Land reform in a Net Zero nation: consultation analysis

2. Criteria for large-scale holdings

The consultation paper notes that the proposals relating to strengthening the Land Rights and Responsibilities Statement (LRRS), Compulsory Land Management Plans and a new Public Interest Test seek to tackle issues associated with scale and concentration of land ownership in Scotland.

The proposals seek to balance the interests of the general public and local communities with the interests and rights of individual property owners, with the Scottish Government of the view that it would be proportionate for the proposals to be applicable only to ‘large-scale’ landholdings.

The criteria the Scottish Government proposes to use to classify landholdings as ‘large-scale’ are as follows:

• A fixed threshold of 3,000 hectares.
• Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through the Scottish Government’s six-fold urban/rural classification scheme.^[1]
• Land that accounts for more than a specified minimum proportion of a permanently inhabited island.

Meeting one or more of these criteria would mean that a landholding would be considered ‘large-scale’.

Question 1 – Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’?

Please give some reasons for your answer and outline any additional criteria.

Around 390 respondents made a comment related to the criteria for large-scale holdings. Issues raised relating to the three criteria proposed, along with answers to the relevant closed questions, follow an analysis of more general comments made.

Support for the general focus of the reforms

General comments included support for the general package of reforms set out in the consultation paper, with further points including that the combination of measures is an effective way to introduce systemic change and, by doing so, to increase the accountability of large-scale and concentrated landholdings, enable government to intervene in order to secure the public interest and to secure a just transition. It was also suggested that the proposals provide a proportionate way to regulate localised monopoly power in the public interest, recognising the critical role of land in meeting Scotland’s public policy objectives in relation to the economy, net zero, a just transition and fulfilling human rights.

Concerns about the focus on large-scale landholdings

Some respondents commented on the general direction of the proposals overall, with the most-frequently made observation being that there is little or no evidence that land ownership at scale has negative outcomes for communities or the environment. In particular, it was suggested that it is not clear what benefit the approach would have on the journey to net zero and that, in fact, scale is often necessary to achieve the Scottish Government’s net zero aims.

There were references to both a 2014 national landowner survey^[2] which found that larger estates are more likely to be involved in conservation management, and to Scotland’s environment web stating that landscape-scale conservation involves working at a large scale and that this is the scale at which there is often most opportunity to deliver real and lasting benefits.

It was also suggested that some rural land can only deliver positive climate and biodiversity outcomes as a result of consistent, stable management over long periods; the associated concern was that ‘new’ owners could have different needs and imperatives, and that influencing management on a number of smaller contiguous holdings is likely to result in additional cost to the public purse.

Specific suggestions around how those with larger landholdings may contribute to meeting net zero or biodiversity aims included that:

• Projects for carbon capture, storage and sequestration work most effectively as part of a wider landscape management plan; this integrated land management is something responsible large-scale landowners have taken onboard for many years.
• Effective deer management, including to encourage more forested areas, can be delivered by landowners working together to cover a larger area of ground. Scale can ease operation and have a quicker and more effective environmental impact.

There were also a number of references to specific larger-scale landholdings providing beneficial outcomes for both climate and nature. They included to the work of Cairngorms Connect, The East Cairngorms Moorland Partnership and the Monadhliath Deer Management Group.

Other suggestions as to how ownership at scale can offer positive outcomes included:

• Some large-scale landowners provide employment and business opportunities and support community involvement, with some very large estates investing huge sums of money back into local communities. It was suggested that community ownership does not provide such benefits.
• Providing housing, and by extension making a positive contribution to housing affordability in rural Scotland. There was reference to the work of Moray and Stracathro Estates as examples of when the scale of estates has enabled them to take a role in the provision of new housing.

There was also a view that the proposals do not balance the interests of the public and local communities with the interests and rights of individual landowners, especially at a time when rural businesses are already vulnerable. In terms of the interests of landowners, it was suggested that land based businesses need to be able to operate flexibly, and that further administrative burdens will take time and resources away from other activities and may stifle innovative projects, neighbour co-operation or investment in training the younger generation.

The consultation paper’s reference to small-scale landholdings potentially being disadvantaged relative to larger landholdings was also challenged, and it was noted that having more staff is a function of business activities and does not equate to spare capacity. It was also suggested that there may be small-scale properties or family farms with more employees or a far higher turnover than their larger counterparts, and that they would be better placed to comply with the administrative burden the proposals would bring.

Concerns about the sufficiency of the reforms

While some respondents raised concerns about the broad approach being adopted, others noted their support for a framework that enables communities to take ownership and have a say on the use of land and the resultant benefits this brings. It was also suggested that land reform is a means of meeting in delivering wider societal benefits, including nature restoration, carbon sequestration, and sustainable economic development.

However, ‘in principle’ support was sometimes accompanied by concerns about the scope and likely impact of the current proposals and, in particular, that they are too limited. This was often connected to a concern that, in defining the threshold for a large-scale landholding, there is a risk that the legislation results in too narrow a focus on a small number of estates.

