Some Scottish perspectives on land reform in South Africa

This is a blog post by Malcolm Combe, reflecting on a recent research trip to South Africa. The role of the Schools of Law at the University of Aberdeen and the University of Stellenbosch together with the financial support of the Carnegie Trust for the Universities of Scotland played in making that trip possible is acknowledged and further explained below.

In blogging parlance, please note this is a “long read”.

Introduction – Scottish and Personal Perspectives on Land Reform

Towards the end of its first parliamentary term, the Scottish Parliament passed the Land Reform (Scotland) Act 2003. This statute sought to broaden access to land in Scotland in two ways: in the sense of liberalising the law relating to outdoor access; and in the sense of giving some communities the right to acquire land in certain circumstances.

This legislation has been important for many people in Scotland. I suppose I am one of those people, but not in the sense that I have used it to acquire land or brought a test case to demarcate the limits of the right of responsible access. Instead, I find that I have written about it. A lot. This trend began when I was searching for an undergraduate LLB dissertation topic (in 2004). This post effortlessly evidences that the trend continues. I suspect I will write about it and the wider topic of land reform again. There are worse vices than writing about land law reform, I tell myself.

In writing that dissertation, it quickly became clear to me that land reform was not a peculiarly Scottish issue. Whilst it might be just about possible to offer an opinion on land matters in any given place by simply looking at that place, adopting such an approach restricts the scope of a study somewhat. Another thing that became clear was that it would be nigh on impossible to compare Scotland to every other legal system that also regulated land. This meant I had to whittle down my comparator jurisdictions a bit. Taking guidance from Scott Wortley (now at the University of Edinburgh, but then at the University of Strathclyde and also my dissertation adviser), South Africa was proposed as a prime candidate.

My dissertation ultimately became a critique of the new community rights to buy found in Parts 2 and 3 of the Land Reform (Scotland) Act 2003. The dissertation looked both at the “blackletter” of the law and whether the 2003 Act could meet its stated policy goals. The research associated with the dissertation involved building on my existing knowledge of Scots land law and policy, whilst undertaking a desk-based and Scots law library-based study of South Africa.

With the online and library resources I had access to, I sought to gain any insight I could. (I found the book Land Title in South Africa , by Carey Miller with Pope (1999) particularly useful, then I was fortunate to work with Professor David Carey Miller in later years.) Several features of South African law were of particular relevance to my study. For example, I read of South Africa’s Communal Property Associations Act 28 of 1996, which gives communities a means to associate together to hold land. This was directly in point to my consideration of community rights of acquisition, allowing me to highlight the more flexible approach South Africa had for community bodies that could own land.

I also considered South Africa’s history, its new Constitution, and its programme of land restitution. These considerations were undeniably interesting, but not particularly useful to my immediate task. In fact, a chapter in a wide-ranging Scots/South African comparative study, it was noted by Professors Reid and van der Merwe that a comparison on these matters highlighted “difference and not similarity” (in Zimmerman, Visser and Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) – more will be said about the similar legal systems below).

In relation to the specific researcg for my dissertation, much of my interest in wider South African land reform was necessarily put on the back-burner; something to come back to at a later stage. This research trip to South Africa gave me a chance to return to the issue, in the company of experts in South African law, with South African resources to hand, and indeed with a South African context to experience for myself. This post now offers some raw and eclectic thoughts about the trip. (I have also offered some thoughts on another aspect of my trip, where I had a cursory but instructive look at the Stellenbosch Legal Aid Clinic, which is available here.)

I should acknowledge that there are some things that this blog post will not cover. For example, this post will not seek to explain what makes for effective land reform. Nor will it directly set out how recent Scottish land reform laws are framed or operate: other resources are available for that (including on this blog). Attention is now firmly shifted to South Africa, but Scottish observations will be made where South Africa offers a suitable comparator. I should also declare that my observations on South African matters are offered with due deference to existing treatments of land reform by South African scholars (notably Pienaar, Land Reform (2014), and the already mentioned Carey Miller with Pope). Please also note that a complete analysis of the changing nature of land law since the end of apartheid will not be attempted here, to ensure this post remains (close to) a manageable length. This means the coverage will be selective at times, although further reading will be identified where appropriate. There are also some notable omissions from my South African coverage. For example, I say nothing here about national parks, although I can shield myself from accusations that I copped out of this topic by steering people to this post over at my personal blog. Another area not addressed is abandonment of land. This is not because the topic is uninteresting or uncontroversial: a forthcoming paper in the South African Law Journal by Richard Cramer, a PhD candidate at the University of Cape Town, will demonstrate that adeptly. It is also a topic that merits study from a Scottish perspective, and I am writing a paper of my own on it. That will follow in due course.

Enough scene-setting. Time for the meat of the post. (Which reminds me, one important lesson that I learnt on my trip is many South Africans like meat. The braais are amazing. Anyway, I digress…)

South Africa – constitutional land reform?

It is difficult to know where to begin in South Africa’s land reform story, but the 1990s offer a starting point with a certain logic. In 1994, the first multi-racial elections in South Africa brought Nelson Mandela’s political party (the ANC) to power and him to the office of President. This heralded a new political era and the end of the overtly racial system of apartheid that had influenced so much law and policy in that country, albeit that process was set in train by negotiations followed by an earlier interim constitution, then put firmly on a constitutional law footing when The Constitution of the Republic of South Africa came into effect on 4 February 1997.

Whilst aspects of the South African Constitution are unavoidably functional, other aspects are far from dry. The Preamble is simultaneously reflective, inspirational and pragmatic. Its words can be narrated in a compelling and captivating manner. (Incidentally, the American musician and spoken word performer Henry Rollins has done just that: I happened to attend one of his shows in Edinburgh when he diverted into a breathless, ranted appreciation of the Constitution. Footage of this from another show is available on YouTube.)

Chapter 1 then sets out the founding provisions, including section 1’s explanation of the basis on which the sovereign, democratic state is founded (including: human dignity; non-racialism and non-sexism; and supremacy of the constitution and the rule of law). Chapter 2 contains the Bill of Rights, which “affirms the democratic values of human dignity, equality and freedom” (section 7). Section 25 then provides constitutional protection for property. It is that “property clause” that is of most interest to land lawyers, and which kept coming up in my research about contemporary South African law. That is not to say other aspects of the constitution are not important more generally, or indeed specifically in the context of land. For example, a recent law on communal land ownership was struck down by the Constitutional Court because parliamentary process as mandated by the Constitution had not been properly followed. There are also provisions about cultural life and the environment that are important in the context of land. Section 26 on housing, and specifically the right not to be evicted without a court order (which will be returned to below) also merits attention. That notwithstanding, the property clause is the most sensible place to start any consideration.

Whilst the nine subsections of the property clause must be read together for a full picture, it is worth noting that it begins by providing that:

No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

It then clarifies:

Property may be expropriated only in terms of law of general application: a. for a public purpose or in the public interest; and b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Property clauses in other constitutions or similar rights documents (such as the European Convention on Human Rights) also make similar provision for the protection of property, but what is striking about the South African Constitution is it then goes on to say, “For the purposes of this section… the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” This is a constitutional order that puts land reform in the foreground. (Those who wish read more should seek out A J van der Walt, Constitutional Property Law (3rd edition, 2011).)

For its Constitution alone, South Africa is worthy of study. This relatively young Constitution is already a crucial consideration in terms of who should control, manage and use land in that country. According to van der Merwe, Pienaar and Du Waal (writing in the Kluwer Law International publication South Africa which is part of Property and Trust Law in the International Encyclopaedia of Laws series, 2015), “The South African law of property has been the realm of South African law that has been most affected by the new South African Constitution.” Important as it is, the property clause of the Constitution did not sweep away the legal system that regulates the country’s land, nor did it instantly change who owned what at the time it came into force. This means an understanding of the manner in which the country developed, featuring waves of European migration following the establishment of a Dutch trading post at what is now Cape Town and subsequent incorporation into the British Empire, is important to understanding the legal migration of Roman-Dutch law that also occurred.

