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

7. DEMONSTRATING COMMITMENT TO EFFECTIVELY MANAGE LAND AND RIGHTS IN LAND FOR THE COMMON GOOD

Background

The Scottish Government believes that the public land should be managed for the greatest overall benefit, balancing a number of differing and sometimes conflicting pubic needs. They consider that a proactive approach should be taken across the public sector to deliver greater benefits across a wide range of policy areas and across the whole of Scotland. A range of ways to improve the ability of the public sector organisations, such as Forestry Commission Scotland, to manage public land to promote social, economic and environmental outcomes in the public interest are being considered with views on how to achieve this welcome.

Proposal 5: A more proactive role for public sector land management

Question 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 a more integrated range of social, economic and environmental outcomes?

7.1 906 respondents (78% of all respondents) addressed this question with the majority (79%) agreeing 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 a more integrated range of social, economic and environmental outcomes (see Table 7.1). Private landowner organisations was the only sector where fewer than half of those providing a view disagreed. Of the two academics who addressed the question, one agreed and one disagreed. A clear majority of respondents in all other sectors agreed with the proposal.

7.2 Common Weal respondents agreed with the proposal. The issue was not addressed by the Birnam Land Reform Workshop.

Table 7.1: Views on whether public sector bodies should be able to engage in a wider range of management activities in order to promote a more integrated range of social, economic and environmental outcomes (Question 17)

Respondent category	Agree		Disagree		Total no. of respondents
	No. of respondents	%	No. of respondents	%
National non-government organisations	28	85	5	15	33
Private landowner organisations	20	48	22	52	42
Private sector and professional bodies	19	86	3	14	22
Community organisations and representative bodies	16	94	1	6	17
Government and NDPBs	6	n/a	0	n/a	6
Local non-government organisations	5	n/a	0	n/a	5
Local Government	8	n/a	0	n/a	8
Academic	1	n/a	1	n/a	2
Total organisations	103	76	32	24	135
Individuals	613	80	158	20	771
Grand total	716	79	190	21	906

Question 18: What do you think the benefits would be and do you have any recommendations about how this can best be achieved?

7.3 545 respondents (47% of all those who responded to the consultation) provided a response to this question, their responses ranging from general agreement that benefits would accrue, to the identification of specific benefits and recommendations on how they can best be achieved.

Views on benefits

7.4 The most commonly identified benefit (88 respondents) was better land use in terms of more diverse and sustainable outcomes with environmental benefits in addition to other social and economic benefits.

7.5 Many respondents (41) considered that a key benefit would be greater co-ordination and integration in the management of land with one body having an oversight which would produce efficiencies and avoid duplication of effort.

7.6 Another broad benefit identified (35 respondents) was that public sector bodies would ensure that land use and management were in the wider public interest, for the common good, rather than meeting the interests of the few:

"This could potentially lead to greater benefit in public land being managed for the wider public benefit rather than just the private one of an individual local community" (Invercauld Estate).

"Public sector bodies exist to provide services to the public, and under this definition, it is surely beneficial that they are able to take on management strategies that extend beyond their official remit" (Ind).

7.7 Public sector bodies such as Forestry Commission Scotland were viewed as having the expertise to manage land and use it for community benefit (21 respondents). One respondent reflected the views of many:

"The various public bodies, especially the Forestry Commission, engage in best practice and are monitored and held accountable by the Scottish Government. Their aims already include the promotion of sustainable development and biodiversity etc. They are trusted by the Scottish people and deliver a very good service. Consequently, they are best placed to promote a more integrated range of social, economic and environmental outcomes" (Ind).

7.8 21 respondents considered that the proposal would enable public sector bodies to have greater flexibility in how they managed land with this freedom created by the removal of unnecessary constraints. It was felt that such bodies could be more responsive in terms of, for example, acquiring and disposing of land. Comments included:

"Greater flexibility for public sector bodies to have a more outcomes based approach to land management" (British Association for Shooting and Conservation).

7.9 11 respondents remarked on the potential benefits of public sector bodies working in collaboration and partnership with others and in alignment with national aims.

7.10 More specific benefits identified by respondents were:

• Improved employment opportunities through initiatives such as starter farms; apprenticeship schemes (43 respondents).
• Greater local amenities with positive impacts for physical and mental health (40 respondents).

"From a health perspective there is much to be gained from building on the social prescribing activity that has been supported by the forestry commission in recent years - promotes recovery and increases awareness of surrounding environment" (Ind).

• Increased public access to land for leisure purposes (e.g. cycle paths; footpaths) (25 respondents).
• Boost to viability of rural communities through increased economic benefits such as greater tourism (22 respondents).
• Potential for increase in housing, both short and longer term, through initiatives such as hutting and forest crofts (18 respondents).

"Woodland crofts should be more widely spread and given the same protection as other crofts" (Ind).

7.11 One theme to emerge across many responses was that the proposal would create the context for innovation and entrepreneurialism. Ten respondents raised this possibility specifically with a few commenting that community-based projects which aligned with the land reform agenda could be trialled, underpinned by what they perceived to be this forward-thinking, proactive approach to public sector land management.

