Identifying The Solutions |
| 4 Delivering The Vision: Land Ownership |
| Responses |
4.1 Overall,
the views expressed in the responses to the Groups first consultation paper were as
follows:
|
| Vision for the future |
4.2 This has
contributed to the emerging vision set out in the previous Chapter. Key features as
regards land ownership are:
|
| Delivering the vision |
| 4.3 A wide range of possible changes to secure these outcomes has been identified. A separate appraisal sheet has been prepared for each possible change, and these are attached. These cover: |
Vision for the future |
Possible legislation and other action to achieve this |
| More local involvement, greater commitment and accountability by private landowners in rural Scotland | LO1 Encourage private
owners to be more locally accountable and to be available or have accessible local
representation. LO2 Introduce time for the assessment of the public interest in strategic sales. LO3 Make more explicit Government support for use of compulsory purchase powers as a last resort to acquire land where this will assist implementation of local plans or other strategies. LO4 Regulate all (or major) land sales. LO5 Abolish national non-domestic rate relief on sporting estates. LO6 Reduce or abolish national non-domestic rate relief on agriculture and forestry. LO7 Introduce land value taxation. |
| More scope for community ownership and management of local land where this can be sustainable | LO8 Provide advice and
support (including an enhanced Land Fund) for those considering community ownership or
management. LO9 Introduce community right to buy at market value. |
| More scope for releasing land for housing and local development where this is sustainable and secures the retention and if possible the expansion of fragile rural communities | LO10 Streamline compulsory purchase powers to make acquisition of key sites as a last resort more effective, where this will assist implementation of local plans or other strategies. |
| More scope for smallholdings supporting a wide range of land-based and other economic activity where this is sustainable and secures the retention and if possible the expansion of fragile rural communitiesPossible legislation and other action to achieve this | LO11 Buy land on the open
market for transfer to smallholders. LO12 Introduce compulsory leasing of land. |
| About the same level of ownership by public bodies, but with more local involvement and accountability and more employment of local people. | LO13 Issue guidance letters from
Ministers to public bodies to require community involvement in management of all public
estates and to maximise employment of local people. LO14 Encourage increased Crown Estate accountability in Scotland. |
| More local involvementand accountability and more employment of local people by non-Governmental organisations who own land in rural Scotland. | LO15 Encourage non-Governmental org-anisations to secure community involvement and employment of local people. |
| 4.4 The scope for action on land ownership is affected by EU and ECHR obligations. The possible implications of these are summarised in the Annex. |
| Land Ownership 1 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Encourage private owners to be more locally accountable eg by setting up local liaison committees with a right to be consulted; and to be available or have accessible local representation. This could be promoted on a non-legislative basis as part of a code of good practice: such a code might perhaps be given teeth eg by defining compliance with the code as grounds for access to some public assistance. Putting this on a statutory basis would also be a possibility. |
| Legislative implications A non-statutory code of practice would not require legislation. The scope for making access to public assistance conditional on compliance would depend in each case on the relevant legislative basis: at minimum, secondary legislation would probably be needed in most cases to amend the relevant rules. The rules for some EC-funded schemes would not allow such conditions to be applied; for others, appropriate criteria would have to be negotiated with the EC. If on a statutory basis, new primary legislation would be needed. Giving local liaison committees any right of veto over landowners plans would interfere with the individuals rights to use property as they choose and (unless suitably compensated for) might make for ECHR difficulties. There could be significant difficulties in defining (a) which landowners are "absent" (tax-related or electoral roll?); (b) what was meant by "local" representation (based on residency?); and (c) what was meant by "representation" (what functions would such a person be authorised to perform?). |
| Administrative implications If on a non-statutory basis, the main need would be for development and promotion of the code. If non-statutory but with teeth, there would need to be arrangements for checking compliance prior to any decision on public assistance. If on a statutory basis, as well as mechanisms to check compliance and complaints machinery, penalty arrangements and appeals machinery would be needed. |
| Costs A non-statutory approach would involve minimal costs. Adding teeth would require compliance-checking and appeals machinery which would add to the costs of administering public assistance. If statutory, the costs of the necessary enforcement/complaints/appeals arrangements would be significant. Whether statutory or non-statutory, landowners would face some extra costs, and compensation might be sought. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes as non-statutory code, perhaps backed up where possible by access to public assistance; probably not as legislation. |
| Land Ownership 2 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Introduce time for the assessment of the public interest in strategic sales, eg by requiring public notice to be given of forthcoming sale of properties which have previously been identified in local plans as of significant public interest and a minimum period (say 30 days) between notice to sell and closing date, with power for Government to intervene where a significant public interest is identified: either to impose a further period of delay (say a further 30 days) to closing date to allow for a public interest bid on the open market, or to effect a compulsory purchase in the public interest. |