This also goes some way to explaining why a Scots lawyer does not feel wholly uncomfortable commentating on that legal development. This is not because Scots law migrated to the Cape. Rather, the Roman-Dutch law of the province of Holland went to the Cape, and then that law was flavoured by aspects of English law (English law being the system that followed the British Empire to its outposts). The mixture that emerged from this clash of legal traditions leaves an underlying property law system that is (or at least was) more familiar to continental European – or civilian – eyes than Anglo-American – or common law – eyes. Meanwhile, the Scottish system of land law draws heavily on Roman law, and whilst it too has been influenced by English law (owing to a shared legislature from 1707 and much in the way of shared experience and trade) its land law also remains somewhat civilian.

This coincidence might be useful for legal research purposes. However, as already noted, the new order that is emerging in South Africa – with its written Constitution featuring an explicit declaration that land reform is in the public interest, and recognition of customary or indigenous rights – demonstrates a trend that is not replicated in Scotland. It can also rightly be said that the conditions faced in South Africa, which exist because of a discriminatory framework, are unique (Pienaar, 2013). This lingers in a socio-economic situation that is very different to Scotland, a number of which I set out in this post about addressing access to justice via student law clinics (and specifically the Stellenbosch Legal Aid Clinic). As a result, comparisons are necessarily tentative and land reform solutions and mechanisms are not automatically transplantable. One comparison that can be made, however, is the simple fact that both jurisdictions have recently legislated for land reform. Some recent South African statutes will now be considered, alongside some new measures that have been proposed.

Legislation

The legislative instruments that supported the apartheid regime are too numerous to mention here. For context, the Apartheid Museum in Johannesburg displays a number of laws that were instrumental in that regime, as this amateur photo demonstrates (taken when I visited there).

Apartheid Museum Laws

To digress for a moment, at the ticket desk for the museum each visitor was allocated a “white” or “non-white” ticket.

Apartheid Museum Ticket

As you can see I was allocated a “non-white” ticket (which under the old rules could have meant I was one of many classifications, all ranking below white to a variety of degrees). This allocation meant I could only use one of the two entrances. As such I could not see the displays accessible via the other entrance (before all visitors were funnelled back together). I felt excluded. I guess that was the point…

Anyway, back to those statutes. Many of those related to land, in terms of regulating who was allowed to own land in certain areas, or indeed allowing people to be forcefully removed. Mandela’s Long Walk to Freedom has numerous instances where such measures take centre stage, from the Group Areas Act 14 of 1950 and its successors (which Mandela notes that Daniel Malan described as “the very essence of apartheid”, and which features on the wall in the Apartheid Museum), to the clearing of Sophiatown (one of the oldest black settlements in Johannesburg). There were also older measures like the Natives (Urban Areas) Act 21 of 1923, which prohibited new freehold townships, and of course the Black Land Act 27 of 1913, of which Sol Plaatje famously noted that Africans awoke the morning after its passage to find themselves pariahs in the land of their birth. The importance of all these steps to the overall land question has been judicially recognised, in the case of Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others [2015] ZACC 253. There, the South African Constitutional Court noted (at paragraph 2) ‘For decades restitution of land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle.’ (It then noted (at paragraph 3) that it was “not surprising that the Constitution guarantees land restitution and reform.” I will return to the Constitution in a moment.)

To paraphrase Carey Miller, such measures bolted onto the existing system of property law. That Roman-Dutch system was not in and of itself racist, but it was absolutist and put the holders of property rights in a strong (private law) position. If only certain people could access those rights in certain areas, only they could be in that strong position.

Fast forwarding to the modern era, racial statutes were repealed by the Abolition of Racially Based Land Measures Act 108 of 1991, but that step did not immediately undo the consequences of those measures. Meanwhile, even with their repeal it is not possible to ignore them. The consequences of some legal measures remain important, not only because they have influenced who might be owner now, but also because some of them (for example, the 1913 Act) are important in establishing who might have a claim to the restitution of land.

Back to the constitution, and related laws

The importance of the Constitution for land reform has been touched on already in this post. It mandates three broad ways in which land reform is to be achieved: restitution, redistribution, and tenure reform.

Restitution

Restitution will only be mentioned quickly here, not because it is not important, but (selfishly) because it is not important to the reform exercise that has taken place in Scotland. Some instructive observations can be made though.

By restitution, I mean “returning” property to someone (or someone’s descendants) where a previous act of expropriation that affected them can be traced. Whilst this may sound simple, there are a variety of factors to consider, not least the fact that the person who owns land in the present day may have had nothing to do with the original expropriation. There may also be issues of prioritising which wrong needs to be rectified: for example, Mandela himself notes the iMfecane (alternatively spelled as Mfecane or referred to as the Difaqane) left displaced people as refugees in the area where he grew up in the Transkei, even before you get to the upheavals caused by the British or the Voortrekkers. There may even be issues of competing claims.

Various jurisdictions have grappled with these issues and adopted a restitutionary approach to land reform, including in Eastern Europe and in other parts of Africa. Scotland has not adopted such an approach. South Africa has. It first did so via the Restitution of Land Rights Act 22 of 1994, whereby claimants had to identify an act of dispossession that occurred after 19 June 1913 before restitution could take place. Any dispossessions from before that date leave those affected relying on other aspects of the wider reform program (discussed below). There was also a time-limited period in which claims could be made.

The merits of such cut-off dates can be debated. I will not do so here. I will however quickly note that there may be more restitution legislation in the pipeline, as a result of a decision of the Constitutional Court which declared that the Restitution of Land Rights Amendment Act 15 of 2014 was unconstitutional (owing to a lack of public participation in the law-making process). This legislation had sought to allow for new lodgements of land claims. The court gave the South African Parliament 24 months to rectify matters, meaning it has until July next year. It seems there will be new legislation. Like the earlier act that was ruled invalid by the Constitutional Court, this piece of legislation aims to provide a new five-year window for land claims to cater for those who missed a previous cut-off date in 1998. Depending on how this proceeds, this means the Land Claims Lodgement Centre might be busy again…

Land Claims Lodgement Centre
Thanks to Hansie and Melanie Geyser for pointing this sign out to me, then humouring me when I took a photo.

Another aside worth mentioning relates to something I spotted from the window of a bus tour, yet failed to photograph. This was a sign painted on a wall next to a crossroads in Soweto, urging people to lodge a land claim. Does Scotland need to do more to advertise its land reform laws? For my part, I think Scotland does okay, but I do appreciate I am a) interested in these things and b) on the internet too much. Maybe advertising on street corners in less salubrious post codes is something that could be considered in Scotland too.

Redistribution

Interesting as restitution may be, consideration of the redistribution aspect of land reform leads to a more instructive comparison between Scotland and South Africa. Here, the land that is subject to reform is being reallocated in a way that is not directly linked to a past wrong. Instead, present day land rights are being revisited to reflect present day needs. There is provision for this in the South African Constitution.

Scotland has a number of rights to buy land which facilitate land transfer from one party to another, including some situations where a tenant can buy out her landlord and also situations where a community can acquire land local to it from a private individual. This might be on a “first refusal” basis (i.e. a community will be given first dibs on any land a local landowner wishes to sell) or, in some circumstances, on a forced sale basis (i.e. the landowner has less of a say in when or indeed if the land is sold).

In terms of how much land is to be redistributed, the Scottish Government has indicated that it wishes to see 1 million of Scotland’s 20 million acres in community ownership by 2020. For its part, in 1994 South Africa announced a target of having 30% of agricultural land in black ownership by 1999. This target year was subsequently amended to 2014. Both targets have been missed. (Without commenting on whether either the 1 million acres or 30% target should be higher or lower, in can be noted that the scientific reasoning for either figure has not been made out, although the importance of having a target should not be dismissed.)

South Africa also has something of a community focus in this branch of the reform programme. The first statute that catches the eye is one I have already mentioned, namely the Communal Property Associations Act. It has been described (in the Bakgatla case) as “a visionary piece of legislation passed to restore the dignity of traditional communities. It also serves the purpose of transforming customary law practices.” It would be fair to say that the community associations that can be formed under that legislation have a bit more flexibility than the Scottish model. That said, Scotland has now increased versatility in this area, after the Community Empowerment (Scotland) Act 2015 added the Scottish charitable incorporated organisation and the community benefit society as eligible community land holding bodies to what was previously the only option of a company limited by guarantee.