7.12 Another theme was the potential of the proposal to promote community empowerment and involvement in aspects of the management and use of land. Community development groups and the opportunity for integrated community and public sector working were envisaged, underpinned by capacity-building amongst local communities. Comments included:

"Empowerment of local communities with regular consultation and collaboration" (Ind).

"More local control over how land is used, through Community Development Groups and local councils" (Ind).

Views on how this can best be achieved

General comments

7.13 A small number of respondents (12) took the opportunity to praise what they perceived to be current effective working by Forestry Commission Scotland and recommended that nothing be changed.

7.14 A common view (35 respondents) was that there would need to be a degree of easing of current legislative restrictions relating to land use and management in order to maximise the beneficial outcomes from the proposal. Restrictions in relation to buying and selling land and building on land were referred to in particular. Typical comments were:

"If public sector bodies had greater flexibility in what they could do with their land or it was easier to transfer ownership or management to another public body then it might be possible to make more efficient use of the public estate. Asset transfer by local authorities is well-established as a means of moving land and property into the hands of community organisations where they can best make use of it" (Ind).

"It would help in this process if the Scottish Government were less cautious in its interpretation of EU regulations on grant making, especially where local business and community groups may be requesting some support from public funds" (City of Brechin and District Community Council).

Balanced decision-making

7.15 A recurring view (47 respondents) was that public sector bodies should work closely with local communities to pursue sustainable development of land, so that local interests and views inform decisions. Formal consultation was recommended specifically by five respondents. One respondent remarked:

"Greater involvement of local communities in the land-use decisions of public sector landowners, especially national ones with their greater potential for losing touch with the local context, would help to ensure sensitive and progressive land management actions" (Ind).

Another envisaged:

"....small local management committees reflecting on and overseeing Forestry Commission locally to input local concerns. Including local land owners and residents" (Ind).

7.16 Different views emerged on factors to take into account when making decisions on land management and use. Most of those who provided a view (39 respondents) recommended that in order to be balanced and sound, decisions should consider not only a range of environmental and social impacts, but economic concerns should also feature strongly. Eight respondents cautioned that commercial returns should not be the driving force behind decision-making on land use:

"Profit itself is not a "dirty word", but it must not be the prime motive in this connection" (Ind).

A contrasting view presented by 14 respondents was that economic benefits should be prioritised:

"The economics of activity must be the driving force whilst taking care of the environment and social responsibilities" (Ind).

Models of working

7.17 A myriad of recommendations on different models of working emerged from responses, with only a few respondents proposing each. Key amongst these were:

• All powers (land management and development) should be devolved to communities.
• Use existing public sector bodies rather than set up new bodies
• Regional forestry bodies should be established or regional land boards set up to co-ordinate activities.
• New SLRC should co-ordinate and monitor public sector bodies engaging in these activities.
• An independent public organisation should co-ordinate activities across public sector bodies.
• New body subsidiary to Forestry Commission Scotland to co-ordinate activities across public sector bodies.
• Better to let private organisations own and manage land.
• Cast the net widely to include public bodies such as NHS and Scottish Water.
• Community Land Agency could have a role in integrating the land assets and expertise of public bodies.

Views from campaigns

7.18 The Common Weal view was that where land is in public ownership or management, its management should be integrated into wider strategies of economic and social development. However, they identified the "best strategy" to be the encouragement of more diverse ownership of land, allowing for a wider range of use and increased innovation, and envisaged the introduction of the Land Value Tax as instrumental in bringing the cost of land much closer to its economic value and thereby giving individuals and groups better access to land ownership.

7.19 Birnam Land Reform Workshop did not comment on this proposal.

Question 19: Do you have any concerns or alternative ways to achieve the same aim?

7.20 456 respondents (39% of all those who responded to the consultation) provided a relevant response to this question. There was a tendency amongst many respondents to focus on Forestry Commission Scotland as the only public sector body concerned, rather than view this organisation as an example of the type of public sector bodies which could be involved. This resulted in many respondents judging the performance of Forestry Commission Scotland in terms of how effective they felt it would be under the proposal.

Concerns raised by respondents

Lessons from the status quo

7.21 A recurring view (25 respondents) was that public sector bodies already have powers and arrangements in place to engage in a wider range of management activities with different bodies making good use of these, with others considered to under-use them. One landowner commented:

"....the Scottish Government should be aware there are in any local government area any number of agencies, bodies, business groups and indeed individuals communicating regularly and acting together whenever opportunity offers to make that area more effective, improve all manner of facilities and ensure that there is wider and better understanding of people's needs and aspirations. It is impossible to visualise any further participation that would make any useful difference" (Ballogie Estate Enterprises).

7.22 It was commonly thought (55 respondents) that there was no reason to expect that the proposal would lead to improvements over the existing arrangements, with many respondents documenting instances in which they felt that public sector bodies had not managed activities well. Some respondents perceived public bodies such as Forestry Commission Scotland to lack the expertise required to engage in a wider range of management activities.

7.23 58 respondents argued that bodies like Forestry Commission Scotland should focus on their current remit. Some felt that widening their functions would lead to a diminution of their effectiveness in their specialist area. Comments included:

"The Forestry Commission has for many years been broadening out into a wider range of management activities. I think most people in the forestry business would agree that this process has, if anything, gone too far already and the FC is in danger of losing sight of its original mission" (Ind).

