Land Reform (Scotland) Bill: islands community impact assessment

Part 1

Name of Policy, Strategy or Service

Land Reform (Scotland) Bill: Land Reform proposals

Step One – Develop a Clear Understanding of Your Objectives

Summary of the land reform measures in the Bill

The Bill introduces four measures which would apply to landowners of large-scale landholdings. These are:

• to further improve the transparency of land ownership and management in Scotland;
• to strengthen the rights of communities in rural areas by giving them greater involvement in decisions about the land on which they live and work;
• to improve the sustainable development of communities by increasing opportunities for community bodies to purchase land when it comes up for sale; and
• to allow Scottish Ministers to consider (before a planned sale) if land being sold in lots could increase the supply of more varied plots of land in a way that might be expected to have a positive impact on the ongoing sustainability of communities in the area.

The Bill also aims to improve the rights of tenant farmers and small landholders so they are not disadvantaged compared to farmers who own their land, and are able to actively participate in climate change mitigation and adaptation. It provides small landholders with similar rights to other forms of land tenure.

A separate Island Communities Impact Assessment has been produced for the Land Management Tenancy, Agricultural Holdings and Small Landholdings provisions in the Bill.

Objective

The policy objective of the Bill is to further improve transparency of land ownership, help ensure large scale land holdings deliver in the public interest, and empower communities by providing more opportunities to own land and have more say in how land in their area is used.

The proposals seek to balance the interests of the general public and local communities with the interests and rights of individual property owners.

The Scottish Government's consultation on the Bill highlighted the need for appropriate criteria to define landholdings which are subject to the proposals. The consultation said that:

There are a number of issues associated with defining ‘large–scale’ landholdings. It is not as simple as only applying the proposals to landholdings over a certain size. Taking this approach may exclude situations where there is a concentration of landownership, such as a landowner who owns the majority of land on an island.

The criteria for the proposals need to ensure that the particular dynamics of islands, including their ownership and communities, are appropriately and proportionately reflected in the Bill.

Background

The Scottish Government defines land reform as “…the ongoing process by which the ownership of land, its distribution and the law which governs it is modified, reformed and modernised.”

Land reform has been a continuing legislative priority since devolution and has seen the following Acts of the Scottish Parliament since 1999:

• The Abolition of Feudal Tenure etc. (Scotland) Act 2000 abolished the feudal system of land tenure and saw land previously held feudally converted into simple ownership.
• The Land Reform (Scotland) Act 2003 introduced a right of responsible access to the countryside, a community right to buy land when it comes on the market, and an absolute crofting community right to buy land.
• The Community Empowerment (Scotland) Act 2015 included extensions to the rights to buy given to urban areas, the introduction of additional rights for communities to buy land that was abandoned, neglected and detrimental to the environmental wellbeing of the community and a requirement for those responsible for taking decisions about public services to take account of community needs and views.
• The Land Reform (Scotland) Act 2016 included requirement for Ministers to develop a Scottish Land Rights and Responsibilities Statement (LRRS) to improve the relationship between the land and people of Scotland, the establishment of the Scottish Land Commission to review the effectiveness and impact of current and potential future laws and policies relating to land, and a new community right to buy land to further sustainable development.

In 2019, a report by then established Scottish Land Commission found that Scotland had an exceptionally high concentration of landownership by international standards. Following a subsequent request from Scottish Ministers to develop some of its recommendations further, the Scottish Land Commission published a discussion paper ‘Legislative proposals to address the impact of Scotland’s concentration of land ownership’

The discussion paper put forward three key recommendations for changes in legislation:

• the requirement for significant land holdings to engage on, and publish, a Management Plan;
• a Land Rights and Responsibilities Review process, to take effect where there is evidence of adverse impacts; and
• a new Public Interest Test that would determine whether significant land transfers or acquisitions are in the public interest.

In relation to a possible public interest test on land acquisition, it said:

“While not a direct risk factor in and of itself, the scale of a landholding is often a good indicator of where risks of harm to the public interest may arise…There are however significant challenges in determining a scale threshold, as this is particularly dependent on the location of the landholding, and potential land uses.”

In terms of the possible scale of a significant land holding, the SLC said that it did not have a firm view and suggested further consultation but that:

“It is suggested that the aim should be to establish a threshold that would ensure that family farms and small businesses would not fall in scope, but that modest estates that could pose risks would. It may be reasonable to expect that, for example, holdings over 10,000ha would always be in scope, while those under 1,000ha would always be exempt.”

The SLC also proposed that the rurality of the landholding is a “significant risk factor” and said:

“A specified minimum proportion of land area is suggested as a criterion to help overcome the challenge of areas, such as islands, where geography means the absolute size of a landholding is not particularly significant but experience suggests the concentration of power may be an issue. The Land Commission does not have a fixed view as to what this proportion should be but considers that a threshold of between 30% and 50% may be appropriate.”

