Land reform in a Net Zero nation: consultation analysis

6. New conditions on those in receipt of public funding for land-based activity

It is proposed that withdrawal of public funding should be one of the possible penalties for not adhering to the new LRRS and Land Management Plan requirements. The consultation also sought views on the potential for land-based public funding to be limited to land registered in the Land Register of Scotland, as a means of improving transparency of land ownership.

Question 27 – We propose the following eligibility requirements for landowners to receive public funding from the Scottish Government for land-based activity:

(i) All land, regardless of size, must be registered in the Land Register of Scotland.

(ii) Large-scale landowners must demonstrate they comply with the Land Rights and Responsibility Statement and have an up-to-date Land Management Plan.

Do you agree or disagree with these requirements?

Responses to Question 27 by respondent type are set out in Tables 46 and 47 below.

Percentages may not sum to 100% due to rounding

A majority, 79% of those who answering the question, agreed that eligibility requirements for landowners to receive public funding from the Scottish Government for land-based activity should include that all land, regardless of size, must be registered in the Land Register of Scotland.

A majority, 4% of those who answering the question, agreed that funding should require large-scale landowners being required to demonstrate compliance with the LRRS and having an up-to-date Land Management Plan in place. Again, individual respondents were more likely to agree than organisations at 80% and 58% respectively. A majority of Landowner and Private sector organisation respondents opposed these requirements.

Please give some reasons for your answers:

Around 270 respondents provided a comment at Question 27.

Some of these respondents expressed their broad support for the use of conditionality of public funding to support compliance with land reform requirements, including suggestions that proposals will be essential to support wider land reform proposals. Respondents saw proposals as a proportionate and effective means of ensuring that owners of large-scale landholdings are delivering the expected public benefit.

There was also support for proposals as a means of ensuring accountability and transparency in management of public funds, reflecting a view that those in receipt of public funds should be expected to provide public benefits. Some noted that a similar approach is already used for some agricultural funding.

Reasons given in favour of the requirements

Respondents cited a range of specific considerations in favour of the specific requirements.

Requirement (i)

Support for registration on the Land Register was primarily linked to a view that this would improve transparency of land ownership and encourage completion of the Land Register. It was suggested that transparency of land ownership is currently limited by an incomplete Land Register, and by barriers to public access to information on land ownership.

Requirement (ii)

Compliance with the LRRS and having an up-to-date Land Management Plan was seen as necessary to support proposals to make these a duty for owners of large-scale landholdings. This included reference to examples of similar measures being effective in supporting compliance across other policy areas, for example access to single farm payments being linked to compliance with the Birds Directive. There was also support for the proposal as a means of reducing the burden on authorities around monitoring and enforcement of LRRS and Land Management Plan duties.

Issues and concerns raised

Respondents raised a range of potential concerns and points for clarification in relation to proposals, in terms of the principle of conditionality of public funding, and in relation to the specific proposed requirements. General issues and concerns included seeking clarity around the scope of proposals, for example in terms of whether they would apply only to central government funds, and whether all levels of funding would be included. Respondents also sought clarity around how funding applications from tenants are to be handled, given that there is no current mechanism for tenants to register land. Concerns were expressed that tenants and others with an interest in landholdings should not be excluded from public funding due to the actions of the landowner, although there was also a view that proposals should apply equally to funding applications from landowners and tenants.

There were also concerns that:

• Applying the proposal only to owners of large-scale landholdings may be disproportionate and inequitable, resulting in different parties being required to meet different criteria to access the same funds.
• The proposals may have unintended consequences, including leading to a reduction in land management activities that contribute to the public good. Specific reference was made to peatland restoration and tree planting, as activities that often require public subsidy.

Some respondents wished to see proposals go further to ensure provision of public funding is directly linked to delivery of meaningful public benefit. Some suggested that proposals should be expanded to link conditionality of public funding with a wider range of compliance considerations including: compliance with the Scottish Outdoor Access Code; adherence to the Place Principle; compliance with the Fair Work Convention; wildlife crime or licence breaches; and future rural support under the Agriculture Bill. It was also suggested that landholders should be required to provide an equity share of the landholding in return for public funding, and/or be subject to a high carbon land tax if funds are not used to support net zero targets.

Requirement (i)

In relation to Requirement (i), concerns were often related to potential barriers to registration on the Land Register. Respondents noted that a substantial number of landholdings are not currently on the Land Register, and that there is a growing backlog of open cases. It was suggested that the cost and time required by the registration process is a factor in the proportion of landholdings currently on the Land Register, and some were of the view that the cost may be prohibitive for some landowners. This included a suggestion that, for some landholders, the cost of registration may account for a significant proportion of any expected public subsidy payments.

