Introduction

The ownership and use of land are important to the third sector and the people we work with in a number of different ways. For example, land is fundamental to tackling the current problem with the availability of affordable housing for rural and urban communities. How land is managed is critical to addressing environmental challenges, through the protection of biodiversity as well as measures to combat climate change. Community ownership has demonstrated what communities are capable of when they empower themselves and the benefits they can derive from owning the land they live on. SCVO welcomes the opportunity to respond to this consultation and would like to contribute to the following questions:

A Draft Land Rights and Responsibilities Policy Statement

Q 1. Do you agree that the Scottish Government should have a stated Land Rights and Responsibilities Policy?

Yes. A stated Land Rights and Responsibilities Policy will ensure that momentum is maintained behind land reform and that successive governments will have a responsibility to have regard for the established policy. It will also ensure that the issue of land reform will be considered in the development of policy and legislation in other areas.

Q 2. Do you have any comments on the draft Land Rights and Responsibilities Policy?

The principles that have been outlined could form the basis of a successful rights and responsibilities policy. We strongly support the first principle that states: “Ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland”[i] and believe this can underpin much of the policy driving land reform.

To be successful these principles will need to be firmed up to establish clear objectives and to state explicitly the intended outcomes. For example increasing the amount of land in community ownership should be stated as an explicit goal. An objective or principle which clearly stated that land reform is relevant to all communities in Scotland, not just those in rural areas, would also be welcome and would send a clear signal of intent.

We welcome this comment from the Scottish Human Rights Commission and believe a human rights perspective can add to the principles for land reform: “Viewed through this broader human rights lens, land is seen as a national asset with key questions arising of how to strike the most appropriate balance between the legitimate rights of landowners and the wider public interest.” We have concerns that there is currently a disconnection between the proposals outlined in this consultation and the land use strategy review which is being published in 2016. It seems unlikely that addressing these two areas separately will lead to joined up policy.

Q 3. Considering your long term aspirations for land reform in Scotland, what are the top three actions that you think the Scottish Government should take?

  • Establish the Land Fund as a permanent fund for community ownership
  • Set up an independent Scottish Land Reform Commission
  • Introduce a sustainable development test

A Scottish Land Reform Commission

Q. 4. Do you agree that a Scottish Land Reform Commission would help ensure Scotland continues to make progress on land reform and has the ability to respond to emergent issues?

Yes. A Scottish Land Reform Commission would ensure that momentum is maintained on the issue of land reform.

Q. 5. What do you think the advantages or disadvantages of having a Scottish Land Reform Commission would be?

The Commission could provide an important resource for policy and research into land issues. It could conduct research and analysis that provides an expanded evidence base for land policy. It would ensure that land reform remains on the political agenda regardless of the political climate.

Q. 6. Do you have any thoughts on the structure, type or remit of any Scottish Land Reform Commission?

The Commission should be independent from government and should make delivery of the Land Rights and Responsibilities policy its primary goal. It should bring in expertise from a wide range of public bodies, academics, third sector organisations and members of the public.

Limiting the legal entities that can own land in Scotland

Q. 7. Do you agree that restricting the type of legal entities that can, in future, take ownership or a long lease over land in Scotland would help improve the transparency and accountability of land ownership in Scotland?

We support the proposal to restrict the legal entities that can register land in Scotland to bodies registered in the EU to help improve transparency and accountability.

Information on land, its value and ownership

Q. 11. Do you agree that better co-ordination of information on land, its value and ownership would lead to better decision making for both the private and public sectors?

Making information on land, its value and ownership more accessible would be a positive step forward. In addition to the benefits to government derived from having access to more co-ordinated data, these proposals should assist communities wishing to take ownership of land or have a greater say over its use to make a more informed assessment of their options. Making the data freely available would help communities consider the role of local land assets in their planning.

Sustainable development test for land governance

Q. 14. Do you agree that there should be powers given to Scottish Ministers or another public body to direct private landowners to take action to overcome barriers to sustainable development in an area?

We are generally in favour of negotiated settlements as the best way of addressing conflicts that arise between communities or organisations that are in disagreement with landowners. Feedback from our members has suggested that this is usually the best way to achieve success.

However, we also recognise that in some cases this method may not be sufficient and other legislative routes may be required. For example, where the landlord is blocking an important affordable housing development that is supported by the community.

As a last resort we would support the proposal for ministers to intervene if all other routes had been exhausted. For it to work, the sustainable development test would need to be clearly defined to ensure that it is effective and not an insurmountable barrier.

A more proactive role for public sector land management

Q. 17. Do you agree that public sector bodies, such as Forestry Commission Scotland, should be able to engage in a wider range of management activities in order to promote a more integrated range of social, economic and environmental outcomes?

It is difficult to respond to this question as it is unclear to us exactly what powers and areas of flexibility are needed for public sector bodies to take a more proactive approach.

In general we would support a more proactive role for all public bodies in land management, not just the Forestry Commission, provided it was informed by the needs and aspirations of communities. It seems sensible that all public bodies work strategically to achieve common objectives and if they require additional powers to do so we would support this.

We would like to see more public land opened up for community use. This could be for the development of community energy, the introduction of community growing spaces or other projects the community wish to see taken forward. Public sector bodies should have the appropriate powers to ensure they can be flexible and responsive to these community needs.

Duty of community engagement on charitable trustees when taking decisions on land management

Q. 20. Do you think a trustee of a charity should be required to engage with the local community before taking a decision on the management, use or transfer of land under the charity’s control?