Another point that is worth noting here is – perhaps surprisingly – the legal rules in Scotland for redistribution of land seem a bit more radical. This is because South Africa (to date) has focussed on the willing buyer, willing seller model, whereas Scotland does allow for some compulsion in limited circumstances (in relation to crofting land, and there will soon be other rights in relation to neglected, abandoned or environmentally mismanaged land). That is only part of the story though. The overall South African position as regards communal land is slightly difficult to comment on in a blog format such as this, but suffice it to say it is complicated by a history of racial land policy that went as far as setting up puppet black states called “Bantustans”. There are then a variety of modern factors such as the Communal Land Rights Act 11 of 2004 and multifarious questions about what or who embodies a community. (That 2004 statute, like the more recent restitution statute already mentioned, was also struck down by the Constitutional Court, again for improper parliamentary process.) There is also a possible reassertion of tribal landownership. This is difficult to comment on from a Scottish perspective, but it seems almost akin to Scotland trying to reintroduce the heritable clan jurisdictions that were abolished in the tumultuous times of the 1700s (albeit without such a time gap).

In terms of future redistribution, ongoing concerns about the pace of land reform has led to much speculation about what should happen next and in particular whether and if so when South Africa will move away from its willing buyer, willing seller model. (There are also questions about expropriation and compensation.) Much of this might be tied to the new Regulation of Agricultural Land Holdings Bill and a new Land Commission. That’s right, South Africa could be getting a Land Commission, not long after Scotland introduced one via the Land Reform (Scotland) Act 2016. It appears the South African version will be a little bit different to the Scots version though: for example, it will seek information about landowners (such as race, gender and nationality) and check on the use and size of the agricultural land holding. In due course it will have a role in relation to the proposed capping of the size of agricultural holdings (see below) and redistribution of land from holdings that are above the cap.

From discussions with postgraduate students at Stellenbosch, I know there are some questions about how such a new Land Commission will interact with the existing Deeds Registry (where title deeds relating to ownership are registered), so this is something to keep an eye on. There is also an ongoing issue in South Africa in terms of simply working out who owns what. To an extent, this chimes with current Scottish developments, where there is a drive to complete a transition of all titles to the Land Register by 2024, but more importantly there is a related drive to work out who holds controlling interests in any landowning entity (from Part 3 of the Land Reform (Scotland) Act 2016). Both jurisdictions could benefit from comparisons with the other.

As for the Regulation of Agricultural Land Holdings Bill itself, that could cap the size of South African landholdings or prohibit the acquisition of ownership of agricultural land by foreigners. Similar proposals were explored by the Scottish Land Reform Review Group, although a) it did not go so far as to propose what the cap might be, and b) the foreign ownership restriction would have targeted ownership of land by non-EU entities, rather than all foreigners. Neither of these proposals were included in the most recent Land Reform Act, but if South Africa takes steps in this direction that will be yet another reason that makes South African land reform something to watch. (As an aside, it can be noted that one reason for the non-EU entity point not being included in recent Scottish reforms is up in the air following the Brexit vote. There were fears such a step might breach EU law. Depending on the exact flavour of Brexit, this obstacle might be removed.)

Tenure reform

Tenure reform amends the manner in which control is exercised over property. This branch of South African land reform has been especially important, in relation to security of tenure, i.e. a right to stay on land. This is normally important for the likes of labour tenants on farms (and specific legislation was passed for that). There have also been two important statutes that apply to regulate eviction depending on where an occupier of land is.

In urban areas, there is a chance to grab a slice of the PIE. (Sorry, that is terrible legal pun.) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 18 of 1998 both prohibits unlawful evictions and provides procedures for the eviction of unlawful occupiers. This legislation is analysed in a chapter by Professor Anne Pope in Professor David Carey Miller’s forthcoming festschrift, which will be published by Aberdeen University Press, so I will not say too much about it here. All I will note is it essentially provides that evictions can only take place when it is just and equitable for that to happen, and this might mean a landowner will not be able to recover possession from an occupier in all circumstances.

In rural areas, in addition to protections for labour tenants, protection is afforded by the Extension of Security of Tenure Act 62 of 1997. This conferred security of tenure on those who had, at one stage, been occupying land with the consent of the owner, and again this prevents eviction from a home unless it is just and equitable. An additional point worth noting here is that eviction actions can take place in a Magistrates’ Court (roughly equivalent to a Sheriff Court), but eviction orders are subject to automatic reviews by the dedicated Land Claims Court. All of this means people do not lose their homes lightly.

At this point I offer one aside from a Scottish perspective. In 2003, legislation was passed by the Scottish Parliament with a view to giving an element of security of tenure to a certain class of rural occupier, where that occupier (and active farmer) held land via a juristic personality called a limited partnership, with the landowner being a partner in that venture. The limited partnership was either of a definite length or the landowner was able to bring it to an end by taking certain procedural steps. The reform enacted by the Scottish Parliament was rather technical, to say the least: sections 72 and 73 of the Agricultural Holdings (Scotland) Act 2003 are not easy to understand, but essentially they sought to upgrade the active farmer into a class of tenant that enjoyed greater security of tenure. Technical issues aside, the more fundamental problem is that a court ruled this reform was a breach of an affected landowner’s human rights, as the imposition of a secure tenancy was found to be an interference with the landowner’s peaceful enjoyment of his possessions. Remedial legislation followed. (Further reading is available on my personal blog.) The analogy between the jurisdictions and the situations is not exact, and, for Scotland, any moment to cater for these individuals has passed. That notwithstanding, the South African model of extending security of tenure seems much simpler than the route which was eventually followed by the Scottish Parliament. As such, any future attempts by Holyrood to confer security of tenure to any class of occupiers might benefit from a comparative approach.

Another aspect of South African law, or perhaps even South African culture or philosophy, is the notion of ubuntu, which flows from ideas of human interdependence and dignity. Whilst there is no single definition of ubuntu, this did not stop it playing a role in the case of Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC). As noted by Justice JY Mokgoro in a short chapter in Frank Diedrich (ed), Ubuntu, Good Faith and Equity: Flexible Legal Principles in Developing a Contemporary Jurisprudence (Juta, 2011), “ubuntu was the underlying principle for the Court’s articulation of the proper procedure that must be followed when evicting vulnerable people from their homes.” Now, I am not going to be so crass or naïve as to suggest ubuntu‘s balance of individual rights and a communitarian philosophy could simply be lifted across to Scotland, but it did make me ponder a couple of things. In relation to historic Scotland, it reminded me of the Highland notion of duthchas, implying a connection to land that transcends legal ownership, which the historian Professor Jim Hunter and others have written about. More importantly, in relation to modern Scotland, I wondered if the was an analogy with the new land rights and responsibilities statement, which is provided for by Part 1 of the Land Reform (Scotland) Act 2016. Whilst landowners have always had certain obligations and responsibilities in Scots law, it is genuinely an exciting time for Scottish land law as Scottish society tries to pin down what a landowner’s responsibilities should be. Whether it is from ubuntu or from something else entirely, South Africa could be able to teach us something.

Conclusion

For the purposes of a provocative conclusion, let me replace that optimism with a dose of cynicism. Comparisons are tricky. One problem with comparisons is knowing where to stop. Given I have cleared 5,000 words, now seems as good a time as any. Before I go, I will set out some words of caution about comparative law, then draw some final conclusions.

The trouble with analogies is that they are different. So it goes with comparative law. I touched on some of the different socio-economic factors in my earlier post about the Stellenbosch Legal Aid Clinic. In addition to setting out some of those issues, that post explains how places like Stellenbosch Legal Aid Clinic try to address the unmet legal need of indigent South Africans, and of course there are fundamental matters like access to justice at play when it comes to the land question. This can be seen from the case of Nkuzi Association v The Republic of South Africa (LCC/10/01), where legal representation of respondents in eviction matters in terms of the Extension of Security of Tenure Act became compulsory. Scotland and South Africa do have some key historical and contemporary differences, which means there are certain limitations when it comes to transplanting ideas or rules from one legal system to another.

That said, I hope you learnt something from this blog post. I found it challenging to write, in part because I was an outsider looking at South Africa, but mainly because I wanted to do it justice. In fact, I spent more time writing this post than I had initially planned to. I do not regret that though. I felt it was important to write up my trip in the fullest possible way and this post, coupled with my note about the Stellenbosch Legal Aid Clinic and even my post about national parks, just about does that.