"FCS should concentrate on their main role of providing a strategic timber resource and supporting the forestry industry. This industry provides important long term and well paid rural jobs in fragile areas" (Ind).

"I believe that public sector bodies already deliver excellent social, environmental and economic outcomes and would question what sort of "wider range of management activities" are being sought. These bodies should be permitted and indeed encouraged to manage their land in the best and most integrated way, subject to their remit and constitution" (Ind).

7.24 Some respondents (13) considered that public sector bodies lacked the necessary business acumen to undertake a wider management role with the possibility of fiscal incompetence a barrier to the success of the proposal.

Structural restrictions on effectiveness

7.25 A common view (35 respondents) was that the proposal would incur costs in terms of finance and human resources. They perceived public sector bodies already stretched on both of these counts.

Conflicting agendas and interests

7.26 A dominant theme was that different public sector bodies have different aims and agendas which may be in conflict with each other. In addition, many different groups and sectors who will be involved in a range of activities will be competing for their own interests. 50 respondents questioned how such tensions will be addressed. Key concerns were whether economic interests would prevail, or whether environmental concerns would take priority. Comments included:

"Encouraging a 'wider range of management activities' should not be confused with the much narrower aim of maximising the financial return from the land under a public agency's control. The primary aim of publicly owned land is the public good and public agencies should not be driven to prioritise economic development over all other public benefits" (Borders Forest Trust).

"There is concern that misplaced "green" motives, however commendable, might over rule necessary and basic land managers' objectives" (Ind).

"Public agencies should hold land for the public good and that needs to be the test applied rather than simply trying to maximise financial returns" (Ind).

7.27 There was some concern that in trying to marry many different interests, public sector bodies could end up not fulfilling their main purpose and not achieving anything to anyone's satisfaction. One respondent summed this up:

"It is a fine example of giving a body a mixture of objectives, resulting in it achieving none, and especially not its primary one" (Ind).

Accountability and independence

7.28 Questions were raised over how accountable and independent public sector bodies would be in undertaking this broadened remit, when personnel are appointed by Scottish Ministers and are not democratically appointed (23 respondents). The importance of openness was emphasised with one respondent remarking:

"There is a risk of public money being seen to giving unfair advantages unless there are clear and open accountability as well as defined rules and regulations" (Ind).

Other concerns

7.29 Several other concerns were raised by respondents, the substantive ones being:

• Centralised and possibly remote public sector bodies may not engage with communities and take necessary cognisance of their views. There will be a power imbalance between the large professional organisations and the smaller community bodies. (44 respondents)
• Risks becoming too bureaucratic and inefficient. (24 respondents)
• Risk of unhelpful state interference over local land management activities. (18 respondents)
• Questions over how different public sector bodies will integrate and collaborate over their engagement in a wider range of management activities. Concern over duplication of effort or that some will pay only "lip service" to their wider remit. (10 respondents)
• The rights of private owners appear to be overlooked in the proposals. (10 respondents)

Views on alternative ways to achieve the same aim

7.30 Common views were that greater ownership/leasing of land and/or management of land should be in the hands of private sector or community bodies. The most frequent recommendation was for increased community land ownership (45 respondents) or community trusts (19 respondents). 39 respondents advocated greater private ownership of land, with some considering that private owners should be incentivised and supported to manage their land for the public good.

7.31 A recurring view (16 respondents) was that community planning provided a useful model for operation of the proposal. One respondent suggested that bodies such as Forestry Commission Scotland and SEPA are represented on the proposed SLRC.

7.32 A theme which emerged in responses across many questions was that a land value tax would assist in promoting greater diversity in ownership.

Views from campaign responses

7.33 Common Weal respondents re-iterated their view previously provided that a land value tax could influence the cost of land and would be an important step forward. Berwickshire Common Weal respondents considered that fair value transfers or leases to local community groups or individuals who operate in the public interest may achieve the same aims. There was no comment on these issues from the Birnam Land Reform Workshop.

Proposal 6: Duty of community engagement on charitable trustees when taking decisions on land management

Background

Trustees of a charitable organisation must comply with a number of general and specific duties under section 66 of the Charities and Trustee Investment (Scotland) Act 2005 (The 2005 Act), including a duty to act in a manner consistent with the purposes of the charity. The 2005 Act recognises that other legislation may impose duties on the trustee and the obligation to act in accordance with the purposes of the charity is without prejudice to any other legislative duties.

The Scottish Government proposes adding a specific stand-alone duty on trustees of a charity that when considering the management, use or transfer of any land under the charity's control, the trustees must engage with the local community and consider the potential impact on the local community before taking any decision. This consideration will require to be balanced with the exercise of their other functions and their duty to act in the interests of the charity and to ensure that the charity acts in a manner which is consistent with its purposes.

Question 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?

7.34 920 respondents (79% of all respondents) addressed this question with the majority (76%) agreeing that 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 (see Table 7.2). Whereas 79% of individual respondents agreed with the proposal, the majority support was reduced to 55% amongst organisations. All or the majority of respondents in all categories favoured the proposal except for private landowner organisations and private sector and professional bodies, the majority of whom opposed the proposal.^[12]

7.35 Common Weal respondents agreed with the proposal in principle. The Birnam Land Reform Workshop view was also to support the proposal.

