The Future of Land Reform in Scotland. 1. Key themes. Unintended consequences: cherry-picking of land

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1 The Future of Land Reform in Scotland 1. Key themes Unintended consequences: cherry-picking of land The Scottish Government wishes to demonstrate long term commitment to land reform, but land reform cannot be viewed in isolation and if it was to be, there would be a danger of unintended and unwanted consequences If estate land belonging to a historic house or castle is cherry-picked, or if a historic house is sold without its managed landscape, there is a very significant danger that this might render the house or castle unviable Tourism is one of Scotland s key industries and its historic houses and castles lie at the heart of its tourist appeal. If land reform affects the viability of such buildings it will significantly affect the tourist industry Duty of Community Engagement Placing a duty of community engagement on charitable trustees, when making decisions on land under the trustees control is not unreasonable in itself However, a duty to listen is very different to a duty to act upon any view expressed from within a community and the framing of realistic terms of reference for this duty is likely to be exceptionally difficult Community engagement would be best at management level, rather than with the trustees, who responsibility it is to ensure the trust deed is adhered to, rather than manage external expectations Economic viability While there is an aspiration to economic prosperity through a democratically accountable and transparent system of land rights, there is no causal link between wider accountability and prosperity Indeed, the viability of many estates and their historic houses is founded on entrepreneurship and innovation, which is not necessarily a consequence of democratic accountability Mixed system of ownership The Scottish Government wants a balance of land rights that best delivers for the people of Scotland. This implies a mix of different types of public and private ownership, for which the HHAS has already expressed support in an earlier Land Reform consultation The Scottish Government should explicitly acknowledge that the best ownership model is likely to vary, depending on the property and that there should be no single preferred model to which land ownership should be expected to adhere The aspiration to complete the Land Register for the whole of Scotland within ten years does not seem unreasonable, assuming there is some de minimis provision Scottish Land Commission There appears to be a potential conflict of interests in the remit of the proposed Scottish Land Commission. If the commission is to actively promote land reform, how can it be objectively monitoring the impact? The commission s role would be better as one of enabling the implementation of government legislation, rather than active promotion of land reform

2 Achieving fairer distribution There are references to a fairer and more equitable distribution of land, but there is no clarity about what this means. If land reform implies dispossessing legal owners, contraventions of wider property law or the European Convention on Human Rights, this would be both morally and legally wrong Presumably the Land Commission would be charged with determining what constitutes fairer distribution, but there is no information about the basis for such a judgement 2. Answers to the consultation questions Draft Land Rights and Responsibilities Policy Q 1. Do you agree that the Scottish Government should have a stated land rights and responsibilities policy? Q 2. Do you have any comments on the draft land rights and responsibilities policy? 1. The ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland. It is not clear how this public interest is to be determined. There are, after all, often conflicting interests between different sections of the public. Similarly, the collective benefit of the people of Scotland is not a simple, demonstrable concept. If the basic principles of land reform are either not clear or not workable it makes any Land Rights and Responsibilities Policy essentially flawed. 2. There should be clear and detailed information that is publicly available on land in Scotland. There is no reason why such information should not be publicly available. 3. The framework of land rights and associated public policies governing the ownership and use of land, should contribute to building a fairer society in Scotland and promoting environmental sustainability, economic prosperity and social justice. These aims are not necessarily all compatible with one another. Systems of ownership which may be considered fairer do not necessarily yield the greatest public benefit. For example, publicly ownership of property has not, historically, been necessarily the best platform for economic prosperity or environmental sustainability. Indeed, any instability or uncertainty as a consequence of the land reform process is likely to inhibit economic growth. It is also important to note that, historically, independently-owned houses have generally provided substantial public benefit: they pay taxes, employ staff and the owners act as stewards of Scotland s heritage. 4. The ownership of land in Scotland should reflect a mix of different types of public and private ownership in an increasingly diverse and widely dispersed pattern, which properly reflects national and local aspirations and needs. Diversity of types of ownership is desirable. It should be explicitly acknowledged that the best ownership model is likely to vary, depending on the property and that there should be no single preferred model to which land ownership should be expected to aspire. 5. That a growing number of local communities in Scotland should be given the opportunity to own buildings and land which contribute to their community s wellbeing and future development.