| Legislative implications New primary legislation would be required. The more limited the time periods for delay, the more limited the interference with an individuals right to dispose of property as and when wished, and the less likelihood of ECHR difficulties in the event of inadequate compensation. Clear definition of which property transfers would be covered might be difficult, unless previously defined on a register of strategic land in which there was a public interest. And that in turn raises difficulties in defining what is meant by "significant public interest". |
| Administrative implications The most straightforward approach would be to define in advance which properties were of public interest, most plausibly linked to the community planning process. There would need to be suitable consultation processes, an appeals process, and also regular updating. |
| Costs Cost of establishing and then maintaining register would require extra resources. There might also be some cost implications for sellers and buyers. |
Advantages
|
| Overall assessment Probably yes: this would deal with a significant failing in existing arrangements |
| Land Ownership 3 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Make more explicit Government support for use of compulsory purchase powers as a last resort to acquire land where this will assist implementation of local plans or other strategies. |
| Legislative implications No legislation required. |
| Administrative implications This could be readily effected by Ministerial letter. It would make administration clearer, and therefore easier. Up-to-date local plans would be necessary as a basis for action. |
| Costs There could be additional costs in terms of administration, dealing with legal challenge and compensation. There would also be some cost implications for landowners. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: would send out new Government message (though at a cost). |
| Land Ownership 4 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Regulate all (or major) land sales, for example by requiring that a permit is obtained before transferring land of more than a specified extent, or located in particular geographical areas. There are various possible mechanisms for administering this: central government; Land Commission on Crofters Commission model; body on Monopolies and Mergers Commission model. |
| Legislative implications New primary legislation would be needed to create new powers of regulation; possibly to set up a new body; and as appropriate transfer powers from existing bodies eg Land Court, Lands Tribunal. The legislation would need to set general criteria for deciding whether or not to grant permission. Such new powers would represent a significant limitation on existing ownership arrangements, and in the absence of suitable compensation there would be likely to be ECHR difficulties. |
| Administrative implications If the remit was extended to all sales of more than a specified extent, the volume of work would be formidable; and compliance costs for buyers/sellers would be immense unless the specified extent was set high (in which case sellers would be likely to get around the limit by temporarily breaking the estate into units below the limit). If the remit was limited to strategic/major sales, the burden would be more limited, but there would be likely to be definition problems and pressures for evasion. Also, there could be policing difficulties: for example, what could be done if a non-approved buyer simply moved in? One possibility might be to tie approval to the recording of title. |
| Costs Significant extra administration costs, depending on scale of remit. There would also be significant cost implications for sellers and buyers. |
Advantages
|
Disadvantages
|
| Overall assessment Probably not: it would probably be cheaper and just as effective to deploy targeted measures to deal with those specific cases where there is a positive reason for public sector intervention. |
| Land Ownership 5 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Abolish national non-domestic rate relief on sporting estates. |
| Legislative implications Amendment to Local Government (Scotland) legislation. |
| Administrative implications It would be necessary to update details of sporting rights discontinued 3 years ago; enter and maintain entries in valuation roll; increase in volume of rating appeals from occupiers of land not previously rateable. |
| Costs Not known but rates on sporting rights yielded around £2 to £3 million annually prior to their abolition in 1994. There would be some extra administration costs. There would also be some cost implications for landowners. |
Advantages
|
Disadvantages
|
| Overall assessment Maybe: though the financial yield would be relatively small, it would send a powerful signal of Government intent. |
| land ownership 6 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and other action to
achieve this Reduce or abolish national non-domestic rate relief on agriculture and forestry. |
| Legislative implications Amendment to Local Government (Scotland) legislation. |
| Administrative implications Assessors would need to assess rateable value on all land in Scotland and enter and maintain entries in valuation rolls. An increase in the volume of rating appeals from occupiers of land not previously rateable should be expected. |
| Costs Net cost to Scottish agriculture (after reduction on income tax on reduced profits) £108 million (gross cost £143 million); gross cost to private forestry in Scotland £2.3 million (publicly owned forestry £1.6 million). There would be extra administration costs for local government. There would also be some cost implications for landowners. |
Advantages
|
Disadvantages
|
| Overall assessment Maybe, but not yet: more study needed. |
| Land Ownership 7 |
| Vision for the future More local involvement, greater commitment and accountability by private landowners in rural Scotland. |
| Possible legislation and
other action to achieve this Introduce land value taxation. |
| Legislative implications Would require amendment of the tax-raising powers of the Scottish Parliament to allow for replacement of Council Tax/Uniform Business Rate. |