Table 7.2: Views on whether 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 (Question 20)

Respondent category	Agree		Disagree		Total no. of respondents
	No. of respondents	%	No. of respondents	%
National non-government organisations	24	69	11	31	35
Private landowner organisations	8	21	31	79	39
Private sector and professional bodies	11	48	12	52	23
Community organisations and representative bodies	15	88	2	12	17
Government and NDPBs	4	n/a	1	n/a	5
Local non-government organisations	5	n/a	2	n/a	7
Local Government	5	n/a	0	n/a	5
Academic	1	n/a	0	n/a	1
Total organisations	73	55	59	45	132
Individuals	626	79	162	21	788
Grand total	699	76	221	24	920

Views on the advantages of the proposal

7.36 570 respondents (49% of all respondents to the consultation) provided relevant comments. A few simply provided very general support, indicating that there would be advantages but did not go into detail. A few others recommended that the wording of the proposal change so that "trustees" or the "board of trustees" be required to engage with the local community, rather than suggesting, as at presently worded, that an individual trustee should be tasked with this. 20 respondents took the opportunity to emphasise that what constitutes a charity is not always clear, and that the reasons for groups to establish themselves under this banner should be examined as a prerequisite to progressing any policy in this area. One respondent commented:

"The term charity should be clearly defined in relation to land management issues. For example a charity could be a few local residents who manage a wildlife site or a group of rich landowners who have set up a charity as a tax dodge" (Ind).

7.37 Twelve respondents commented that charities already consult with local communities over land issues, as a matter of good practice. However, some acknowledged that formalising the process would produce greater consistency in approach. Comments included:

"This is not rocket science just good practice" (Ind).

"Having served previously as a trustee of The John Muir Trust, one of the major land owning charities in Scotland I know that some charities already do consult effectively with local communities, but I think that the mechanisms in place for doing this are variable and in some cases not sufficiently robust or transparent" (Ind).

Better decision-making through collaborative working

7.38 The most prevalent theme to emerge related to the perceived benefits of improved decision-making through working partnerships between local people with local knowledge and charities.

7.39 157 respondents identified improved community engagement, awareness of land management issues and the opportunity for the community to have a say in the management, use or transfer of land under the charity's control as key benefits of the proposal. Many felt that community empowerment would result as communities gained greater control over what happens in their local community.

7.40 14 respondents remarked that the proposal would be particularly beneficial in circumstances where the charity was not based locally and where decisions had tended to be top-down without local voices heard.

7.41 For many respondents (114) it followed that greater community involvement, which utilised local knowledge and expertise, would result in more informed decision-making by charities which took account of different perspectives and were likely to produce sustainable outcomes for local land. Views included:

"We have seen, through the work of deer management groups, many examples where positive engagement can bring about the best outcomes. The greatest problems often arise when there has been a lack of, or insufficient, engagement" (Scottish Gamekeepers Association).

"Local communities generally have a better understanding of local land management and use, and their information-bases could be very useful in addressing sustainable land management in the future" (Ind).

"Charity trustees are not always particularly knowledgeable about local conditions and/or needs (or, indeed, land management). On numerous occasions, their decisions have therefore either had detrimental effects, or occasioned challenges or conflicts. These are costly to the charity, the community, and the local economy. They are avoidable, by requiring best-practice community engagement" (Ind).

7.42 Another positive impact of greater engagement between charities and local communities was viewed as the promotion of harmonious relationships built on trust and mutual understanding between charities and local people. 63 respondents expressed this view, which many felt would have the added benefits of greater local buy-in to projects and perhaps even greater willingness to volunteer to participate. Comments included:

"The winning of hearts and minds would be crucial to success" (Ind).

"It is arguable that local community engagement may increase local support for charities in some circumstances, particularly if the charity is focused on a local community" (Turcan Connell).

Promotion of openness

7.43 A common view (79 respondents) was that the proposal would result in greater transparency and openness about charities' plans and decision-making.

7.44 37 respondents identified increased accountability as a beneficial outcome, with charities required to openly account for their decisions and actions.

7.45 One indirect impact of the proposal which 15 respondents perceived as advantageous was the focus on the motives of the charity involved, which according to these respondents, would illuminate entities who held a charitable status for beneficial tax reasons rather than more altruistic purposes. Some respondents were of the view that this in itself could act as a deterrent from such practice.

Other benefits identified

7.46 20 respondents welcomed the alignment of charities with other landowners with regard to requirements to engage with local communities. However, a further ten respondents questioned why charities should be singled out for this proposed policy.

Views on the operation of the proposal

7.47 Some respondents documented views on ways in which the proposal could work on the ground. The most common view (48 respondents) was that members of local communities should become trustees on the board of charities, thereby in a formal position to represent the views of the local community. Comments included:

"Governance arrangements could be improved by allowing local residents to become full members of the charity, providing for a number of local people to take up a position on the Board of the company (or Trustee of the Trust) and for enhanced local management of the affairs of the charity. This is already done by the Isle of Eigg Trust and the Knoydart Foundation who have a certain number of elected community representatives on their governing bodies" (Ind).

