Overcoming barriers to community land-based activities: gudiance

7. Good practice principles

Through reflection on their personal and professional experience of working with landowners and communities, the interviewees described their perception of principles for 'good practice' by communities and landowners. Broadly, interviewees agreed that many of the principles should be shared by both community bodies and landowners; nonetheless, key distinctions arise. These 'good practice' principles are detailed in the following sections.

7.1 Good practice principles for private landowners

(i) Clear aims and processes

The interviewees were in agreement that good practice on the part of private landowners includes clarity and transparency regarding engagement processes (the developing Community Land Scotland ( CLS) and SLE protocol was advocated ^[7] ) in addition to honesty about intentions including whether or not motivations are financial. Establishing a shared understanding of timescales and pressures is perceived as important, plus a recognition of the costs associated and who should cover them. For example, clarity of terms at the outset of a discussion regarding land sale/transfer, and based on a shared framework of principles, in addition to a mutually-agreed land value (based on the VOA/ DV's advice) was considered 'good practice'. Interviewees also highlighted the need to increase awareness of the likely impact of the land use planning system on future community land-based activities.

An agreed format or discussion agenda for landowner-community engagement processes was suggested by the interviewees. Such a format, including facilitation, would build confidence amongst participating individuals, including landowning representatives. Existing standardised formats include Charrette planning processes (see Section 5.8) and statutory pre-application consultations with stakeholders and local communities for defined major developments. However, a development may not be 'major' in terms of a statutory requirement, but still significant to that local community. Therefore additional good practice principles in community engagement are required by the landowner.

Interviewees also suggest that community-landowner discussions and engagement processes are recorded for decision-making purposes to permit later scrutiny. For example: "if the landowner had a meeting with the community council, they could fill in 10 boxes of things that they had discussed, and that could be appended to the minutes of the community council." This record would allow for subsequent comparison, and external evaluation ( e.g. by Ministers).

(ii) Supportive behaviour and attitude

In alignment with clear aims and an agreed process, good practice for private landowners is also dependent on individual behaviour and attitude. Principles should reflect a change in 'thinking about how you interact with people'. The interviewees suggested that there is a need for a shift in thinking and attitude and to normalise community within land management business. Whilst the proposed CLS- SLE protocol (see above) will 'get people to the table', the interviewees questioned the extent to which such a protocol could succeed in directing behaviour.

Good practice with regard to landowner behaviour and attitude (as detailed in Section 5.1) includes respect, honesty, responsiveness, as well as a willingness and commitment to community engagement. It also requires attitudes of pragmatism and compromise, thus landowners seeking to be practical and reasonable about reaching a solution. Some interviewees advised that landowners be clearer about the challenges they face, demonstrate leadership and flexibility, and not to feel obliged to comply with community wishes/intentions. Time is required to appreciate the views and interests of others' within decision-making processes, avoiding reactionary responses, and considering underlying motivations if problems arise.

Furthermore, the interviewees believe that good practice involves landowners being prepared to support communities and to demonstrate that they are making a positive contribution to the community who lives on and around their land ( i.e. more than monetary return). This may involve support through funding, and involving those who have energy and commitment to progress community engagement/land based activities.

(iii) Fostering positive relationships and direct communication

The interviewees asserted that the key principles of good practice relate to ensuring amicable and constructive relationships between landowner and community, and to maintaining processes of dialogue, 'understanding issues and frustrations'. As mentioned above, it is good practice to develop a 'track record' of community engagement, not only because isolated engagement processes are not sufficient, but also to ensure an ongoing dialogue. Indeed, the interviewees described examples of estate businesses that are successful and multifunctional due to a basis of constant dialogue with those on and around the estate, and where landowners meet together (and with the national park authority, for example) to discuss and debate. Therefore, as interviewees explain, 'talking' is key to good practice, thus: "I don't want to say that all landowners aren't talking - many of them do; many of them have been talking to their communities for many years, and they've been doing it very successfully." Good practice therefore involves frequent, open, honest and consistent conversations that tackle barriers, empower people to speak freely, and necessitate senior management capacity and networking.

