Introduction
This is the third in a series of land reform blogs. Having previously considered the route to current proposals, and what is being proposed, this blog provides a summary of what key stakeholders have said in their consultation responses, as well a summary of the statistical analysis provided in Land reform in a Net Zero nation: consultation analysis.
The blog focusses on the key issues of the consultation, namely:
- Large-scale landholdings
- Strengthening the Land Rights and Responsibilities Statement (LRRS)
- Compulsory Land Management Plans
- A new public interest test, and a requirement to notify an intention to sell
- Receipt of public funding
Please note that it provides a flavour of the nuanced and complex responses from key stakeholders and is not comprehensive.
Consultation responses
In July 2022 the Scottish Government published Land Reform in a Net Zero Nation, a consultation on measures to “address the impact of scale and concentration of land ownership”.
In total, 537 responses were received, of which 162 were from groups or organisations and 375 from individual members of the public. Five in-person consultation events were also held with a further event online.
Of these 537 consultation responses, 482 respondents gave their permission to be published.
The Scottish Land Commission provided a detailed response to the proposals that are based on their recommendations, and overall felt that:
Taken together, the proposals […] provide a proportionate way to regulate localised monopoly power in the public interest, recognising the critical role of land in meeting Scotland’s public policy objectives in the economy, net zero, a just transition and fulfilling human rights. While being distinct to the Scottish context, they would bring Scotland more in line with international practice in which it is the norm for land ownership and use to be regulated in the public interest.
Large-scale Landholdings
A key proposal is to fix the threshold for defining large-scale landholdings at 3,000 hectares. A small majority (55%) of those who answered disagreed with this definition, with most calling for this to be lower.
Community Land Scotland’s response sought clarification on how a “landholding” will be defined – i.e. whether this relates to “holdings” or “titles”, given that the Land Register covers titles, however one holding may cover several titles, and may be complicated by tenanted land. They consider that:
the proposed fixed threshold of 3000 hectares is set far too high to
enable significant policy intervention to be undertaken to tackle issues of scale and concentration in land ownership in Scotland.
And go on to note that the Land Commission’s advice to Ministers suggested a threshold of 1,000 hectares, and propose that 500 hectares would be more appropriate, given that the vast majority of lowland tenanted farms are typically less than 300 hectares.
Scottish Land and Estates believe there is no evidence of a detrimental impact due to the scale of landholdings, and highlights the Land Commission’s work in this area which “points to the issue being potentially one of concentrated land ownership in specific areas, rather than scale itself”. Therefore, a measure of scale is inappropriate, and should not be used as a proxy. They argue that:
it is well known that using land to help reach net zero is most effective at scale, with ease of management, alignment of objectives, and reduced implementation risks to deal with.
And consider the proposed 3,000 hectare threshold to be “arbitrary”, having “seen no evidence which suggests that 3,000ha, or any other defined scale, provides a rational for implementing onerous policies and legislation”.
Strengthening the LRRS
A significant majority (75%) of those who answered agreed that there should be a duty on large-scale landowners to comply with the (currently voluntary) LRRS. Within this, 78% of individual respondents agreed, and 66% of organisational respondents. Among organisations most groups showed a clear majority in agreement, with the exception of landowner respondents where a substantial majority disagreed, and private sector organisation respondents who were relatively evenly divided.
The Royal Institute of Chartered Surveyors Scotland (RICS) agreed with this proposed duty, and feels that it is a “proportionate next step”, but called for clarity in relation to enforcement measures, with “time to adapt” given to practitioners and investors.
Some respondents felt that many landowners are responsible, including Speyside Community Council who also noted that “some clearly are not”. Therefore:
it is only fair and right that all large scale landowners have a duty to comply. With clearly defined Codes of Practice it would be easier to file complaints against those who refuse to comply. Enforcement Powers would also be welcomed.
The James Hutton Institute agreed, and set out key research findings that support this view, including their study where “local communities perceived that they had little influence on the increasing area of forested land and wind farms in the south of Scotland and, critically, that landownership scale and landowner type influences how communities are involved in decisions relating to land use and land management”.
The Scottish Gamekeepers Association neither agreed not disagreed, however flagged concerns about the potential for “malicious claims of malpractice” by those reporting breaches of the LRRS, noting that this could “exacerbate tensions in rural areas”.
Both The Firm of Invercauld Estate and Craigengillan Estate disagreed with the proposal, and highlighted that the LRRS has only been in place since 2017, and voluntary compliance has not been given a fair chance of success and evaluation. Invercauld considers that:
there is again no logical reason to apply the proposed duty on ‘large-scale landowners’ only- if the LRRS is needed, and in addition compulsion behind it, then logically it should apply to all sizes of landholdings. Indeed, it is frequently the case that larger the landholding is, the more publicly visible it is and hence the ability for it to ‘hide’ from public scrutiny is less.
