Long-term management of the crown estate in Scotland: analysis of consultation responses

3. Vision

Background

To date, the property, rights and interests of the Crown Estate have been managed mainly on a commercial basis through the buying and selling of land and property. The aim has been to maintain the value of the estate and lease the estate to secure the best consideration.

The Scottish Parliament will be able to provide a new and revised purpose for the Crown Estate in Scotland, although its legislative competence is restricted by the Scotland Act 1998. Managers of Scottish assets must act in accordance with the Crown Estate Transfer Scheme 2017.

There is a question over whether the Crown Estate should continue to be managed on a primarily commercial basis, or whether there is a case for a broader set of considerations to be taken into account, such as wider socio-economic benefits.

Question 1: Should the future approach be changed from the duty to manage the assets on a commercial basis?

3.1 177 (83%) respondents answered this question. Table 1 in Annex 1 shows responses by category of respondent. Table 1.1 summarises these responses.

Table 1.1: Summary of views on whether the future approach should be changed from the duty to manage the assets on a commercial basis

Response	No. of respondents	% of all respondents
Yes	132	75
No	36	20
Don't know	9	5
Total respondents	177	100

3.2 75% of those providing a view considered that the future approach should be changed from the duty to manage the assets on a commercial basis. Organisations expressed stronger support overall for a change in future approach, with 80% supporting this, compared with 69% of individuals in support.

3.3 All of the local authority respondents and all but one of the community groups were in favour of change. The leisure and tourism sector respondents were largely divided on whether the duty to manage the assets should change from its current commercial basis.

Question 2: If yes, should there be a power to take account of wider socio-economic or other benefits?

3.4 151 (71%) respondents answered this question. Table 2 in Annex 1 shows responses by category of respondent. Table 1.2 summarises these responses.

Table 1.2: Summary of views on whether there should be a power to take account of wider socio-economic or other benefits

Response	No. of respondents	% of all respondents
Yes	135	89
No	3	2
Don't know	13	9
Total respondents	151	100

3.5 89% of those providing a view considered that there should be a power to take account of wider socio-economic or other benefits. The three respondents in opposition were individuals.

Question 3: If yes, which assets should be managed on a commercial basis and which should be managed differently?

3.6 117 (55%) respondents answered this question. A recurring view was that the management of assets should be considered on a case-by-case basis, with both current and future use of assets being factors in decisions on management.

3.7 Whilst some respondents suggested that management of assets should start primarily from a commercial basis, informed by consideration of socio-economic benefits, others held the opposing view, and emphasised the need to manage all assets from a socio-economic perspective, informed by commercial considerations. Most agreed, however, that assets can have both commercial and socio-economic benefits and this should be recognised in their management.

3.8 A few individuals remarked that by focusing on the commercial aspects of assets, revenue could be generated for the benefit of the wider community. A community group also described how their initial focus on a non-commercial enterprise, had led, inadvertently, to broader economic development.

3.9 Respondents across a wide range of sectors identified assets which they considered should be managed largely on a commercial basis:

• Marine and marine energy assets
• Urban property
• Built property including wind farms, extractive businesses, jetties
• Seabed
• Seashore
• Forestry, farm and sporting tenancies on estates
• Private moorings
• Rights relating to oil and gas infrastructure

3.10 Other respondents, again, from a range of categories, identified assets which they considered should be managed largely on a socio-economic basis:

• Salmon fishings
• Some cases of sea bed assets (for example, in the case of salmon farming leases, agreeing areas where leases will not be offered could be a vital measure in preventing/ reducing disease and parasite spread between farm management areas)
• Rural estate land
• Individual moorings
• Access and navigation
• Telecommunications apparatus

3.11 In addition to commercial and socio-economic considerations, many respondents suggested that other considerations should be taken into account. Most frequently mentioned were sustainability and environmental issues. A few respondents commented that management of assets should align with wider strategies, such as Scotland's National Marine Plan and other national policies.

3.12 Some respondents, largely individuals, suggested that local communities should decide which assets should be managed by them, and if they have no interest in them, then a commercial approach to management should be deployed.

3.13 Several local authorities and a few enterprise bodies were of the view that, rather than splitting the portfolio into assets managed for commercial or socio-economic benefit, a "best value" approach should be adopted, which takes cognisance of the needs of the estate as a whole (particularly 'estate in land' considerations). By 'best value' they envisaged a management model that delivers commercial success together with wider social and economic benefits.