3 The fact of community ownership does not automatically confer community wellbeing. Community ownership has value only if that is the best form of ownership to achieve economic prosperity, social benefits and environmental sustainability and if it is with the consent of the legal owner. It is important to remember that independent ownership is frequently the best model for successful land management. The current model of ownership can and does work, especially in terms of long term continuity. 6. The holders of land rights in Scotland should exercise these rights in ways that recognise their responsibilities to meet high standards of land ownership and use. High standards of ownership and use are important goals. Independent owners usually regard themselves as the stewards of their properties, looking after it for the benefit of future generations and of the nation. Any transfer of ownership would not necessarily bring about higher standards of ownership or use. 7. There should be wide public engagement in decisions relating to the development and implementation of land rights in Scotland, to ensure that wider public interest is protected. While public engagement may well be desirable at the level of consultation, it could become counter-productive if the decision-making process was to become dependent on it Aspirations for the Future Q. 3. Considering your long term aspirations for land reform in Scotland, what are the top three actions that you think the Scottish Government should take? Action 1: Protect historic buildings from cherry-picking of the land around them, in order to ensure they remain economically viable and continue to benefit Scotland for generations to come. Action 2: Ensure the rule of UK and EU law and the European Convention on Human Rights regarding ownership are not contravened. Action 3: Acknowledge that a range of ownership models is best and that no single model should be preferred or imposed. Proposals for inclusion in a Land Reform Bill Proposal 1 - A Scottish Land Reform Commission 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? It is important that if the Commission is to exist in perpetuity it has a clearly defined role which it cannot exceed. It might be more useful to think of a Scottish Land Reform Commission as an ad hoc body to be called upon when a land reform issue arises. It is important that the Commission is a body consisting of individuals with experience in land matters. The Commission proposes removing the provisional view on whether or not an applicant is likely to receive Scheduled Monument Consent on the grounds that a right of appeal is being provided and that there is a pre-application engagement process. Generally a provisional view is more constructive than a right of appeal as it gives an opportunity to modify the approach, whereas an appeal is more confrontational in nature.

4 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? If the Commission is to actively promote land reform, it cannot be objectively monitoring the impact. Monitoring should, perhaps, be carried out by an independent body. The Commission s remit, which should be subject to the requirement that its proposals are evidence-based, would be better as one of enabling the implementation of government legislation, rather than promotion of land reform. The Commission should include members from the private sector in order to properly reflect the diversity of land ownership in Scotland. Proposal 2 - Limiting the legal entities that can own land in Scotland 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 of land ownership in Scotland? While a persuasive case for this assertion is not made in the consultation document, the HHAS is committed to the principle of transparency in relation to 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 such a 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 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? Proposal 4 - Sustainable development test for land governance 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?

5 What powers would be required and what protection would be provided to ensure that landowners rights were not unduly infringed? If there is a public interest argument, then compulsory purchase powers can be used and no new powers would be required. 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? HHAS prefers option 1. Switching processes in mid-application is not desirable. Proposal 5 - A more proactive role for public sector land management 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 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 land management decisions to be placed on charitable trustees 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? It is current good practice and makes sound business sense, for trusts to keep local communities informed. However, the principal responsibilities of trustees are to their trust and trusts should not be bound by views which emerge from a community. In practice it is normally the management level with which communities want to interact, rather than at trustee level. It is not clear what sanctions are proposed if a trustee is considered to have failed in this duty, or how that failure would be assessed. Q. 21. What do you think the advantages or disadvantages would be? Communication, a sense of engagement and mutual understanding would all be advantageous. However, it would be disadvantageous to raise unrealistic expectations of the process. Q. 22. How should community be defined? This is a very complex question with many, varied answers. There are geographical communities, though their boundaries are not necessarily coterminous with their social or economic boundaries and may fluctuate. In addition there are communities of interest. Often communities do not have a clear, discernible collective will and this is one of many reasons why community consultation might

6 be beneficial, but direction by a community would not. Without clear, acceptable parameters being agreed for the idea of community, the land reform process would be fundamentally flawed. However, the HHAS is in favour of the geographical definition of community rather than that of a community of interest. 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 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? Proposal 8 - Common Good 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? 44 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 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 Land Reform Bill? There is a potential for confusion, so the two should remain separate. Q. 33. What do you think the advantages would be? Q. 34. What do you think the disadvantages would be? There is potential for confusion. Proposal 10 Wild Deer 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

7 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? 46 Assessing impact Equality Impact Assessment Q. 41. Please tell us about any potential impacts, either positive or negative, you feel the draft Land Rights and Responsibilities Policy or any of the proposals for the Bill may have on particular groups of people, with reference to the protected characteristics listed above. Please be as specific as possible. Q. 42. What differences might there be in the impact of the Bill on individuals and communities with different levels of advantage or deprivation? How can we make sure that all individuals and communities can access the benefits of these proposals? Business and Regulatory Impact Assessment Q. 43. Please tell us about any potential costs or savings that may occur as a result of the proposals for the Bill, and any increase or reduction in the burden of regulation for any sector. Please be as specific as possible. Increasing regulation tends to accompany increasing costs, especially when the timetable is so ambitious. There are likely to be legal costs, in particular and any additional burden is highly likely to affect the financial viability of historic houses. Privacy Impact Assessment Q. 44. Please tell us about any potential impacts upon the privacy of individuals that may arise as a result of any of the proposals contained in this consultation. Please be as specific as possible. Strategic Environmental Assessment Q. 45. Please tell us about any potential impacts, either positive or negative, you feel any of the proposals contained in this consultation may have on the environment. Please be as specific as possible.

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