Concerns were also raised around the capacity of Registers of Scotland to support the proposal. Respondents referred to examples of the registration process requiring several years to complete, and there was a view that significant additional resources will be required if the Land Register is to be linked to public funding in the way proposed. Respondents wished to see these issues addressed before landholders are penalised for not being registered.

It was also suggested that:

• Proposals may apply across a wide range of public funds, each raising different considerations in terms of the information required for the Land Register. For example, these may range from payments relating to single dwellings to agricultural subsidy covering large areas of land. There was also concern that proposals may conflict with existing registration processes for crofting.
• Local authorities may seek to take a security over land for lower-level funding they issue to local community groups, if the land is required to be registered in the Land Register. It was noted that this would significantly add to the work required of community groups to access funding.

Reflecting the perceived challenges in achieving a more complete Land Register, it was suggested that the introduction of proposals should be phased over a period of time or linked to the date of application, to avoid landowners being disqualified from accessing funds while their registration is being processed. There were also calls for support to be made available to smaller landowners and others who may be disproportionately burdened by the requirement to register. It was suggested that use of data already in place on the Scottish Government Land Parcel Information System could be used to support the Land Register.

It was also argued that provisions are already in place to deliver a complete Land Register and strengthen transparency of land ownership and that the proposal is not required in order to achieve this. Why the proposal was not being applied to all landholdings, rather than being limited only to the large-scale holdings was also questioned.

Requirement (ii)

Some respondents repeated concerns with respect to making LRRS compliance and maintenance of a Land Management Plan a duty for large-scale landholders. This included suggestions that Land Management Plans in particular could result in significant duplication of work for landholders. There were also calls for clarity on the definition of ‘large-scale’, how landholders would be expected to demonstrate compliance with LRRS, and what would be considered an ‘up-to-date’ Land Management Plan. Reflecting points raised at Question 4, there was a view that the LRRS is currently working effectively as guidance and that the content of the LRRS is too subjective to support compliance. It was suggested that use of the LRRS in this way could give rise to legal challenge.

It was also suggested that:

• The proposals make it especially important that landowners have access to support to develop and maintain up-to-date Land Management Plans, if failure to do so may result in exclusion from public funding. As noted above, some also suggested that phased implementation may be required to allow landowners time to comply.
• The proposals could lead to compliance with the LRRS, and publication of Land Management Plans being seen as only a means to access public funding, rather than supporting a genuinely progressive approach to land management.

Question 28 – Do you have any other comments on the proposals outlined above?

Around 135 respondents answered Question 28.

Many of these respondents reiterated issues considered at earlier questions. This included discussion of issues such as how ‘large-scale’ landowners are to be defined, potential for tenants and crofters to be unfairly penalised by proposals, the need for greater transparency of land ownership in Scotland, and concern around potential for unintended adverse impacts. It was also argued that:

• Many landowners (especially agricultural businesses) are facing significant challenges in the current economic climate and that the Scottish Government should ensure that land reform proposals do not undermine the economic viability of these businesses.
• For landowners with multiple landholdings, any penalties for non-compliance should be site-specific, relating to the individual landholding.

Other points raised in relation to the proposals outlined included a suggestion that these should form part of wider reform of public funding for land-based activity, to focus on delivery of specific public benefits. Related suggestions included: a requirement for landowners in receipt of a certain level of funding to provide evidence on delivery of public benefits; a mechanism for clawback of public funding where landowners have seen a significant above-inflation increase in land values; and review of the advantageous tax position of the forestry sector.

It was also suggested that further detail is required on the range of public funding to which proposals would apply, including a view that this should not be limited only to funding that supports net zero targets. Specific suggestions included that proposals should cover: Basic payments/Greening; Less Favoured Areas Support Loan Scheme/ Areas of Natural Constraints Scheme payments, Agri-Environment and Climate Scheme payments, and tax breaks.

In addition to the proposals set out in Requirements (i) and (ii), the consultation paper notes a further proposal that all recipients of Scottish Government land-based subsidies should be registered and liable to pay tax in the UK or EU. Some respondents questioned this provision, particularly whether public funding should be provided to landowners registered outwith the UK. Some respondents wished to see funding limited to those registered in Scotland only, although it was also suggested that the G7 may be an appropriate limit on non-UK registrations.