Land rights and responsibilities statement: consultation analysis

1. Executive Summary

1.1 The Land Reform (Scotland) Act 2016 requires Scottish Ministers to prepare, consult on, and publish a Land Rights and Responsibilities Statement (the “Statement”). The Statement is a set of principles with an overarching vision intended to guide the development of public policy on the nature and character of land rights and responsibilities in Scotland.

1.2 Scottish Ministers published a written consultation on the draft Statement on 16th December 2016 with views invited by 10th March 2017. 62 responses were submitted, 37 from organisations and 25 from individuals. A summary of the views of respondents follows.

Views on the Statement’s Policy Context

1.3 Most of those who provided a view considered that the supportive information in the consultation document, which set out the relationship between the Statement and other key policy areas, captured the range of relevant policy areas. Some suggestions were made for additional policy areas under the headings of: Human Rights and International Standards; National Performance Framework; Land Strategies; and Related National Policies.

1.4 Several respondents acknowledged the wide range of policy areas which interact with land rights and responsibilities, and identified the need for developing a strong and clear Statement to draw these together.

Views on the Statement’s Human Rights Based Approach

1.5 Most of the respondents who commented agreed with the Scottish Government’s human rights based approach to the Statement. This approach was viewed as reflecting current perceptions and expectations of land as a resource to be used in the public interest; it was seen as being consistent with various Conventions and Covenants on human rights; and was perceived to be a way of safeguarding owners’ enjoyment of their property, whilst making clear that public interest can, in some instances, justify interference with private interests.

1.6 A common view was that the Statement should mention the human rights based approach explicitly. Another recurring view was that the responsibilities which accompany human rights should be made clear.

1.7 Some respondents perceived the Statement to lack clarity on how existing human rights based legislation would support the implementation of the Statement’s vision and principles in practice.

Views on the Statement’s Vision

1.8 Most respondents who provided a view agreed with the Statement’s vision, although individual respondents were generally more supportive than organisations, almost half of whom disagreed with it.

1.9 The vision was perceived to be supportive of a collaborative approach; it was seen as introducing the concept that with land ownership comes responsibility to others; and it was viewed as encompassing both economic and social objectives.

1.10 Some respondents commented that the vision should make mention of environmental sustainability; others considered that responsibilities were not emphasised sufficiently.

Views on the Statement’s Principles

1.11 All of the six principles received support from most of the respondents who provided a view. Some considered Principle 4 to be the most important in terms of demanding high standards and its focus on stewardship.

Principle 1

1.12 Principle 1 was welcomed as encompassing the key elements of a land rights and responsibilities framework, with specific aspects singled out for particular support: mention of a duty to future generations; promotion of environmental sustainability; and reference to a fairer society.

1.13 A few respondents suggested that the Principle’s heading should include reference to fulfilling, or progressive realisation of, human rights.

1.14 A recurring view was that the Principle heading and the listed policies need to be more explicitly connected to show how the policies reflect, and align with, the Principle.

1.15 Those opposing the Principle considered that there is reluctance within it to acknowledge that there is a public right to private ownership and enjoyment of land and buildings; and that the term “fairer society” required clarification.

Principle 2

1.16 National Non-Governmental Organisations (National NGOs) were particularly supportive of Principle 2 in terms of its focus on broadening the pattern of land ownership, the inclusion of “tenure”, and the mention of the role of charitable bodies in managing Scotland’s natural and built heritage.

1.17 A recurring view amongst those opposing the Principle was that diversity of ownership does not link directly with diversity of land use or management. Some respondents considered the Principle to be overly ideological and detracting attention from what they identified as the key issue of stewardship of land, how it is used rather than how it is owned.

Principle 3

1.18 Respondents from a range of sectors supported Principle 3, with some highlighting existing evidence of positive benefits arising from broadening the opportunities for communities to own buildings and land.

1.19 Some respondents suggested that in view of the potential benefits to communities of leasing buildings and land, reference to leasing should be included in the Principle’s title. Another suggestion was to refer to “having access to” in addition to owning or leasing, and that the opportunities for owning, leasing and having access to buildings and land should be communicated to local communities so that they are aware of these possibilities.

1.20 An emerging theme was that support should be in place to enable communities lacking in capacity and skills to realise Principle 3.

1.21 A common view in opposition to Principle 3 was that it is already covered by the Community Empowerment (Scotland) Act 2015.

Principle 4

1.22 Some respondents welcomed this Principle as addressing what they saw as the fundamental feature of land ownership, namely, stewardship.

1.23 Others supported the emphasis on responsibilities within the Principle and considered that it reached beyond owners, to land managers and users too.

1.24 It was suggested that the Principle could be strengthened by re-wording some phrases to make them more meaningful and providing examples as illustration.

Principle 5

1.25 Several respondents, across a range of sectors, identified the key advantages of Principle 5 to be increased transparency and accountability. Other important benefits were perceived to be improved communication between stakeholders, and better co-ordination of activities and collaborative ventures.

1.26 A few respondents requested that loopholes, which enabled data to be hidden or obscured, should be identified and addressed in order to support Principle 5.

1.27 A key concern was that landowners may find the provision of information to be costly and onerous.

Principle 6

1.28 There was strong support for Principle 6 which was welcomed as an approach to better and more transparent decision-making; and supporting a shift in focus towards the public interest and the common good.

1.29 Some respondents considered that “community” should encompass communities of interest in addition to communities of place.

1.30 A common concern was that wider community engagement should not result in delaying and increasing the complexity of decision-making. Another concern was that the community should be fairly represented, and not simply by those whose voices are loudest.

1.31 Some respondents held the view that community engagement should not be a blanket requirement in every decision on land, but should be instigated only in certain circumstances, such as a material change to land use.

Further comments

1.32 The Statement was generally welcomed as comprising a promising start towards changing culture and furthering the land reform agenda. Some National NGOs, however, considered that it was not sufficiently compelling and could go further to set a realisable vision and encourage a change in thinking.

1.33 Repeated calls were made for greater detail on how landowners, users and managers should be engaged to support the desired outcomes. Some respondents questioned whether the Statement’s non-legal basis would undermine it.

1.34 Several respondents emphasised that a well-planned implementation of the Statement will be crucial in ensuring its effectiveness. A recurring view was for the Statement to be underpinned by a robust monitoring and evaluation framework.

Impact assessment

1.35 Most of those who provided a view envisaged potentially positive impacts as a result of the proposals in the consultation. The most commonly mentioned positive impacts were: reduction in inequality; better use of land; and community empowerment.

1.36 Some costs were associated with the proposals, such as increased funding requests to asset transfer funding schemes, and the costs of community engagement processes, but overall these were viewed as likely to reap benefits over the longer-term.

1.37 Most of those providing a view identified potentially positive impacts on the environment as a result of the proposals. In particular, decision-making on land in the public interest was perceived as likely to produce positive environmental impacts.