To reflect on the trip as a whole, I feel I learnt a lot. In addition to having access to the legal materials to allow me to draw this post and my wider thoughts together, I also benefited immensely from chatting to students, scholars and many other people I met along the way. For example, in a seminar at Stellenbosch I was asked to what extent the Scottish land reform programme was about human dignity (because the South African programme is), which really got me thinking. Then there were discussions with students and postgraduates at Stellenbosch and the University of Cape Town, which kept me on my toes as I tried to answer questions like the deceptively simple, “Why is Scotland doing what it is doing?” or the grenade of “Wait, what is crofting?” Then there were chats with non-lawyers, who politely/incredulously asked what I was doing in South Africa. I hope I managed to answer them at the time, and I hope this blog post serves as an answer to anyone who was too shy to ask that question directly.

UCT Seminar
A picture from a seminar at the University of Cape Town. Photo credit, Hanri Mostert. (Hanri also happens to be a Professor of Law at UCT. If you want to read about mineral rights in South Africa (yet another matter I failed to cover in this post), read her book about the topic!

 

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Access to land – some lessons from around Scotland

This post is by Malcolm Combe. It was updated on 3 August 2017 to link to a report that the gates mentioned below will now remain open.

The issue of people taking access to land for passage or other activities can be both a practical and an emotive issue.

From the perspective of landowners, land managers or any other occupiers, there might be a fear of irresponsible land access causing damage to their property or wildlife, not to mention the simple fact that access takers could get in the way of a chosen land use. There might also be issues that are more difficult to quantify, such as concerns relating to privacy or safety.

From another (non-owner) perspective, members of the public might grudge being denied access to large swathes of the outdoors for recreation or to learn about wildlife, or they might wish to get from A to B in a simple and non-intrusive way. Depending on the circumstances, they might baulk at being lumped together with anyone not taking access responsibly, especially if they are willing and able to conduct themselves in a way that will not interfere with a landowner’s chosen activity. There may also be historical, cultural or even health-related reasons why people feel access to land that is not owned by them is something that nevertheless matters.

Every so often, stories will emerge online or in the press about access issues that can set these tensions against each other. This might occur when a path is blocked or access is otherwise restricted. Some recent situations in Scotland serve as an opportunity to discuss and reflect on the regulation of access to land.

The settings for these stories are very different, but the underlying legal points are similar. The first story relates to the installation of gates at the southern extension of the Speyside Way in the Scottish Highlands (which opened in 2015). The second relates to Elderslie Golf Club in Renfrewshire.

No particular comment is offered on either situation here. Rather, this blog will set out some points about the law in Scotland, then illustrate how that law might apply with reference to those situations.

Regulating Access to Land

Different legal systems have different rules to regulate access to the outdoors. In Scotland, public rights of way might allow people to travel from one public place to another (often along traditional routes to, for example, a market, kirk or cemetery). Such rights of way continue in the modern era, but the most important law is the Land Reform (Scotland) Act 2003. Part 1 of the 2003 Act liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land, with an additional right to cross land (separate to existing rights of way), without the owner of that land’s prior consent.

That sounds striking, but the 2003 Act does not establish a free for all. These rights are subject to two important qualifications.

The first qualification is that the accessed land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. Land where there is a building or where crops are growing are thus excluded, as is land that has been manicured as a bowling or putting green. (Golf courses as a whole are something of a special case – more on that later.) The scope of the law is clear though: access rights will apply, unless they are excluded. This means they apply across much of Scotland, Highland and Lowland, rural and urban. (The urban dimension might be of particular interest to observers from other jurisdictions.)

The second qualification is that any access taken must be responsible. As detailed in section 2 of the legislation, access is not responsible if it unduly interferes with the rights of others. Understandably, that would include the rights of the landowner, but it also includes other access takers as well. Guidance as to what is responsible can also be taken from the Scottish Outdoor Access Code (PDF). Furthermore, the statute provides that some conduct can never be classed as responsible (such as being on land in a motorised vehicle). Meanwhile, a landowner is under certain reciprocal obligations to use and manage land in a manner which is responsible in relation to access rights. And again, there are certain things that will not be classed as responsible management, including actively placing impediments to access (more on that below).

I could quite happily write about all of this at length. Rather than do that, I will direct eager readers to my other posts about how this law operates, including on this blog – in the context of the augmented reality game Pokémon Go – and on my personal blog – about the possible introduction of a charging regime to access a country park. I will now consider the specific examples.

The Speyside Way*

It has been reported that gates have been installed at Kinrara, where a path runs between Newtonmore and Aviemore (see here, here and here, photos available here). There is no indication that irresponsible access is a problem at Kinrara. There is no particular question of this land being excluded from access rights (and, in fact, there is a strong indication to the contrary). Was the landowner entitled to take these steps?

The Bogach
“The Bogach, Kinrara Estate” © Dorothy Carse and licensed for reuse.

The first thing to consider is section 14 of the 2003 Act. It seeks to stop landowner interference with access rights, and it does so by mandating that no landowner shall act in a manner that directly prevents or deters any person entitled to exercise access rights from doing so. In particular, it notes a landowner shall not put up any sign or notice, position or leave at large any animal or (for present purposes) “put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation”. This provision can be enforced by the relevant access authority: in this case, the Cairngorms National Park. (In terms of the legislation, the bodies charged with upholding access rights will either be the relevant local authority or (if the area is in a national park) the relevant national park.)

This is not to say a landowner cannot do anything at all on land in a way that could affect access: legitimate land management activities are allowed. A landowner will only fall foul of section 14 when taking steps that are solely or primarily aimed at the prevention of responsible access. Erecting certain types of barrier might even be allowed: for example, in one case in the Black Isle a barrier erected to prevent equestrian access (in a way that would churn and damage a path) was ruled to be acceptable in court (in the particular circumstances of that case, which included an alternative and nearby route for horses). Whether that is a suitable precedent for Kinrara will be revealed in the coming weeks: from a distance, my initial view is that is does not.

Another factor at play at Kinrara is that land there has already been subject to a “Path Order” in terms of section 22 of the 2003 Act. This is a little-used section of the statute found within a series of provisions about the role of access authorities. This has been the only usage of such an order in Scotland. (The related back story caught the attention of the press at the time.) It specifically allows an access authority to delineate a path where access rights are exercisable. Naturally, this is an ongoing situation and any comment on it must be ventured with caution. I have not visited the site and I am not sure exactly where the gates are, but this does seem to be a strong indication that access rights apply at or around the barriers. What can also be said with confidence is the overall effectiveness of the legislation is being put to the test here and many people (myself included) will be watching developments closely. Lastly, if for whatever reason matters stall, it will be recalled that section 16 of the 2003 Act allows for compulsory acquisition of land by access authorities (with due process) for the enabling or facilitation of the exercise of access rights.

*UPDATE 3 August 2017: The website of the Cairngorms National Park Authority now reports that agreement has been reached to keep the three gates open.

Access to Elderslie Golf Club

The issue of a new fence at Elderslie Golf Club has not had the same coverage as Kinrara. It is fair to say it is not as high profile – no offence to my friends in Renfrewshire, but the Black Cart-side Way has yet to gain the same status as the Speyside Way. Nevertheless, it has prompted some reaction locally, as these photos taken from BBC journalist and UWS Teaching Fellow Annie McGuire’s Twitter account show.

DOWN WITH THIS SORT OF THING
Careful now.

QUICKER THAN TRUMP

Ms Maguire has created a number of YouTube videos (here, here and here), which give some indication of the setting. I understand there is an alternative access but, per the third video, this is not convenient for all residents. It can also be noted that Elderslie Golf Course does feature on the network of core paths in Renfrewshire (see path 8 on Core Paths Plan Map 6 here, PDF here). This is a path that (in this case) Renfrewshire Council has marked out as being part of a system of paths that gives the public sufficient access to its local authority area, so at least some degree of access around Elderslie has already been planned for.

Can access be taken to a golf course? As already noted, putting greens are excluded. The rest of the course is not excluded, although the twist with golf courses is that access is only allowed for the purposes of crossing the land. Recreational and other activities that involve staying on the land are specifically classed as not responsible. This means there is a right to walk across a golf course without the golf club’s prior permission, but if you want to stop for a picnic you had better ask.

What does this mean for a new fence at Elderslie Golf Club? It means section 14 comes into play again. That is to say, fencing that is wholly or mainly aimed at deterring or preventing access can be subject to enforcement action by the access authority.

