A Consultation on the Future of Land Reform in Scotland: Analysis of Consultation Responses

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

Background

Landowners are instrumental in promoting sustainable local development and supporting communities. However, the Scottish Government contends that in some instances the scale or pattern of land ownership and the decisions of landowners can be a barrier to sustainable development of an area.

The Government considers that in situations where there is sufficient evidence that current ownership patterns and decisions on land are 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.

It is proposed that subject to the nature of the barrier, the evidence available and the solution required, the owner may be required to release or sell land. Any proposal must, however, comply with the requirements of EU law and the ECHR.

Proposal 4: Sustainable development test for land governance

Question 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?

6.1 941 respondents (81% of all respondents) addressed this question with the majority (72%) agreeing 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. Table 6.1 presents views by category of respondent.

6.2 Whereas three-quarters (75%) of individual respondents agreed with the proposal, only 56% of organisations supported it. Private landowner organisations expressed most opposition, with 93% of those providing a view disagreeing with what was proposed. Over half (57%) of private sector and professional bodies also disagreed.

6.3 Common Weal respondents agreed with the proposal; views from the Birnam Land Reform Workshop were that Scottish Ministers should not intervene in the management of local land, but communities through their community councils should be empowered to do so where this is justified.

Table 6.1: Views on whether Scottish Ministers or another public body should have powers to direct private landowners to take action to overcome barriers to sustainable development in an area (Question 14)

Respondent category	Agree		Disagree		Total no. of respondents
	No. of respondents	%	No. of respondents	%
National non-government organisations	25	78	7	22	32
Private landowner organisations	3	7	38	93	41
Private sector and professional bodies	10	43	13	57	23
Community organisations and representative bodies	18	95	1	5	19
Government and NDPBs	6	n/a	0	n/a	6
Local non-government organisations	5	n/a	0	n/a	5
Local Government	7	n/a	0	n/a	7
Academic	1	n/a	1	n/a	2
Total organisations	75	56	60	44	135
Individuals	602	75	204	25	806
Grand total	677	72	264	28	941

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

6.4 570 respondents (49% of all those who responded to the consultation) addressed this question, with relevant comments and/or identification of benefits and how best these can be achieved.

6.6 Many respondents provided very broad support indicating that they considered that benefits would accrue, but not specifying further what they may be, or being very precise in naming specific tracts of land and ownership which they felt were barriers to sustainable development.

6.5 A recurring comment (70 respondents) was that there required to be clearer definitions of the terms "sustainable development" and "public interest". A common view was that what one party may perceive to be sustainable development and in the public interest may not appear so from another perspective. A few respondents recommended that sustainable development be assessed and judged on a case by case basis. Other remarks included:

"Sounds like a catch all. I would need to know much more about the definition of sustainable development. For people? For nature? For the world?" (Ind).

"There is a great problem with defining sustainable development. Its origins lie in environmental concerns but it has been hijacked to mean anything with a 'sustainable' element in the sense of being economically long lasting rather than contributing to environmental sustainability. It should be clearly defined/redefined" (Ind).

Views on benefits

6.7 One of the most common benefits identified by respondents (83 mentions) was greater sustainability of land created by more diverse land use and improved land use. One view was:

"This could energise land use in Scotland and remove large tracts of 'fallow' land being bought purely for the gathering of grants, tax-breaks and unearned investment return" (Ind).

6.8 53 respondents stated that the proposal would be beneficial for local communities; 15 commented that the benefits would extend across Scotland.

6.9 89 respondents considered a key benefit to be the provision of public good over private interests. Many comments focused around the advantage of a specified body with appropriate powers being able to stand up to what some saw as obstructing landowners, on behalf of local communities. Comments included:

"The main benefit would be that it would be less likely that landowners could thwart the aspirations of local communities and other relevant communities of interest, often also against the spirit of national vision and policies" (Ind).

"....the aspirations of communities regularly get overlooked as land-owners may seek to further their own private interests at the expense of the sustainable development aspirations of communities in relation to local environmental quality. An independent regulator could start to redress the balance, by reviewing relevant policies relating to a given proposal and make recommendations independent of party political or commercial interests (Damhead & District Community Council).

