Small landholdings modernisation: consultation analysis

4. Consultation findings: Access to an umbrella body

This section of the report outlines the consultation findings in relation to the fourth set of questions on Access to an umbrella body. The main findings are as follows:

The Scottish Government proposes:

As there are only a small number of small landholdings it would not be justifiable to create a new body solely for small landholders and their landlords. It would be better value for money and more appropriate, for small landholdings to fall under the remit of an existing public body (such as the Scottish Land Commission).

This would require the Scottish Government to amend their remit but would allow small landholders and their landlords access to support, and encourage good relationships. As part of this, the organisation would promote and encourage good relations between small landholders and their landlords, publishing guidance and codes of practice. The organisation could also be given the power to investigate alleged breaches of codes of practice.

Key findings

The majority (88%) of respondents agreed that small landholders and their landlords should have access to a public body, in a similar way that tenant farmers and their landlords have for agricultural tenancies. Three quarters of respondents (75%) agreed that if a small landholder and their landlord have a disagreement, the public body should be able to mediate. Only 5% disagreed.

This section of the report outlines the consultation findings in relation to the fourth set of questions on Access to an umbrella body, which focused on:

• Views on access to a public body;
• Views on the mediation role of the body if a small landholder and their landlord have a disagreement.

The results are set out separately for each question.

4.M Access to a public body

The majority (88%) of respondents agreed that small landholders and their landlords should have access to a public body, in a similar way that tenant farmers and their landlords have for agricultural tenancies. Only 4% disagreed. Respondents were asked to give reasons for their answer and a total of 25 did so.

Key findings

The majority (88%) of respondents agreed that small landholders and their landlords should have access to a public body, in a similar way that tenant farmers and their landlords have for agricultural tenancies. Only 4% disagreed.

Those who agreed gave a number of reasons, including the need for a public body to oversee disputes in line with the modernisation of small landholding tenancies; and a wider need for consistency and equity.

They noted the potential benefits of a public body for small landholders, including: access to guidance, protection and support; making legislation more accessible; and improving relations between small landholders and their landlords.

Several respondents felt that the Scottish Land Commission was an appropriate public body. Others felt it should be the Tenant Farming Commissioner or a crofting organisation such as the Crofting Commission or Scottish Crofting Federation.

Those who agreed that small landholders and their landlords should have access to a public body gave a number of reasons, including the need for a public body to oversee disputes in line with the modernisation of small landholding tenancies; and a wider need for consistency and equity. They noted the potential benefits of a public body for small landholders, including:

• Greater clarity and support;
• Access to guidance and information;
• Protection for small landholders;
• Making small landholding legislation more accessible;
• The positive impact it could have on relations between small landholders and their landlords;
• The fact that small landholder should have the same rights as other tenants.

One respondent noted the need for the public body to recognise diversified activities on small landholdings, out-with traditional agricultural land use, for example forestry, horticulture, leisure and cultural activities.

Several respondents felt that the Scottish Land Commission was an appropriate public body in this context. Another set of respondents, including several organisations, stated that it should be the Tenant Farming Commissioner, and attendees at a public consultation event held in Arran also supported this option.

Their reasons included simplicity, fairness, and cost effectiveness; it being a suitable fit with the Tenant Farming Commissioner's role; and the impact this public body has already had in facilitating improved negotiations between tenants and their landlords, resolving disputes and offering advice and information.

One organisation which was supportive of this approach did express concerns about extending the Tenant Farming Commissioner’s remit, for example in resolving disputes, as this may risk compromising its role in providing guidance or may test its resources. Similarly, another respondent expressed the view that dispute resolution is a more appropriate role for an independently agreed arbiter.

One organisation which responded stated that the public body should follow the model of the Tenant Farming Commissioner, for example in providing guidance and support to both tenants and their landlords:

The tenant farming commissioner role works best when providing guidance and encouragement to both sides, rather than any use of statutory powers. Therefore, this model would seem logical. If Small Landholdings legislation were to continue to be a mix of crofting and agricultural tenancy law, then it will be difficult to provide that needed clarity and advice.

However, a separate group of respondents felt the public body for small landholders should be a crofting organisation, with suggestions including: the Crofting Commission, the Land Court and the Scottish Crofting Federation (SCF).

For example, one respondent stated that small landholdings should be brought into the crofting framework, and that the umbrella body responsible for small landholdings should be the Crofting Commission, 'which holds significant expertise relevant to the interests of small-scale agricultural tenants'. Another organisation which responded stated:

The Crofting Commission and the Tenant Farming Commissioner have very different functions. The Commission has a regulatory function and decision making powers in respect of crofts, and as smallholdings are a type of croft and as there are very few smallholding remaining, it appears to better fit with Crofting Commission functions for smallholders to have access to the Commission as opposed to the Tenant Farming Commissioner / Land Commission. Further, the Tenant Farming Commissioner has defined functions fixed by legislation applicable to agricultural holdings and not currently linked with crofting and/or smallholdings.

4.N Views on the mediation role of the body if a small landholder and their landlord have a disagreement

Three quarters of respondents (75%) agreed that if a small landholder and their landlord have a disagreement, the public body should be able to mediate. Only 5% disagreed and the same number (5%) selected 'neither'. Respondents were asked to give reasons for their answer and a total of 26 did so.

Key findings

Three quarters of respondents (75%) agreed that if a small landholder and their landlord have a disagreement, the public body should be able to mediate. Only 5% disagreed.

Those who agreed gave reasons including equity and fairness, and many respondents noted the benefits of mediation as an option for both tenants and landlords, in terms of it being a more cost-effective way of reaching a resolution. Another set of respondents stated in the interests of neutrality, the public body should encourage and facilitate mediation but not carry it out.

Those who agreed gave reasons including equity and fairness, and many respondents noted the benefits of mediation as an option for both tenants and landlords. Several commented that this would be a less costly and stressful way of reaching a resolution. Others felt it was a more appropriate option than, for example, taking legal action or going to the land court, due to landlords typically having greater financial resources than small landholders.

Several respondents felt this should be in line with crofting, with one suggesting the Crofting Commission could play a role in maintaining good relations between tenants and their landlords, and handling disputes, for example over diversification. One respondent stated that this should be in line with 1991 Act tenancies.

Another set of respondents stated that the public body should encourage and facilitate mediation, but not carry it out. As one organisation stated in their response to the consultation, this would be in line with the role of the Tenant Farming Commissioner in relation to agricultural holdings. Whilst in some cases, they added, it may be appropriate for the body to make regulatory decisions, in the interests of neutrality this should not include mediation. Others agreed with this, and felt that professional agents or an independently agreed arbiter should be used, not the body responsible for producing guidance.

One respondent asked for clarity on the proposed role of the public body, for example in handling disputes over diversification, in relation to the role of the Scottish Land Court. They felt that the new public body could play a useful role in this context, and would be a more accessible option than the Land Court. However, another respondent felt there should still be recourse to the land court for more serious disagreements. There was also criticism of the Scottish Land Commission's handling of a previous dispute from one respondent, who felt it had not been dealt with adequately.