Further comments or suggestions sometimes related to strengthening specific proposals (covered further at the relevant question below), but also included more general calls for the reforms to address the impact of large-scale and concentrated land ownership on:

• Food and agriculture system and the environment. It was suggested that smaller-scale farms perform better than large-scale farms across a number of different indicators relating to ecology and healthy food supply. It was suggested that the increasing scale and concentration of farmland ownership is often linked to more capital-intensive forms of agriculture which are detrimental to our environment.
• The renewal of the agricultural workforce. Associated comments included that concentrated land ownership can lead to the loss of family farms and have an impact on local employment.
• Tackle the financial motivations for, and advantages of, large-scale land ownership. There was reference to a suggestion from the Scottish Land Commission (SLC) that realising the full benefits of Scotland’s land resource will require more fundamental policy reform, probably including changes to the taxation system.^[3]

Definition of large-scale holding

A number of respondents, including amongst them those who agreed, disagreed or did not know about the fixed threshold of 3,000 hectares, commented on the importance of being clear about how a large-scale holding is to be defined. In terms of the current proposals, some respondents sought clarification regarding what the consultation paper means by ‘landholdings’, with comments including that it is not clear whether ‘landholding’:

• Is referring to an aggregate area of land, as in the Agricultural Holdings (Scotland) legislation and hence whether it applies to ‘landholding’ or total ‘land ownership’?
• Refers to ‘holdings’ or ‘titles’? It was noted that the Land Register covers titles, but one holding may cover several titles.
• May be contingent on geographical area, as apparently implied by the section on the Public Interest Test?^[4]
• Is intended to exclude areas designated as settlements? There was a call for such areas to be included.

There was also a query about whether the extent of ownership is relevant, for example whether it applies to part ownership, or percentage of shares in a corporation and a suggestion that it may be more useful to classify landholdings as significant rather than large-scale.

Single or aggregated landholding

Returning to the issue of total land ownership, understanding varied around whether any ‘landholdings’ threshold, including the 3,000 hectares covered at Question 1a, would only apply to single blocks of land or to aggregated landholdings.

For example, one Landowner respondent that owns many smaller parcels of land, with a total acreage which exceeds the proposed threshold, thought that they would be considered a large-scale landowner under the proposals as set out. This raised a range of management and financial concerns for this respondent. Other comments included that there is no clear rationale for why the aggregation of landholdings spread over potentially distant locations would support the intended outcomes of the reforms.

Others interpreted the current proposals as appearing to apply only to single landholdings, although often going on to call for any qualifying thresholds to be based on land ownership, covering all land in the same beneficial ownership wherever in Scotland. There was also reference to the aggregate of the land held by any one party with a significant financial interest.

Reasons given for supporting a threshold based on all land owned included a view that it would be more effective in addressing scale and concentration, and in delivering increased diversification of ownership. Specific points made included that:

• How title to land is held can vary, largely a result of previous ownership arrangements, and how each title is registered is not the most relevant factor.
• The aggregated approach would help prevent avoidance loopholes in the form of small sections of larger holdings being held under separate titles to effectively split large landholdings into separate smaller landholdings.

Other ‘anti-avoidance’ measures suggested included legislative safeguards to ensure that steps cannot be taken by landowners to circumnavigate the intention of the reforms by transferring parts of landholdings into different companies or trusts for ownership purposes.

There was also a suggestion that although thresholds should apply to aggregated ownership, the provisions relating to the LRRS and Land Management Plans should continue to apply separately to each landholding.

Concentration of ownership and impact on the local community

There were also a number of comments relating to concentration of land ownership, including that the SLC’s 2021 discussion paper highlighted it as an issue and as potentially more significant than scale.

In particular, it was reported that the SLC’s 2019 research^[5] found that the concentration of social, economic, and decision-making power associated with land ownership is more significant than the scale of a landholding. It was also noted that the research report found that while many people equate concern about the scale and concentration of landholdings with hostility toward private ownership, the two issues are distinct, and the risks of concentrated power can apply regardless of the sector of ownership.

Further comments included that any impact(s) on neighbouring communities should be factored into the criteria used; it was suggested that even relatively small holdings – with an example given of fewer than 100 hectares if these totally surround a rural community – can have a profound impact and exercise a significant influence over that community.

Conversely, it was suggested that many large-scale landholdings consist of extensive areas of upland with no-one living nearby and hence no community to be affected.

Type of land and location

The other frequently-raised issue was that any approach should consider the type of land, with comments including that different types of land (productive land, land for building on, land for moorland, land for grazing, ‘poor land’, land in disadvantaged areas, uplands, and coastal areas) have different values and uses. Variables such as fertility, productivity, profitability, sustainability and ecological impact of land management practices, and the extent of community living on the land were also considered significant.

There was also reference to geographical differences, for example that 3,000 hectares (as at Question 1a) in the central belt is not comparable to 3,000 hectares in Sutherland, and it was reported that, in some areas, family farms can be larger than 3,000 hectares.

The geographic location of large landholdings was also seen as an important factor in assessing their impact on potentially vulnerable or marginalised populations. An example given was that some large estates in south-west Scotland are adjacent to deindustrialised or isolated communities that have greater socioeconomic need.

There was a call for a more area-specific approach to determine what counts as large-scale. An associated point was that, from an agricultural perspective, there is an argument in favour of distinguishing between upland and hill holdings (Regions 2 and 3 of the Basic Payment Entitlement Schemes) and lowland holdings (Region 1).

