Guidance on engaging communities in decisions relating to land: consultation

Chapter 2: Key Considerations

Remit

11. Section 44(5) of the Act requires that the Guidance includes information about:

a) the types of land and the types of decision in relation to which community engagement should be carried out.

b) the circumstances in which persons with control over land should carry out community engagement.

c) the ways in which community engagement should be carried out.

12. In terms of the relationship with Part 5 of the Land Reform (Scotland) Act 2016, the Guidance should contain sufficient certainty so that land owners and land managers can demonstrate that they are fulfilling the expectations of the Guidance, or so that communities can demonstrate that this is not the case.

13. There are further considerations laid out in the Act under Section 44(2), which Scottish Ministers must consider in preparing the Guidance. This consultation forms part of this process. The Act states that in preparing the Guidance the Scottish Ministers must have regard to the desirability of:

a) promoting respect for and observance of human rights. ^[5]

b) promoting respect for relevant internationally accepted principles and standards in relation to land. ^[6]

c) encouraging equal opportunities.

d) furthering the reduction of inequalities of outcome due to socio-economic disadvantage.

e) furthering the achievement of sustainable development in relation to land.

14. The aim of the Guidance is to support good working practices that can lead to mutually beneficial solutions to land-related problems and better local outcomes for economic, environmental, social or cultural issues. We have taken the Section 44(2) considerations into account when developing this consultation, and these values underpin the aim of the Guidance. We will give further thought to these considerations in light of the responses to this consultation.

15. Community engagement can result in a diverse range of outcomes. The considerations of Section 44(2) will be addressed differently in each instance of engagement, depending on the specific context of the local situation and the decision being taken. The Guidance does not specify a particular method of consultation, although it includes links to some engagement tools that may be useful. We have also included a section called "Best practice principles for fair engagement" which sets out how engagement can be undertaken to maximise fair, effective and genuine participation of individuals and groups to create a meaningful impact on the decision-making process.

Question 1: Does the draft Guidance ( Chapter 3 of this consultation) respond appropriately to the considerations of Section 44(2) of the Act? Please explain your answer.

Scope

16. The Scottish Government considers that land owners and land managers should be proactive in seeking to engage with communities about decisions they are taking in relation to land. Engagement can enable communities to understand the constraints, in terms of markets, regulations and environment, under which land owners and managers operate. The aim is to find a mutually beneficial solution to the tension that sometimes can arise between these constraints and a community's wishes. If a community requests engagement and dialogue, then land owners and land managers should consider the benefits of responding positively to such a request.

17. As outlined in Chapter 3, the Scottish Government proposes that the Guidance should apply to all land in Scotland, including buildings and structures on the land, and watercourses. The Guidance is relevant to all land owners and managers taking decisions which could impact on a local community, including private, public or third sector organisations, or individuals. The Guidance should be considered in relation to decisions relating to land which could impact on a local community and its economic, environmental, social or cultural opportunities. The Guidance will apply when a decision is to be made on land use or land management, where this has the potential to significantly impact on a local community. This includes situations where the decision being taken is to continue with existing practices in relation to land, as this continuation may also have the potential to significantly impact on a local community.

18. This does not mean that all decisions relating to land will require engagement. The draft Guidance advocates a proportionate and reasonable approach, meaning that engagement would not be required for many decisions with very little or no impact on a community.

19. Many responsible land owners and land managers will already meet or exceed the expectations of the draft Guidance. Engagement may be formal or informal, and will include a variety of different forms of communication. What constitutes appropriate or good engagement will depend on the specific circumstances of the decision being taken and the wider local context. Not all decisions relating to land require the same level of engagement, and not all decisions will require engaging with all members of a local community.

20. Engagement does not mean that communities have control over the actions of land owners and managers. In many cases there will be a range of views amongst the community. However, engagement will help all parties to understand each other's wishes, concerns and constraints, with the aim of achieving a better outcome and building better relationships.

21. When preparing this consultation, we have taken into account: issues raised by the Rural Affairs, Climate Change and Environment Committee during the passage of the Land Reform (Scotland) Bill; and comments received at open stakeholder engagement sessions held in Glasgow and Perth in October 2016. Some specific considerations that we have sought to reflect are:

the importance of the Guidance giving clear advice that is easy to follow;

the need for proportionality and reasonableness in the approach being advocated.

22. We consider it important that the Guidance contain clear expectations for land owners and land managers regarding community engagement. However, it must be noted that it would not be possible or advisable to attempt to provide exhaustive advice for every scenario. Such advice would risk being overly prescriptive.

Question 2: Do you agree with our proposed scope for the Guidance? Please explain your answer.

Relationship with existing statutory requirements to consult

23. Community consultation can be a statutory requirement, for example under town and country planning legislation, environmental regulations and forestry licensing. The Guidance does not require separate engagement to be carried out in addition to these statutory requirements. However, it may help inform how statutory consultations are conducted, and land owners and managers may wish to consider the benefits of supplementary engagement in relation to any decisions which are not subject to statutory engagement.

Question 3: Do you agree with our approach to the relationship with existing statutory requirements? Please explain your answer.

Relationship with the National Standards for Community Engagement

24. The National Standards for Community Engagement ^[7] are good-practice principles designed to support and inform the process of community engagement, and improve what happens as a result. Created in 2005 and updated in 2016, they provide detailed performance statements that everyone involved can use to achieve the highest quality results and the greatest impact. The Standards are designed to help the public, private and community sectors to involve and work with communities in planning services and developments.

25. The Scottish Government considers that the National Standards for Community Engagement should inform the Guidance on engaging communities in relation to land. The best-practice principles set out in the National Standards can be used in a proportionate way for both formal and informal engagement.

Question 4: Do you agree with our approach to using the National Standards for Community Engagement to inform this Guidance? Please comment if you have ideas on how we could better integrate these Standards.