6.10 In terms of sustainable development, a number of respondents were specific about the development they envisaged emerging from the provisions:

• economic benefits/increased employment in rural areas (59 respondents)
• more land available for housing (24 respondents)
• bringing neglected land sometimes caused by absentee landlords into public use (22 respondents)
• better renewable energy developments (21 respondents)
• stemming de-population of rural areas (17 respondents).

Recommendations on how the benefits can best be achieved

6.11 A common view (33 mentions) was that legislation already exists which can be used to achieve such benefits, but barriers may prevent this being used, with a recurring view that local authorities were, for various reasons, reluctant to use the provisions for compulsory purchase. Examples of other relevant legislation were provided, for example, the Scottish Wildlife Trust referred to the Wildlife and Countryside Act 1981 (as amended), the Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2004 (as amended) and Deer (Scotland) Act 1996 (as amended) and the Wildlife and Natural Environment (Scotland) Act 2011.

6.12 32 respondents called for the provisions to encompass legal entities and charities in addition to private landowners.

6.13 Many respondents appeared to share a vision of a stated process starting with community discussions with landowners and escalating to Ministerial intervention, which 29 respondents recommended should be deployed only as a "last resort".

6.14 The phrase "carrots and sticks" was used by several respondents, with contrasting views over whether the proposal should be supported with carrots (9 respondents), sticks (21 respondents) or both (5 respondents). Carrots were identified as financial support for landowners in terms of tax reductions and other monetary incentives. One respondent remarked:

"Landowners should be persuaded and if necessary helped to improve visual appearance in relation to derelict buildings or land which may be creating a long-term eyesore in a community. It may be that the offending property is to be developed, but due to economic reasons this is not occurring. If it is in the public interest to demolish the building and clear the land, the landowner could receive a loan to carry out the necessary work which could be repaid once development takes place" (Perth and Kinross Council).

6.15 Sticks related to threats and legal sanctions, which several respondents considered may be sufficient in themselves to result in co-operation from resistant landowners. Comments included:

"Having an agreed route set out so that land-owners know the repercussions should they not co-operate with reasonable requests will make them more likely to work with communities to find solutions" (The Highlands Small Communities Housing Trust).

"If a realistically useable power of intervention could be developed when public interest was clearly being thwarted, it could act as a sanction or deterrent. The very existence of such a measure might help prevent such situations arising" (The Forest Group).

"The presence of such powers of intervention will reduce the chance that they will be used, as private landowners will see the benefits in a locally negotiated outcome rather than one which is externally imposed" (Scottish Woodlot Association Limited).

6.16 There were other views expressed on which body should have powers to direct private landowners to take action to overcome barriers to sustainable development in an area, in particular:

• local community/community councils (16 respondents). One respondent commented:
  "If greater powers and duties were vested in local communities, (currently local authorities, but could be down to community council level) the powers over local land use decisions would not need to be, and should not be exercised by Scottish Ministers. Leaving these powers with Ministers would in my view be taking a sledgehammer to crack a nut" (Ind)

• top-down by Ministers (11 respondents)

6.17 The process by which the powers should be executed was referred to by some respondents. Many recommended models of arbitration (18 respondents); and discussions involving communities and landowners in which each presented their case (17 respondents).

6.18 A common theme was that decisions on whether to provide new powers should be evidence-based (31 respondents). A typical comment was:

"We think it important to carry out a review to assess all barriers to sustainable development before deciding on whether to give Scottish Ministers new powers" (Dunecht Estates).

Question 16: Do you have any concerns or alternative ways to achieve the same aim?

6.19 Of the 548 respondents (47% of all those who responded to the consultation) who addressed this question, many referred to previous answers they had provided in relation to other questions, or made broad comments without identifying specific concerns or alternative ways to achieve the same aim. The analysis below focuses largely on new material contained in responses.

