Scotland’s land reform shake-up explained

The political promise of fundamental land reform has catapulted tenancy disputes, land ownership and opportunities for community ownership to the forefront of pubic debate in Scotland.

There is no question that 2015 will be a landmark year for the future of those who own and farm Scotland’s land.

The owners of sporting estates and huge tracts of forestry and farmland have never before faced political challenges on this scale. An increasingly left-of-centre SNP government has made no bones about the fact it intends to shake up the way the country’s land is owned and used.

First minister Nicola Sturgeon made land reform a landmark policy when she unveiled her first programme for government at the end of last year.

See also: Scottish land reform puts sporting estates in the frame

The Scottish government has even created a minister for environment, climate change and land reform and Aileen McLeod MSP is its first incumbent. Scotland’s land, she insisted in the foreword to a land reform consultation in December, is an “asset that should benefit the many, not the few”. It is a reference to the fact that just 345 families own 50% of the country’s non-public land.

There are multiple strands to the Scottish government’s proposals. But in short, the aim is to:

• Improve the transparency and accountability of land ownership
• Address barriers to sustainable development and begin to diversify patterns of land ownership
• Demonstrate commitment to manage land and rights in land for the common good
• Address specific aspects of land ownership and rights.

A Community Empowerment Bill has already been launched in the Scottish parliament and the SNP has set a target of seeing a million acres in community ownership by 2020.

Aileen McLeod says land should be a benefit to many, not just a few people. (c) Rex

To help fund these buyouts the government proposes to strip shooting and deerstalking estates of their exemption from business rates, thereby adding £7m a year to the current £3m annual pot. If passed, the bill would allow urban communities with a population below 10,000 to exercise a right to buy when land comes up for sale. It would also introduce a community right to buy for neglected or abandoned land.

The independent review into land reform, The Land of Scotland and the Common Good, was published last summer.

This 240-page tome highlighted 62 wide-ranging recommendations, including setting an upper limit on the amount of land any individual could own and giving ministers the power to “intervene where the scale of landownership or the conduct of a landlord is acting as a barrier to sustainable development”.

Charities with large holdings have not escaped the attention of reformers either: they will be forced to “engage” with local communities.

A short public consultation on the recommendations, which has been hotly debated at countrywide meetings held by NFU Scotland (NFUS), the landowners’ organisation Scottish Land and Estates (SLE) and the Scottish Tenant Farmers Association (STFA), closed this week.

Meanwhile a separate review of agricultural holdings legislation issued its final report last month, with 49 radical recommendations.

Rural affairs secretary Richard Lochhead felt so strongly about the reduction in the quantity of land being let in Scotland – a 42% decrease since 1982 – he decided, unusually, to chair the Agricultural Holdings Legislation Review Group (AHLRG) himself.

Among the recommendations is a proposal that would enable secure 1991 Act tenants to apply to the Scottish Land Court to force the sale of the holding where a landlord does not meet their obligations.

According to Mr Lochhead, the bold proposals “have the potential to provide tenants with a solution to escape the clutches of bad landlords”.

It is emotive language that speaks to a folk memory dating back to the historic injustices of the Highland Clearances in the 18th and 19th centuries, when thousands of small tenant farmers and crofters were evicted from their patches of land to make way for sheep.

Resentment has simmered in some areas for more than 200 years and many high-profile activists have campaigned for such groundbreaking change for decades.

Yet much as farmers – and tenant farmers in particular – want to see change, there are nevertheless hints of concern that reform could have undesired and unexpected consequences for agriculture.

Overhauling the law of succession is another fundamental strand of the land reform agenda. The proposals on the table would make it easier for a deceased’s spouse and children to make claims on a piece of land, thereby raising the likelihood of it being divided or sold. A succession bill is expected imminently.

The government’s stated aim is to have a land reform bill passed before the end of the current parliament in May 2016 and Richard Lochhead has indicated he also wants this bill to contain new agricultural holdings legislation.

