The Land Reform Review Group's final report (published in May 2014) contained 62 recommendations in relation to Land Reform covering: land registration; succession law; crown property rights; the common good; the community right to buy; housing; taxation; crofting; aquaculture; and deer management, amongst other topics.

In June 2014, the Scottish Government published the Community Empowerment (Scotland) Bill, which contained various proposals in relation to: community planning matters; the common good; the expansion of the community right to buy; allotments, and other related matters.

In what turned out to be a busy year on the subject of land ownership, the Scottish Government then published their consultation paper on Land Reform in December 2014, paving the way for a Land Reform Bill (expected late June 2015).

Running alongside the two publications which focused exclusively on Land Reform (the Community Empowerment Bill and the Land Reform Consultation) was the work of the Agricultural Holdings Review Group and the Wild Fisheries Review Group (both of which deal with issues highlighted by the Land Reform Review Group).

When the Land Reform Review Group was commissioned by the Scottish Government in 2012, the intention was that the Group would identify how Land Reform might: (a) diversify the ownership of land in Scotland, (b) assist with the community purchase of land, and (c) generate new relationships between the land and the people.

At this point in the process (that is, after the publication of the Community Empowerment Bill, the publication of the Government's consultation on Land Reform and the analysis of the responses to the consultation) an interesting question is just how many of the Review Group's 62 recommendations the Scottish Government is taking forward. Click here for a table containing each of the 62 recommendations and a note of the response of the Scottish Government thus far.

The following table identifies within 6 broad categories how the Scottish Government has dealt with the 62 recommendations:

Action

Number of Recommendations

% of Recommendations

Recommendations being taken forward

Not necessarily implemented – but the Scottish Government is progressing either through the Land Reform Consultation, the Community Empowerment Bill, or otherwise actively progressing

17

27%

No proposals to implement recommendations

Either a firm"no" – or"not yet"

11

18%

Recommendations under consideration

Scottish Government is still thinking about it

20

32%

Already happening

Scottish Government is already implementing what was recommended

3

5%

Legislation not required

Scottish Government may implement recommendation, but does not need new legislation to do so

6

10%

Reserved to Westminster

Scottish Government does not have the power to implement the recommendation

5

8%

Total

62

100%

Some comments:

  • It is interesting to note that just over a quarter of the Land Reform Review Group's recommendations for change appear to have been actively taken forward thus far by the Scottish Government. Further, within the 27% of the recommendations which have been taken forward, a number may not actually see their way on to the statute books if they are abandoned during the legislative process. For example, it will be interesting to see whether the potentially controversial proposal to limit foreign entities owning land will be included in the Land Reform Bill once it is published.
  • A large number of the proposals (20 in number – or 32% of the total) are still under consideration in some shape or form, and the Scottish Government is yet to show its hand. About one fifth (11 in number – or 18% of the total) will not be progressed by the Scottish Government at this time.
  • The multifarious ways in which the content of the recommendations are being dealt with is testament to the apparently all pervasive way in which Land Reform appears to be on the Scottish Government's agenda – from aquaculture to taxation, from agricultural holdings to access rights, from conveyancing law to community right to buy.

It is clearly too early to assess whether the Land Reform Review Group has served its purpose, and the true impact of the Group's work will not be clearer until the Land Reform Bill eventually becomes the Land Reform Act at some point before June 2016. In the context of the lively debate which is anticipated following publication of the Land Reform Bill (expected late June), it may be that there is pressure on the Scottish Government to implement more of the 62 recommendations – a cause of some concern, no doubt, to owners and managers of land.