3.14 One land and estate organisation recommended what they termed a "best practice" approach, rather than one based solely on commercial considerations.

Good Management for the Future

Good management

Crown Estate managers already have some discretion to take account of "good management" when seeking to maintain the value of the estate. There have been calls for an explicit duty to take account of the environmental implications of decisions on use of the estate.

Question 4: Should the requirement on "good management" be retained?

3.15 176 (83%) respondents answered this question. Table 3 in Annex 1 shows responses by category of respondent. Table 1.3 summarises these responses.

Table 1.3: Summary of views on whether the requirement on "good management" be retained

Response	No. of respondents	% of all respondents
Yes	162	92
No	2	1
Don't know	12	7
Total respondents	176	100

3.16 92% of those providing a view considered that the requirement on "good management" should be retained. Nine of those unclear about retaining the requirement on "good management" were individual respondents.

Question 5: Should the requirement on "good management" be amended to take account of environmental implications in relation to the management functions?

3.17 172 (81%) respondents answered this question. Table 4 in Annex 1 shows responses by category of respondent. Table 1.4 overleaf summarises these responses.

3.18 79% of those providing a view considered that the requirement on "good management" should be amended to take account of environmental implications in relation to the management functions.

3.19 Opposition to the proposal emerged largely from individual respondents and those in the "other commercial" category.

Table 1.4: Summary of views on whether the requirement on "good management" should be amended

Response	No. of respondents	% of all respondents
Yes	136	79
No	26	15
Don't know	10	6
Total respondents	172	100

Sale of Assets

Sale of assets

The Scotland Act 2016 inserts new provision to the Scotland Act 1998 which allows for the disposal of assets by the manager for the purpose of that management, so there is no requirement to preserve the existing assets in the Crown Estate portfolio.

The consultation paper outlined that there are strong grounds to enable assets to be sold, recognising that there is a legal duty to re-invest the proceeds in the estate. However, the consultation paper outlined the proposal to maintain the general presumption against selling the seabed so that this national strategic asset does not become fragmented. There may also be a need for manager(s) of Crown Estate assets to seek the approval of Scottish Ministers for sizeable sales.

Question 6: Should the existing Crown Estate portfolio in Scotland be preserved in its current form?

3.20 162 (76%) respondents answered this question. Table 5 in Annex 1 shows responses by category of respondent. Table 1.5 summarises these responses.

Table 1.5: Summary of views on whether the existing Crown Estate portfolio in Scotland should be preserved in its current form

Response	No. of respondents	% of all respondents
Yes	59	36
No	77	48
Don't know	26	16
Total respondents	162	100

3.21 Around half (48%) of those providing a view were opposed to the existing Crown Estate portfolio in Scotland being preserved in its current form; a sizeable minority of 36% of respondents considered it should remain in its current form.

3.22 The proportion of individuals and organisations in favour of the status quo was similar, but a higher proportion of organisations (51%) than individuals (44%) disagreed.

3.23 Amongst the organisations who provided a view, all of the local authority bodies and all of the enterprise organisations were opposed to the existing Crown Estate portfolio in Scotland being preserved in its current form. In contrast, almost all of the leisure and tourism respondents considered that the current portfolio should be preserved.

Question 7: Should Scottish Ministers' approval be required for sizeable sales?

3.24 168 (79%) respondents answered this question. Table 6 in Annex 1 shows responses by category of respondent. Table 1.6 summarises these responses.

Table 1.6: Summary of views on whether Scottish Ministers' approval should be required for sizeable sales

Response	No. of respondents	% of all respondents*
Yes	136	81
No	16	10
Don't know	16	10
Total respondents	168	100

*Percentages may not total 100% exactly due to rounding.

3.25 A sizeable majority (81%) of respondents who provided a view considered that manager(s) of Crown Estate assets should need to seek the approval of Scottish Ministers for sizeable sales. There was much consensus across categories of respondent, with the majority of respondents in each sector sharing this view.

Question 8: Should the existing policy - the general presumption against selling the seabed - be maintained?

3.26 176 (83%) respondents answered this question. Table 7 in Annex 1 shows responses by category of respondent. Table 1.7 overleaf summarises these responses.

Table 1.7: Summary of views on whether the general presumption against selling the seabed should be maintained

Response	No. of respondents	% of all respondents*
Yes	152	86
No	19	11
Don't know	5	3
Total respondents	176	100

3.27 Most (86%) respondents who provided a view considered that the existing general presumption against selling the seabed should be maintained. 11% respondents disagreed, which included four of the local authority bodies and all but one of the ports and harbour organisations.

