charitable purposes of the charity will need to be considered. We would welcome your views on how to achieve this balance.

Q. 20. Do you think a trustee of a charity should be required to engage with the local community before taking a decision on the management, use or transfer of land under the charity's control?

Q. 21. What do you think the advantages or disadvantages would be?

Q. 22. How should "community" be defined?

Q. 23. What remedies should be available should a trustee of a charity fail to engage appropriately with the local community?

Proposal 7: Removal of the exemption from business rates for shooting and deerstalking

76. The Scottish Government continues to deliver the most competitive business tax environment in the UK through its business rates policies. Our business (non-domestic) rates regime must continue to support businesses to flourish, whilst raising revenue to help deliver essential local services.

77. An exemption from business rates for "shootings, deer forests, fishings and fish counters" - often referred to as "sporting rates" - has been in place since 1995.[8]

78. Salmon fishing rights have continued to be valued by the Scottish Assessors, although only at the request of district salmon fishery boards for the purpose of fishery assessment (the 'salmon levy'), rather than for rating. The current business rate exemptions for fishings and fish counters will be subject to separate consideration by Scottish Ministers in due course in response to the relevant recommendations of the recent Wild Fisheries Review.[9]

79. UK Ministers in 1994 estimated annual council revenue from sporting rates at £2 million. Today, that could equate to around £4 million (subject to any rates relief).[10] However, given that shootings and deer forests have not been on the valuation roll since 1995, and the intervening changes in the country sports market and to the prevailing range of rates reliefs, an accurate calculation of revenue could only be made once new valuations are completed by the Assessors. Therefore, the above figure should be considered as an estimate.

80. It is proposed that the Land Reform Bill should include provisions to end the business rate exemptions for shootings and deer forests. Ending these exemptions would require identification and valuation of subjects by the Assessors, with rates bills calculated and relief applications determined by local authorities. This would bring shooting and deerstalking businesses back into line with other ratepayers who help fund local services.

Q. 24. Should the current business rate exemptions for shootings and deer forests be ended?

Q. 25. What do you think the advantages would be?

Q. 26. What do you think the disadvantages would be?

E. ADDRESSING SPECIFIC ASPECTS OF LAND OWNERSHIP AND RIGHTS

Proposal 8: Common Good

81. Common Good is a form of land ownership that has a long history in Scotland and often plays an important part in the historic, cultural and economic heritage of communities where such property exists. However, there is widespread agreement that the legal framework around common good needs to be modernised to meet modern circumstances and the expectations of communities.

82. Provisions already being proposed in the current Community Empowerment (Scotland) Bill seek to improve transparency by placing duties on local authorities to: (a) establish and maintain common good property registers; and (b) consult with Community Councils and others over any planned disposal of common good property.

83. However, we are aware that there are still a number of issues to be addressed around the definition of common good and the use and alienation of common good property.

Q. 27. Do you agree that the need for court approval for disposals or changes of use of common good property, where this currently exists, should be removed?

Q. 28. If removed, what should take the place of court approval?

Q. 29. Should there be a new legal definition of common good?

Q. 30. What might any new legal definition of common good look like?

Q. 31. Do you have any other comments?

Proposal 9: Agricultural Holdings

84. The legislative framework governing the tenant farming sector needs reformed in order to be fit for the 21st century. The current Agricultural Holdings Legislation Review, chaired by Mr Lochhead, Cabinet Secretary for Rural Affairs, Food and the Environment, has built a high level of engagement and confidence amongst the sector and there is a strong desire that the Review's recommendations be taken forward quickly.

85. The Agricultural Holdings Legislation Review Group has been working over the last year to develop a range of recommendations designed to address current concerns and promote a vibrant tenanted sector. The Group has consulted with stakeholders and the public throughout this period and the recommendations have been developed on the basis of detailed consultation with tenants, landowner and others in the sector.

86. The Group's interim report, published in July 2014, sets out the Review Group's analysis and thoughts on a wide range of evidence gathering and consultation that formed the first stage of their work and can be found here.[11]

87. The Group are due to complete their work by the end of this year and their final recommendations will need to be considered as a whole in order to achieve the aim of re-building confidence and improving relationships between tenants and landowners, facilitating retirement and encouraging new entrants and providing modern, flexible letting vehicles. It is hoped that a number of the recommendations, where legislative change is required, can be taken forward within the Land Reform Bill.

Q. 32. Do you agree that the Scottish Government should take forward some of the recommendations of the Agricultural Holdings Legislation Review Group within the proposed Land Reform Bill?