That prompts an important question: what is the fence for? Sure, stopping for a picnic on a fairway might not be very sensible, and even dashing across a fairway has certain risks. As such, a golf club and its golfers will not want people to put themselves at risk of injury (and in turn put themselves at risk of an occupiers’ liability or other claim for damages). Signage to this effect could be a way to deal with this, rather than completely restricting access. That being said, I understand from Twitter correspondence and the local press that there has been a degree of antisocial behaviour on site, including damage to the course. Outside looking in, I wonder if a complete restriction of access is the only way to deal with this. Could restriction at certain hours of the day be more appropriate? That was the approach adopted in a sheriff court case about an access route in Glenrothes, Fife. (At least one Twitter correspondent has agreed this might be a plausible solution in Elderslie.)

Meanwhile, it can be noted in passing that there might be other issues at play. Ms McGuire has been (metaphorically) digging around and there may have been some historic local access at Elderslie Golf Course for allotments of some kind. It is also possible that there are private rights as between the golf course and the neighbouring land (linked to those allotments or otherwise). Such rights could only be ascertained by looking at the title deeds for the various properties or knowing a bit more about historic usage. Or there might be a public right of way, which can spring into being after twenty years of continuous use by the public (the Twitter account @ElderslieGrapes has asserted that access at Glenpatrick Road “has been there for 40+ years”). All of this is speculation, so it seems appropriate to leave matters there.

Conclusion

Whilst these two examples can be viewed as local interest stories, they do serve to highlight various issues that can arise. It might be that a similar access issue crops up near you in the future. If and when this occurs, a greater understanding of Scotland’s access regime might stave off future access disputes, perhaps by preventing local misunderstandings or over-corrections escalating into full-blown litigation. After all, going to court is not a walk in the park.

Image credit and full details for “The Bogach, Kinrara Estate”: copyright Dorothy Carse and licensed for reuse under this Creative Commons Licence, original here. Image credit for the signage at Elderslie: Annie McGuire.

Reflections on “Land Rights and Land Responsibilities: An Audience with the Chair of the new Scottish Land Commission”

This blog post is by Malcolm Rudd, a recent Diploma in Professional Legal Practice graduate of the University of Aberdeen.

On 26 May 2017, the King’s Conference Centre at the University of Aberdeen hosted a lecture and panel discussion about Scotland’s land as part of the May Festival. This event built on a series of events that Malcolm Combe (a Lecturer at the School of Law) and colleagues at the University of Aberdeen have hosted on the topic of land reform, as digested on this blog.

Making More of Scotland's Land
(L-R): Anne-Michelle Slater; Andrew McCornick; Annie McKee; Malcolm Combe; Andrew Thin.

Andrew Thin, Chair of the Scottish Land Commission (Coimisean Fearainn Na H-Alba), provided the keynote presentation. He introduced that new body, which became fully operational on 1 April 2017, and said a few words about the forthcoming Land Rights and Responsibilities Statement, before considering what it and the Land Reform (Scotland) Act 2016 could mean for the management, use and regulation of land in Scotland.

The Scottish Land Commission was established under Part 2 of the new legislation. It is a Non-Parliamentary Departmental Body (or “Quango”), not completely independent of the Scottish Government but somewhat distanced. There are five land commissioners and one tenant farming commissioner with a range of experience and expertise of business, planning, science and public service.

Andrew Thin’s presentation was entitled “Making More of Scotland’s Land”. The principle of “more for more”, it was explained, will underpin the work of the Commission. Not “more” merely in the traditional sense of productivity, but in bringing greater benefits from the land to more of Scotland’s people. The forthcoming Land Rights and Responsibilities Statement, which is provided for in Part 1 of the 2016 Act, is intended to balance rights and responsibilities relating to land using a human rights based approach. The Scottish Government recently consulted on the contents of the Statement, and the Commission’s response (PDF) to that noted anxiety about ambiguity of language and lack of clarity of outcomes. Thin then outlined that the Commission’s role is to encourage flourishing communities, minimise dispute and pursue more diverse and disaggregated land ownership. Its strategic plan for 2018-2021 and some Codes of Practice relating to tenant farming (with agricultural tenancies being an ongoing issue for rural Scotland) will not be released until after the General Election on 8 June 2017.

Following Thin’s address members of an expert panel (reflecting sectoral, geographical and planning expertise) each contributed their perspective on the Statement and land reform policy.

The panel, led by Malcolm Combe, comprised:

Andrew McCornick, President of NFU Scotland
Dr Annie McKee, Social researcher in land management, The James Hutton Institute
Anne-Michelle Slater, Head of School, University of Aberdeen School of Law

Anne-Michelle Slater spoke first, addressing the role which planning law could play in land reform. Andrew McCornick raised his concern as to the perceived unclear trajectory of land reform. He explained that many farmers (both tenants and owners) felt overburdened by bureaucracy and were suspicious of what could be a threat to current land-based activities. Annie McKee focussed on community engagement and transparency in her contribution.

The audience were given an opportunity to ask questions and hear the response of the panel. Wide ranging discussion followed. There were questions about environmental matters, including biodiversity and water quality. Linked to this was land use, in particular forestry and deer management, and there was discussion about tenant farming (and the recent review of it) and the problem of rural community depopulation. One audience member, Professor Roderick Paisley of the School of Law, used the example of a farmer whose ownership allowed him to stay on land earmarked for the Trump International Golf Links to highlight the protective role that property rights can play. The questions were somewhat rural in focus, but it should be borne in mind that land reform policy also affects urban Scotland, that being a point Thin made in his presentation. Thin also stressed the Commission’s intent to engage with communities across Scotland (indeed, only the night before, such an event was held at Thainstone Mart in Inverurie).

The development of land reform in Scotland has been gradual. It will be fascinating to see the effect of the Scottish Land Commission and the Land Rights and Responsibilities Statement on the relationship between Scotland’s people and Scotland’s land. Perhaps this event, and indeed this blog post, might play a small role in highlighting that development.

To follow the event as it happened, relevant tweets from the @RuralLaw account can be found here.

Malcolm Rudd has recently worked as a research assistant at the School of Law, looking at aspects of land law with Malcolm Combe, with the support of the Carnegie Trust for the Universities of Scotland. He presented a paper on land reform and succession (inheritance) at a conference on 26 August 2016, also at the University of Aberdeen.

Small holdings, big complexities

This blog post, by Malcolm Combe, originally appeared as an online article for the Journal of the Law Society of Scotland, available here. It is reproduced here with permission.

The law relating to leases of rural property in Scotland has long been an area replete with special considerations. There is a surfeit of statutory regulation in relation to crofting and agricultural holdings, but rural considerations flow from before that surfeit: for example, a rule about delectus personae to restrict assignation (Bell’s Principles, 1216).

Crofts (governed by the Crofters (Scotland) Act 1993, as copiously amended), and agricultural holdings (whether a “1991 Act” tenancy or one of the more recently introduced fixed-duration tenancies in terms of the Agricultural Holdings (Scotland) Act 1991 or the Agricultural Holdings (Scotland) Act 2003, both as extensively amended) are relatively well known. Those dabbling in rural matters can normally be on guard for these. But for the unwary and perhaps even unlucky solicitor, a small landholding might be chanced upon in a transaction.

Small landholdings are a type of rural lease that can be found outwith the traditional crofting counties (of the Highlands and Islands) that are not quite governed by the agricultural holdings regime. They have not – yet – been much affected by Holyrood legislation, save for s 6 of the Crofting Reform etc Act 2007, which amended the Crofters (Scotland) Act 1993 to allow small landholdings to be converted into crofts in areas outwith the traditional crofting counties but now designated as new crofting areas (namely Moray, the Cumbraes, Arran and Bute, per the Crofting (Designation of Areas) (Scotland) Order 2010, SSI 2010/29), and now part 11 of the Land Reform (Scotland) Act 2016. It is as a result of that more recent amendment that small landholdings will now find themselves subject to a bit more legislative attention.

History and current status

The statutory system of crofting was introduced to parts of Scotland by legislation passed in 1886, but the rest of Scotland had to wait until 1911 before its smallholdings were subjected to similar, and rather powerful, statutory control. The Small Landholders (Scotland) Act 1911 essentially expanded the system introduced by the Crofters Holdings (Scotland) Act 1886 to the whole of Scotland, bringing in control for matters like compensation for improvements (namely what a landlord would have to pay a tenant for any works introduced by the tenant) and security of tenure (meaning the ability of a tenant to hang around on land even at the end of the original term of a lease, provided rent was being paid and other obligations complied with). The Crofters (Scotland) Act 1955 then reintroduced the division between Highland and Lowland Scotland, leaving the 1911 Act and the 1886 Act (and indeed many other Acts) to govern leases of small landholdings outwith the crofting counties.