7.48 16 respondents argued that one size does not fit all, and that the proposal may bring benefits in some contexts and not others. For example, there may be issues of minor significance, or other issues on which the charity's hands are already tied.

Views on the disadvantages of the proposal

7.49 455 respondents (39% of all those who responded to the consultation) provided relevant views on the possible disadvantages of the proposal. Some of them indicated that they supported the proposal on balance, with its benefits outweighing its drawbacks. 12 respondents stated clearly that they felt the proposal was not necessary as engagement of this nature was already undertaken by charities, local authorities or planning authorities. Concerns were raised that it could lead to duplication of effort. Comments included:

"Local Authorities are already accountable and consult the communities at a local level when considering such matters, so there may be an element of duplication here, which would delay the delivery of decision making and the benefits of such decision to the community. This provision should not apply to Local Authority trusts" (Aberdeenshire Council).

"May overlap with the re-organisation provisions of the Charities and Trustee Investment (Scotland) Act 2005, which already oblige charities (in certain circumstances) to inform the public about changes and imposes a consultation process of sorts" (Law Society of Scotland).

7.50 A theme which emerged across a range of responses was that the policy would need to be monitored and enforced. Questions were raised over which body would do this, with one respondent clear that this remit would fall to the Office of the Scottish Charity Regulator (OSCR) with implications on resources:

"As the duty is one on charity trustees it would suggest that OSCR could be responsible for its enforcement. If so, this will be an additional area of work for OSCR, and although the number of concerns raised may not be significant, it could prove a complex area of inquiry. It will also most likely involve engagement activity and specific guidance. Together this could have a substantial financial impact on OSCR both in terms of staff time and possible legal costs depending on how far inquires are taken" (Scottish Charity Regulator).^[13]

Potential for being cumbersome

7.51 A prevailing theme across many responses was that what was proposed had the potential to be overly cumbersome resulting in delay, costs and bureaucracy. The Law Society of Scotland, for example, considered that the public benefit component of the charity test already provides an adequate formula for taking the interests of the local community into account and that an express statutory duty to engage is unnecessary and would be cumbersome in practice and potentially expensive for charities without proportionate benefit to local communities.

7.52 The most common problem emerging from responses was perceived as potential time delays and failure to progress resulting from undertaking engagement and addressing conflicting views (85 respondents). One respondent remarked:

"A protracted process can delay or demotivate and be an impediment to progress" (Canonbie and District Residents Association).

7.53 42 respondents cautioned that engagement could provide the opportunity for those with strong opinions to manipulate proceedings to block progress:

"Lone or vociferous voices can delay, impede, frustrate the process of engagement and the progress of change which can be irritating and cause ears to close whether or not their intervention is justified or not" (Ind).

7.54 A recurring view (37 respondents) was that this would add another layer of bureaucracy to the process leading to complexity and delay.

7.55 32 respondents called for a more discerning and proportionate approach instead of a blanket requirement. They argued that engagement should be required only where it could be justified in terms of the scale of development or its significance. Comments included:

"The new duty on charities would impose a potentially bureaucratic process on thousands of charities with land assets. This would be irrespective of the size of land held or the type or charity they are" (Scottish Council for Voluntary Organisations).

"Every charity is caught up in a provision only intended for a few, with significant additional demands being placed on small charities which may technically own land, for example, a charity shop in a town centre. It would seem preferable to make clear and to avoid unintended consequences, that this would only apply to Charities which have recognised wholly or partly settlements within their boundaries" (Community Land Scotland).

"Imposing a general duty would add another regulatory burden to thousands of small voluntary asset-owning charities without any clear indication of there being a problem requiring to be solved" (Community Woodlands Association).

Managing conflicts

7.56 A common theme was that charities and trusts are bound by their own organisation's constitution, with trustees required to carry out their responsibilities in accordance with this. Many respondents (95) cautioned that this duty should not be compromised by a new duty of community engagement. Questions were raised over how conflicts between public demands and the aims of charities and trusts could be resolved if the latter are required to engage with communities over proposed developments. A comment emerging across a range of responses was:

"Charity trustees are already under much heavier public scrutiny than private owners, under charitable objectives which they are obliged to define clearly and work to. It therefore seems illogical to place them under a special burden of community engagement. The burden of managing and funding a charity is significantly greater than that of private ownership and there is frequently no link between the charitable objectives and the community aspirations" (many respondents).

7.57 38 respondents predicted significant problems for charities in trying to reach an agreed way forward in the face of diverging views. Some felt that the proposal itself could create greater conflict than otherwise, leading to indecision and delays. Others (32 respondents) considered the proposal amounted to unwarranted interference in the running of charitable bodies by people with possibly no expertise or knowledge of the issues in hand, leading to poor decisions and inefficient management of land which meets no one's needs:

"Consulting before "taking a decision on the management" would make it impossible to do anything (Ind).

"The concept that a community (with little or no knowledge of land management matters and - more importantly - no responsibility) should be able to dictate how a property should be managed or used is completely alien to the concept of ownership as it is presently legally recognised" (Ind).

7.58 A recurring view (16 respondents) was that there was no guarantee that by engaging with the community, one overarching community-representative view would emerge. Some felt that the loudest community voices would dominate, or those with the most free time, or local activists with a particular agenda to pursue. Comments included:

"The loudest speaking, often those with most resources, will direct the landscape" (Ind).