How land is used and managed

How land is managed and used was also seen as important, including whether land use contributes to employment, economic and environmental sustainability, security of essential goods and services, a reduction in global greenhouse gases and improved biodiversity. It was also noted that many large landholdings involve mixed uses, but that a fixed threshold methodology could fail to reflect the divergence in impact on community and environment that different land uses can have.

From a local community perspective, there were reports that in parts of the south-west, communities are concerned about land-based activities being outside of the regulation of the planning system, with both commercial afforestation for carbon sequestration and timber production and intensification of dairy farming cited as of increasing concern. Again, there were calls for the reforms to provide options to such communities that are not based simply on scale.

In terms of how any way forward might be framed, it was suggested that lessons can be learnt from the approaches in other countries. For example, it was reported that Germany and Austria regulate purchases of both agricultural and forestry land, Sweden regulates the purchase of land in sparsely populated areas and Prince Edward Island distinguishes between arable, non-arable, and shore frontage land, limiting ownership amounts of each. It was also reported that, in Sweden, the purchaser must consider employment and residency impacts – issues which were thought to be of relevance for sparsely populated areas in Scotland.

Other considerations

Respondents also highlighted other issues or raised other queries about the use of criteria to classify landholdings.

Assessing scale of ownership

The availability of reliable and complete information was one issue highlighted. Comments included that the land registry is far from complete; an associated suggestion was that the statistics on landholdings set out on in the consultation paper cover leases and other rights, as well as ownership, and thus do not give an accurate picture of the likely impact of the legislation.

A Government and NDPB respondent reported that from the Land Register, they could identify potential owners who meet the threshold but that it may be difficult to provide certainty. They also reported that:

• They are unable to identify if the owner holds land under different capacities, such as individually vs jointly with others or as part of a company.
• There will also be challenges in determining when the threshold is met where land is held by a single landholder across both the Land Register and the Sasine Register as that is not a map-based register.

Occupation by a tenant

There were a small number of queries regarding how the use of any criteria would be affected by a tenancy, and in particular a tenancy under the Agricultural Holdings (Scotland) Act 1991, being in place; it was suggested that, with the exception of the section on land use tenancy, the consultation paper does not clarify how the proposed measures would be implemented where the land in question is occupied by a tenant.

There was a query as to who would have the responsibility to comply with obligations on large-scale landholdings in the event of a long-term lease for forestry or for farming? One suggestion was that the proposals on Management Plans and registration and access to public funds will require accommodating measures to reflect tenancy arrangements.

It was also suggested that the Bill should address land ownership rather than landholdings, as the latter implies reference to tenanted land, whereas the Bill should address land ownership.

However, there was also a view that the existence of tenancy arrangements should not be used as a blanket exemption from the proposals and that to do so would exclude a large proportion of rural Scotland and provide an obvious loophole for future avoidance.

Use of the criteria, exceptions and variations

There were also queries around how the three criteria set out would be combined, or not, when classifying a landholding as large-scale. Specifically, whether a landholding only has to meet one criterion.

There were also queries around whether there would be any potential for exceptions to apply, for example if the land is owned by a charity, by a Public Body, or is in community ownership.

In terms of other possible exceptions, suggestions included that the legislation should give Ministers powers to designate a landholding as ‘large-scale’ where a persuasive case can be made, and that this might include:

• Where the land management has a significant and demonstrable impact on the community.
• Strategic assets such as critical infrastructure, community facilities or land with potential for housing.

There was also a suggestion that the qualifying thresholds for the criteria should vary, for example that lower thresholds could be appropriate for measures relating to prior notification of sales, especially in urban areas, and for measures relating to overseas ownership of land.

Whatever the threshold(s), it was suggested that they should be set out in regulations rather than the primary legislation itself. The expectation was that this would allow for the threshold to be amended more easily should this be required. It was also suggested that this approach could accommodate a progressive application of the thresholds over time.

There were also calls for guidance on whether and how criteria and thresholds can be changed; it was suggested that this guidance should set out a transparent process based on engagement and consultation with relevant sectors and bodies.

Fixed threshold of 3,000 hectares

Q1(a) A fixed threshold of 3,000 hectares

The consultation paper suggests that 3,000 hectares would be a proportionate threshold and that using this threshold would avoid placing disproportionate duties on small-scale landholdings or family farms. The consultation paper also notes that the additional criteria for classifying large-scale landowners (covered at Questions 1(b) and 1(c) have been proposed to help tackle issues associated with concentrated land ownership.

Table 2 Question 1(a) – Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’: A fixed threshold of 3,000 hectares?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	0	3	1	4
Community or local organisations	5	15	0	20
Government and NDPB	4	5	4	13
Landowner	3	29	2	34
Private sector organisations	1	8	4	13
Representative bodies, associations or unions	8	12	4	24
Third sector or campaign group	5	20	3	28
Total organisations	26	92	18	136
% of organisations	19%	68%	13%
Individuals	135	169	38	342
% of individuals	39%	49%	11%
All respondents	161	261	56	478
% of all respondents	34%	55%	12%

Percentages may not sum to 100% due to rounding

A majority of respondents, 55% of those answering the question, did not agree with the use of a fixed threshold of 3,000 hectares. Of the remaining respondents, 34% agreed with the proposed threshold and 12% did not know.