To this far from simple system, an extra layer of complexity can be introduced. The 1911 Act actually introduced two different regimes, where someone who rented a smallholding could be a “landholder” or a “statutory small tenant” (in terms of s 32 of that Act), depending on whether it was the landlord or the tenant (or indeed a predecessor of either of them) who had built the structures used for that smallholding. Generally speaking, a statutory small tenant has less in the way of statutory rights than a landholder.

For a variety of reasons, there are not that many of these regulated leases still in existence. Notwithstanding that relatively low number – which seems to be settled at 74 (yes, seventy-four) – there has been a perception that these leases have been ignored when other leases have not. In part, any neglect is ably demonstrated by the mass of legislation about crofting and agricultural holdings, but of course the low number of small landholdings also explains that lack of legislative attention. That point notwithstanding, it may be the case that parties to such leases do not have a particularly clear handle on what arrangement they have, not to mention that there are arguments about whether such arrangements are suitable for the present day, and as such it is a worthwhile exercise to have a look at small landholdings.

Modern reform?

To this mix, s 124 of the Land Reform (Scotland) Act 2016 can now be added. This was the result of a Scottish Green Party amendment at stage 3 of the then bill. It committed Scottish ministers to: (a) review the legislation governing small landholdings; and (b) lay a report of that review before the Scottish Parliament no later than 31 March 2017. This the Scottish ministers have done. The report can be found here.

The report is an impressive piece of work. (I declare an interest, in that I had some limited input to it: a couple of drafts were circulated to me and I commented on them. To be clear though, I declare that interest to give the credit to those that deserve it.) A lot of people inputted to this document, and of course those directly affected by the proposals (the landlords and tenants) provided data for the exercise, so any credit is due to them. This post has skimmed over some of the details about small landholdings, whereas the report goes into the background, the current regime, and the potential for the future in detail.

To offer some selected thoughts on the report’s interpretation of the future, it essentially narrows down three options, namely:

  • the status quo;
  • conversion to another type of tenancy; or
  • reform and modernisation.

The report then suggests two of them are not appropriate, as: maintaining the status quo would lead to further diminution of numbers of small landholdings (with unclear effects on rural Scotland); whilst mass conversion of small landholdings into another type of tenancy is just not quite suitable (as, for example, you could end up with crofts outside traditional and even recently expanded crofting areas, not to mention that it could have an uncertain effect on already settled positions between landlord and tenant). In passing, the report also tells us (at para 133) that to date, no small landholder in one of the new designated crofting areas has converted. Such small landholdings would be prime candidates for conversion, so this seems to show either that there is no appetite for conversion or that the existing conversion process is not appealing.

That leaves the reform and modernise option. Much could be said about this, but the two key issues that came up in consultation with respondents related to clarity of legislation (which is a bit of a bùrach across many statutes at present) and a right to buy. As regards the potential for a right to buy of any sort, irrespective of the undeniable politics of such an option it is clear that small landholdings missed out on such rights in 1976 (when an absolute right to buy was conferred on crofters) and 2003 (when a right of first refusal was given to secure 1991 Act tenants of an agricultural holding).

What next?

The Scottish Parliament will get the chance to ponder the report, but para 170 sets a number of future steps. Some of these might involve the Scottish Law Commission, the new Tenant Farming Commissioner, and the Crofting Commission. Other steps could involve researchers looking into historical data and trends relating to small landholdings, and (either related to that historical research or independently) the likely socio-economic impact of them in the present day.

To conclude, despite the relatively low numbers of small landholdings in Scotland, there is a lot of work to be done in relation to them. I will be watching carefully to see what happens next. Meanwhile, anyone who has to deal with the legislative regime will be praying a more user-friendly system emerges at the end of this process, while those directly involved with Scotland’s remaining small landholdings will be watching even more carefully than me to ensure that any new regime is workable both for modern agriculture and as a part of a healthy rural environment in Scotland.

Reflections on “Land Reform: Legal, Historical and Policy Perspectives”

This blog post is by Malcolm Combe (Lecturer) and Kieran Buxton (Year 4 LLB (Hons) Candidate, University of Aberdeen). A version first appeared in Issue 177 of the Scottish Planning & Environmental Law journal (October 2016) at page 104.

On 26 August 2016, the University of Aberdeen hosted a conference about one of the hottest potatoes in Scottish politics at the moment: land law reform. The conference, and a related lecture on land reform and the environment the previous evening, brought together stakeholders with a variety of perspectives, experiences and interests, including the Scottish Government and representative groups Scottish Land & Estates, NFU Scotland and Community Land Scotland.

As has been explored on this blog previously, there has been an extensive commitment by the Scottish Government to land reform. The conference allowed speakers and delegates the opportunity to reflect on and critique the developments made under recent legislative reform (most notably in the Land Reform (Scotland) Act 2016, but also via other legislation like the Community Empowerment (Scotland) Act 2015). In addition, delegates heard of continuing implementation of the most recent measures and perspectives on the route the continuing land reform process should take. A comparative panel also brought together analysis of Australian, English, North American and Norwegian perspectives on land reform to provide alternative viewpoints on how different jurisdictions deal with the control, distribution and development of land.

A key objective for the day was to catalyse further collaboration, discussion and research to refine the ongoing development of land reform in Scotland. Historical perspectives, most notably delivered by Professor Ewan Cameron of the University of Edinburgh and the advocate Robert Sutherland, considered why it was that the so-called Scottish land question still resonates today, and allowed delegates the opportunity to reflect on why how far legislative reform has taken Scotland since the Leases Act 1449, a statute that seems a strong contender for the crown of the first land reform statute in Scots law. A blogged version of Sutherland’s presentation is available here.

Fast forwarding to the present day, Fiona Taylor of the Scottish Government set out the government’s position on the implementation of Parts 1-5 of the Land Reform (Scotland) Act 2016 over, approximately, the next six to twelve months. Moving through the 2016 Act sequentially, Part 1, when enacted, will introduce the Land Rights and Responsibilities Statement (“LRRS”). According to section 1(2) of the 2016 Act, the LRRS will be a statement of principles for land rights and responsibilities in Scotland, which there will be a consultation process for before being laid before Parliament. This important and symbolic statement is viewed by the Scottish Government as something of a “scene-setter” for the future of land reform. The further Parts of the Act build on the principle of future land reform that is at the centre of the LRRS’s purpose. Under Part 2, the Scottish Land Commission is established, as a non-departmental body, with the intention of being operational by April 2017. There was some debate about where this Commission might be based, with one suggestion being that it should be located in what might be classed as a more peripheral location in Scotland, but Taylor noted in discussions after her presentation that it would be accommodated within existing Scottish Government estate for cost mitigation purposes and it has now been confirmed that it will be based in Inverness.

One recent headline-grabbing issue in Scotland, and the UK as a whole, relates to transparency of landownership and other assets. Part 3 of the 2016 Act takes some steps in this regard, providing the Scottish Government with the power to require and record information of persons with controlling interests in entities that own or rent land in a Register. An analogy can be drawn with the relatively recent introduction of the new “Persons with Significant Control” Register in the context of company law. (Another analogy might be drawn with letting agent regulation.) These developments are reflective of increased public concern – especially following the “Panama Papers” scandal – as to who holds power in important social and economic assets. Certain points of detail are still outstanding as regards Part 3, which were noted by Taylor as including:

  • whether this Register is to constitute a new standalone one under the auspices of the Registers of Scotland (as the relevant Minister, Dr Aileen McLeod, suggested in Parliament it might, at cols 63 and 64 of the Stage 2 Official Report) or whether it will become incorporated into the Land Register;
  • the specifics of the information required by those with controlling interests;
  • an appeal process as to the information held; and
  • any exemptions (perhaps relating to privacy, a point analysed in this post by Anna Berlee and Dr. Jill Robbie).

A consultation was launched on 11 September 2016 in relation to the content of the Part 3 Regulations. It closes on 5 December 2016.