"The risk is that the engagement only involves a select few from the local community and so is not a truly participative and representative process. Changes to local governance and new means of participation are required to achieve this" (Ind).

Implications for charities

7.59 Many respondents expressed concern over the implications of the proposal for the viability of charities, particularly those relatively small in size. Some (33 respondents) asked why charities should be singled out in this manner over other private landowners. One respondent remarked:

"In light of the higher obligations already on charities, it is not clear to us why an additional statutory duty of community engagement should be placed on charitable trustees over and above the obligations on other private landowners" (Loch Lomond & The Trossachs National Park Authority).

7.60 The substantive concerns raised by respondents on the impact of the proposal for the future of charities were:

• Increased costs to cover the costs of engagement. (83 respondents)
• Need for greater capacity in personnel to conduct engagement. As most of the personnel could be voluntary this was seen as potentially a significant burden. (20 respondents)
• Negative impact on donations and people willing to volunteer. Public perception of the charity using funds for bureaucracy and not in control of its own property. (14 respondents)

Concerns over definitions

7.61 A general view was that the terminology used for this proposal would require to be precise and well defined. Of particular concern (57 respondents) was that "engage with the local community" left too much room for disingenuous and tokenistic communication between landowners and local communities. The Common Weal response also alluded to this. Comments included:

"Engagement must be real, allowing local input which has an active effect on decision-making. Non-binding just-going-through-the-motions consultation will not improve the current situation" (Ind).

"If done in a tokenistic way, could give spurious legitimacy to a decision that the Charity would have favoured anyway and is not necessarily seen by the local community as the best way forward" (Ind).

7.62 Other respondents (11) recommended that "community" required further explanation with some concern that as currently worded, local people, bound by geography, appeared to take precedence over communities of interest. Question 22 below explores respondents' views on how "community" should be defined.

Question 22: How should "community" be defined?

7.63 736 respondents (63% of all those who responded to the consultation) provided a relevant response to this question. Whilst most of these provided an attempt at defining community, some (43 respondents) considered this too fraught with difficulties. 50 respondents argued that no one definition would be applicable for all different contexts and that different definitions would depend on, for example, the plans under discussion and who they may impact on.

7.64 A recurring theme amongst a minority of respondents, and one which the Common Weal supported, was that Scotland requires a proper system of local democracy with community-level governance, and that identification of relevant communities would take place as part of that development.

7.65 Amongst those who made recommendations for the definition of "community", many suggested more than one option with these not necessarily being mutually exclusive. Others were not entirely clear in their response and an assumption of their most likely meaning has been made (for example, some referred to "community councils" but may have meant people living within community council areas, or the community councils themselves). Table 7.3 lists the recommendations made by respondents on how "community" should be defined, in order of number of mentions as a general indicator of support rather than a precise measure.

7.66 Birnam Land Reform Workshop participants recommended that a community should be defined by community council(s) whose boundaries include all or any part of the land concerned. They considered also that in some cases community could encompass communities of interest such as groups wanting to access the land for recreation. The Berwickshire Common Weal respondents also recommended community council boundaries as "a reasonable definition of local community" but accepted that there may be communities of interest too.

Table 7.3 Recommendations for the definition of "community"

Recommendations for definition of "community"*	No. of mentions
People living in a geographic area (amongst the areas mentioned were: neighbourhoods; parishes; wards; postcodes; districts; hamlets; local authorities; marching boundaries; 10km, 2, 4, 5 miles radius; villages; community council area). A few respondents described geographical areas in remote locations in terms of glens, valleys and other more physical structures.	436
Interest groups; social groups with common interest; stakeholders with common goals; formal or informal.	133
People working in an area.	68
Those affected by the issue (including those living in adjoining areas).	61
Community councils.	34
Businesses in a local area.	27
Key stakeholders (local authority representatives were mentioned for example).	25
Regular users of the land (e.g. hillwalkers).	24
Use existing statutory/established definitions such as that of the Community Empowerment Bill or the Crofting Act.	20
All Scottish people are part of one community/could be a national interest.	16
People of voting age within a locality.	14

*Please note that the categories are not necessarily mutually exclusive, with many respondents considering that several of these categories could apply.

Question 23: What remedies should be available should a trustee of a charity fail to engage appropriately with the local community?

7.67 639 respondents (55% of all those who responded to the consultation) addressed this question. Whilst the majority of the respondents who provided a view identified remedies to deploy in this situation, others provided more general views supporting some form of sanction for failing to engage appropriately, most likely incremental, beginning with requests to the charity to engage and escalating to more punitive sanctions for non-compliance.

7.68 Queries were raised repeatedly over the meaning of the phrase, "engage appropriately" with some respondents questioning who would judge this and on what criteria. Several respondents once again queried whether the question refers to one trustee or a board of trustees. One respondent remarked:

"Duties on charity trustees are imposed collectively as well as individually. As volunteers, giving of their time and commitment for no reward, the Committee would view it as unacceptable if financial or other quasi criminal penalties were to be imposed on trustees as individuals or indeed that the funds of the charity should be targeted. Similarly it would appear to be disproportionate were charity trustees to find themselves being investigated for misconduct with the threat of possible disqualification or other sanctions" (The Scottish Churches Committee).

