Engaging communities in decisions relating to land: guidance

Part 1 Overview

Introduction

1. This guidance is issued by Scottish Ministers. It supports the greater collaboration and engagement that Ministers expect between those who make decisions about land and the local communities that are affected by those decisions.

2. Many forms of guidance exist relating to particular land related activities, including planning matters, housing, environmental emissions and certain farming activities. This document contains guidance about engaging communities in decisions relating to land generally, and does not relate to any particular land based activity or sector. As such, it applies to all situations where decisions being made about land might affect local communities.

3. The guidance is flexible enough to be useful in a wide variety of circumstances across urban and rural Scotland, and it can take account of changing socio-economic and environmental circumstances and contexts. To support this guidance, the Scottish Land Commission may from time to time issue further advice on its application to real world scenarios.

Context

4. Under section 44 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”.

5. In addition, Principle 6 of the Scottish Land Rights and Responsibilities Statement ^[2] ( SLRRS), which was published in September 2017, states that, “There should be greater collaboration and community engagement in decisions about land”. Scottish Ministers are under a legislative duty to promote the principles of the SLRRS when exercising their functions.

6. This guidance meets the requirements of section 44 of the Act and is part of the Scottish Government’s commitment to promote Principle 6 of the SLRRS.

7. Both this guidance and the SLRRS are informed by a consideration of human rights. The United Nations Office of the High Commissioner on Human Rights ^[3] ( OHCHR) states that land is not a mere commodity, but an essential element for the realisation of many human rights.

8. Human rights include Article 1 of Protocol 1 of the European Convention on Human Rights, which is incorporated into UK law and which protects people’s rights to enjoy their property peacefully. Human rights also include those rights contained in international conventions on economic, social and cultural rights to which the UK is a signatory. This includes rights to basic resources such as housing, food, clothing and water. More detail on human rights can be found in Annex A of this guidance.

Who this guidance is for

9. This guidance is for those with control over land, covering both rural and urban Scotland. It is for all private and public sector owners of land and buildings, including individuals, companies and trusts, non-governmental organisations, charities and community owners. It also applies to tenants, of any sort, where they have control over land.

10. Good practice in relation to land means being aware that decisions about land can have an impact on many people’s lives. Community engagement can be about a specific issue, or range of issues, but can also be a means of finding out what the issues are for local people.

11. Engagement creates an opportunity to air issues, establish good working relationships and help to shape decisions about land.

Purpose and scope

12. The primary aim of this guidance is to help ensure that people have the opportunity to be involved in decisions about land that affect them. It contains guidelines on when and how engagement should take place and with whom. However, it is neither prescriptive nor exhaustive, and engagement should be tailored to meet local circumstances.

13. This guidance applies to all land in Scotland, both urban and rural, including watercourses, buildings and structures on the land.

14. It does not replace or duplicate statutory requirements for community consultation and engagement where these exist; for example, the requirement under planning legislation for pre-application consultation for proposed major developments.

15. This guidance supports a change across all of urban and rural Scotland, so that engagement and collaboration with local communities about significant issues is the norm and local communities and land owners see each other as partners in achieving sustainable development.

16. The guidance sets out how those who take decisions about land should be proactive in engaging with communities affected by those decisions. Building and maintaining a positive working relationship with representatives of local communities can help decision makers understand when engagement may be necessary. It can also help inform the approach to engagement.

17. Community engagement is a key element of the Scottish Government’s land reform agenda. The Land Reform (Scotland) Act 2016 places human rights at the centre of land reform and this is reflected in the Scottish Land Rights and Responsibilities Statement. All those with responsibility for taking decisions about land are expected to consider and take forward community engagement as set out in this guidance.

18. Engagement does not give local communities any legal right over land nor any power to direct the actions and decisions of land owners or their delegates. However, engagement will enable communities’ views to be heard and help to shape decisions about land. Engagement will also help to foster trust between communities and those who are making decisions about land, which in turn will often lead to better decisions.

What local communities can expect

19. It is reasonable for Scotland’s local communities to expect engagement about land, especially where human rights issues, such as jobs, housing and issues impacting on gender equality, are part of the consideration.

20. Scottish Ministers expect anyone who is making decisions about land to consider engaging communities about decisions that are likely to significantly impact on those communities, especially where such decisions impact on the human rights of community members at the local population level.

21. Engagement should be carried out in good faith, with a view to genuinely listening to the ideas put forward by members of local communities. Communities can reasonably expect their views to be heard and taken into account when decisions are reached.

22. Local communities are advised that the best way to work with land owners or their delegated managers is through a representative organisation. Examples of these are community councils, local farming associations, residents associations, tenants associations and Business Improvement Districts.

23. Although the impact of decisions will vary from place to place, most day-to-day activities, especially where carried out under regulations (such as pesticide spraying and muck spreading), are unlikely to require community engagement.

24. Community engagement is an opportunity for developing collaborative solutions, ensuring the community’s voice is heard. However, it is not an instrument for addressing individual disputes.

Meaning of the term “land”

25. For the purposes of this guidance, the meaning of land is taken to be that within Schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 ^[4] . This provides that land includes buildings and other structures, land covered with water, and any right or interest over land.

Sector based guidance

26. Some sectors, such as forestry, already provide guidance within the sector on community engagement about decisions. The Scottish Government encourages all sectors which make significant land related decisions to work towards developing their own guidance on community engagement in decisions relating to land.

27. It is recommended that sectors considering developing their own guidance approach the Scottish Land Commission for advice.