Reasons for agreeing with the proposal

A number of those who agreed at Question 1(a) noted that they supported the general principle of including a fixed minimum threshold for what constitutes a large-scale landholding. Other reasons for agreeing included because the intention is to include only very large-scale landholdings or because a fixed threshold of 3,000 hectares would appear to be a reasonable figure. A threshold of 3,000 hectares was also described as fair and proportionate.

However, as noted below, a number of those who agreed also went on to suggest that the fixed threshold should be lower than the 3,000 hectares proposed.

Reasons for disagreeing with the proposal

No clear rationale or detail

Some of those who disagreed did so because (as outlined above) they disagreed with the focus on large-scale holdings and/or setting a fixed threshold. Those taking this view sometimes also noted that the figure seems arbitrary, with very little explanation or rationale behind why the figure of 3,000 hectares has been chosen.

An associated point was that any legislative change should be grounded in evidence but that no evidence which suggests that 3,000 hectares (or any other defined scale) provides a rationale for the legislation has been presented. It was also suggested that setting an arbitrary figure would lead to material prejudice and be disproportionate when applied to the owner of, for example, 3,001 hectares as opposed to the owner of 2,999 hectares. It was also noted that the reasoning for setting a threshold at a particular level will be particularly important if that threshold may be subject to challenge – for example based on whether there is a legal and ethical justification for it.

As above, the challenges associated with establishing whether a landholding falls within the greater than 3,000 hectares classification were also highlighted.

Concerns about the impact on landowners

In terms of possible risks associated with a 3,000 hectare threshold, it was suggested that it could severely dampen private sector natural capital investment into landscape-scale projects, including those seeking to address climate change and biodiversity loss. The associated suggestion was that investors need landscape-scale land parcels to create viable projects with maximum impact but that, in some areas, 3,000 hectares is relatively small scale.

The consultation paper’s reference to not placing a disproportionate administrative burden on small-scale landholdings, particularly if this would disadvantage them relative to larger landholdings with more staff and capacity, was queried; it was suggested that a landholding of greater than 3,000 hectares may not be better placed to carry the administrative cost and burden, or the reporting and disclosure and compliance risk. There was specific reference to upland family farms which, it was suggested, could be larger than 3,000 hectares but be in an area where size does not necessarily equate to productivity or capital value.

In relation to whether a 3,000 hectare threshold would mean that most family farms would not be covered by the proposals, it was suggested that this cannot be judged without a clear definition of ‘family farm’ and that there are risks of unintended consequences, bearing in mind the different ownership and contractual arrangements which may be in place.

The threshold should be lower

A frequently made point, primarily but not exclusively raised by those who disagreed with a fixed threshold of 3,000 hectares, was that 3,000 hectares is too great an area.

Further comments included that a 3,000 hectare threshold would mean the proposals would affect a relatively small number of landowners, and hence would have limited impact. It was suggested that, in some parts of Scotland, the vast majority of landholdings would be excluded and that, in practice, the impact of the policy objectives and interventions would be limited to areas where there is concentration of large parcels – primarily some upland areas in the Highlands.

One public body respondent that is also a landowner reported that it considers its landholdings of around 2,300 and 1,400 hectares to be large and would expect both these holdings to qualify as a large-scale landholding in the legislation. Another landowner respondent reported that among their properties that would fall below the 3,000 hectare threshold is the nationally important Ben Nevis Estate.

There was an additional view that the aspirations of the proposals are also relevant to landholdings smaller than 3,000 hectares in the context of net zero, community wealth building, common good, and landowners’ accountability and transparency aspirations. An associated point was that the proposals have the potential to deliver environmental benefits across a significant proportion of Scotland and that setting a lower threshold would help encourage nature restoration at the scale required across the whole of Scotland.

Other comments about the benefits of a lower threshold, or the problems associated with the 3,000 hectare threshold, included that:

• The use, management or ownership of land and buildings is often identified as a key means to communities, including disadvantaged communities, achieving their aims, and that it is mostly the control of small pieces of land or buildings that make the difference. A lower threshold would be likely to mean the reforms would apply to more of these smaller pieces of land.
• Community-led housing often involves acquiring small land plots, and communities attempting to acquire land for housing would not be enabled by a 3,000 hectare threshold.

In terms of specific alternatives, the most-frequently suggested was a threshold of 1,000 hectares. There was reference to the SLC recommending a 1,000 hectare threshold, with other reasons given for supporting this level including that:

• The consultation paper reports that a 1,000 hectare threshold would capture 5% of Integrated Administration and Control System (IACS) registered businesses in Scotland, equating to 964 businesses; it was suggested that a measure that captures the largest 5% of agricultural businesses is not excessive.
• It would exclude most family farms.
• Most people working in land would consider 1,000 hectares to be a large- scale holding.

Other comments on a possible 1,000 hectare threshold included that there should be a lower (than 1,000 hectares) threshold for land that is within 3 kilometres of rural settlements and crofting communities.

Other suggestions included that a 1,000 hectare threshold should be subject to review, and adjusted downwards in the future. An alternative suggestion was that a 1,000 hectare threshold could be the longer-term objective but that, for pragmatic reasons, it may be appropriate to start at 3,000 hectares. It was suggested that there may be resource issues associated with ensuring compliance and that the threshold could be lowered over time, allowing for a bedding-in of the legislation.