7.69 A recurring theme was that remedies could not be established before such fundamental issues of definition and governance are decided and made explicit.

7.70 Many respondents made recommendations for remedies (some more than one), whether or not they agreed with the overall proposal for charities to engage with the local community. Table 7.4 below summarises their views.

Table 7.4 Remedies proposed by respondents should a trustee of a charity fail to engage appropriately with the local community

Proposed remedies	No. of mentions
Removal of charitable status.	156
Block progress/halt proceedings/stop any granting of public funds until engagement has taken place.	64
Monetary penalty such as a fine.	56
Removal of trustee/barred from holding office.	44
Engage an arbitrator or independent body such as the proposed SLRC to mediate and/or decide on further remedial action.	40
Confiscation of charity's land.	35
Prosecution.	34
Offer land for community to buy.	30
Any decisions taken without prior consultation to be nullified.	20

7.71 A common view (42 respondents) was that rather than take punitive action, the charity should be supported in their duty to engage. Some remarked that the charity may be experiencing difficulties in getting the community to cooperate and they should be helped in their endeavours rather than punished.

7.72 The Common Weal respondents advocated that sanctions such as the removal of charitable status should be considered where there is clearly insufficient public benefit to local communities from the governance of land. The Berwickshire Common Weal recommended that in the case of a charity failing to engage appropriately there should be a recognised and independent body to appeal to for arbitration. The SLRC was referred to in this regard. They also suggested that the charitable status of such trusts could be reviewed.

7.73 Birnam Land Reform Workshop participants did not answer the question directly, but emphasised their overarching view that the community should have power to make, if necessary, a controlling input into the management of the land as "consultation" is not adequate.

Proposal 7: Removal of the exemption from business rates for shooting and deerstalking

Background

A business rate exemption is currently in place for shootings and deer forests.^[14] Business (non-domestic) rates raise revenue to help deliver essential local services and help to support businesses. The exemption for shootings and deer forests has been in place since 1995.

The Scottish Government proposes that the Land Reform Bill should include provisions to end the business rate exemptions for shootings and deer forests. Ending these provisions would require identification and valuation of subjects by the Assessors, with rates bills calculated and relief applications determined by local authorities. This would bring shooting and deerstalking businesses back into line with other ratepayers.

Question 24: Should the current business rate exemptions for shootings and deer forests be ended?

7.74 983 respondents (84% of all respondents) addressed this question with the majority (71%) considering that the current business rate exemptions for shootings and deer forests should be ended (see Table 7.5).

7.75 Whilst the majority (75%) of individual respondents who provided a view supported ending the exemptions, most of the organisations (56%) opposed this. All but one of the 51 private landowner organisations who addressed this issue disagreed with ending the business rate exemptions; the majority (56%) of the private sector and professional bodies who responded to it also disagreed.

7.76 Common Weal respondents agreed with the proposal to end these current business rate exemptions. The Birnam Land Reform Workshop participants had no objection to business rates being extended to encompass shootings and deer forests in the short term but proposed that this be in the context of a wider review of land taxation in the longer term.

Table 7.5: Views on whether the current business rate exemptions for shootings and deer forests should be ended (Question 24)

Respondent category	Agree		Disagree		Total no. of respondents
	No. of respondents	%	No. of respondents	%
National non-government organisations	25	68	12	32	37
Private landowner organisations	1	2	50	98	51
Private sector and professional bodies	8	44	10	56	18
Community organisations and representative bodies	14	93	1	7	15
Government and NDPBs	2	n/a	0	n/a	2
Local non-government organisations	5	n/a	3	n/a	8
Local Government	6	n/a	1	n/a	7
Academic	0	n/a	1	n/a	1
Total organisations	61	44	78	56	139
Individuals	633	75	211	25	844
Grand total	694	71	289	29	983

Question 25: What do you think the advantages would be?

7.77 677 respondents (58% of all respondents to the consultation) identified advantages to the proposal to end current business rate exemptions for shootings and deer forests. Their views are summarised below in Table 7.6 in order of the number of times the advantage was raised.

Table 7.6: Summary of advantages to ending the business rate exemptions for shootings and deer forests as identified by respondents

