Engaging communities in decisions relating to land: consultation analysis

4. Views on the Draft Guidance: Sections

4.1 The draft Guidance is in Annex 2. The consultation sought views on each section of the Guidance.

Question 5: Have we identified appropriate uses for the Guidance in section 1 of the draft Guidance? Please explain your answer.

4.2 22 (51%) respondents, representing all sectors, answered the closed aspect of this question, with 18 agreeing that appropriate uses for the Guidance are identified in section 1 of the draft Guidance, and four respondents (two community organisations and two NDPBs) disagreeing. 25 (58%) respondents answered the open aspect of the question.

4.3 Six respondents, across several sectors, considered this section to be relatively lightweight and open to interpretation and requiring further clarity and definition.

4.4 Four respondents requested more detail specifically on what constituted “opportunities” at the end of paragraph 1. Two suggested that the inclusion of examples could promote better understanding.

4.5 The second sentence of paragraph 1 was highlighted as lacking in clarity, with a suggestion for alternative text:

“The guidance is for all land owners and managers, including private, public, third sector organisations or individuals, when taking decisions which could impact on a neighbouring community” (Highlands and Islands Enterprise).

4.6 A community organisation and a NNGO remarked that there may be instances where communities are not on neighbouring land but sit wholly within the boundaries of an owner’s land, and this should be acknowledged.

4.7 A NNGO and an individual suggested that the distinction between statutory consultation and engagement should be made clearer in this section.

4.8 Many respondents, across a range of sectors, referred to their earlier comments relating to the proposed scope of the Guidance (e.g. in relation to decisions and involvement in longer term planning; definition of community; inclusion of existing or historic decisions; meaning of “significant” impact; voluntary status of the Guidance; and more emphasis on communities initiating engagement).

Question 6: Have we identified appropriate reasons for why community engagement should take place in section 2 of the draft Guidance? Please explain your answer.

4.9 22 (51%) respondents, representing all sectors, answered the closed aspect of this question, with 20 agreeing that appropriate reasons for why community engagement should take place are identified in section 2 of the draft Guidance, and two respondents (community organisation and a NNGO) disagreeing. 28 (65%) respondents answered the open aspect of the question.

4.10 The most frequently occurring comment was that the bulleted paragraph on the benefits of community engagement should be strengthened and “brought to life” by adding further positive and negative impacts of community engagement; adding a chart or diagram; or providing case studies.

4.11 Several respondents suggested that the section should provide more explicit links to broader contexts of relevance such as the Scottish Land Rights and Responsibilities Statement; Land Use Strategy; National Standards for Community Engagement; best practice principles of the Aarhus Convention; the consideration for Ministers under section 44(2) of the Act; and sustainable development goals.

4.12 Five respondents, across three different sectors, sought clarification that the reference to people who “spend time in the area” in paragraph 2, should not result in tourists outnumbering and overriding the interests of local people in decision-making on land.

4.13 Five respondents, three of them NNGOs, acknowledged the relationship of the Guidance to the Scottish Government’s National Outcomes but questioned whether this should be outlined so explicitly in a “public-facing” document. In contrast, one community organisation welcomed the inclusion of this element in section 2.

4.14 Three respondents, two of them NNGOs, called for the section to make clear that local land owners and managers are part of the local community too, with shared buy-in to issues over local land and buildings.

4.15 A community organisation and a local authority suggested that the role which communities are expected to play in engagement should be set out more clearly.

Question 7: Have we identified appropriate best practice principles in section 3 of the draft Guidance? Please explain your answer.

4.16 20 (47%) respondents, representing all sectors, answered the closed aspect of this question, with 17 agreeing that appropriate best practice principles are identified in section 3 of the draft Guidance, and three respondents (community organisation, a NNGO and a local authority) disagreeing. 26 (60%) respondents answered the open aspect of this question.

General comments

4.17 A few respondents welcomed section 3 as easy to understand; appropriate; and balanced.

4.18 Five respondents from a range of sectors cautioned that further resources will be required to support communities, land owners and managers in building their capacity for engagement, and ensuring engagement is effective (for example, by deploying skilled external facilitators).

4.19 Four respondents from a range of sectors suggested that this section should acknowledge the importance of engaging with local organisations which have a democratic base or legitimacy. Examples given included Community Councils; local Development Trusts; and Community Associations.

