The Land Reform Bill gives the Scottish Ministers the power to impose obligations on owners of large landholdings for the purposes of promoting community engagement. Large landholdings are defined in the Bill as either a single holding or a composite holding that exceeds 3,000 hectares in area. The legislation will also apply to land that forms part of an inhabited island and is either a single or composite holding exceeding 1,000 hectares in area and constitutes more than 25% of the land forming the island.
The Scottish Ministers must first consult with the Land and Communities Commissioner when seeking to introduce new regulations.
The Bill leaves it to the discretion of the Scottish Ministers what obligations may be imposed to achieve the goal of promoting community engagement, except they must impose obligations in relation to Land Management Plans and to consider a community request to lease land.
The obligations introduced will make Land Management Plans compulsory for large landholdings and the owner of the land must ensure that:-
- There is a publicly available Land Management Plan;
- There is engagement with communities in relation to any development or changes to the plan;
- The Plan is reviewed, and where necessary, revised every 5 years.
Such a Plan must provide details of the land to which the Plan applies including information as to how the ownership of the land is structured. The owner of the land must also set out their long term vision for the land and their objectives for its management including any potential sale. The Plan must also evidence how the owner is complying with the obligations set out in the regulations, the Scottish Outdoor Access Code, the code of practice for deer management as well as showing how they are managing their land in a way that contributes towards achieving the Scottish Government's net-zero emission targets, adapting to climate change and increasing or sustaining biodiversity.
The Bill also requires the owner of land to consider any reasonable request from a community body to lease the land, or any part of it, including any buildings on the land. However, there is no detail about what may be considered reasonable, and it would appear no criteria for accepting or rejecting such requests. It is likely further details will follow in secondary legislation in due course.
The mechanism for enforcing the obligations set out in the Bill involves a report being submitted to the Land and Communities Commission by a person who alleges that the owner of the land has committed a breach of an obligation. A "person" is defined in the bill as:-
- a body that has a registered interest, or is eligible to register an interest, in the land where the breach is alleged to have occurred;
- Historic Environment Scotland;
- Local Authority for the area where the land is;
- Scottish Environment Protection Agency; and
- Scottish Natural Heritage.
Where the Land and Communities Commissioner is satisfied that the report contains sufficient information, the Commissioner can proceed to investigate the breach. If there is insufficient information, the Commissioner can ask for more information and will set a timeframe for when they require the additional information. If the Commissioner proceeds to investigate, they must contact the person who submitted the report and the owner of the land who committed the alleged breach. The Commissioner shall have the power to request information from any appropriate person for the purposes of the investigation and non-compliance with such a request can be met with a fine of up to a maximum of £1,000 which is at the Commissioner's discretion.
Ultimately, the Land and Communities Commissioner can impose a fine where an investigation finds that an owner has committed a breach of an obligation. Where this is a finding of a breach, the Commissioner will give the landowner an opportunity to make an agreement to rectify the breach. If the landowner refuses to make an agreement or, after having made an agreement, fails to implement the agreement, the Commissioner can then impose a fine. The amount of the fine is set by the Commissioner and must not exceed £5,000. The Bill also provides for a right of appeal against a fine to the Lands Tribunal should the person fined believe that the decision was based on an error of fact, was wrong in law, or was unfair or unreasonable for any reason.
As with much of the Land Reform (Scotland) Bill, full details on how any legislation will promote community engagement are still to come and of course the Bill is subject to change during the legislative process. However, it is clear that increasing engagement between owners of large landholdings and the local community is currently a key part of the intended reforms.
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