Other respondents thought that a minimum threshold of 1000 hectares is still too high to enable meaningful policy intervention to take place, with these respondents tending to suggest that the threshold should be set at 500 hectares. Further comments in support of choosing 500 hectares included that:

• By setting a hectarage threshold at, or closer to, 500 hectares, more landholdings will be impacted by the Bill and the need for a separate threshold proposed as part (b) will be significantly lessened.
• It would still exclude the vast majority of family farm holdings, including most lowland tenanted farms (which are typically less than 300 hectares in size).
• While a higher threshold might be appropriate for upland estates, 500 hectares could be more appropriate for landholdings used for more intensive farming or woodland located closer to settlements.

Other suggested thresholds included:

• 300 hectares, including because the average size of a farm in Scotland is 220 hectares.
• 2,000 hectares.

As above, there were also suggestions that any threshold should be adjustable over time and hence should be set out in either secondary legislation or regulation.

Any threshold should be higher

Although most respondents who suggested an alternative threshold were calling for a lower figure, a small number of respondents suggested that, if there is to be a fixed threshold, it should be higher than 3,000 hectares. It was reported that the SLC discussed a higher threshold of 10,000 hectares,^[6] albeit it was noted again that the SLC’s discussion paper suggested that the focus should be on concentration rather than scale.

Other than noting the SLC’s reference to 10,000 hectares, suggested alternative thresholds included 5,000 or 6,000 hectares.

Variations on a fixed size-based criteria

There were also suggestions for additional or alternative criteria, some of which reflected earlier points about the general framing of the proposals. Suggestions included that:

• Any size threshold should be proportionate to the average landholding size for different regions.
• There should be flexibility in setting thresholds to address more concentrated ownership and to address specific public outcomes.

Data zones or local authority wards

Q1(b) Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme.

Responses to Question 1(b) by respondent type are set out in Table 3 below.

Table 3 Question 1(b) – Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	1	1	2	4
Community or local organisations	10	4	5	19
Government and NDPB	5	2	5	12
Landowner	3	27	4	34
Private sector organisations	2	4	7	13
Representative bodies, associations or unions	7	6	10	23
Third sector or campaign group	9	3	11	23
Total organisations	37	47	44	128
% of organisations	29%	37%	34%
Individuals	196	75	64	335
% of individuals	59%	22%	19%
All respondents	233	122	108	463
% of all respondents	50%	26%	23%

Percentages may not sum to 100% due to rounding

Half of those answering the question agreed with using a criterion based on land that accounts for more than a fixed percentage of a data zone or local authority ward(s). Individual respondents were more likely to agree than organisations (59% and 29% of those responding respectively).

Those who agreed with the proposed criterion sometimes suggested that they agreed with the premise, or that it could provide a sensible approach, including because it could:

• Cover some significant lowland landholdings of under the 3,000 hectare threshold that may not otherwise be classed as ‘large-scale’.
• Reflect the amount of power and control a landlord has over a specific area or population.

A number of respondents, including those who had agreed, disagreed or did not know at the closed question, commented that they needed further information about how this criterion would work. A frequent comment was that data zones in particular are not widely understood. An associated view was that landlords would be likely to require independent advice to determine whether this criterion applied to them and that this would come at a cost.

Other reservations included that applying a fixed percentage to geographic areas that vary considerably in size may result in undesirable anomalies. There were also occasional comments that, while the data zone proposal may have merits, the local authority ward suggestion does not. Specific concerns about local authority wards included not only that they can be of vastly different sizes but also that their boundaries will not usually map neatly onto patterns of land ownership, and landholdings may fall between two or more wards.

There was also a suggestion that in areas where the wards are larger in size – such as the Highlands – any landholding covering a significant percentage of a ward will already be captured by a fixed area threshold. A connected suggestion was that local authority wards may be more appropriate to large urban and other urban areas.

Concerns about the possible use of data zones included that their designations are based on populations, but that public interest is not just based on the number of people living in or near a data zone. It was also noted that population levels are fluid, and that this could change the scope of the data zone and, by extension, whether landholdings meet any threshold. It was also suggested that the approach would get more complex in areas close to settlements, where data zone areas are likely to be much smaller in area.

More generally, it was suggested that without knowing the fixed percentage(s) that would be applied it is difficult to comment on likely efficacy. It was noted that the percentage chosen would have influence whether this approach would be proportionate or not, and there were concerns that, as data zones and local authority wards vary considerably in scale, determining an appropriate fixed percentage to such a varied metric is likely to give anomalous or skewed results.

Nevertheless, a number of respondents suggested possible percentage thresholds, including 20% or 25% of the land area. There were also calls for local communities to be involved in setting appropriate thresholds for their area; it was suggested that Common Weal’s policy paper on ‘Development Councils’ illustrates how such an approach could work in practice.