Direct contact between landowner and community including communication about day-to-day and strategic land management (on farms and estates) was considered important. Landowners are advised not to abdicate responsibility to professionals, instead to be 'known and open'. Direct communication has benefits in terms of efficiency and accountability; can be simpler, ensure consistency in message, and build positive relationships. Thus: "the more direct contact that you have between the landowner and the community the better, and building that relationship is really key". Direct communication is also cost saving; if there are concerns about the need for legal advice, communication can be caveated ( i.e. 'this is what I'm thinking, but I'll need to check'), therefore ensuring direct dialogue rather than working through a third party who might have a different agenda.

(iv) The role of advisors

Interviewees recognised that there is sometimes a need to involve expertise and specialist knowledge ( e.g. regarding crofting), and it is suggested good practice for landowners to establish an advisory group, to support the landowner and management, and avoid mistakes. However, the personalities of advisors were frequently highlighted by interviewees as a critical factor (see Section 5.5), and the difference between professional advisor or agent ( i.e. representing those who have employed you) and mediator ( i.e. when a conflict or impasse arises) is also recognised.

Interviewees who represent the rural land agency sector explain that they appreciated the recent approaches by CLS to 'reach out' in a pragmatic way to the land management sector: "We want to understand, in real life, how can a [rural surveying] company… reach out in that way, and how could we shape ourselves as a company to meet the challenge." Good practice therefore includes a role for land agents to 'think more widely', e.g. to become more involved locally, building relationships with the community council, Scottish Enterprise, tourism organisations, etc.; building knowledge and profile. Landowners are also advised to partner with more experienced partners in order to build that relationship, with SLE providing 'peer review and solidarity'. Overall, interviewees stressed the need for good practice guidance to be published for professional land management advisors ^[8] .

(v) Reflectivity in land ownership and management

Finally, interviewees advocated reflective and transparent ownership. As described: "I've seen really good examples of individuals just sitting down and saying, 'do you know the reason why I own this estate?'" Landowners are therefore advised to have a clear vision for their farm/estate, and a development strategy, of which a key part should be a community engagement strategy. They should communicate their vision/development strategy, involving community views. As described: "Estates have to get used to understanding what their goals and aims are and they have to get used to, first of all, conveying that, but also then moving towards involving the local community in that." Whole estate reviews are also recommended by the interviewees. There may be potential long-term benefits of supporting community land-based activities ( e.g. providing land assets may lead to increasing value of estate through developing access roads, etc.).

'Reflective ownership' thus also includes identifying which parts of a landholding are central to the estate business/family ownership, and which might be made available for community land-based activities. Interviewees highlighted the need to fully understand the benefits and dis-benefits to landowners of community land-based activities, and for wider stakeholder reflectivity ( i.e. including community and policy; see Section 7).

Good practice by private landowners therefore includes recognising the public interest in their decision-making; indeed, interviewees advised that large estate owners take a more strategic view, and act in a more altruistic manner. Adherence with SLE's 'Landowners Commitment' was suggested as a significant mechanism for overcoming barriers to community land-based activities.

7.2 Good practice principles for communities/community bodies

The interviewees discussed the key principles and practices which may be considered 'good practice' by community bodies in overcoming barriers to community land-based activities. Interviewees agreed that community landownership is challenging, and some barriers may be insurmountable. However, there is also the recognition that there are ways of achieving goals, despite structural and 'systemic' barriers.

(i) Early engagement with the landowner

Positive, early community engagement with the relevant landowner(s) is advocated as the first step in the pursuit of any community land-based activity. Information flows must be two-way. Some interviewees intimated that landowners and farmers should be considered part of the 'community' (according to definition), in order for land-based activities to progress. Community groups are invited to send questionnaires to landowners to seek up-to-date information and views, rather than 'jumping to conclusions' that access to/purchase of land will be prevented. At minimum, the respective parties need to be clear on community aspirations, and the implications for the landowner. Communities need to respect and value land management practices throughout the year ( e.g. farming cycles) and recognise what the land is used for at present and its 'best use'. This will mean the benefits of proposed alternative land-based activities are considered in the context of current land use, Local Development Plans and the national-scale Land Use Strategy.