Question 9: Do you have any other views on how the management of the Crown Estate in Scotland can ensure delivery of the duties in the Scotland Acts 1998 and 2016?

3.28 100 (47%) respondents provided views in response to question 9. A number of broad themes emerged from their responses:

Manage assets centrally

3.29 Several individual respondents and leisure and tourism bodies, along with a few respondents from the "other commercial" category, emphasised their view that assets should be managed centrally in order to:

• ensure continuity and consistency in various contractual and licensing arrangements;
• protect a "pan-Scotland" approach;
• avoid competing interests between different local authorities;
• maximise commercial opportunities, whilst protecting the environment and whilst balancing stakeholder interests;
• retain and build upon expertise and experience;
• retain revenue in Scotland; and
• enable rebalance of the Crown Estate in the interests of the people of Scotland.

3.30 The view expressed by a few of the port authorities was that Scottish control of assets provides the flexibility to examine more closely specific issues such as the sale of seabed under certain circumstances, allowing the proceeds to be used for reinvestment in other assets.

3.31 A few individual respondents identified Fort Kinnaird in Edinburgh as an asset which, in their view, should be kept within public ownership.

Devolve management to local authorities/local communities

3.32 Many respondents, largely local authorities, re-iterated their view that the principles of the Smith Commission should be followed, with devolution of the management of the Crown Estate to local authorities.

3.33 Many individuals, along with a few community groups, considered that involving local communities in meaningful decision-making on management of the Crown Estate, supported by capacity-building and empowerment, will contribute to ensuring that the duties in the Scotland Acts are carried out.

Explore more commercial management models

3.34 A few respondents, from a variety of sectors, identified the opportunity to explore other models of management of the Crown Estate in Scotland, with an emphasis on incorporating a commercial-based approach, utilising private ownership. They commented that Scottish Government policies will change over time, whereas professionals appointed to manage the assets will be suitably qualified and will provide consistent "good management", within overarching regulation by statute.

Retain strategic overview

3.35 Several respondents, from across a wide range of sectors, emphasised what they perceived to be the importance of retaining a strategic overview of the Crown Estate assets in order to safeguard the portfolio and align with longer-term goals such as sustainable development, and national and regional strategy. One national heritage/conservation organisation urged that environmental management encompasses the historic environment, particularly given the significant historic environment resource currently managed by the Crown Estate.

Limit fragmentation of the Crown Estate

3.36 A few respondents, including individuals and a national heritage/conservation body, suggested that to best ensure delivery of the duties of the Scotland Acts, fragmentation of the Crown Estate should be limited to prevent the value of the portfolio diminishing; to ensure continuity of the management policies and revenues; to retain important expertise; to achieve a Scotland-wide consistency; to achieve consistency in benchmarking; to better understand environmental impacts; and to ensure strategic use of assets for national benefit .

Transparency

Transparency

Devolving the management of Crown Estate assets to the Scottish Parliament provides new opportunities to enhance the accountability and transparency of how the assets in Scotland are managed. As with any commercial activity, there will always be constraints on full disclosure of all activities due to data protection requirements and the commercial nature of some activities.

Question 10: How can transparency on the sale and management of the Crown Estate assets be enhanced?

3.37 126 (59%) respondents answered this question. There was a general acknowledgement of the importance of transparency in relation to the sale and management of the Crown Estate assets, although a few respondents emphasised that issues of a sensitive nature may arise in relation to commercial decisions, and these should be respected.

3.38 Four main themes emerged from responses:

Information should be widely publicised and accessible

3.39 Respondents from a wide range of sectors considered that, to enhance transparency, information on decisions on assets, performance of assets, minutes of meetings, and so on, should be made publicly accessible online and in printed media. A recurring view was that information on upcoming sales, and the performance of the assets involved, should be publicised well in advance of the sale.

3.40 Several respondents suggested that simplified versions of some information, such as accounts, should be published to promote accessibility.

Publishable data to be specified

3.41 Many respondents suggested that legislation or guidance should be used to prescribe which information should be published. Information highlighted by respondents included annual reports, annual audits, strategic plans, delivery reports, records of sales and purchases of assets, for example, in Estate Assets Registers.

3.42 A few respondents envisaged some form of overseeing body, such as a Parliamentary body, Audit Scotland, or another entirely independent body, monitoring and scrutinising the key outputs of the Crown Estate in Scotland, and providing further reassurance of transparency.