Advantages identified by respondents	No. of mentions
Fairness and parity with other rural businesses; level playing field; end to public subsidy.	364
Increased tax revenue for local/national government which can be invested into land maintenance and related activities.	268
Better use of land; opportunity for diversification; lowering of land values so land becomes affordable. "More creative / productive use of the land in order to generate income to pay/justify the rates. Land that cannot pay its way would be more likely to be placed on the market, so this could be a driver for diversified land ownership" (Ind).	105
Reduction in harmful environmental impact of over-stocking of deer and grouse for shooting purposes. "Grouse shooting has been an environmental, economic and social disaster for the areas of Scotland in which it operates. Vast swathes of monoculture are terrible for biodiversity" (Ind); "The ecological management of deer forests and shootings is detrimental to most other species other than the chosen hunting target. Artificially high Red Deer numbers managed for shootings mean that these naturally woodland animals are forced to live stressed lives on open hillside and their high numbers mean that woodland, with all its biological diversity cannot regrow. Incidents of raptor persecution are directly mapped to land managed for shooting. Given the damage this form of management does to the environment, and the restrictions it places on access by people it is the last sector that should be given unjustifiable tax breaks" (Ind).	65
Greater efficiency in management of land on estates.	23
Revelation of the real, market price of these activities; removal of the artificial market which is subsidised; ensuring people play the economic price for their leisure activities.	21
Reduction in hunting and shooting; reduction in killing of wildlife. "This system encourages an outdated practice of the elites to kill our indigenous wildlife. Any cull, if required, should be carried out by the relevant authorities in a controlled, humane manner. Allowing wealthy individuals to kill animals is disgusting and we should all be ashamed that this practice is allowed to occur at all. Let alone allowing them to do it with an implicit subsidy. This will hopefully reduce the occurrence of shootings and also prevent any accidents from occurring" (Ind).	18
Better public image for landowners as contributors to public purse; greater local community support; demonstration of Scottish Government commitment to fairer society.	16
More rural employment opportunities associated with greater diversification of land.	15
Deterrence to individuals/organisations who may be attracted to purchasing estates for purposes of tax efficiency.	13

7.78 Common Weal respondents and participants at the Birnam Land Reform Workshop were in agreement that a key advantage to the proposal was more productive use of land for other purposes. Common Weal respondents also viewed the exemption as ending an unjust subsidy to wealthy landowners; a Birnam Land Reform Workshop view was that the end of the exemption would produce some benefit to the public purse.

Question 26: What do you think the disadvantages would be?

7.79 476 respondents (41% of all respondents to the consultation) identified disadvantages to the proposal to end current business rate exemptions for shootings and deer forests although a few urged that further, detailed work is undertaken to weigh up the benefits against the drawbacks. One respondent remarked:

"This needs careful looking at to ensure any taxation is fair, open and does achieve what it intends e.g. revenue- the whole issue of land taxation needs further debate and development" (Ind).

7.80 Other general comments were that should the exemptions be ended, then this should be undertaken in a phased manner; some respondents perceived short-term disadvantages to be outweighed by longer-term benefits. Possible initial loss of jobs being replaced by new jobs created through diversification in use of land was a recurring example.

7.81 Another theme emerging across many responses was that a blanket end to exemptions may be too blunt an approach which will not differentiate between deer stalking activities for sport and those undertaken for land management. Comments included:

"As a RICS valuer (specializing in deer forest management) I am wholly clear that there would need to be a differentiation between deer shot for sporting purposes as opposed to those controlled in order to protect agriculture, forestry biodiversity or the public. This is a complex subject and warrants much consideration" (Ind).

"A blanket policy on this would not make the distinction between those estates that derive the majority of their income from let stalking and those smaller units that may only employ a single stalker who carries out culling in-house and without significant let income" (The Applecross Trust).

7.82 The disadvantages of enduing the current business rate exemptions for shootings and deer forests which were identified by respondents are summarised in Table 7.7.

Table 7.7: Summary of disadvantages to ending the business rate exemptions for shootings and deer forests as identified by respondents

Disadvantages identified by respondents	No. of mentions
Loss to rural economy; loss of local jobs; loss of tourism; loss of inward investment in local areas. "The provision of deer stalking very often comes at a cost to the provider/land owner especially where deer management is concerned. The public wider benefits to the local rural communities are of utmost importance in the form of direct employment, tourism, healthy meat production and provision of healthy outdoor activity" (Ind); "this would jeopardise the fragile employment situation in parts of the highlands and islands" (Ind).	287
Reduced land maintenance; not in keeping with deer management policy; rise in number of wild deer; reduction in ability to subsidise this aspect of land management as a result of loss in income. "With one hand land owners are being told to restrict deer and other impacts, particularly on designated land and with the other, they are being taxed for complying with Government/European policy" (Ardverikie Estate Limited); "Care must be taken not to penalise those who are culling deer to satisfy SNH targets" (Ind).	138
Financial pressure on estates and related businesses; some may go out of business. "These activities are carried out on estates which are maintained by income from other activities as the estate is not in itself viable financially. Additional tax burdens would have a serious effect on whether the estate can be maintained" (Ind).	65
Current estate owners will be disgruntled; they may raise legal actions.	43
Difficulty in setting valuations and keeping these up to date. Need to set them at the right level to raise income yet keep businesses sustainable. "...assessors and appeal panels will require training and additional resources to enter into a sphere of assessment that has been absent from their remit for the last 20 years" (Invercauld Estate).	28
Loss of a long-standing valued part of Scotland's heritage and tradition.	21
Unfair to target these activities over the activities of agricultural estates/forestry which are exempt from business rates.	18
Estate owners would find ways to avoid being eligible. "...there is the potential for landowners to escape re-imposed charges by reclassifying their activities, or arguing that land use is mixed and therefore sporting rates should not apply" (Woodland Crofts Partnership).	13

7.83 The Common Weal respondents and those of the Birnam Land Reform Workshop were of the same view that there were no drawbacks to the proposal. Both considered that some jobs would be lost initially, with the Common Weal arguing that these are likely to be "temporary, seasonal and low paid" and Birnam Land Reform Workshop participants arguing that the same land could support at least as many people if better managed.