Other comments on how the criterion could or should be applied included that:

• It needs to be simple and readily understood by the public, not least in respect of the potential for reporting breaches of the LRRS. There were associated concerns that this might not be possible.
• Ministers should be careful to avoid setting criteria that would include relatively small landholdings because they happen to be in a small data zone, especially as the added duties could discourage investment and economic activity.
• Consideration should be given to how landholding area criteria and the concentration of ownership could be combined in any of the regional frameworks. This could be used to identify areas where large businesses are associated with concentration of ownership and where concentration of ownership occurs for landholdings below the area thresholds.
• The data zone approach could also provide a mechanism for urban and peri-urban areas. Further comments included that Scotland’s most disadvantaged communities tend to be urban and, if land use and ownership is, as it should be, seen as a means of addressing inequality and disadvantage, then the criterion should not exclude towns and urban areas.

There were also a small number of comments about the use of the six-fold urban/rural classification scheme, including that there is no clarity on why this has been chosen over the eight-fold scheme also referenced in the consultation paper. It was also suggested that both schemes present anomalies in certain locations – for example, there may be an area classified as an ‘accessible town’ that is surrounded completely by a ‘large urban area’ yet is not included within the said large urban area.

Proportion of a permanently inhabited island

Q1(c) Land that accounts for more than a specified minimum proportion of a permanently inhabited island

Responses to Question 1(c) by respondent type are set out in Table 4 below.

Table 4 Question 1(c) – Land that accounts for more than a specified minimum proportion of a permanently inhabited island?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	3	0	1	4
Community or local organisations	14	1	1	16
Government and NDPB	4	0	8	12
Landowner	4	22	8	34
Private sector organisations	2	3	8	13
Representative bodies, associations or unions	8	7	8	23
Third sector or campaign group	16	2	5	23
Total organisations	51	35	39	125
% of organisations	41%	28%	31%
Individuals	212	77	48	337
% of individuals	63%	23%	14%
All respondents	263	112	87	462
% of all respondents	57%	24%	19%

A majority of respondents, 57% of those answering the question, agreed with using a criterion of land that accounts for more than a specified minimum proportion of a permanently inhabited island. The proportion of individual of respondents who agreed was higher than for organisations (63% and 41% respectively).

Issues highlighted in support of the approach included that the ownership of a large proportion of the land on an island, and especially a small island, can lead to a disproportionate influence on the development of the island and the operation of the community.

As with data zones, the importance of the threshold set was highlighted, including because the difference in scale of islands would have an impact on the effectiveness of the approach. A number of respondents suggested a possible threshold, including:

• 20% of the land area. Further comments included that this threshold would support no landowner being able to monopolise land base resources and restrict access for other residents.
• 25% of the land area covered.

Also as with regard to data zones, there were calls for local communities to be involved in setting appropriate thresholds for their area.

In addition to comments relating to the level of any threshold, there were also a number of other suggestions relating to how any criterion should be framed. These included that:

• It should apply to all inhabited islands, no matter how small they are. However, it was also suggested that it may be worth considering defining qualifications around scale as some inhabited islands are very small and the proposals could apply to sole occupants of such islands. It was suggested that the question of minimum regional area needs to be considered and then how islands can be grouped as needed.
• It should also apply to uninhabited islands. A connection to the repopulation agenda was made, and it was noted that most Scottish islands were previously inhabited even if currently not.
• It could also consider the key economic assets on an island (such as a shop, transport hub, housing or potential for development and how the ownership and operation of these is affected by land ownership.
• Peninsulas and other geographically isolated communities should be included.

It was also suggested that detailed guidance would support open and transparent discussions between landowners and communities. There was also a suggestion that, if the majority of permanent inhabitants agree, the landowner should be exempt from increased duties on their land and that other exemptions could include the landowner meeting environmental guidelines.

Those who did not agree, and some of those who did not know, often noted that no information on the fixed threshold has been given. Other concerns included that there does not seem to be any rationale for treating an island differently to the mainland, and that the approach appears unjustified and discriminatory. It was also suggested that, given the difference in the size and location of Scotland’s islands, any arbitrary percentage that was applied could have serious negative consequences for the landowners and communities involved.

Additional criteria

Respondents were also asked if they had suggestions for additional criteria that could be used to determine whether a landholding should be classed as large-scale. The most frequently raised theme was the level of subsidy that a landowner receives. Reasons given for suggesting a subsidy-related criterion included that:

• It could help address the regional imbalance inherent in an area threshold, given that the significance and value of land varies greatly across the country.
• The rationale for basing the calculation on direct subsidies rather than rural development grants is that payment levels are broadly consistent from year to year.
• It would not disincentivise positive action to deliver net zero or enhance biodiversity.

There was specific reference to direct agricultural subsidy, including Basic and Greening payments and to those through the Less Favoured Area Support and Areas of Natural Constraints Schemes. There was also reference to the Scottish Land Fund and Pillar 1 Common Agricultural Policy payments. However, it was also suggested that one-off grant payments for specific activities such as woodland creation, agri-environment schemes and the LEADER programme^[7] should not be taken into account. Beyond specific payments, an alternative suggestion was receipt of over a set amount, with a sliding cap, starting at £100,000, and reducing over a five year period.

There was also a suggestion that a subsidy-based approach could be administered through the Single Application Form system.

Suggestions for other criteria included:

• The financial value of land and/or built assets. In terms of capital value, it was suggested that a suitable threshold of value for classification as ‘large-scale’ might be £1 million, to be adjusted over time via secondary legislation. It was also suggested that turnover of any business activities for which the land is being used, and the current resale value of the land, should also be taken into account.
• The significance of local assets to communities. There was reference to strategic housing land accumulation, and situations where monopoly leads to undue influence and power. A specific suggestion was if an owner has more than 50% of potential development land around a village.