| Administrative implications This would require completion of Scottish Land Register; mechanisms for repeated assessment would be necessary; reorganisation of local authority financing would also be necessary when other taxes were replaced. There would be considerable scope for disputes over valuation, particularly of very large estates. A common Scottish tax rate might require a redistribution mechanism. |
| Costs Administration costs of scheme are at present difficult to estimate. Best guess: quinquennial cost similar to initial Council Tax and UBR assessments. There would also be cost implications for landowners. |
Advantages
|
Disadvantages
|
| Overall assessment Maybe, but not yet: a lot more study needed. |
| Land Ownership 8 |
| Vision for the future More scope for community ownership and management of local land. |
| Possible legislation and other action to
achieve this Provide advice and support (including an enhanced Land Fund) for those considering community ownership or management. |
| Legislative implications No legislation would be required as regards Highlands and Islands Enterprise, whose Community Land Unit is already delivering this sort of support (including capital fund to support land purchases); Scottish Enterprise however is not yet active in this field, although it is expected to contribute to the tackling of social exclusion in areas of particular need, all within its overall aim of promoting economic growth. Some Scottish Enterprise advice and assistance would be possible, but direct financial support for land acquisition where the aim was social rather than economic might require primary legislation to widen the terms of its remit in the Enterprise and New Towns (Scotland) Act 1990. |
| Administrative implications Increased priority for this could be readily effected for Highlands and Islands Enterprise by Ministerial letter, plus agreed adjustment to Highlands and Islands Enterprise corporate plan. Some minor staffing up and adjustment of resources would be required. For Scottish Enterprise, the same, once the legislative position was clarified. |
| Costs Some extra resources would be required, the extent of which would largely depend on the scale of the enhanced Land Fund. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: important to provide effective support for those considering community ownership or management. |
| Land Ownership 9 |
| Vision for the future More scope for community ownership and management of local land. |
| Possible legislation and
other action to achieve this Introduce community right to buy at market value. Such arrangements might be applied to an estate - or part of an estate - which had previously been identified as of significant public interest. |
| Legislative implications New primary legislation would be required. Such legislation would have a major impact on existing property rights (inevitably with implications of ECHR difficulties unless suitably compensated for). There would be significant difficulties in defining boundaries (would it be possible to buy part rather than all of the estate?) and who would be part of the community (all currently living on the property for X years or more?) which would have the right to buy. |
| Administrative implications There would need to be a specific definition in the case of each relevant estate of which members of the local community (all or a minimum number?) would have the right to trigger the right to buy provisions. The processes for canvassing and balloting would have to be scrupulously controlled (on the model of housing association changes?). Unless there was access to resources for the capital cost of purchase, the legislation would be unlikely to be much used. |
| Costs The capital costs of exercising such right to buy would be massive, and Government support would be likely to be sought. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: there are significant legal difficulties and potential costs which need to be considered, but the desired benefit could not necessarily be achieved sloely through the proposal at LO2 for introducing time for the assessment of the public interest in stratecic sales. |
| Land Ownership 10 |
| Vision for the future More scope for releasing land for housing and local development where this is sustainable and secures the retention and if possible the expansion of fragile rural communities. |
| Possible legislation and
other action to achieve this Streamline compulsory purchase powers to make acquisition of key sites as a last resort more effective, where this will assist implementation of local plans or other strategies. |
| Legislative implications Primary legislation would be required to amend and perhaps consolidate Acquisition of Land (Authorisation Procedure)(Scotland) Act 1947; some or all of Local Government (Scotland) Act 1973; Enterprise and New Towns (Scotland) Act 1990; Town and Country Planning (Scotland) Act 1997. |
| Administrative implications Changes would require significant publicity, plus retraining of staff in new systems. There might also be capital cost implications. Up-to-date local plans would be necessary as a basis for action. |
| Costs There could be additional costs in terms of administration, dealing with legal challenge and compensation. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes, depending on the outcome of the comprehensive review of compulsory purchase and compensation legislation which has already started. |
| Land Ownership 11 |
| Vision for the future More scope for smallholdings supporting a wide range of land-based and other economic activity where this is sustainable and secures the retention and if possible the expansion of fragile rural communities. |
| Possible legislation and
other action to achieve this Buy land on the open market for transfer to smallholders where there is opportunity and demand. An alternative approach would be to use extant land purchase powers to secure land for state owned smallholdings. |
| Legislative implications New legislation would not be required as regards Highlands and Islands Enterprise, but primary legislation might be needed for Scottish Enterprise to adjust its remit in the Enterprise and New Towns (Scotland) Act 1990. An alternative approach would be to deploy the powers still existing under the Small Landholders (Scotland) Act 1911, but this legislation is now very out of date, and would need to be revised through further primary legislation. |