The STFA is keen that momentum should be maintained to prevent the most radical proposals being kicked into touch. But the lairds are playing for time and argue that tenancy reform is too important to “rush through”.

Industry insiders predict the number of changes to existing legislation could run into three figures and there are doubts that such a huge undertaking could be completed in this parliament.

Nicola Sturgeon wants a fairer and more equitable land distribution. (c) Rex

Meanwhile, SLE chairman Lord David Johnstone has made it clear his members will not succumb to what he describes as an “assault on property rights” without a fight. SLE’s relief that new legislation giving a tenant an absolute right to buy their land has been ruled out is moderated by the proposal to convert secure tenancies and widen succession rights.

Lord David wasted no time in warning government that if it goes ahead with such change it could be liable to substantial compensation claims because of the damage to a landowner’s property rights.

But posturing and threats will not deter this Scottish government from its intended path. Land reform minister Aileen McLeod set the tone for the next 15 months.

She said: “If Scotland was starting afresh we would not be designing the pattern of land ownership we see today. Our aspiration is for a fairer and more equitable distribution of land in Scotland where communities and individuals can own and use land to realise their potential.”

Agricultural holdings reform

Despite repeated efforts to reform tenancy law and encourage trust and collaboration on both sides, the amount of tenanted agricultural land has fallen in Scotland to almost half of what it was 30 years ago. The country now has one of the lowest proportions of tenanted land anywhere in Europe

Rural affairs secretary Richard Lochhead finally lost patience with the failure of the industry to find compromise and raised the prospect of radical change with the promise of a “once-in-a-generation review” so tenant farming could once again be a gateway to a career in agriculture.

The AHLRG held 78 meetings across the country in the past year and was widely praised by all stakeholders for its open and accessible approach. It finally presented its recommendations to government last month.

The most contentious issue under discussion was whether or not to recommend tenants should have an absolute right to buy their land, for example, they could force landlords to sell them their land at any time.

In the end, the AHLRG stopped short of advocating such a move. And instead of recommending an open assignation of a 1991 tenancy, they proposed instead that any secure 1991 Act tenant could convert the tenancy into a new long-duration modern tenancy with a minimum term of 35 years, and then be able to transfer that agreement to anyone on the open market.

Inevitably neither side is entirely happy with the proposals and STFA chairman Christopher Nicholson is now urging the Scottish government to resist pressure from landowners to further water down the proposals.

“The new LDTs are made to measure for landlords, tax breaks are on the table, absolute right to buy has been discounted and now assignation has been weakened,” he said. “Tenants are now asking, what more do they want?”

Key agricultural holdings reform recommendations

• Enabling 1991 Act tenants to apply to the Scottish Land Court to force the sale of holdings where landlords do not meet their obligations
• Measures to widen succession rights for 1991 Act tenants
• Creating a tenant farming commissioner
• Improving how rents are set
• Creating the potential for apprenticeship opportunities for new entrants
• Providing long-term and flexible letting vehicles to encourage the release of more land into tenancy

Land reform

There is some uneasiness in the agricultural industry that the wider land reform proposals could throw up unintended consequences for farmers and crofters, but NFUS is playing its cards close to its chest until the consultation’s deadline.

However, warnings have already been sounded over the proposed Succession Bill.

There is a fear in farming circles that such a bill could lead to the break-up of family farms rather than the large sporting estates it is intended to affect and NFUS has already called for safeguards to be built in to any future legislation.

The latest information suggests that measures that could have potentially affected family farms are unlikely to be considered until a second phase of the bill, and will not now come forward until after the next Scottish elections in 2016.

Key land reform proposals

• The creation of a Scottish land reform commission
• Completion of Scotland’s land register
• Improved community right to buy
• Extending the Scottish Land Fund to 2020
• Overhauling the law on succession to include other family members
• Removing the exemption on business rates from sporting and deerstalking estates