No

Recommendation

Action being taken

1

The Scottish Government should be doing more to increase the rate of registrations to complete the Land Register, including a Government target date for completion of the Register, a planned programme to register public lands and additional triggers to induce the first registration of other lands

Recommendation being progressed - target dates have been announced – all land owned by public bodies to be registered within the next 5 years, and all land in Scotland to be registered within 10 years

2

The Scottish Government should make it incompetent for any legal entity not registered in a member state of the European Union to register title to land in the Land Register of Scotland, to improve traceability and accountability in the public interest

Proposal included in the consultation on the Land Reform Bill

3

The Scottish Government should, in the interests of social justice, develop proposals in consultation with the Scottish Law Commission for legislation to end the distinction between immoveable and moveable property in Scotland's laws of succession

Under consideration

4

The Review Group considers that the expansion of land registration is likely to result in surviving examples of common land and commonties coming to light. The Group recommends that these distinctive forms of land tenure should be identified and safeguarded as part of modernising Scotland's system of land ownership

Under consideration

5

The Scottish Government should take forward the modernisation and reform of Scotland's compulsory purchase legislation, with a clear timetable for introducing a Bill to achieve this into the Scottish Parliament

Under consideration

6

The SG and local authorities should have a right to register a statutory right of pre-emption over land, where that is in the public interest

Under consideration

7

The SG, local authorities and other public bodies in Scotland should publish online property registers

Part of Community Empowerment Bill

8

The Crown Estate Commissioner's statutory responsibilities in Scotland, under the Crown Estate Act 1961, should be devolved to the Scottish Parliament

Reserved to Westminster – the Scottish Parliament cannot legislate

9

The SG review the current Crown property rights in Scots law and bring forward proposals for the abolition of these rights or their replacement statutory provisions, as appropriate, in the public interest.

Reserved to Westminster – the Scottish Parliament cannot legislate

10

The SG should ensure that the two reservations inserted by the Crown Estate Commissioners into the titles to Edinburgh Castle and other former Crown properties now owned by Scottish Ministers are removed

Under consideration

11

The size and composition of the National Forest Estate should continue to evolve to meet changing circumstances. The SG and FCS should develop a more integrated and ambitious programme of land acquisitions in rural Scotland, as part of delivering multiple public interest policy objectives

Already possible

12

A new statutory framework should be developed to modernise the arrangements governing Common Good property

Part of Community Empowerment Bill

13

There should be an agreed set of criteria which defines an 'appropriate community body', the SG should be flexible in terms of which legal structures are eligible. There should be a clear focus in public policy on supporting appropriate local community bodies that are owned and managed by local communities acting on their own behalves

Part of Community Empowerment Bill

14

The SG should set up a short life working group whose task would be to improve information on the numbers and types of community land owners and the land that they own, and to develop a strategy for achieving this target

No legislation required

15

Trust Ports and other forms of local community control over harbours, piers, slipways and similar coastal assets should be encouraged as a form of community land ownership. The SG should develop specific initiatives to assist this process.

Already being progressed

16

The SG, using the evidence and recommendations for change presented in this report, should develop a policy statement, with clear direction to all parts of Government and its agencies, on the objective of diversified land ownership in Scotland, and a strategic framework to promote the continued growth of local community land ownership

Policy statement included within Land Reform Consultation

17

Improvements to Part 2 of the Land Reform (Scotland) Act 2003 should include widening its scope to cover urban areas; enabling appropriate community bodies to be constituted as SCIOs; allowing communities to define their area by a boundary on a map; increasing the period of registration to ten years and decreasing the requirements of re-registration; and more generally to make the legislation more straightforward and less onerous for local communities to use

Part of Community Empowerment Bill

18

The statutory land rights of local communities should include a right to register an interest in land, the existing right of pre-emption over land and a right to buy land, as well as rights to request the purchase of public land and to request Scottish Ministers to implement a Compulsory Purchase Order

Under consideration

19

Local Authorities should have the right to exercise a Compulsory Sale Order over an area of vacant or derelict land, and also that Community Councils, or appropriate community bodies, should have the right to request a local authority to exercise a Compulsory Sale Order

Under consideration

20

The SG should ensure that there is an integrated legislative and financial support structure to help local communities in urban and rural Scotland buy and develop land and buildings. An adequate level of funding should be made available to meet an expected increase in demand for local community land ownership

No legislation required

21

The SG should publish new Guidance on State Aid to ensure public bodies take a more solution-focused and less risk-averse approach to their interpretation of the Rules. They should also enter into dialogue with the European Commission to improve the scope for public assistance to non-profit distributing appropriate local community bodies

Recommendation acted upon.