Concerns about the proposal

Challenging assumptions and defining sustainable development

6.20 A common general concern (raised by around 50 respondents) was over what many felt was a pre-supposition in the consultation that landowners do not currently manage land well and are acting as barriers to sustainable development. Such a premise was questioned repeatedly, with comments such as:

"We are extremely concerned about the premise of this proposal, that private landowners are somehow the barrier to sustainable development. Behaviour as opposed to scale of ownership is the key issue. Land in the ownership of private organisations is overwhelmingly employed productively. It benefits local communities through tourism, job creation, agriculture, housing and more. Private and community ownership should not be viewed as opposite ends of a spectrum - both ensure the viability of our rural areas" (The MacRobert Trust).

6.21 Many respondents (also around 50) held the view that most barriers to sustainable development were generated by current planning legislation and restrictions rather than by private landowners.

Concerns over balance of power

6.22 A commonly raised concern (around 70 respondents) was over Scottish Ministers holding powers to direct private landowners to take action. This was viewed as overly centralised, with powers in the hands of those without local knowledge, unaccountable and open to political influence and abuse, particularly in circumstances where there is not a clear definition of sustainable development. Comments included:

"Ministerial whims would be a major concern" (Ind).

"It is not for the government to dictate how a given parcel of land is to be managed" (Ind).

"The notion of Scottish Ministers being able to take action to "overcome barriers to sustainable development in an area" is outwardly attractive, but fraught with philosophical and practical danger. The accretion of almost wartime powers to the Executive without individual parliamentary oversight is deeply worrying and would seem to overturn the notion of living in a market-based economy with limited, strictly defined and parliamentary-based government intervention" (Smiths Gore).

6.23 Many respondents recommended that another body, such as the proposed SLRC, would be more independent and accountable as the power-holding body.

6.24 A few respondents urged that care should be taken not to place too much power in the hands of local communities in terms of instigating the deployment of such action over landowners. Concerns were raised that loudest voices could dominate over a more reasoned community view.

Conflicts of interest and conflicting interests

6.25 Another broad theme to emerge from responses related to concerns over conflicting and contrasting interests.

6.26 Around 30 respondents raised concerns over which aspect of "sustainable development" would take precedence. Some predicted that economic interests would dominate in decision-making, with social, environmental and other aspects relegated. Comments included:

"We have a concern that the proposed powers could be interpreted as a 'presumption in favour of development' at the expense of environmental and social sustainability. There are considerable areas in the South of Scotland where the value of the land for environmental, cultural and recreational uses combined with their considerable contribution to ecosystems such as clean water, carbon sequestration and flood management is not adequately recognised. Limitations need to be put in place on the proposed powers to avoid these important areas from being damaged and sacrificed for socio-economic benefits which ignore or minimise their existing value and importance and the importance they have for the welfare of future generations" (Borders Forest Trust).

"Opposing approaches to sustainability may be difficult to accommodate, e.g. deer stalking vs quad bike trails. Fish farms vs wild salmon fishing (Ind).

6.27 Many respondents expressed concern that the proposal could lead to the loss of what they perceived to be scenic tracts of local land to land developed according to economic goals. The existence of different perspectives was acknowledged as an issue which would require to be addressed. One respondent summed up their view thus:

"One person's farm land is another person's wilderness for butterflies" (Ind).

Concerns over legal issues

6.28 27 respondents, mostly individuals, expressed concern that attempts to deploy the powers over private landowners could result in legal challenges by owners and expensive court actions leading to delay and costs to the public purse. Without clear definitions and criteria for action, it was felt that enforcement would be difficult with loopholes existing for unwilling landowners to drag their feet and use their wealth to engage experienced lawyers to argue their case.

6.29 24 respondents cautioned that any new proposal should meet the requirements of ECHR. A few considered that, as described, the new powers ran the risk of breaching human rights. 17 respondents perceived the proposed use of powers over private landowners to threaten the rights of owners. Comments included:

"Landowners' human rights must not be infringed" (Big Lottery Fund).

"We have concerns that landowners' rights could be infringed if the rights are given to the Scottish Ministers to direct the use of the property" (Ind).

"....propose that reasonable tests be laid down to ensure that a balance is maintained between the rights of the competing parties, including a financial/reasonable test, to ensure that landowners are not being asked to undertake tasks, carry out works etc which are not financially viable, or reasonable" (East Ayrshire Council).