4.20 Two NDPBs and one private company considered that reference should be made to the National Standards of Community Engagement in this section; the Scottish Human Rights Commission recommended that the relevant parts of the Maastricht Recommendations on Promoting Effective Participation in Decision-Making in Environmental Matters be referenced in this section of the draft Guidance.

4.21 Several respondents referred to the need for transparency in decision-making to be made explicit. One local authority suggested that an emphasis should be placed on maintaining appropriate records (e.g. numbers attending meetings; dates; etc), for use as evidence in any subsequent decisions; a community organisation considered that an open review should be specified following engagement, to assess what has been achieved and the challenges faced.

Views on the introductory paragraph of section 3

4.22 Five respondents (three of them NNGOs) were of the view that, rather than what they perceived to be an emphasis on land owners and land managers choosing the means of engagement, the National Standards for Community Engagement should be adhered to, with owners and managers seeking endorsement of the method of engagement from key community institutions, prior to engagement.

4.23 One NNGO sought more guidance on what “most appropriate” means in this context, so as to avoid confusion or discontentment over the approach taken.

Views on the paragraph headed “Proportionate”

4.24 One private company welcomed the “holistic” approach to understanding impact.

4.25 An academic and an individual shared the view that, as drafted, the onus is on the land owner or land manager to assess whether engagement is necessary, whereas they may not have a full understanding of the impact of the land management decision on local communities, and cannot therefore assess whether engagement is proportionate to this.

Views on the paragraph headed “Collaborative”

4.26 There was a general sense amongst those who commented that this paragraph presented a “top down” engagement approach, rather than one based on co-production. One community organisation suggested that the involvement of an “honest broker” or facilitator to support engagement should be highlighted; another welcomed the reference to “two-directional” communication.

4.27 The Scottish Human Rights Association considered that a human rights-based approach would strengthen this section, for example, outlining that the engagement process will be developed alongside communities; communities will be clear at the start on their scope of influence; and time will be allocated to building trust. They also noted that providing a variety of forms of communication would most likely boost engagement levels.

4.28 Two NNGOs suggested that adding a bullet point relating to inclusive engagement could be helpful, to ensure engagement is not centred on the vocal minority.

Views on the paragraph headed “On-going”

4.29 Three respondents, including two NNGOs and a community organisation, considered it unrealistic to expect blanket, on-going communication and updates, suggesting instead that this section be viewed alongside that headed “Proportionate” and both be regarded as “Outcome sharing”.

4.30 The Crown Estate Scotland called for this section to be expanded to reference the value of establishing relationships and lines of communication with local communities as part of the general stewardship duties of responsible land owners/managers, arguing that this should make engagement about specific significant decisions easier.

Question 8: Have we identified appropriate solutions for when engagement should or should not take place in section 4 of the draft Guidance? Please explain your answer.

4.31 24 (56%) respondents answered the closed aspect of this question; 30 (70%) answered the open aspect. Of the 24, 16 stated that they agreed that appropriate solutions for when engagement should or should not take place had been identified in section 4 of the draft Guidance; eight respondents disagreed. Table 4.1 below summarises views by category of respondent.

General views

4.32 A few respondents, across a range of sectors, welcomed the flow chart in this section as helpful in distinguishing between routine engagement; statutory engagement; non-statutory engagement; and supplementary engagement.

4.33 Overarching comments referred repeatedly to the need for greater clarity on the circumstances in which engagement should take place, and the form this should take, particularly where low-level, informal engagement is appropriate. Many respondents called for illustrative examples to enhance clarity.

Specific views

4.34 Ten respondents across a range of sectors considered that a clearer definition of “significant impact” is required, particularly as a judgement on this is the trigger for engagement. Previous comments regarding cumulative impacts over time and lack of awareness of land owners and managers on local impact were repeated, with calls made for decisions on impact to be informed by the local community. A few respondents considered that the section under-played the impact which routine activities may have.