Finally, it was suggested that discretion should be reserved to Scottish Ministers to designate land as ‘large-scale’ on an exceptional basis.

Family farms

The consultation paper suggests that by using a threshold of 3,000 hectares as one of the criteria for determining ‘large-scale’ landholdings, the proposals would not be placing disproportionate duties on small-scale landholdings or family farms.

Question 2 – Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding?

Responses to Question 2 by respondent type are set out in Table 5 below.

Table 5 Question 2 – Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	0	4	0	4
Community or local organisations	1	16	1	18
Government and NDPB	2	4	7	13
Landowner	4	21	9	34
Private sector organisations	2	7	5	14
Representative bodies, associations or unions	5	10	6	21
Third sector or campaign group	1	19	5	25
Total organisations	15	81	33	129
% of organisations	12%	63%	26%
Individuals	77	213	55	345
% of individuals	22%	62%	16%
All respondents	92	294	88	474
% of all respondents	19%	62%	19%

Percentages may not sum to 100% due to rounding

A majority of respondents, 62% of those answering the question, disagreed with the proposal that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding. The remaining respondents were divided evenly between those who agreed and those who did not know.

Please give some reasons for your answer.

Around 360 respondents provided a comment at Question 2.

Concerns about a family farm exemption

Those who disagreed or did not know sometimes pointed to the absence of a definition for what would be considered to be a ‘family farm’, with some also noting that creating a workable definition will be challenging. It was reported that:

• ‘Family farm’ is not formally defined in this Bill or in other legislation, and that, at present, it may be defined differently depending on the context.
• Many definitions agree that the majority of labour and management must be provided by family members, but others reference capital or size.

Nevertheless, there was also a concern that many of Scotland’s largest estates could be considered to be family businesses.

In terms of issues that would need to be considered or addressed through any definition, there was reference to the considerable variations in possible circumstances, including: whether owner occupied or tenanted; how labour is organised on the farm; who has ownership and control over the land and business; how the business is legally constituted; how succession might be arranged; and who takes responsibility for business risk.

Some respondents thought that the challenges associated with defining a ‘family farm’ makes their exemption undesirable. Others saw no particular rationale for the proposed exemption, with some going on to comment that if it is to be applied to any it should be applied to all. There was also query as to why being classed as a family farm should mean the business is less able or resourced, or would have less impact.

Concerns were also voiced that, since many large businesses are family-owned, not including them potentially undermines the proposals’ efforts to address concentrated land ownership. An associated point was that, given that land management is an underpinning factor in responding to the climate and nature crises, only limited exemptions should be made.

It was also argued that the proposed exemption appears to suggest that who owns land is more important than what they do with it, giving the impression that the Scottish Government are targeting a particular type of landowner. An associated point was that this may contravene Article 14 of the European Convention on Human Rights (ECHR).

There was also a query as to whether the exemption seeks to imply that family businesses are less likely to have adverse impacts than others operating at large-scale; if so, this premise was challenged, and it was reported that there are examples of large family farm businesses acting in a way that would be counter to the principles underpinning the current proposals. It was suggested that family ownership of a farm does not necessarily preclude monopolistic or environmentally harmful practices which can be detrimental to communities.

There was also a view that the responsibilities that come with owning larger amounts of land are important irrespective of whether they are family farms. For example, it was noted that family farms can and should have a role to play in addressing the climate emergency, supporting biodiversity and addressing inequalities in rural economies. It was also noted that a family farm could include a large estate in receipt of large amounts of public subsidy.

There were also concerns that the challenges associated with producing a definition for ‘family farm’ could introduce the potential for legal challenge, and that the exemption is likely to create loopholes in the legislation, which could be exploited. This was sometimes linked back to potential difficulties in creating a workable and legally robust definition of ‘family farm’.

Comments in support of an exemption

A number of those supporting an exemption pointed to the role of family farms as the bedrock of Scottish agriculture, and it was suggested that they will only thrive if allowed to grow or contract based on economic drivers, rather than as a result of statute. It was also suggested that empowering communities to acquire land should not be at the expense of disempowering other members of the community – such as those owning family-run farms.

It was also noted that family farms are already subject to a range of rules, including cross-compliance measures, and there was reference to the range of existing management requirements, mainly associated with various support schemes. Given these existing arrangements, it was suggested that to include family farms within the scope of measures targeting large-scale holdings would equate to overkill. It was seen as important not to risk additional red tape or undue burdens on family farming businesses at this time of unprecedented issues within the agricultural industry.

There was also a view that, while the policy intention that most family farming units are not unduly burdened by the proposals is the correct one, this would be best achieved through the development of proportionate and transparent criteria, rather than seeking to define an exemption for a particular type of landholding or business.

