Engaging communities in decisions relating to land: consultation analysis

1. Executive Summary

1.1 Under Part 4 of the Land Reform (Scotland) Act 2016 ^[1] (“the Act”), Scottish Ministers have a duty to issue “guidance about engaging communities in decisions relating to land which may affect communities” (“the Guidance”). The purpose of the Guidance required by the Act is to encourage land owners and land managers to develop co-operative and positive working relationships with local communities. The Guidance aims 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.

1.2 Scottish Ministers published a public consultation on the draft Guidance ^[2] on 24 March 2017 with views invited by 16 June 2017 on the Guidance and the approach taken to drafting it. 43 responses ^[3] were submitted, 40 from organisations and 3 from individuals. A summary of the views of respondents follows.

Views on the remit, scope and approach of the draft Guidance

1.3 Of the 28 respondents who provided a view, 20 agreed that the draft Guidance responds appropriately to the considerations of Section 44(2) of the Act; eight respondents disagreed, largely on the grounds that they perceived the Guidance to lack due consideration of: human rights; tackling inequality; and furthering the achievement of sustainable development.

1.4 Several respondents suggested that the Guidance be explicit on how it has taken Section 44(2) into account, and what its provisions mean in practice, perhaps by means of case studies.

1.5 Of the 27 respondents who commented, 18 stated that they agreed with the proposed scope for the Guidance; nine respondents disagreed. Many respondents requested further clarity around terms such as “communities” (geographical and/or interest), and “significantly impact”. Others asked that the Guidance makes clear that communities can initiate engagement; that all land owners and managers are encompassed and not just those in the private sector; that the Guidance applies to urban as well as rural areas; and buildings as well as land.

1.6 All but one of the 25 respondents who provided a view agreed with the approach taken to the relationship with existing statutory requirements. The remaining respondent considered that reference to access rights had been omitted. Those agreeing considered that the Guidance appropriately linked engaging communities in decisions relating to land with statutory consultation; supported supplementary engagement which could add value to statutory consultation; avoided duplication of effort; and presented a proportionate approach which would not deter owners from carrying out property developments.

1.7 All 27 respondents who provided a view agreed with the approach taken to using the National Standards for Community Engagement to inform the Guidance. This was perceived to be logical, appropriate, and likely to promote consistency in practice.

Views on section 1 of the draft Guidance: Using the Guidance

1.8 18 of the 22 respondents who provided a view considered that section 1 of the draft Guidance identified appropriate uses for the Guidance. A recurring comment was that the section could be strengthened with more detail to add to clarity and reduce scope for different interpretations.

Views on section 2 of the draft Guidance: Why should I engage with Communities?

1.9 20 of the 22 respondents who provided a view agreed that this section identified appropriate reasons why community engagement should take place.

1.10 A repeated comment was that the bulleted paragraph on the benefits of community engagement could be made more useful by adding further positive and negative impacts of community engagement, by means of either a chart or case studies. Some respondents considered that the section should provide more explicit links to broader guidance and relevant legislation.

Views on section 3 of the draft Guidance: Best practice principles for fair engagement

1.11 17 of the 20 respondents who commented agreed that appropriate best practice principles are identified in section 3 of the draft Guidance. Section 3 was welcomed as easy to understand; appropriate; and balanced.

1.12 Further resources were identified as required: for capacity-building for community engagement; and ensuring engagement is effective, for example, by deploying skilled external facilitators. A few respondents suggested that this section should acknowledge the importance of engaging with local organisations which have a democratic base or legitimacy.

Views on section 4 of the draft Guidance: When should I engage?

1.13 16 of the 24 respondents who provided a view stated that they agreed that appropriate solutions for when engagement should or should not take place had been identified in this section of the Guidance.

1.14 The flow chart in this section was welcomed as helpful in distinguishing between routine engagement; statutory engagement; non-statutory engagement; and supplementary engagement.

1.15 There were repeated calls for greater clarity on the circumstances in which engagement should take place, and the form this should take. Many respondents called for examples to enhance clarity.

1.16 A recurring view was that the term “significant impact” required clearer definition.

Views on section 5 of the draft Guidance: How should I engage?

1.17 15 of the 19 respondents who provided a view considered that the appropriate methods for engaging with communities are identified in this section.

1.18 The section was welcomed as useful, clear and informative; well thought out; with helpful illustrative examples. Some respondents commented that the section provides guidance without over-specifying.

1.19 The “How to Engage” column attracted most comment, with respondents divided between those advocating more detail on methods, and those who welcomed the broad outline presented.

Views on section 6 of the draft Guidance: Who should I engage with?

1.20 14 of the 20 respondents who provided a response considered that appropriate ways of identifying who to engage with are identified in this section.

1.21 A few respondents suggested that the section should contain information on engaging with “hard to reach” sectors of the community; others emphasised their view that communities of interest should be included, as appropriate, in addition to local communities.

1.22 An emerging theme was that time should be allocated to establishing who to engage with, using approaches such as participatory methods; networking; getting advice; and researching local groups in the area.

1.23 The statement “it is not always necessary to engage everybody within a community” was considered as giving too much lee-way for land owners and managers to select who they engage with.

General views on the draft Guidance

1.24 Of the 21 respondents who commented, 16 considered that the draft Guidance, as a whole, has proportionate and reasonable expectations of land owners, land managers, and communities. Several respondents suggested that further definition and clarity in places would help to ensure intentions of the Guidance are explicit, and all parties have appropriate expectations.

1.25 12 of the 22 respondents who provided a view agreed that, as a whole, the draft Guidance balances the need to provide sufficient certainty whilst allowing for different local contexts.

1.26 Key emerging themes were: the broad approach required to accommodate different local contexts could be supported with case studies and other relevant guidance; details are required of how to record engagement practice, evidence of engagement, and concerns regarding inadequate engagement; and details are required on who will monitor engagement performance and what redress will be forthcoming should shortcomings be found.

1.27 Respondents provided examples of when they considered that formal engagement is necessary, informal engagement is adequate, and no engagement is required. One respondent considered that on-going communication between land owners/managers and communities should underpin all decisions relating to land and there are no situations where engagement is not necessary.

Any other comments

1.28 Several themes emerged: additional sources of support are available and should be referenced in the Guidance; greater specificity and definition is required throughout the Guidance in order to enable actions to stand up to any legal challenge; engagement should supplement wider land policies rather than provide an alternative; and the promotion of the Guidance will be important in awareness-raising and influencing.

Impact assessment

1.29 Very few respondents addressed the questions on impact.

1.30 There was acknowledgement of the potential for people with disabilities and older people to be excluded from some forms of engagement due to access challenges. However, it was noted that the draft Guidance refers to the need to use a range of methods of engagement and accessible meeting venues.

1.31 It was generally agreed that there will be additional costs to land owners/managers and communities associated with engagement activities, although costs were not envisaged as being overly onerous.

1.32 There was a general consensus that the proposals had the potential to impact positively on the environment, by raising awareness of environmental issues and enabling different stakeholders to understand different perspectives.