Involve local communities

3.43 A repeated view across many different sectors was that engaging local communities and their representatives in key decisions relating to the Crown Estate assets will enhance transparency of activities.

Devolve management to organisations with open procedures in place

3.44 A common view, particularly amongst local authorities, was that transparency can be assured by devolving the management of the Crown Estate assets to bodies which already operate transparent decision-making processes and are accountable to the public.

3.45 A few respondents identified, for example, those bodies considered to be a Scottish Public Authority as set out in the Freedom of Information (Scotland) Act 2002; others referred to the procedures outlined under "Transparency" in Box 6 of the consultation document, as required by any organisation managing Crown Estate assets.

Greater alignment with Scottish Government policies

Community empowerment

The Scottish Government wants communities to have a stronger voice in the decisions that matter to them. The Community Empowerment Act 2015 provides new rights for communities, places new duties on public sector bodies and reforms community planning.

Question 11: How can the devolution of the management of the Crown Estate contribute to community empowerment?

3.46 142 (67%) respondents answered this question.

3.47 The most common response, particularly amongst individuals and community groups, was that involving local communities in decisions on the management of local Crown Estate assets, will contribute to community empowerment. Respondents considered that by being involved in meaningful and genuine dialogue over management issues, communities would grow in confidence and capacity.

3.48 Whilst many respondents emphasised that devolved management of the Crown Estate assets should reach beyond local authority level, to local communities, community councils, and community trusts, local authorities in particular argued that devolution of the management of the Crown Estate to local authority level was more appropriate in the short-term:

"…..given that the Interim body will not be subject to the Community Empowerment (Scotland) Act 2015, the Procurement Reform (Scotland) Act 2014 or the forthcoming socio-economic duty within the Equality Act 2010 but local authorities are, this means that a process for achieving community empowerment would be to potentially devolve the Crown Estate in Scotland to a local authority level" (the view of several local councils, local authority bodies and one respondent from the "other commercial" category).

3.49 A few respondents suggested that devolution to community level may be an option for the future once communities have developed expertise and built capacity.

3.50 Other recurring views were that devolution of the management of the Crown Estate can contribute to community empowerment by ensuring that a proportion of the financial returns are re-invested into local communities, or by ensuring local people are involved in opportunities for local economic development associated with Crown Estate assets. Examples were given of angling clubs and associations enabled to run their fishing activities, overseen by the Fisheries Trust and Salmon Fishery Boards; tourism and recreation opportunities; and sailing clubs being provided with the chance to manage the seabed in their area. A few of the land and estate respondents held the view that subsidiarity should be promoted as an active strategy, with resulting empowerment of communities.

3.51 A further common view, particularly from land and estate respondents and individuals, was that new legislation relating to the management of the Crown Estate should ensure it is aligned with the current Community Empowerment Legislation which places public consultation duties on public bodies. By embedding public consultation requirements in statute relating the Crown Estate asset management, respondents considered that opportunities for community empowerment would be firmly established as routine.

3.52 A few respondents, from a range of sectors, suggested that the asset transfer and participation request principles of the Community Empowerment Act should apply to any Crown Estate assets devolved to local authorities, to allow community buy-outs and ownership.

3.53 A few respondents, again across sectors, considered that by Crown Estate assets being managed in a transparent manner, particularly at local level, community empowerment will evolve organically, as opportunities for local people to engage will be more apparent and meaningful.

3.54 A contrasting view, shared by several respondents across sectors, was that by maintaining the management of the Crown Estate at national level, communities will benefit more by gaining higher financial returns through economies of scale, saving costs on staffing and administration, and minimising local conflicts of interest, uncertainty and reduced inward investment.

3.55 A few respondents questioned the meaning of "community", with a land and estates representative emphasising their view that tenant farmers be recognised as a community, and others remarking that defining "community" may be challenging in relation to offshore assets.

3.56 The view of a small number of respondents, largely individuals, was that devolution of the management of the Crown Estate may not have an impact on community empowerment, largely on account of the lack of suitable community expertise and lack of need for local communities to become involved, particularly where assets are currently well-managed and are generating local jobs.

Land Reform

Question 12: How can the devolution of the management of the Crown Estate contribute to land reform?

3.57 94 (44%) respondents addressed this question.

Views of respondents identifying potential contribution to land reform

3.58 28% of those providing a response suggested that the general increase in local involvement in aspects of decision-making, management and ownership of Crown Estate assets, will promote the community confidence and capacity required to contribute positively to land reform issues.