Compulsory Land Management Plans
Again, a significant majority (77%) of those who answered agreed that there should be a duty on large-scale landowners to publish Land Management Plans (LMPs). Individual respondents were more likely to agree than were organisational respondents at 81% and 67% respectively. A majority of all groups of organisations agreed, with the exception of landowner respondents.
The Agricultural Law Association disagreed, noting that there are cost and administrative burdens in preparing and publishing management plans. They also questioned whether there is a clear benefit in producing management plans for all large-scale landholdings, arguing:
If the production of Land Management Plans is beneficial it cannot be the case that benefit ceases to apply because of the scale of the landowner’s ownership. This is disproportionate.
And noting that “it is difficult to see the contribution to net zero in this proposal”. They also highlight that there may be commercial sensitivity, confidentiality or data protection provisions which cannot be published.
Seafield and Strathspey Estates disagreed, questioning why these conditions should “only apply to large-scale landowners and not for all landholdings, regardless of size, especially if adjacent to a defined settlement”. They were however clear that they did not disagree “with land management plans in principle and support voluntary LMPs which are intended to specify facts about the land ownership and intended use, and setting out basic objectives over a defined period”.
The Scottish Tenant Farmers Association agreed, stating that the tenants of large-scale landowners would welcome “the transparency provided by publicly available plans”.
Highlands and Islands Enterprise also focussed on transparency and accountability, noting that there were positive outcomes “relating to land use, economic and community development objectives, regional land use strategies and national policy”. However, like other respondents they also thought that this duty should apply to all landholdings, stating:
A proportionate application of these proposals for holdings of different sizes would contribute to the Bill’s broader just transition, common good, and community wealth building outcomes.
Brodies LLP and Scotland’s Rural College (SRUC) pointed to the potential value in integrated planning, citing long-term forest plans, deer management plans, catchment management plans, flood risk management plans, and National Park plans etc as useful comparisons. Brodies goes on to highlight the potential costs of preparing and maintaining LMPs and suggests that public funding should support this endeavour. SRUC highlights research which shows long-term planning to be “an important prerequisite for ensuring sustainable management”, however warns that:
planning, in itself, does not deliver outcomes and there is evidence when planning is enforced by agencies/Government they are often not acted upon. It is unclear how monitoring of activity against the published plan would operate and what, if any, recourse there is for landowners not acting on their plans. Rigidity in the required approach may lead to unambitious plans with easily attainable goals.
The Land Commission is also supportive, and sees strategic advantage in long-term planning, particularly in relation to the delivery of Regional Land Use Frameworks:
Taken together the development of Regional Land Use Frameworks and the requirement for management plans on large land holdings can take a significant step in delivering more local participation and accountability in land use decision-making, as well as joined up, landscape-scale planning.
However, both the Land Commission and SRUC would like to ensure that there is no duplication of requirements from different policy agendas, primarily in relation to the possibility of Whole Farm Plans being required under agricultural reform.
A new public interest test, and a requirement to notify an intention to sell
Of those who answered, a significant majority (72%) agreed with the application of a public interest test (PIT) to transactions involving large-scale landholdings. The level of agreement was lower for organisations than individuals, primarily due to the majority of landowner organisations disagreeing with the proposal.
The Land Commission supported this proposal and set out what their proposed PIT might look like:
- Its purpose should be focused on mitigating the risk of monopoly power that arises from concentrated land ownership
- The PIT should be a measure that addresses the underlying systemic risk of concentrated land ownership, much in the same way the Competition and Markets Authority assesses the risks of corporate mergers and acquisitions in the wider economy
- The proposed test is intended as a process of assessment, not an end in itself; transactions should proceed where appropriate, or conditions could be applied where risks to the public interest are identified
- The potential outcomes could further support community ownership where appropriate, but could also deliver wider public interest outcomes relevant to net zero, nature, housing, local economies, and diversification of land ownership
- Potential outcomes should include the possibility to apply conditions making smaller or specific areas of land available to meet particular local needs such as housing, crofts, community facilities, local enterprise, agriculture, etc.
- The Commission’s original legislative proposal was for the ability to place conditions on the incoming acquirer of the land. The consultation’s proposed approach is to place conditions on the seller as well. This will increase property rights considerations.
Scottish Land and Estates disagree with “the proposals as they stand from what detail we have seen”, because:
to interfere in the legitimate property rights and expectation of parties to be able to transfer or sell/buy land should require a high bar of necessity, a clear policy rationale and the absence of any alternatives. These proposals make none of these cases and as a result risk breaches of ECHR [European Convention on Human Rights] rights and the possibility of legislation being defeated following legal challenge with all the uncertainty and disruption that causes.