Part 4 of the 2016 Act obliges the Scottish Ministers to issue guidelines on engaging communities in the context of decisions taken in relation to land. It is in the early stages of implementation. The ultimate objective of this Part was noted as improving the collaboration of multiple, cross-spectrum stakeholders in maximising the effective use of land in Scotland. Further external workshops for external stakeholders will be arranged for the coming months as part of wider engagement in the drafting of the guidance. The final topic considered by Taylor was Part 5 of the Act, the community right to buy land to further sustainable development. This is unlikely to be brought into force until late 2017 at the earliest. This is due to the government recognising the introduction of other community rights to buy, such as the right to buy abandoned, neglected or environmentally mismanaged land, by the Community Empowerment (Scotland) Act 2015, will take time to settle in with the communities for whom their use is intended.

Another measure in the 2016 Act is the re-introduction of sporting rates under Part 6, which ends a tax exemption enjoyed by this land use since the mid-1990s. Katy Dickson, of Scottish Land & Estates (SLE), took the opportunity to critique the reintroduction on policy grounds, opining that the policy drivers for reform – tax-raising and fairness – had not been made out. Dickson also noted the practical difficulties in implementing the legislative provisions, particularly in the context of valuation. With the large land area of Scotland afforded to sporting activities, taken together with the provisions of the 2016 Act relating to deer management (in Part 8), the new legislation could have a real impact on Scotland’s environment.

As regards the continuation of the land reform debate, a panel with representatives from Community Land Scotland (CLS), SLE and NFU Scotland (formerly known by the longer moniker The National Farmers’ Union of Scotland)) offered views as to how the ongoing debate should progress. For CLS, it was noted there have been two significant, positive changes to the narrative of the debate during recent years that have changed the debate’s nature. Firstly, following on from the Final Report of the Land Reform Review Group report, the recognition that land is a finite and crucial resource to be used in the public interest for the common good, and a gradual shift from the prior view that land was a private matter where the public interest was of relative unimportance. The other change has been the progressive acknowledgment of wider human rights considerations (such as those found in the International Covenant on Economic, Social and Cultural Rights) beyond the landowner’s right to peaceful enjoyment of property under Article 1, Protocol 1 of the European Convention on Human Rights, in light of the broad social, economic and indeed environmental importance of efficient and fair land use. In this connection, looking ahead, CLS has unanswered questions on how to actively discourage concentration of landownership into the hands of few, with direct methods such as Compulsory Sale Orders or indirect measures such as tax reform being possible ways of addressing these.

Comparatively, the perspectives shared by SLE offered the view that there is nothing inherently wrong with large landowners if they are responsible. A concern was raised about the potential for the LRRS to be framed so as to focus mostly on the Landowners whilst neglecting the responsibilities of other stakeholders (e.g. access takers). While some might note such a framing of responsibilities would properly reflect the rights a landowner enjoys (and it can also be noted that access takers are already beholden to rules about responsible access, fortified by the Scottish Outdoor Access Code), SLE’s concern about a potential responsibilities imbalance was echoed by NFUS, who highlighted the existing, extensive legislative frameworks that already constrain landowners. Second was the divisive nature of the debate (the term “land reform” itself was noted as being something that immediately divides parties by reference to their respective interests) and method of achieving existing objectives. Looking at one flagship, existing objective, a flaw identified with the one million acres in community ownership objective is that the attainment of this might require some kind of compulsion, which could jeopardise collaboration between different stakeholders (such as the protocol for voluntary transfer agreed by SLE and CLS) and continues the polarising landowner/community narrative. In this regard, NFU Scotland expressed concern that the redistributive aspects of land reform could pose a threat to activities that already contribute to the rural economy. Separately, NFU Scotland welcomed the creation of the Scottish Land Commission, and particularly satisfaction with the creation of the Tenant Farming Commissioner office, viewing this role as one that can improve relations and collaboration between landowners and tenants.

Further panels at the conference focused on the landlord and tenant relationship and the law of succession. Whilst these may not be directly related to planning and environment law (the focus of the original article in SPEL), the tangential impact of reform in these areas (particularly in terms of how they impact on the crofting or agricultural holdings sector) could, in fact, have a real impact on the way land is distributed and/or used in Scotland.

Of interest to planners was a presentation by Bob Reid, which looked at the multifarious factors that have contributed to the housing issues the UK is facing at the moment. These are too multifarious to consider in any detail in this short note, but the rise in reliance on private sector development was highlighted as a crucial factor.

For those interested in the environment, the lecture on 25 August by Calum Macleod, Jayne Glass and Malcolm Combe sought to consider how much of a driver environmental considerations were for land reform, and the impact the various community and tenant rights of acquisition could have on sustainable land use in Scotland, in part building on a recent Environmental Law Review article by one of the authors of this post (open access version here). To oversimplify that, if current landowners are not looking after the environment, someone having a right to acquire from them might play a role in either: encouraging a landowner to look after the environment to try to stave off a land reform event; ultimately improving the environment after a forced sale, as the environment is something that features in the equation for any reallocation of ownership to someone else. Wider policy issues were also considered by Rob McMorran, of Scotland’s Rural College, to provide the context for some important Scottish Government commissioned research into matters like the scale of landownership and the drivers for land use decisions made by private, NGO and community landowners.

These proceedings at Aberdeen provided an opportunity to bring together individuals and organisations that will play a role in the next stage of Scotland’s land reform journey. Whilst land reform will invariably involve a degree of unsettlement of existing positions, it is hoped that the collaborative spirit of this event and this short write-up of it can be channelled into any future developments, with the objective of achieving better solutions for as many stakeholders as possible in relation to the implementation of existing reform and contributing to reform that is yet to occur.

A collection of tweets from the event is available here. Some personal reflections of Malcolm Combe on the event are available here. The authors would like to thank all involved with SPEL and The Knowledge Exchange for agreeing to the publication on this blog of this amended version of the article first hosted by them.

img_2193
Proceedings at the University of Aberdeen on 26 August 2016

Scottish land reform – cool for cats?

This blog post, by Malcolm Combe, explores Scotland’s newest land reform law. For those short on time, more selective and succinct coverage is available in this article in The Conversation.

On 19 April 2016, the Land Reform (Scotland) Act 2016 received Royal Assent. This final step of the law-making process signifies that the reigning monarch has rubber-stamped a statute passed by elected representatives, in this case Members of the Scottish Parliament. Those with a sprinkling of public law knowledge will know that the Queen does not readily withhold Royal Assent, so her personal views about a law or its potential impact on her are not normally scrutinised. In the wide press coverage of the run-up to and passage of this land reform legislation, there was a curious challenge to this norm. A tweet and an associated front page splash from the newspaper The National proclaimed the following: “Purr-fect news for communities as Queen’s new tax bill pays for buyouts”.

The National - Land Reform

What was The National getting at? The first thing that might need an explanation is the “purr” reference, especially as the word “purr” does not actually feature in the news story (or, for that matter, the new statute). This is an oblique reference by the Scottish independence supporting newspaper to the fact the Queen apparently “purred” down the telephone to Prime Minister David Cameron in the aftermath of Scotland voting to remain in the UK on 18 September 2014. Now, though, the inference is that it is communities that will be purring, as they will benefit from any revenues that flow from the reinstatement of duties for certain land uses (namely shootings and deer forests). According to The National:

The Queen… will face an annual levy of thousands of pounds on her Balmoral property. Others who face paying the new tax include the Duke of Buccleuch, who is in charge of a sporting estate at Drumlanrig Castle in Dumfries and Galloway.

The Duke of Buccleuch (reported to be Scotland’s largest private landowner) and the Queen might make for handy, high-profile figures to be “land reformed”, but others without as much nobility or indeed land will be affected by this measure. Meanwhile, there are other measures in the Land Reform (Scotland) Act 2016 beyond the reintroduction of sporting rates which could also impact on a wide range of people.

So is the Land Reform (Scotland) Act 2016 “purr-fect” – sorry, time to scratch the cat imagery – perfect news for communities?

Before answering that, it should be recalled that this new statute is not the full story. This is not Holyrood’s first dalliance with land reform. In fact, we now have two Land Reform (Scotland) Acts, one from 2003 and a younger namesake from 2016.

The 2003 Act gave everyone the right to access Scotland’s land and inland waters, even without an owner’s prior consent, provided such access is taken responsibly and subject to certain exclusions relating to the character of land. It also provided for some rights of community acquisition, in rural areas and in the crofting areas of the north and west of Scotland.