3.59 Finding local solutions to local problems and exploiting local opportunities for economic development were perceived as part of establishing a climate in which the land reform agenda can flourish.

3.60 Many of the organisations who gave a view identified the management opportunities provided by devolution to local communities, local trusts and local authorities, as underpinning the principles of land reform rights and responsibilities, including increasing transparency in decision-making and managing land in the public interest.

3.61 Another common view was that devolution of the management of the Crown Estate has the potential to contribute to greater diversification of ownership of land, a key aim of the land reform agenda. The extent of opportunities for local ownership was viewed as dependent on Crown Estate assets being brought within various legislative frameworks such as the Community Empowerment (Scotland) Act 2015 and Section 5 of the Land Reform (Scotland) Act 2016. In addition, a few land and estate respondents considered that community landowners whose land abuts the foreshore should have the right to own the adjoining foreshore ^[1] .

3.62 One further prominent theme was that local management of Crown Estate assets provides greater opportunities to manage assets in the public interest, focusing on socio-economic and environmental benefits over the longer term, in keeping with the land reform agenda.

3.63 Several respondents, largely local authorities, considered that potential to further progress towards land reform could be unlocked by addressing the link between land and marine assets. It was considered that unresolved issues remain around ownership of the foreshore, which create uncertainty and deter inward investment. Resolving these issues was viewed as a priority to give confidence to prospective community estates and ensure the maximisation of benefit from Crown Estate assets for the local community.

Views of respondents identifying challenges

3.64 20% of respondents who provided a view did not consider that devolution of the management of the Crown Estate will impact positively on land reform. Several individuals were opposed to land reform, and others stated that a link between the two policies was not particularly applicable.

3.65 A few organisations, from a range of sectors, provided their view that increased fragmentation of assets could lead to inconsistent management of land; one land and estates respondent suggested that if devolution went no further than local authority level, local communities may be put more at a disadvantage in terms of gaining control of assets, contrary to land reform aims.

3.66 A few national heritage and conservation bodies identified what they considered to be a tension between land reform aims of long term stewardship of land, taking account of wider socio-economic and environmental benefits, and potential pressure on managers of Crown Estate assets to enhance value and the financial returns from them.

Delivering on National Outcomes

Greater alignment with Scottish Government policies

Scottish Ministers see the devolution of the management of the Crown Estate assets as an opportunity to use the Crown Estate assets and revenues in a way that contributes towards achieving the following National Outcomes:

1. We value and enjoy our built and natural environment and protect it and enhance it for future generations.

2. We realise our full economic potential with more and better employment opportunities for our people.

3. We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.

Question 13: How can we further improve alignment with Scottish Ministers' objectives to deliver on the National Outcomes?

3.67 107 (50%) respondents answered this question. Two main themes emerged from their responses.

Make strategic links explicit

3.68 A common view across many different respondent categories, was that the strategic framework developed for Crown Estate in Scotland should make explicit links to the key National Outcomes and other related national policies. It was suggested that an appropriate performance and measurement framework be developed which will assist in assessing the alignment with, and achievement of these objectives. Examples of related policies provided by respondents included: National Marine Plan; Climate Change; and Energy Strategy.

3.69 A few respondents emphasised what they perceived to be the need for an oversight body to scrutinise performance and annual reports.

3.69 Several respondents highlighted the need for local management bodies to align local priorities with National Outcomes and objectives, to ensure consistent aims whatever the level of devolution.

3.70 The view of a small number of respondents, largely individuals, was that alignment with Scottish Ministers' objectives to deliver on the National Outcomes was most likely to be achieved by retaining a single, national entity to manage the Crown Estate assets in Scotland.

Devolve management to local levels

3.71 A further common theme was that involving local communities in managing and owning assets will promote community empowerment and resilience as well as enabling communities to appreciate the value of their environment.

3.72 Many of the local authority bodies who provided a view considered that devolution to local authority level will best ensure alignment with Scottish Ministers' objectives, as these are already embedded in their local planning framework.

Other views

3.73 Suggestions for further improving alignment with Scottish Ministers' objectives to deliver on the National Outcomes, made by only a few respondents were:

• Ensure that wider socio-economic and environmental benefits are taken account of, alongside commercial considerations in the management of assets.
• Ensure the potential for local economic development is realised, for the benefit of local people.
• Promote awareness of the objectives.