No. Despite being involved in two working group meetings exploring this issue in detail, it is still unclear exactly what the aim of this proposal is.

What emerged from those working group meetings was that many of those attending have grave concerns about the impact of these proposals. Our principal concern is that on the one hand the proposals won’t address the problem identified and on the other it will negatively affect thousands of charities who are currently not causing a problem.

The new duty on charities would impose a potentially bureaucratic process on thousands of charities with land assets. This would be irrespective of the size of land held or the type or charity they are. The vast majority or charities are already engaging well with communities and are responsive to their needs. However, for many land owning charities engaging with their community may not be appropriate or possible.

For example there may not be a community of people to engage with or the piece of land involved may be so small that engagement would not be relevant. An example given was that of the Glebe where there are many small plots of land owned by the Church of Scotland but rented out to farmers. Would the church have to consult each time the farmer changed the crop or the livestock?

In addition the proposals would not address the very small minority of charities who are acting as a barrier to a community’s ambitions. Engagement is only useful if both sides are committed to the process. If the party in the position of power does not wish to listen and act then the duty becomes simply a tick box exercise, with the community further disempowered by participating in a process they know is meaningless.

If the problem that this proposal is trying to address is that of individuals misusing charitable status through family trusts to avoid tax, then an entirely different approach is needed. In this instance OSCR should be using its regulatory powers to investigate the governance and financial arrangements of these bodies to ensure they are complying with charity law and delivering public benefit.

To address genuine concerns about potential conflicts between a geographical community and a charity based around a community of interest who owns land on which they live, OSCR could provide guidance to charities on engaging effectively with communities and resolving the tensions that exist between community aspirations and an organisation’s charitable objectives.

It is not made clear why charities are being singled out with a duty to engage whereas other sectors are not. We see no justification for this in policy terms and strongly oppose the introduction of a duty that is targeted solely at charities. We disagree with the link being made between public subsidy and a duty to engage.

Even setting aside the massive public subsidies received by the private sector, the exemption from taxation and other subsidies that charities receive are provided on the basis of their charitable activities and the public benefit they deliver. Public subsidy should not be used as a justification for an imposition of additional duties by the government on charities. If the proposal is brought forward in this area it must apply equally to private organisations and the full range of public bodies with land assets.

If there is a strong desire to take action in this area an alternative to placing a duty on all charity trustees would be to make the duty contingent on a request being made by the community. This could be a similar type of process to that of the Community Right to Participate outlined in the Community Empowerment Bill – a community right to challenge but with a much simpler process.

This could be reactive to a change in land management or proactive where communities could register an interest with the charity in being engaged on future decisions taken on an area of land.

In this way the burden would be removed from those many uncontentious land-owning charities and would place it more firmly on those who are perceived as acting as a barrier to development. This could also allow the process to be strengthened beyond simple engagement without placing unnecessary burden on other charities.

Common Good

Q. 27. Do you agree that the need for court approval for disposals or changes of use of common good property, where this currently exists, should be removed?

Provided the property is being transferred back to the community, we would support the removal of this requirement. This can be a costly and time consuming process for the community and the local authority.

Q. 29. Should there be a new legal definition of common good?

Yes. This is a complex and area and a thorough review is required to establish a new legal definition.

Q. 31. Do you have any other comments?

We support the suggestion[ii]from Andy Wightman that there exists an opportunity in this Bill to improve the governance of Common Good funds and provide a statutory role for communities in managing these funds and allocating resources. It is our view that bringing forward measures in this area would sit well with the policy objectives of the Community Empowerment Bill.

Conclusion

SCVO is generally supportive of the proposals made in this consultation as well as the wider action being taken to deliver land reform. The Land Rights and Responsibilities Policy will ensure that momentum is maintained behind land reform but we would like to see community ownership of land as an explicit goal for the Land Rights and Responsibilities Policy. We are concerned that there is currently a disconnection between the proposals outlined in this consultation and the land use strategy review. We do not support the introduction of a duty on charity trustees to engage with communities when taking land management decisions as the proposals won’t address the problem identified and will place a burden on thousands of charities who are not causing a problem. An alternative to a blanket duty on all charity trustees would be to make the process contingent on a request being made by the community.

Contact

Felix Spittal
Policy Officer

Fairways House
Fairways Business Park
Inverness
IV2 6AA

Email: felix.spittal@scvo.org.uk
Tel: 01463 251 724
Web: www.scvo.org.uk

About us

The Scottish Council for Voluntary Organisations (SCVO) is the national body representing the third sector.There are over 45,000 voluntary organisations in Scotland involving around 138,000 paid staff and approximately 1.3 million volunteers. The sector manages an income of £4.9 billion. SCVO works in partnership with the third sector in Scotland to advance our shared values and interests. We have over 1,600 members who range from individuals and grassroots groups, to Scotland-wide organisations and intermediary bodies.

As the only inclusive representative umbrella organisation for the sector SCVO:

  • has the largest Scotland-wide membership from the sector – our 1,600 members include charities, community groups, social enterprises and voluntary organisations of all shapes and sizes
  • our governance and membership structures are democratic and accountable – with an elected board and policy committee from the sector, we are managed by the sector, for the sector
  • brings together organisations and networks connecting across the whole of Scotland

SCVO works to support people to take voluntary action to help themselves and others, and to bring about social change.

Further details about SCVO can be found at www.scvo.org.uk.

[i] https://storage.googleapis.com/scvo-cms/Resource/0046/00464887.pdf

[ii] https://storage.googleapis.com/scvo-cms/briefings/docs/briefing_7.pdf