(ii) Strategic and critical thinking

A further crucial step for communities is to undertake strategic and critical thinking, i.e. 'what are we trying to achieve?' Some interviewees were concerned that communities are adopting an 'unthinking route' with regard to asset ownership, and there is a need for community 'self-examination' regarding dynamics, governance and needs. Whilst the empowering role of asset ownership is asserted, leasing and other management agreements are highlighted as a valued alternative (see Section 5.6). Communities are advised to be 'realistic' in terms of progress pace and scale of land-based activity. For example, one community body seeking to develop a community garden have initiated land-based activity through establishing a community composting scheme, in order to build activity incrementally.

(iii) Establishing a 'sustainable development' plan

Good practice by community bodies seeking to develop land-based activity is centred on establishing a robust, realistic and strategic 'sustainable development' plan. It is expected that the implementation of measures within the Land Reform (Scotland) Act 2016 will ensure that communities go through the process of developing such a plan, establishing what they want to do and what can be done on the land in question. Communities will have to prove to that they can make 'best' use of the land asset (if they wish to acquire rights), that there is long term support for the project and that they have sustainable resources. Communities will be challenged as to whether they are proposing the most sustainable land use (economically, environmentally and socially). The planning process should anticipate questions regarding what would happen if/when community land-based activity ends, and the role of government in taking on ownership/management of assets, given issues of timescale/capacity of the community group. Community visioning processes are advocated as a means of developing and agreeing action plans, and engaging positively with private and public stakeholders ( e.g. the local authority). Such a process should produce a comprehensive and detailed plan for the community's land-based activity, but recognising that planning process and accompanying dialogue is the key outcome and can, in itself, be rewarding.

(iv) Achieving a unified voice

Due to the present heterogeneity of communities in both rural and urban Scotland, interviewees explained that it is challenging to obtain a unified voice within a community. Associated challenges are the lack of standard 'community' definition, and recognition that the majority of residents in a community of place have little active participation in community governance, apparently due to a wish to remain outwith the process or anxiety around participating. Therefore, it remains "hard to judge what they would want or need". Community bodies need legitimacy ( e.g. to progress negotiations in pursuing land-based activities), and such legitimacy can suffer if different groups are in dispute over the ownership or use of assets. Furthermore, given the number of community groups and plans, working with different parts of the public sector, it is realistic to assume that not all land-based activities will be achieved.

Interviewees highlighted the importance of community dialogue processes and ballots, ensuring quorum, establishing community companies, as well as measures to show that a majority of the community has engaged to ensure the representativeness of community plans. In identifying the consensus view or action plan by community bodies, there is a need for local democracy that functions well, however this is challenged by a reliance on volunteer time and effort.

(v) Community capacity, behaviour and knowledge of process

Particular issues arise due to a lack of capacity associated with the reliance on volunteers within community bodies. Community body members are 'juggling' and not able to focus their efforts full-time. Interviewees recognised a need for communities to consider contingency, for example, if key community members are unavailable for decision-making processes.

Interviewees described that in some cases, communities don't know how to behave, and that they can meet perceived power with 'all guns blazing'. Therefore it is good practice to act in a professional manner, and to be courteous. Community bodies must 'get all the facts in place' ( i.e. be certain of landownership, although this inhibited by the lack of coverage of the Land Register), and to be open to suggestions of alternative locations. Interviewees also highlighted the need for community good practice to include a broader understanding and awareness of wider processes of change and policy drivers.

The opportunity for capacity building to include developing skills in negotiation, in order for community groups to understand good quality negotiation process, is also highlighted, plus the need for compromise and reciprocity. This approach can engender 'goodwill' and realistic and positive engagement, in order to achieve 'win-wins' and partnership working. Indeed, whilst it is recognised that that communities are no longer 'passive consumers', but empowered 'players', community bodies may benefit from training with regard to how the approach processes of land acquisition/development ( e.g. planning applications, fundraising, growth and succession planning, identifying potential liabilities, etc.). Similarly, it is suggested that communities should be pragmatic and with business acumen, articulating their community plan to demonstrate that they 'know what they are doing and why they are doing it'. As one interviewee asserted: "if you want to be in the position of managing land, then be organised, with a clear sense of purpose, and with an outcome."