Table 4.1 Views on whether appropriate solutions for engagement have been identified in section 4 of the draft Guidance

Category	Agree	Disagree	No. of respondents providing a view
NNGOs	4	2	6
Private Sector and Professional Bodies	3	1	4
Community Organisations and their Representative Bodies	4	3	7
NDPBs	1	1	2
Local Authorities	2	0	2
Academic	1	0	1
Total Organisations	15	7	22
Total Individuals	1	1	2
Grand total	16	8	24

4.35 Other specific views included:

• Community-initiated engagement has been omitted (3 mentions).
• No mention made of communities of interest (2 mentions).
• Greater clarity required on whether there is a statutory requirement for engagement (2 mentions).
• Missing is a sense of on-going engagement and good relations between land owners/managers and the community (2 mentions).
• The flow-chart would benefit from using different fonts to emphasise key topics (2 mentions).
• Should be reference to timescales and allowing sufficient time for appropriate engagement (1 mention).
• Could be a need for confidentiality, including commercial confidentiality, and this should be reflected in this section (1 mention).
• The first box should differentiate between specific decision-making and broader policy planning (1 mention).
• Language should be consistent: there is reference to “potential” significant impact in the “Carry out Engagement” box, but just “significant impact” elsewhere (1 mention).
• The flow-chart is text-heavy and could be more concise (1 mention).
• What is the significance of the solid-line and the broken-line boxes (1 mention)?
• The text-box could be improved aesthetically (1 mention).
• An on-line version of the flow-chart could include hyperlinks to relevant legislation and guidance (1 mention).
• The flow-chart could be improved by adding an initial question on whether community development has already taken place (e.g. through the development planning process) or whether there are existing measures for community engagement that will be followed before a decision is made (e.g. through the planning application process) (1 mention).

Question 9: Have we identified appropriate methods for engaging with communities in section 5 of the draft Guidance? Please explain your answer.

4.36 19 (44%) respondents answered the closed aspect of this question, and 31 (72%) answered the open part. Of the 19 respondents, 15 considered that the appropriate methods for engaging with communities have been identified in section 5 of the draft Guidance; four respondents (two community organisations, one NNGO and one professional body) disagreed.

General views

4.37 A few respondents welcomed section 5 as being useful, clear and informative; helpful and well thought out; providing examples which help to clarify when to engage and the scale of engagement. One NNGO perceived the table to be a good starting point which could be amended over time, informed by experiences.

4.38 A few respondents from different sectors were appreciative of what they perceived to be the lack of prescription, with a useful balance struck between providing a guiding framework, but not over-specifying approaches. However, one NDPB and one NNGO cautioned that there was potentially too much room for subjectivity and different interpretations of some terms.

4.39 Three respondents from different sectors shared the view that section 5 related largely to informing, communication and consultation, rather than engagement. One community organisation described their perception of a “one-way process” rather than one focused on listening to the community.

4.40 A NNGO considered that co-design as a key aspect of engagement is missing from the table.

4.41 The “How to engage” column attracted most comment, with respondents divided between those who advocated more detail on methods, and those who welcomed the broad outline presented, albeit strengthened with links to further support and methods. A few respondents specified the National Standards for Community Engagement as an appropriate key link. Three NNGOs were of the view that whilst there are clearly other methods which could be included in the final column, overriding factors are the capacity, financial and otherwise, of land owners/ managers and communities to engage.

4.42 Two community organisations suggested that more could be made of online engagement, taking into consideration local broadband and mobile signal availability and also the format of documents posted online, in terms of suitability for sending and accessing.

4.43 Several suggestions were made for adding to the table and/or guidance:

• Recognition of the time dimension in terms of ensuring time is scheduled for forward planning, co-design and collaborative working (James Hutton Institute and an individual).
• Recognition of the time dimension in terms of when to engage, to ensure it is meaningful and not perceived as a “tick box” exercise (James Hutton Institute and an individual).
• The process of all parties agreeing in advance the timetable and the format of engagement needs to be recognised as a key stage (Community organisation).
• The recognition of the distinction between short-term disruption and longer-term activities, presented in the table should be introduced earlier in the Guidance ( NDPB).
• The distinction between “significant decisions” requiring informal engagement and “very significant decisions” requiring formal engagement appears for the first time in the table and should be introduced earlier in the Guidance (Professional body).
• Guidance on engagement for borderline cases/activities falling into both “informal” and “formal” engagement categories is required ( NNGO).
• Need to include reference to recording the results of engagement ( NNGO).