6.30 A recurring comment generated by this question and previous topics raised was that entities other than private bodies own land, and should the proposal be widened to apply to landowners such as charities and communities, then other issues would emerge, such as conflicting interests between the aims of the entity, its constitution and those of the wider community/national priorities.

Other possible negative consequences

6.31 Other potential negative impacts of the proposal were identified each by a smaller number of respondents and included:

• Deters investment by creating uncertainty over permitted use and ownership of land. (16 mentions) A representative comment was:

"Potential investors and developers making a crucial contribution to the Scottish economy need certainty and would be deterred from investing in Scotland if there was potential for their land to be purchased compulsorily by or at the direction of the state. The mere existence of a state power to do that could deter investment and development and such a power would be a further interference with the fundamental right to private property" (Pinsent Masons LLP).

• Short term projects with early economic gains prioritised over longer term, sustainable land use. Concerns that longer term management plans may not be established. (10 mentions)

Views on alternative ways to achieve the same aim

Ground the proposal with evidence

6.32 A common view was that before any such powers are introduced, research requires to be undertaken to review the evidence on barriers to sustainable development in order to identify these objectively and thereby be better equipped to design strategies to address these.

6.33 To further the underpinning of any new policy, repeated calls were made for genuine consultation with communities over the proposals.

Make better use of planning strategy and law

6.34 A shared perception amongst many respondents was that there was a disconnect between local planning and local land use. Several held the view that many Government agencies relating to planning and development are not joined-up. They advocated streamlining and alignment of these processes as a high priority for Scottish Government and commented that in their view the current system is slow, expensive and inconsistent. Another thread running through several responses was that the proposal over-emphasised the role of ownership in barriers to sustainable development over land use.

6.35 Many respondents argued that more astute use of planning legislation could provide an alternative way to achieve the aim of promoting sustainable local development of land. Requests were made (over 40 respondents) that the current planning legislation is reviewed in order to make it more effective and straightforward to deploy. Several different mechanisms were referred to such as compulsory purchase orders (see paragraph 6.37 below) and community planning mechanisms which various respondents considered were under-utilised and could be better deployed with the aim of promoting sustainable development. Some respondents commented that the current system of planning regulations should be loosened with bureaucracy reduced. A few suggested that restrictions on land ownership (for example, capping the amount of land which can be purchased) would also contribute to the overall aim.

Sticks and carrots

6.36 As before, respondents made suggestions for sanctions and enticements aimed at landowners to promote their sustainable development of their land. A common view (27 respondents) was for land tax or similar to underpin any new legislation.

6.37 Around 50 respondents considered that compulsory purchase orders should be reviewed and made more useful as tools to deter landowners from failing to develop their land in a sustainable fashion.

6.38 39 respondents called for incentives rather than sticks to prevail. A few mentioned tax breaks or other incentives, but in general the view was for landowners to be encouraged and supported in their plans for development. Four respondents suggested that education on best practice elsewhere along with peer review and advice from experts would be useful.

Other comments

6.39 16 respondents (largely individuals) remarked that the Scottish Government should let free markets prevail, with several commenting that if there was an economic benefit to a sustainable development, landowners would need little persuasion to follow this route and would most likely be undertaking it already.

Views from campaign responses

6.40 Common Weal respondents reiterated the view emerging from many of the standard responses that the phrase "sustainable development" required further clarification. Caution was also expressed that landowners may intimidate tenants particularly in rural communities, and ways should be found to include communities in planning in a more empowering way. A call was made to ensure community powers are increased with Ministerial direction considered to be a last resort. The Common Weal view was that land value tax would be an alternative means to achieve similar aims.

6.41 The Berwickshire Common Weal response identified the release of land for local food production, affordable housing and other community enterprises as benefits to the proposal with local communities having more power, influence and control over their lives and the local environment.

6.42 Participants at the Birnam Land Reform Workshop considered "sustainable development" to be a "contentious phrase" and promoted the notion of a Caretakers' Charter as a tool for establishing, monitoring and defining what is sustainable. They also recommended the introduction of a mechanism for binding arbitration in disputes between landowners and communities.