A particular area for greater community education and awareness-raising relates to the valuation process. Interviewees described concerns raised by the Valuation Office Agency ( VOA) regarding the quality and level of detail presented, demonstrating: "a lack of understanding…[on the part of] both parties - the vendor and the potential purchaser - as to what level of information we seek when we ask for their representations" ^[9] . It is important that communities provide the correct information to the VOA/District Valuer ( DV) and with consideration of which capacity the VOA/ DV is appointed ( i.e. whether in a client-acting capacity or as a statutory appointment under measures within the Land Reform (Scotland) Act 2003): "it's about the valuation integrity, so that when you report back the community have the confidence that you've covered everything". Communities need to understand and provide the VOA/ DV with all of the information required on exactly what the asset is that they wish to acquire, in addition to all leases and up-to-date rent information, feasibility studies, etc. Good examples of documentation received from communities included detail on what the land holding comprised, how it was constituted ( e.g. how many acres were under crofting tenure).

Communities also need to understand that their particular future planned use of the land is not considered in the valuation; the valuation process is based only on market value and not on future social benefit/end use value. This process therefore relies on community capacity, skills, plus an awareness and understanding of the 'right to buy' mechanisms within the Land Reform (Scotland) Act 2003. Interviewees recommended greater sharing of good practice, to ensure that these messages are reaching communities, and that they are receiving sufficient advice.

(vi) The role of community advisors

The role of community advisors was highlighted by interviewees as central to overcoming barriers to community land-based activities, in particular sourcing funding and providing guidance in 'good practice'. In particular, interviewees raised concerns regarding whether communities were accessing apolitical advisors and whether available advisors had the same skills as those found internally within public sector agencies ( e.g. Forestry Commission Scotland). Communities typically lack expertise in engaging with the process of acquiring rights to land. Whilst there is a need for the appropriate professionals to progress transactional/legal processes ( i.e. professionals with indemnity insurance), and act as an arbiter, an opportunity is recognised for a specific support role between community bodies and lawyers in particular, which may be more economical.

This support role would be best provided by professionals who regularly deal with complex land issues, e.g. chartered surveyors or 'land agents'. A 'community land agent' would be ideal to finalise land transaction details for community groups. However, the interviewees were not sure that communities frequently access land agents/rural surveyors, due to perceived costs. This barrier might be best overcome by making it clear to communities how land agencies are paid ( i.e. whether standard day rate or by commission). Interviewees also describe legal firms that specialize in charity law, which could be replicated for a community land agency, and the role of PAS in providing advice and training through its network of volunteers representing a range of disciplines including planners, architects, planning lawyers, landscape architects. One example described a 'community-minded' land agent who was praised for "speaking the same language" in negotiations between landowner and community (see Section 5.4).

Independent community development agencies can provide a support role, and interviewees also suggested a mentoring scheme for communities, to build understanding and ensure that when they do engage with landowners, they know what questions to ask, and the options available. Finally, whilst community networks are well established ( i.e. through CLS or DTAS), interviewees suggested that there may be the opportunity for greater networking by/with local authorities and the professional land sector, e.g. engaging with council planning departments.

7.3 The role for policy in supporting good practice to overcome barriers to community land-based activities

The interviewees were largely in agreement that policy has a role to play in overcoming barriers to community land-based activities although they cautioned that there is value in evaluating the existing legislative measures and underlying policy, before seeking to add further regulation or guidance. They also raised concerns that policy considers the impact on Scottish businesses within a global market and avoids over-regulation in particular for farmers. Interviewees therefore suggested a collaborative role for policy, through working with landowners, communities, and the professional disciplines ( e.g. planners, surveyors, lawyers). Policy development should include discussions with stakeholders, and build on experience from related policy, e.g. planning and outdoor access. The interviewees recommended measures of success to be incorporated into policy implementation and guidance, in addition to a need for recognition of good practice and standards of professional conduct.

The area identified where policy has a role is in diffusing conflict situations and reassuring land managers. Interviewees recognised a role for policy to support capacity building within communities, e.g. developing knowledge and experience of how to access funding, land management and wider training, information sharing. Some interviewees would also like communities to be made more aware of the possibilities 'beyond the feudal system'; such capacity building could contribute to that culture change. There is also a need to raise community awareness of support available, and the future trajectory of support. It is therefore suggested that policy support the SQA in developing training/qualifications to help community capacity to manage resources. There is also a role for policy in building public knowledge and awareness of the planning system, including how and when to participate; this may include overcoming challenges and exclusions regarding language use.