Specific views on Good Neighbour row

4.44 One respondent ( NDPB) commented that the concept of “good neighbour” had not been referred to earlier in the draft Guidance, and should perhaps be replaced with the heading “No requirement to engage”, with the good neighbour concept introduced in the “How to engage” column.

Specific views on Informal Engagement row

4.45 Two respondents ( NNGO and a Professional body) considered that, rather than informal engagement, this row referred largely to informing and perhaps could be re-titled as such.

4.46 A NDPB suggested that the row should be more explicit in referring to “temporary” impacts.

4.47 One community organisation suggested the inclusion of public meetings in the “How to engage” column.

Specific views on Formal Engagement row

4.48 Two community organisations and one NNGO considered that the decision not to make a change in response to a community request should be included in the “Description” column.

4.49 A community organisation suggested the insertion of “new or expanded to existing” prior to the third bullet under “Description” column.

4.50 A NNGO called for examples of what could be termed disruptive activities, and what is day-to-day activity, in relation to farming, forestry and estate management.

4.51 A community organisation requested the insertion of “or around” before “a community is controlled” under the “Examples” column, second bullet.

4.52 One NNGO considered that second bullet in the “Examples” column to be ambiguous and questioned whether the day-to-day estate management by a land owner or manager holding a significant proportion of land always required formal engagement, or whether this applied only when there was significant change?

4.53 A community organisation recommended that use of online/social media be included in the column “How to engage”, with the likelihood of large/controversial developments having their own website, kept up-to-date as proposals are refined, and posting recordings of meetings and presentations for those unable to attend in person.

Question 10: Have we identified appropriate ways of identifying who to engage with in section 6 of the draft Guidance? Please explain your answer.

4.54 20 (47%) respondents answered the closed aspect of this question, and 30 (70%) answered the open part. Of the 20 respondents, 14 considered that appropriate ways of identifying who to engage with have been identified in section 6 of the draft Guidance; six respondents (four community organisations, one NNGO and one private company) disagreed.

4.55 There was a general acknowledgement that ensuring that the correct people are identified and engaged with by land owners and managers, can be challenging. Representativeness of those engaged with was highlighted as a particular issue, with more guidance sought on how to handle competing views amongst communities.

4.56 A few respondents suggested linking the section to the National Standards for Community Engagement; others considered that land owners and managers may need more formal training and external support to ensure effective engagement.

4.57 A NDPB and an individual were of the view that the section required a greater level of detail, possibly including case studies as examples of well-targeted engagement with positive outcomes.

4.58 Four respondents (three NNGOs and the James Hutton Institute) considered that the section could be stronger on engaging “hard to reach” sectors of the community:

“We are concerned that those communities, groups and individuals least able to engage (particularly in areas of multiple deprivation) can often be those most impacted by decisions in relation to land – it is important that this is taken into account as part of the finalised Guidance” (Keep Scotland Beautiful).

4.59 Five respondents, including community organisations and NNGOs, repeated their view that communities of interest should be engaged with, as appropriate, in addition to local communities.

4.60 Several respondents agreed that local community organisations with a democratic base and legitimacy, such as Community Councils, could provide direction as to who to engage with. However, a Professional Body and an individual considered that, on occasion, the Community Council may not be best placed to advise; local authorities and others may offer better guidance.

4.61 An emerging theme was that time should be allocated to establishing who to engage with, using approaches such as participatory methods; networking; getting advice e.g. Maastricht Recommendations ^[8] ; researching, using websites such as the Office of the Scottish Charity Regulator for details of charitable organisations including community bodies; asking NNGOs who may have local groups in the area; and seeking advice in schools and places of worship.

4.62 Two NNGOs highlighted that Charitable Trusts may be bound by their own Guidance as to who they need to engage with.

4.63 One NNGO commented that other factors such as the capacity of communities to engage, when they potentially could be dealing with many different engagement exercises, could influence whether engagement with them will be possible.

4.64 The statement, “It is not always necessary to engage everybody within a community”, attracted concern from a range of respondents, that this opened up possibilities of selective engagement or “cherry picking” who to engage with:

“While we understand that the intention here is good, and that it will never be possible to engage every individual within a community, this sentence gives too much leeway to landowners in terms of who they engage” (Scottish Council for Voluntary Organisations).