Alvie and Dalraddy Estates disagreed and highlighted a common theme for landowners – that “It is not so much the size of a landholding but the way the land is managed”. They also questioned whether there was a consensus on what is within the public interest, noting that when “governments change and different political parties take control, what is perceived within the public interest will also change”.
The Royal Institute of Chartered Surveyors disagreed with the specific proposals due to “disproportionate impact on private property rights”, however “is supportive of the principle and objectives of a public interest test, [even though] it would be a complex undertaking”; stating:
With good practice set out and mandated through a strengthened LRRS and Land Management Plan, the question must be asked as to whether a public interest test prior to sale or purchase is feasible and proportionate.
Malcolm Combe and Dr Jill Robbie, both land and property law academics supported the proposals, with Malcolm noting that “there could be ECHR implications”. He went on to cite research that sets out interventions to manage land markets and limit the concentration of land ownership elsewhere in the world, noting that “there can be a variety of reasons for interfering in the land market, and other jurisdictions do so in suitable circumstances”. Jill considers that a PIT “would be an innovative addition to the range of measures being implemented to tackle the problem of concentration of ownership”, and Malcolm states:
Applying a public interest test to transactions of large-scale landholdings would in and of itself have an impact, by moving Scotland from its current largely unregulated land market, and the behaviour around transactions would adapt accordingly. This may afford “breathing space” for those not immediately involved with a transaction, and may also prevent “off-market” transactions from happening before communities even know they might be in the offing.
Land reform campaigner and former MSP Andy Wightman disagreed with the specific proposals, proposing that a PIT should be tied to “more objective criteria than simply that a holding is large scale”. These criteria might include, “environmental sensitivity, community development needs, local plan proposals, housing needs assessments, [and] business needs”.
Receipt of public funding
Of those who answered, there was significant agreement (79%) that eligibility requirements for landowners to receive public funding from the Scottish Government for land-based activity should include that all land, regardless of size, must be registered in the Land Register of Scotland. Similarly, 74% agreed that funding should require large-scale landowners being required to demonstrate compliance with the LRRS and having an up-to-date Land Management Plan. Individual respondents were more likely to agree than organisations at 80% and 58% respectively. A majority of landowner and private sector organisation respondents opposed these requirements.
One of the key concerns raised by stakeholders from all backgrounds and sectors is the length of time and complexity of registering land.
Scotland’s Rural College (SRUC) noted that registering all land would improve transparency, however “however it must be acknowledged that there are significant challenges (and inevitable time delays) in mapping and agreeing to legal boundaries of complex businesses”. The Scottish Community Alliance states:
Any new eligibility requirements should apply to all (large-scale) recipients of public subsidy, regardless of whether they are the owners of the land or tenants, otherwise a very simple loophole for avoidance is created.
Whilst we agree in principle that all land should be registered, the reality is that a great deal of Scotland’s rural land is not currently on the register, and there is a very substantial (and growing) backlog of open cases […] Imposing this measure immediately would therefore disqualify a great many landowners / land managers from accessing grants to deliver work of public benefit, who might have to wait a considerable period of time before their registrations were processed. Any requirement to register land must be phased in over a number of years, starting with the largest landowners / land managers.
Whilst supporting transparency of ownership, Scottish Land and Estates disagreed with these proposals, noting some of the concerns relating to cost and timescale set out above, and stating that the “Land Register service is extremely stretched and under resourced”. Practically, this could inadvertently lead to “a reduction in the undertaking of land management activities that often require public funding such as peatland restoration or tree planting”. In relation to cross-compliance with the LRRS, it is considered that “there is no clear framework as to how landowners can possibly demonstrate compliance” due to its subjective and repetitive nature. Therefore “it will be fraught with legal complexity”.
SRUC provides more detail on these potential legal complexities and notes that “LRRS conditions would need to be embedded within the Agricultural Support legislation (this would require precise measurable definitions and requirements to be included in forthcoming secondary legislation under the Agriculture and Rural Communities (Scotland) Bill.
Scottish Environment LINK agreed in principle with the proposals, but “has significant concerns over the implications”. In line with many other stakeholders, these relate to the “significant amount of land [which] is currently unregistered”, they feel that it would be “profoundly unhelpful if valuable land-based work, meeting Scottish Government objectives, could not be funded because of delays to registration that has not previously been required”. Therefore, a phased introduction is recommended. In relation to cross-compliance with the LRRS, they expect that “withdrawal of eligibility for public funding would require a reasonably high bar, such as an explicit or fragrant breach”.
What now?
These issues will be explored and scrutinised in more detail when the Bill is considered at Stage 1.
The Bill was expected to be laid in Parliament before the end of 2023, however it has recently been delayed. It will be scrutinised by the Net Zero, Energy and Transport Committee.
Alasdair Reid, Senior Researcher; Climate Change, Energy and Land Reform