22

The SG should have a clear policy framework for the disposal of public property to appropriate local

Already happening.

23

All local authorities should have a 'Community Assets Transfer Scheme' to encourage greater local community land ownership, and that the arrangements in these Schemes should all follow the same consistently high standard of best practice

Part of Community Empowerment Bill

24

The types of support services provided in the Highlands and Islands should be made available to local communities in the rest of Scotland and that the SG should take a more integrated and focused approach to encouraging and supporting the growth of local community land ownership

Under consideration

25

The SG should establish a Community Land Agency, within Government, with a range of powers, particularly in facilitating negotiation between land owners and communities, to promote, support and deliver a significant increase in local community land ownership in Scotland

Under consideration

26

Local authorities should be given a new power of Compulsory Sale Order

Under consideration

27

The SG should explore the feasibility of introducing a Majority Land Assembly measure

Under consideration

28

The SG should investigate the potential of introducing an Urban Partnership Zone mechanism in Scotland

Under consideration

29

The SG should encourage and support a greater emphasis on public interest led development

Under consideration

30

Encouraging and supporting the development of a vibrant self-build sector should be an explicit aim of a housing strategy in Scotland

No legislation required

31

Establish a Housing Land Corporation, a new national body charged with the acquisition and development of sufficient land to fully achieve these objectives

Under consideration

32

The Housing Land Corporation should have explicit performance targets that recognise the specific needs of small rural communities and an extended operational role to enable these to be addressed

Under consideration

33

The SG should introduce a more comprehensive legal framework for common property, which clarifies and modernises the rights and responsibilities of both the individual ownership and the collective governance of such property

No proposals.

34

The SG should introduce longer and more secure tenancies in the private rented sector

Proposals published by Government

35

The SG should make rapid progress in implementing the Land Use Strategy across the rest of Scotland beyond the two pilot areas

No legislation required

36

The SG should produce indicative maps of the patterns of land ownership in the Land Use Strategy's current two pilot areas, and in other areas as the implementation of the Strategy develops

No proposals.

37

The SG should ensure that the necessary mechanisms are in place for the successful implementation of the Land Use Strategy in the public interest

No legislation required

38

The SG should map and monitor the patterns of land ownership in rural Scotland as part of implementing its Land Use Strategy

No proposals.

39

The SG should compile improved information on land ownership and undertake or commission more research into patterns of land ownership

Being progressed

40

The SG should develop proposals to establish such an upper limit on the total amount of land in Scotland that can be held by a private land owner or single beneficial interest, in law

Under consideration

41

The SG should develop a National Land Policy for Scotland, taking full account of international experience and best practice

Included within Land Reform consultation

42

The SG should review this historic universal exemption of agriculture, forestry and other land based businesses from non-domestic rates, with a view to the phased introduction of non-domestic rates for these land based businesses

No proposals.

 

43

The SG should review the current exemptions from sporting rates and introduce a reformed rates system as appropriate in the public interest

Included within Land Reform consultation

44

There should be a detailed study of the scope and practicalities of introducing Land Value Taxation

No proposals.

45

Each of the tax exemptions and reliefs should be reviewed and reformed as necessary, to ensure that there is a clear and transparent public interest justification for the public expenditure through revenue foregone

Reserved to Westminster – the Scottish Parliament cannot legislate

46

Changes to the current fiscal regime should include structuring them to encourage an increase in the number of land owners in rural Scotland, in the public interest

Reserved to Westminster – the Scottish Parliament cannot legislate

47

Developing a modern and robust statutory framework for crofting should be a priority for the Scottish Government. The crofting community should be at the heart of any such process, and have a clearly defined role within it. Reducing the complexity of crofting legislation should be an underpinning principle of any such process

No proposals.