Important as those innovations were, calls for further land reform in Scotland continued to be made from some sections of society. Such calls were answered in part by the Community Empowerment (Scotland) Act 2015. As its name suggests, that legislation aims to empower communities, which it does by giving them a number of entitlements to participate in local decisions and a new right of acquisition for abandoned, neglected or environmentally mismanaged land. It also widens the right of first refusal the 2003 Act introduced to rural Scotland by expanding it into Scotland’s cities.

Another answer to those calls is now found in the Land Reform (Scotland) Act 2016.

Cat-aloguing [sorry] the 2016 Act

This newest land reform statute contains a mix of measures. Two of those might lead directly to a change of landowner, either in terms of a community buying land to further the cause of sustainable development, or by allowing a secure agricultural tenant (more on such agricultural tenancies below) to buy land from her landlord in certain circumstances where that landlord is in material breach of a court order or an award made at arbitration.

Land reform can be about facilitating a change of ownership, but this land reform statute does far more than that. There are important changes that aim to make land reform a more permanent feature of the legal landscape, particularly a new non-party body called the “Scottish Land Commission”. When it is fully staffed and mobilised, the Commission will have a role in ensuring land reform stays in the foreground of Scottish policy, whilst maintaining proper oversight of the various measures that have been introduced. Further innovations include the promised “land rights and responsibilities statement”, which will be a standard against which landowners will be measured in future, and guidelines for engagement with local communities when important decisions are made by landowners.

A matter sometimes related to community engagement is whether a community knows who to engage with, as there have been occasions when an entity owning land in Scotland might not be entirely transparent (an issue which resurfaced with the recent “Panama Papers”). One part of the 2016 Act is designed to boost transparency. Together with a drive to complete the map-based Land Register of Scotland by 2024, new rules relating to the disclosure of who has a controlling interest of a landowning entity might mitigate such issues in future. Completely unrelatedly, but potentially leading to a similar effect, the UK Government has recently announced an anti-corruption push which will similarly lead towards transparency of landowning entities.

What else does the 2016 Act do? There is the already mentioned fiscal step towards land reform, changing the treatment of shootings and deer forests – or, to be exact, removing a relief that was conferred in the 1990s. Evidently this could have the effect of steering landowners towards a different use, depending on whether landowners are able to pay the rates, although some businesses may be able to benefit from other reliefs (such as those for small business) if they are eligible.

Deer management will also be affected by a regulatory as well as a fiscal change. Large areas of Scotland are given over to deer, which just about explains why deer feature in this newest of land reform statutes. An important ecological consideration is the lack of any natural predator, which necessitates human management of deer populations. Amongst other things, the new law will allow for the imposition of deer management plans in certain circumstances and will provide a power for the relevant authority to request information about a landowner’s planned management activities, rather than simply report on what has taken place (as was previously the case under the Deer (Scotland) Act 1996).

What if you want to go for a walk in an area where deer are found, or indeed anywhere else in the great outdoors? You still can. There are some technical reforms to the rights of access introduced by the 2003 Act also included in the 2016 Act, but these largely leave the existing rights as they were. (Incidentally, walking through an estate where legitimate deer management activities are taking place is probably not to be recommended.) There is also a technical reform to the regulation of “common good land” by local authorities, aimed at averting one of the issues that arose in relation to a new school in Portobello (analysed in this Edinburgh Law Review contribution (PDF)).

The last point to mention about the 2016 Act relates to its effect on the law of leasing, or at least two technical areas of rural leasing. The first affected area will be small landholder legislation, something of a niche area of landlord and tenant law. There is a commitment to review that legislation, with no indication yet of what changes might follow for Scotland’s relatively few remaining small landholders. Much more importantly, and in some cases controversially, there are a raft of reforms to the agricultural holdings regime.

Agricultural Holdings Reform

For many years, tenants with a certain type of agricultural lease have enjoyed something called security of tenure. This allows the tenant (and, in some cases, a successor or a transferee of an original tenant) to keep the lease of the rented property even after the original contractual term has finished, provided they have paid rent when due and generally maintained the property properly.

There has been a perception for a number of years that this system has not got the balance between the interests of tenants, landlords and indeed society as a whole quite right. The regime has contributed towards an environment where landlords often seek recovery of “vacant possession” of the land whenever they can, and traditionally this might have happened when there is a “break” in the succession of a lease. Aware of these issues, the Scottish Government appointed a specialist group to consider agricultural holdings legislation, which reported in 2015. The work of the group is reflected in the 2016 Act, which introduces two new types or rural leases – the repairing lease and the modern limited duration tenancy – and reforms the law relating to matters like rent review, assignation (transfer) and succession (inheritance).

Those changes to assignation and succession do not allow a lease to be passed to absolutely anyone, and as such the landlord still has a chance of getting the land back without being subject to a lease if there is no-one suitably close (in terms of relationship by blood or marriage/civil partnership) to the outgoing tenant to take it from them. That said, late in the parliamentary process a reform was made which might allow a secure lease to be passed to someone outwith those recognised proximate relationships. This controversial, and highly complex, reform will change the law in a way that makes it more difficult for a landowner to wash land clean of a lease. The current position is being changed to a position where an outgoing tenant can effectively cash-in the tenancy. The 2016 Act does still allow a landlord to get the land back, but not for free: it introduces a mechanism for the landlord to pay a sum to the tenant to buyout that lease. Where the landlord does not wish to buy it out, the tenant can then assign the lease to “an individual who is a new entrant to, or who is progressing in, farming”. As noted, this is a complex area, so it is not possible to explore this matter fully here, and there have been indications that landowners may challenge this particular reform on human rights grounds as an unfair interference with their property rights. Scottish legislation is susceptible to challenge in court, if it is not within devolved competence, for example by not being compatible with the European Convention on Human Rights. This was witnessed in the Salvesen v Riddell case (about an earlier agricultural holdings reform, which lumbered some landowners with a secure lease without compensation in a fashion found arbitrary by the courts) but not in the Pairc case (about a challenge to the crofting community right to buy (for value) in the Land Reform (Scotland) Act 2003, which was held to be a policy that was properly within a state’s margin of appreciation). If litigation was to follow in relation to the 2016 Act, suddenly the courts would have a role in the final approval of the law, which would mean the Queen’s Royal Assent would not be the final step after all.

Perfect legislation?

The 2016 Act covers a lot of legal ground. It will make a difference to landowners, land managers, communities, tenants and Scottish society as whole. That being said, it could have covered more ground still: for example, there have been suggestions about a cap on landownership above a certain level, restrictions on landholding entities registered outwith the EU, and the possible introduction of compulsory sale orders. None of those appear in the 2016 Act.

This suggests land reform activists might not think the 2016 Act is perfect after all, but what about landowners? Land reform is not exactly the kind of thing that will always please existing owners, but the one highlighted example about agricultural holdings reform demonstrates that they do have specific concerns which might yet lead to litigation.

Regardless of who is purring at the end of all this, the promised Scottish Land Commission, the preparation and ongoing review of measures to do with community engagement and land rights and responsibilities, the post-Holyrood election climate, and a new Cabinet Secretary for the Environment, Climate Change and Land Reform are all mixed together, it is clear that land reform is not going to retreat into the background any time soon. Indeed, the recent Holyrood election campaign demonstrated that many political parties are committed to further land reform. The fact that the Scottish National Party lost majority control of the Chamber means it will be looking for support from other political parties to implement its plans, which will have implications for any further land reform legislation.

No attempt has been made to contact the Queen to ascertain whether she is purring at the prospect of all of this, but one final feline observation might be made. Surprisingly, The National was not the first newspaper to juxtapose cats and Scottish land reform. The Scotsman got there first, with this cartoon from Iain Green appearing in December 2014.

The Scotsman - Iain Green

Reports that Nicola Sturgeon has declared open season for fat cat lairds have not yet been confirmed.

Further analysis of some of the new measures can be found in this article in the Journal of the Law Society of Scotland, the professional journal of Scottish solicitors. That contribution looks at the new community right of acquisition, the framework for community engagement and the new Scottish Land Commission in more detail, but skims over deer management, the change to the fiscal treatment of shootings and deer forests, and agricultural holdings law.

Those wishing to read even more on this topic will find that land reform is something of a recurring feature at Malcolm Combe’s personal blog: basedrones.wordpress.com. He also has an article on redistributive land reform in the next issue of the Environmental Law Review, an open access version of which is available here.