Q. 33. What do you think the advantages would be?

Q. 34. What do you think the disadvantages would be?

Proposal 10: Wild Deer

88. Wild deer are a key part of Scotland's natural heritage, bringing benefits in terms of tourism, sport and food. However, their distribution and numbers have the potential to have an adverse impact on the regeneration of woodlands, on fragile habitats, on agricultural crops and on road traffic safety. Wild deer therefore need to be managed to control their impacts on the environment and on land use objectives.

89. Wild deer in Scotland are not owned, but the right to take or kill deer rests with the owner or occupier of the land. There is no legal obligation on landowners or occupiers to manage deer. However the Deer (Scotland) Act 1996 contains powers for Scottish Natural Heritage (SNH) to intervene and impose management measures where SNH considers that deer management is detrimental to the public interest, and there is also a Code of Practice on Deer Management that sets out the responsibilities of landowners.

90. This voluntary approach to deer management in Scotland has been criticised for failing to address over-population of deer in some areas of Scotland, in particular where there are conflicts in land use objectives between those who wish to manage deer to maintain sporting interests and those who are seeking to restore or protect designated sites.

91. The Scottish Parliament's Rural Affairs and Climate Change (RACCE) Committee carried out an enquiry into deer management in early 2014 and while noting that the Parliament had confirmed support for the voluntary approach through the passing of the Wildlife and Natural Environment (Scotland) Act in 2011, concluded that Deer Management Groups (DMGs) need to make progress on developing and implementing deer management plans. The Committee recommended that the end of 2016 would be a suitable juncture to review progress.

92. In responding to the Committee, the Minister for Environment and Climate Change recognised that the pace of progress has been too slow and agreed that the end of 2016 would be a suitable juncture to consider progress and look to take action if the current voluntary system has not produced a step change in the delivery of effective deer management.

93. We propose therefore to bring forward provisions in the Land Reform Bill that will give further powers to SNH to act in areas of the country where they judge that insufficient progress is being made to protect the public interest. The powers would build on those already available through the Deer (Scotland) Act 1996. The aim of the powers would be to ensure that SNH can require that landowners have in place detailed sustainable deer management plans that protect the public interest and that the plans are fully carried out.

94. The new powers would not be intended as a replacement for the voluntary system of deer management, but as a backstop to be brought into play where the voluntary system was not delivering the public interest in certain areas. If Scottish Ministers decided on the basis of the review at the end of 2016 that there was a requirement to replace the voluntary arrangements with a statutory system, then this would be developed at that point. However, we consider it important that the proposed additional measures are in place - to ensure that deer management plays its part in delivering the 2020 Biodiversity targets - which could be implemented without delay if it is concluded that the current arrangements need strengthening.

Q. 35. Do you agree that further deer management regulation measures should be introduced to be available in the event that the present arrangements are assessed as not protecting the public interest?

Q. 36. What do you think the advantages would be?

Q. 37. What do you think the disadvantages would be?

Proposal 11: Public Access: clarifying core paths planning process

95. In what was considered at the time to be a radical move, Part 1 of the Land Reform (Scotland) Act 2003 formalised rights of public access in a statutory framework. Over 25% of the submissions to the Review Group commented on the management of public access.

96. The Review Group invited comments from the National Access Forum, established by Scottish Natural Heritage to advise on national issues linked to Scottish access rights, to ensure the Forum's work was reflected in the Group's recommendations.

97. The Review Group considered that the statutory framework in Part 1 should be judged a considerable success, that has delivered significant public benefits and is "generally working well on the ground". It noted that the main challenges were continuing improvements in implementation rather than the terms of the legislation, and recommended updating of the statutory guidance to access authorities.

98. In so doing, the Review Group highlighted a need for clarification of some aspects of the Core path planning process (sections 18-20 of the Act ). This is one of a number of small potential changes to Part 1 which have been identified as requiring some legislative change, and it is our intention to make these changes through the Land Reform Bill. The updating of the statutory guidance would follow.

Q. 38. At present, section 18 of the Land Reform (Scotland) 2003 Act is silent on the issue of resolving objections to a core path plan consultation. Do you agree that access authorities should be required, in the interests of transparency, to conduct a further limited consultation about proposed changes arising from objections?

Q. 39. Do you agree that section 20 of the 2003 Act should be clarified so that Ministerial direction is not required when an access authority initiates a core path plan review?

Q. 40. Do you think that the process for a minor amendment to core path plan (as set out in section 20 of the 2003 Act) should be simplified to make it less onerous than that for a full review of a core path plan?