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

Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News) it has not been without issues. That news report highlights the first Japanese accident associated with the game has already occurred, after someone fell down some real stairs whilst distracted by the game. As it rolls across reality, it is clear there are safety issues involved with immersing yourself in augmented reality: in Scotland it might be mountainous terrain, in Bosnia it might be landmines. Its augmented reality has also rolled over the legal reality of various jurisdictions. The reality of realty, that is to say the reality of property law, allows landowners to take steps to retain and regain exclusive possession of their land in many circumstances. What those steps are will depend which jurisdiction a Pidgey nests in.

Scotland

What can a Scottish landowner do? In principle, the owner of land can get an interdict (a court order prohibiting certain conduct, equivalent to an English injunction) to prevent someone encroaching on her land by, for example, building on it. Similar orders could be obtained if someone was to undermine it or periodically intrude on it by swinging the jib of a crane over it. What about someone who turns up uninvited to your land without such profound plans? All they want to do is catch a Pikachu and move on, (hopefully) leaving the land itself undamaged and any real animals on it undisturbed. Can they do that?

Access to land in Scotland has been much discussed and often misunderstood. A commonly expressed sentiment is that there is no law of trespass in Scotland. That is not quite right, but from the other end of the spectrum a landowner putting up a sign saying ‘TRESPASSERS WILL BE PROSECUTED’ is likely to be sorely disappointed if it comes to an attempt to do so. Such signs might well suggest a desire to instigate criminal action against uninvited guests, but that is normally a matter for a public prosecutor in Scotland, namely the local procurator fiscal, rather than a landowner. Meanwhile, there are some circumstances when being on land can be a criminal offence, particularly if you are part of a disorderly group or if you cause damage to property or wildlife, but a careful Pokémon hunter should be able to avoid such offences. Indeed, a one-time, harmless trespasser might not even be liable for civil damages to a landowner in Scotland, although that should not be taken as an invitation to strut anywhere with impunity. Scotland is also criss-crossed by a number of defined public rights of way, allowing people to travel from one public place to another without fear of landowner challenge.

Private Property
This sign located off the old Deeside Railway promises prosecution for trespass. Good luck with that.

That gives an idea of the underlying Scots law position. That position has actually been liberalised by recent reforms, making the legal terrain even friendlier for access takers. The key legislation that does that is Part 1 of the Land Reform (Scotland) Act 2003. It gives everyone – yes, everyone, that is exactly what the statute says – rights to cross land or to be on land for certain purposes, including recreational purposes, subject to certain exceptions based on the character of the land or the conduct that is undertaken.

Those access rights are not unchecked: they must be exercised responsibly. Activity is not responsible if it interferes with the rights of other people, which includes other access takers as well as the landowner: if one person is lazily approaching a Snorlax, perhaps you should think carefully before you barge past them. There are also certain things that can never be classed as responsible, such as ‘hunting, shooting or fishing’ or taking motorised access (unless doing that in a vehicle which has been constructed or adapted for use by a person who has a disability). Although the term ‘hunting’ is not defined, it is respectfully submitted that hunting relates to real animals as opposed to augmented reality imaginary creatures.

Some land is excluded from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land, such as a building, the ‘curtilage’ immediately surrounding a building, or a reasonably sized garden next to a dwelling. From this, we can glean that the interior of the church mentioned above would not be included in Scotland’s liberal access regime. Other exclusions include longstanding attractions where a fee is payable for entry, like Blair Drummond Safari Park, a sports field when it is in use, or farmland where crops are growing. Anyone seeking entry to such should ideally obtain permission: the ‘gotta catch ’em all’ defence will not wash here. In fact, Farmers Weekly has already carried an article warning Pokémon Go players to keep clear of farms.

Assuming the land itself is not excluded from access rights, can playing an augmented reality video game be classed as recreation? Recreation is not defined, but the Scottish Outdoor Access Code‘s (PDF) explanation of the term (at paragraph 2.7) is that it includes:

  • pastimes (such as watching wildlife, sightseeing, painting, photography and enjoying historic sites);
  • family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite);
  • active pursuits (such as walking, cycling, horse riding, orienteering, caving, air sports and wild camping); and
  • participation in events (such as walking or cycling festivals, hill running races, and orienteering events.

It does not seem a massive stretch to include Pokémon chasing as analogous to some of these activities, most notably orienteering.

England

All in all, it seems Scotland has a regime that is quite conducive to catching ’em all. What would be the position of an English landowner? It would be fair to say that England is not traditionally viewed as having a liberal access regime. Crucially, in England the very act of being on another person’s land without permission can give the relevant landowner a claim in damages, but England has also witnessed some important statutory reforms that widen access rights away from the traditional (delimited) public footpaths and occasional voluntary agreements.

The Countryside and Rights of Way Act 2000 applies to mapped open access land, which includes mountains, moor, heath and down, and registered commons (making a much smaller proportion of the country available for access when contrasted with Scotland, in the region of 865,000 acres). That legislation confers the right to enter and remain on land for the purposes of open-air recreation, but that right is restricted by twenty exceptions listed in a schedule to the statute.  The overall effect of this scheme would allow someone to walk on land, accompanied by a dog (but no other animal) and stop for a picnic, but not use a metal detector, camp or bathe in non-tidal water.  What about gaming? There is an exception relating to ‘organised games’. Previous DEFRA guidance suggested ‘organised games’ included ‘those which use a set pitch or defined area of play, organised starts and finishes and associated infrastructure, and which involves the participation of a number of people or a competitive element.  On the other hand, we do not consider that a family group or a small group of friends engaging in an ad-hoc game of rounders or cricket, playing with a frisbee etc are “organised games”.‘ As such, Pokémon hunting might just be alright in the areas mapped as open land, and perhaps also in coastal areas by virtue of the Marine and Coastal Access Act 2009.

Important as those areas are, what about the substantial area of land not covered by such legislation? In those circumstances, players may have to hope their desired Pokémon appears on an existing village green (which might not actually need to be green at all), or will be relying on a sympathetic landowner to allow access.

Conclusion

Each legal system may have different insights to bring to this new legal situation. Of particular interest to the liberally minded are the Norwegian friluftsliv, which translates as the ‘open air life’, and the Swedish allemansrätten and Finnish jokamiehenoikeus, which translate as ‘every man’s right’. For those in favour of a stricter approach, that mindset seems to be evident in many states in the USA. Wherever you are, there will be some considerations for landowners and access takers to work through: putting up a sign berating all things Pokémon is all well and good, but will it be enforceable?

STAY OUT OF MY YARD
Image credit: @davidharvey

Of course, there are other legal issues that might need to be considered. There might be a new issue for the future: should there be a remedy for a landowner against the person who projects augmented reality apparatus onto her land? This would not quite be analogous with a traditional nuisance by a neighbouring landowner or the situation of a photo or political slogan being projected onto a landmark. Alternatively, might there be some kind of negligence if people are lured to an unsuitable location?

Those challenges are for another day. All in all, it might be an idea to embrace the technology and make the best of it. That is what my own university seems to be doing, after all.

Although the allegedly grown-up Malcolm Combe is a lecturer in the School of Law, he remembers fondly the carefree days when he would come home from school to watch a TV double-header of Pokémon then cult Channel 4 quiz show ‘Countdown’. He also went to see ‘Pokémon: the First Movie’ in the cinema with his wee sister. He is delighted to find his latent knowledge of things like Team Rocket and Charmanders are once again relevant, and even more delighted to have combined that with some legal analysis.

UPDATE: A Drowzee and a Caterpie have been sighted in the Law School office. Staff are understandably concerned.

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.