The Scottish Land Commission has published its first Protocol in a series of Protocols to support the practical implementation of the Scottish Government’s Land Rights and Responsibilities Statement, produced in accordance with the Land Reform (Scotland) Act 2016. The first Protocol looks at “Community Engagement in Decisions Relating to Land”. The Scottish Land Commission’s Protocol can be found here.
What does the Protocol set out to do?
The Protocol is designed to support the guidance already issued by the Scottish Government on Engaging Communities in Decisions Relating to Land, which sets out expectations for those who take decisions about land around engaging communities who are affected by those decisions. The Scottish Government’s guidance can be found here.
The Protocol is intended to be an advice note providing additional practical advice on the application of the Scottish Government’s guidance to real world scenarios. The Protocol sets out the steps which “should” be adopted and those which the Protocol “recommends” be adopted. In the case of something which “should” be done, the Protocol is referring to a course of action that parties are expected to follow. In the case of something that it “recommends”, it is merely good practice and other approaches may be equally effective.
Who does the Protocol apply to?
The Protocol applies to “interested parties”, being owners of land, land managers (such as a tenant or agent) with significant control over land, community councils and other relevant community organisations.
“Land” covers any “right or interest in or over land”, and so includes buildings, watercourses, shooting and fishing.
When does the Protocol apply?
Landowners and managers are expected to engage with local communities where management decisions about land are “likely to impact” on them. Where a decision could potentially have a “significant impact” on a community more formal engagement or consultation will be expected.
What constitutes a “significant impact” is not precisely defined and will usually depend on local circumstances. Generally speaking, a significant impact is one that affects the local population as opposed to an individual and a series of small decisions can suffice to create a significant impact. For example, if a landlord withdraws a large number of rented properties over time, but in a piecemeal fashion, then that could lead to a lack of residential accommodation within an area, with consequences for the local economy. In a similar way, a number of different land related activities, each with a minor impact, could have a significant cumulative impact. For example, a large number of timber lorries and tractors on a local road at the same time as road works are taking place could create significant disruption.
The Protocol contains a list of “specific expectations” that are to be followed. For example, where one party makes a request for a meeting to discuss matters then this should be accommodated within six weeks. Minutes should be taken and made available within six weeks. Where there are plans to significantly alter an aspect of land management or use, then the proposed change should be publicly available at least three months prior to the change. Within six weeks of any consultation, the person making the decision should explain to the community how the views from the community have been taken into account in the decision-making process.
The Protocol recognises that those timeframes may not be appropriate in every circumstance and alternatives may be appropriate and agreed by the relevant parties.
How will the Protocol affect you?
Whilst there is no ability for the Scottish Land Commission to issue a formal finding of a breach of the Protocol, the contents of the Protocol should be considered best practice for landowners, land managers and community organisations alike. Where the Protocol is not followed, the Scottish Land Commission may be approached by any of the parties and the Scottish Land Commission will engage with the parties to seek a resolution. The Scottish Land Commission’s experience of its implementation will inform future recommendations made to the Scottish Minsters in relation to the Land Rights and Responsibilities Statement and, thus, land reform more generally.