Some of those who agreed that family farms should be exempt from the proposals also pointed to the absence of a definition of a family farm. It was seen as important that the Bill and accompanying guidance are clear on which large-scale landholdings are exempt, and that the definition of a family farm should:

• Include a size limitation, so as not to include large estates. This should be considered in association with the development of the agricultural policies connected to the consultation on ‘Agricultural Transition in Scotland: first steps towards our national policy’.
• In contrast, not distinguish between family owned farms and estates of a similar size. It was suggested that, in many cases, it would be hard to distinguish between the difficulties and challenges facing estates and family-owned farms in the same setting and of similar land size.
• Consider residency on the holding, the occupier farming the land and the farm income as a proportion of the total family income.

Other comments included that, given the potential challenges in defining family farms, it would be clearer and more certain to exclude all farms from the scope of the proposals. It was suggested that this could be done on the basis of agriculture being the primary source of business.

Finally, and as at other questions, it was noted that tenancy and lease arrangements will need to be considered, including the potential for a family farm to be leasing a large area of land, perhaps from multiple owners.

Urban context

Question 3 – Do you think that the proposals considered in this consultation should be applied to the urban context?

Responses to Question 3 by respondent type are set out in Table 6 below.

Table 6 Question 3 – Do you think that the proposals considered in this consultation should be applied to the urban context?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	4	0	0	4
Community or local organisations	16	0	3	19
Government and NDPB	8	0	5	13
Landowner	25	4	5	34
Private sector organisations	7	1	4	12
Representative bodies, associations or unions	14	7	2	23
Third sector or campaign group	21	1	4	26
Total organisations	95	13	23	131
% of organisations	73%	10%	18%
Individuals	224	43	76	343
% of individuals	65%	13%	22%
All respondents	319	56	99	474
% of all respondents	67%	12%	21%

Percentages may not sum to 100% due to rounding

A majority of respondents, 67% of those answering the question, thought that the proposals considered in this consultation should be applied to the urban context. Of the remaining respondents, 12% did not think so and 21% did not know.

Please give some reasons for your answer.

Around 310 respondents provided a comment at Question 3.

Reasons for supporting application to the urban context

Those who agreed with the proposal often commented that the need for land reform is as great in, or the proposals are as relevant to, an urban as a rural context.

Further comments included that, while land reform in Scotland has historically focused on rural land issues, the Scottish Government and Parliament have long recognised that land reform covers, and is necessary within, both rural and urban contexts. It was suggested that urban communities are indeed as likely to benefit from the aims of the legislation as rural ones, and that some of Scotland’s most deprived and unheard communities sit within these areas.

In terms of the particular issues or problems that urban-based land reform could help address, there was reference to concentration of ownership and power, including concentration of ownership of housing stock, business sites and amenities. There was also reference to a notable lack of transparency and accountability. Further comments included that:

• Large areas of undeveloped urban land are owned by developers, who then have the power to greatly shape neighbourhoods and affect the lives of many people.
• Urban land management, including for food and other crops, is very important for a just transition and where the proposals can be translated into an urban context, this should be done.

There was also a view, including among some who did not generally support the wider proposals, that there is no rationale for rural properties being subject to greater scrutiny, and that the same approach should be applied across different areas. It was also noted that the LRRS applies to all urban and rural land in Scotland, and it is not clear why these responsibilities should have a lower level of enforcement in urban areas. It was also suggested that it is not clear why urban communities should not benefit from a public interest test in the sale of large landholdings.

In terms of the best approach going forward, one perspective was that it may be better for all land reform measures to be contained within a single land reform bill, albeit that some accommodation of the existing proposals would be required to enable their application or exclusion in an urban context. An alternative view was that there may be a case for a different bill for the urban context.

Other suggestions for how any approach should be framed included that any thresholds will need to be adjusted to an urban context, including because there may be significant landholdings across multiple sites. There was a call for consideration of what ‘large-scale landholdings’ looks like in an urban context, and it was suggested that the focus should be on concentration of ownership rather than scale.

There was also specific reference to some of the possible additional criteria outlined at Question 1, including the financial value of the land/asset, its significance to the local community, and its heritage value.

Other comments or suggestions included that:

• Consideration should also be given to communities of interest as well as place.
• Land in the vicinity of urban areas affects many people, and so should be subject to high levels of scrutiny both in terms of land use and land transfer.
• Urban communities should also have Notification of Sale Rights, improved Community Right to Buy Rights, and the ability to address local concentrations of scale of ownership. They should be given a notice of intention to sell if land is to be sold in their neighbourhood regardless of whether or not they have previously registered an interest in it.
• A tailored approach, which targets the issues and does not duplicate or complicate existing mechanisms to regulate land use in urban areas, would be required.

There was also a query around whether existing planning measures might be sufficient to address issues in large urban areas; if this is so, it was suggested that it would be helpful if it could be properly evidenced.

Reasons for not supporting application to the urban context

Others disagreed with the proposals being applied to the urban context including in some cases because they disagreed with the proposals applying in any context. Other reasons for disagreeing with the application to an urban context included that the different context requires a different response. Reflecting the query raised above, it was also noted that urban developments are already subject to the planning process.

Other comments or suggestions included that:

• Given that urban landholdings are generally smaller, the approach seems unnecessarily intrusive.
• If covering large urban areas, the proposals could apply to Registered Social Landlords, the NHS and Local Authorities; given the aims underpinning the reforms, this would not seem appropriate.
• Rural Scotland needs to be considered first, and then consideration should be given to what is required in an urban context.