Monitoring whether the supporting agencies and charities are delivering according to their funding was considered useful and a policy priority. There is then the opportunity to provide further support to those services that are effective ( e.g. role of the Rural Forum - and how that can be replicated). Some interviewees were concerned that there is a need for good quality support, rather than a greater quantity of support services. The example of the Scottish Outdoor Access Code was raised by interviewees as a model that could be translated for the guidance proposed within the Land Reform (Scotland) Act 2016. The Code is considered to have been successful due to its accompanying educational campaign and government funding for access officers and local authorities to introduce and embed the legislation, contributing to a perceived 'cultural change' around how people use the countryside. Opportunities are also perceived as arising from the Land Use Strategy pilot projects in Borders and Aberdeenshire, e.g. using the maps as a tool for bringing together local stakeholders to identify the best use of land on local scale, underpinned by national-level principles, therefore a locally-tailored approach. The interviewees believe that ultimately it is not possible to 'legislate for stubbornness', and the key factor in overcoming barriers to community land-based activities is to ensure face-to-face dialogue between all stakeholders.

Opportunities were also identified for simplifying planning policy to remove barriers to community land-based activities, and how this is considered at local authority scale. The different approaches taken between local authorities are perceived as at times frustrating and that policy is convoluted; the interviewees would like more easily understandable policy for those who are influenced by it ( e.g. helping communities to progress projects). The provision of training for institutions in community engagement is suggested. 'Soft' policy approaches are suggested by the interviewees, including best practice templates and guidance that is regularly updated. Guidance may be piloted by local authorities, and is requested in particular with regard to barriers arising from divided (multiple) ownership. Local 'visions' are recommended as the basis for local development planning (see Section 5.7). Local authorities are apparently reluctant to exercise their existing powers of CPO because of perceived risks and costs and the interviewees wished to make local authorities 'bolder' in utilising existing CPO powers.

There is a need for clarity regarding the consequences of land owners/managers failing to adhere to forthcoming engagement guidance
(Part 4 of Land Reform (Scotland) Act 2016), whether statutory or voluntary. The forthcoming guidance should consider who the stakeholders are, how best to include them equally in an engagement process ( i.e. avoiding a 'tick box' exercise). The interviewees would like to see policy-led (rather than politically-driven) stakeholder guidance. Indeed, they suggested that policy explores the experience of localism in England and Wales. The role of existing the 'Community Engagement Standards' as 'rules of engagement' were considered and the interviewees were doubtful of real change due to the influence of relationships and power. The Planning etc. (Scotland) Act 2006 brought in a requirement to 'engage', which it is believed was valuable. It is suggested that a benchmark is established and a set of incentives for landowners to achieve with regard to Part 4 of the Land Reform (Scotland) Act 2016. Some interviewees believed that 'community' should be defined within the then Land Reform Bill (see Footnotes 1 and 2), including how community groups should be constituted ( i.e. required office bearers, etc.). The interviewees would like to see greater transparency around the boards of community trust, to ensure good governance.

Similarly, with regard to the Land Reform (Scotland) Act 2016, the interviewees described a role for the proposed Land Commission to gather necessary evidence and make recommendations for mediation/negotiation/compensation processes, but the interviewees believe that further work is required to develop the relevant policy. The interviewees also suggested a revision of the local government finance manual, questioning whether 'best value' should be required for asset transfer, accounting for social and environmental benefits (in addition to economic).

Overall the interviewees called for policy 'work streams' to be brought closer together ( e.g. the Land Use Strategy, LEADER and the National Planning Framework 3). There should also be recognition of the similarities and implementation of the three intervention measures available for overcoming barriers to community land-based activities, namely CPOs, the Community Empowerment (Scotland) Act 2015 (namely the 'abandoned and neglected' measures), and the Land Reform (Scotland) Act 2016 'sustainability test'. Furthermore, there is a call amongst the interviewees for planning policy to better support community developments (see Section 5.7), with national policies to be better integrated ( e.g. LUS and NPF 3).