Step Two – Gather Your Data and Identify Your Stakeholders

The Scottish Government’s consultation on the Land Reform Bill in 2022 contained several proposals for inclusion in the Bill and also invited respondents to give their views on other ideas and proposals. The consultation documents are available on the Scottish Government’s consultation hub.

Six consultation events were also held (five in-person and one online event). The feedback from these events, including comments and questions from those attending, were included in the consultation analysis report which was published in June 2023.

Of the in person consultation events, four were held on the Scottish mainland (Langholm, Invermoriston, Helmsdale and Ballater) while the fifth was held in Stornoway on 27 July 2022. The online event was held on 22 July, which was open to all and which attracted participants from across Scotland.

Step Three – Consultation

In the consultation, the Scottish Government suggested the following criteria to classify landholdings as ‘large-scale’:

a) A fixed threshold of 3,000 hectares

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

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

In total 537 standard responses were received, of which 162 were from groups or organisations and 375 from individual members of the public. Where consent has been given to publish the response, it may be found on the on the Land Reform in a Net Zero Nation published responses page of the Scottish Government website.

Consultation responses

465 responses specifically answered the question about whether there should be a specific islands criteria for the proposals.

Q1(c) Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’: Land that accounts for more than a specified minimum proportion of a permanently inhabited island

As the table above shows, a majority of respondents (57% of those answering the question) supported 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.

The importance of what threshold was set was also 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.

There were some 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.

A selection of organisational and individual responses to the question are included below:

• Highland Council (who agreed in principle with there being a specified minimum proportion of a permanently inhabited island, but said that more detail is needed on what this minimum would be).
• Highlands and Islands Enterprise (who welcomed an island specific classification given islands present specific and heightened considerations regarding land ownership. HIE also suggested that the legislation should apply to all islands whether inhabited or not.
• The Scottish Crofting Federation (who agreed that that it made sense to define a holding size as a proportion of a defined area such as an island and suggested that this should also apply to peninsulas and other geographically isolated communities).
• Andy Wightman (who did not agree and considered that the inclusion of such a criterion was an admission that other circumstances than scale can lead to concentrations of power adding that the Scottish Land Commission had argued that monopoly ownership of strategic infrastructure such as slipways, petrol stations as well as important cultural facilities and housing land supply can also be characteristics of concentrated landownership that could create a structural risk of excessive power).
• Colonsay Estate (who did not agree as it believes that it is not the amount of land that is owned in small communities like islands. It is instead key sites such as schools, public buildings and key infrastructure such as roads and harbours/airports that effect the way a community develops. Added that plurality of ownership of housing stock is key too and there should be a free market for all sorts of housing from small to large).

Data – number and size of landholdings

The following data was provided by Registers of Scotland in October 2023. This includes the total area in hectares (ha) represented by mainland and island landholdings at different size thresholds and the percentage of Scotland’s total land mass represented by these holdings.

Step 4 - Assessment

A full Islands Community Impact Assessment is NOT required

In preparing the ICIA, I have reached the conclusion that our policy is not likely to have an effect on an island community which is significantly different from its effect on other communities (including other island communities). The reason for this is detailed below.

It has been recognised since the start of the development of the Bill that specific threshold criteria would be needed for islands, given that the concentration of land ownership may be significant even if the absolute size of an island landholding is not as large as those elsewhere in Scotland.

The threshold criteria set out in the Bill are intended to ensure that the effect on an island community will not be significantly different from its effect on other communities.

Specifically, for the new obligations on owners to produce Land Management Plans and engage with local communities to support compliance with the principles of the Land Rights and Responsibilities Statement (LRRS), landholdings will be in scope of these requirements if they are:

• more than 3,000 hectares; or
• land that accounts for more than 25% of a permanently inhabited island, with a minimum area of 1000 hectares.

The lower area threshold for islands reflects the potential disproportionate influence on an island community of a landholding below 3000 hectares if this is a significant proportion of an island.

This threshold will ensure that significant island landowners produce Land Management Plans and engage with local communities, to support compliance with the principles of the Land Rights and Responsibilities Statement (LRRS).

For the pre-notification and transfer test proposals in the Bill, there is no specific islands criteria. The threshold of more than 1,000 hectares is considered appropriate for both the mainland and islands.

This part of the ICIA was completed by: Andrew Proudfoot

Position: Land Reform Bill Team Leader

Signature: Andrew Proudfoot

Date completed: March 2024

This part of the ICIA was approved by: Fiona Harrison

Position: Deputy Director, Land Reform, Rural and Islands Policy

Signature: Fiona Harrison, March 2024