48

The provisions in the Land Reform (Scotland) Act Part 3 impose unnecessary burdens on the crofting community in exercising the right to buy and that the ambiguities in the requirements that they have to fulfil can be exploited in the form of unwarranted challenges to the exercising of the right. The provisions of the Act should be amended.

No proposals.

49

Crofting trusts or crofting community owners should be able to purchase Scottish Government crofting estates at less than open market value. Ministers should direct the SG to make provision for this to happen and to clarify the circumstances under which this can occur. The SG should take a more pro-active approach to facilitating and supporting such transfers

Under consideration

50

There should be major improvements in the position of tenants under the Small Landholders (Scotland) Act 1911. These tenants should, like crofters, have a statutory right to buy their holdings.

Proposals included within Agricultural Holdings Review

51

The requirement for registration is an unwarranted constraint on the right of pre-emption of secure 1991 Act tenants under the Agricultural Holdings (Scotland) Act 2003. The legislation should be amended to remove this requirement and to provide that all these tenants have first option on buying any part of their tenanted holding which their landlord decides to sell

Proposals included within Agricultural Holdings Review

52

The position of secure 1991Act tenant farmers and their families as part Scotland's rural communities, should be an important consideration in the SG's current review of Scotland's agricultural holdings legislation. The SG should take full account of social and local community factors in determining whether the introduction of a conditional right to buy for tenants with secure tenancies under the Agricultural Holdings (Scotland) Act 1991, would be warranted in the public interest

Proposals included within Agricultural Holdings Review

53

Part 1 of the Land Reform (Scotland) Act 2003 has delivered a progressive statutory framework for improved public access over land in Scotland, and that the main challenges involve continuing improvements in implementation. Scottish Ministers should as part of that, update the Guidance provided to access authorities under Section 27 of the 2003 Act

No legislation required

54

The current common law public rights over the foreshore, inland water and seabed should be replaced by statutory public rights that are integrated with the public's statutory access rights over land under Part 1 of the Land Reform

No proposals.

55

Following the reform by the Scottish Parliament of the arrangements governing the management and use of Scotland's fresh water resources, the riparian rights still attributed to adjacent and surrounding land owners in Scots property law should be reviewed and reformed to reflect the public interest in these resources as now defined

No proposals.

56

The current system of District Salmon Fishing Boards based on property rights is no longer appropriate or adequate as part of the statutory arrangements governing freshwater fishing and fisheries. These should be abolished as part of putting in place a new improved statutory framework to ensure the sustainable management of Scotland's wild freshwater fish populations in the public interest

Under consideration

57

The presumptive Crown property right in Scotland to salmon fishings should be abolished or at least not exercised by the Crown Estate Commissioners until it can be. The coastal and freshwater salmon fishings held as ancient possessions by the Crown should be conveyed by the Crown Estate Commissioners to Scottish Ministers

Reserved to Westminster – the Scottish Parliament cannot legislate

58

The capacity in Scots law to create new ownerships of salmon fishing rights separate from the land over which the rights exist, should be ended

No proposals

59

The SG should develop a clear policy framework and associated arrangements to deliver improved opportunities for members of the public to fish for wild freshwater fish in Scotland

Under consideration

60

Improvements should be made to the current statutory framework governing the hunting of deer in Scotland to ensure appropriate culls are carried out to adequately safeguard public interests

Proposal included in Land Reform consultation

61

The SG should have an integrated programme of land reform measures to take forward the changes required to modernise and reform Scotland's system of land ownership

Under consideration

62

There is a need for a single body with responsibility for understanding and monitoring the system governing the ownership and management of Scotland's land, and recommending changes in the public interest. The SG should establish a Scottish Land and Property Commission

 

Proposal included in Land Reform consultation

If this Land Reform article raises any questions, please submit them to landreform@turcanconnell.com and one of experts will endeavour to respond to you in due course.