| Administrative implications This could be effected by Ministerial letter to Highlands and Islands Enterprise and an appropriate adjustment to the Highlands and Islands Enterprise corporate plan, though the Scottish Enterprise position might take longer to implement. Using the 1911 Act approach would involve significant new administrative burdens for both central government and the Land Court, depending on scale of operation envisaged. The land use planning aspect of the land in question would have to be settled in advance of any action proposed and guided by an adopted local plan. |
| Costs Resource costs of the alternative would be relatively minor. Some capital would be required to pump-prime the process, though on this model the focus would be on recovering costs wherever possible through on-sale. On the other hand, the costs of using the 1911 Act approach could be significant depending on the scale of operation envisaged. Capital costs of land purchase could be of the order of £10 million a year, only partially recouped over many years through future rents. Costs of administration would also be high. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes as regards the open market approach; probably not as regards 1911 Act approach. |
| Land Ownership 12 |
| Vision for the future More scope for smallholdings supporting a wide range of land-based and other economic activity where this is sustainable and secures the retention and if possible the expansion of fragile rural communities. |
| Possible legislation and
other action to achieve this Introduce compulsory leasing of land, as an extra tool alongside compulsory purchase, to deal with extreme cases of underuse or misuse of land, and/or to facilitate sustainable rural development. The acquiring authority (Highlands and Islands Enterprise?) could acquire a lease on specified terms of particular land rather than the landowners whole rights. |
| Legislative implications Primary legislation would be required to amend the Enterprise and New Towns (Scotland) Act 1990, perhaps as proposed by the Highlands and Islands Development Board in 1978. Primary legislation to widen the terms of the remit of Scottish Enterprise might also be needed. Difficult questions would arise both as to the calculation of compensation and in determining the terms of the lease. |
| Administrative implications The 1978 HIDB proposals involved a complex process of consultations, firstly on proposals to designate particular areas, then on the creation of a Local Advisory Committee and a Technical Panel to draft a development plan, then on the final plan. Such processes would require considerable extra staffing resources for Highlands and Islands Enterprise/Scottish Enterprise and also for central government, and would also make significant demands of other parties such as local community bodies, institutional bodies such as NFUS, other public bodies such as Scottish Natural Heritage and local authorities. |
| Costs This would depend on the scale of operation, but the direct administrative costs and the compliance costs for other parties could be significant. Compensation costs might also be significant. |
Advantages
|
Disadvantages
|
| Overall assessment Probably not: difficulties seem to greatly outweigh the possible benefits. |
| Land Ownership 13 |
| Vision for the future About the same level of ownership by public bodies, but with more local involvement and accountability and more employment of local people. |
| Possible legislation and
other action to achieve this Issue guidance letters from Ministers to public bodies to require community involvement in management of all public estates eg by setting up local liaison committees and maximising employment of local people. |
| Legislative implications No legislation required. |
| Administrative implications This could be readily effected by Ministerial letters to all public bodies, plus adjustment to their corporate plans. The process of identifying appropriate community involvement and working with local communities to put such arrangements in place would be likely to be time-consuming and some staffing up would be required. This could only apply to public bodies responsible for devolved matters, therefore not to non-devolved bodies such as the Ministry of Defence (who could however choose to adopt the same approach on a voluntary basis). |
| Costs There would be some extra resource costs of community liaison. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: it is important that public bodies are model landowners. |
| Land Ownership 14 |
| Vision for the future About the same level of ownership by public bodies, but with more local involvement and accountability and more employment of local people. |
| Possible legislation and
other action to achieve this Encourage increased Crown Estate accountability in Scotland. There are a range of approaches which could be pursued: seeking to make the Crown Estate more formally or informally accountable to the Scottish Parliament, seeking change to the Crown Estate remit, or encouraging the Crown Estate to adopt voluntarily a similar approach as other public bodies in Scotland and to play a constructive role in partnership within Rural Partnerships and with bodies such as Scottish Enterprise/Highlands and Islands Enterprise and Scottish Homes and local authorities. |
| Legislative implications The Crown is reserved, and the Crown Estate Commissioners are included in that reservation. This does not reserve the land and property of the Crown Estate, so the Crown Estate in Scotland will be subject to any provisions the Scottish Parliament chooses to make in respect of devolved matters eg planning. But the current powers of direction over the Crown Estate Commissioners which the Secretary of State for Scotland shares with the Chancellor of the Exchequer will not pass to the Scottish Executive and so the Scottish Executive could not direct the Crown Estate Commissioners to be more accountable to the Scottish Parliament. The Scottish Executive could argue the case for such amendment, but any decision to legislate to effect such a change would be for the UK Government. Similarly, any legislation to change the constitution of the Crown Estate would be for the UK Parliament. The Scottish Executive could argue the case for such amendment, but the decision would be for the UK Government. However the Crown Estate could voluntarily increase its accountability to the Scottish Parliament eg by providing MSPs with separate data on its Scottish operations and by offering to appear before committees; and to adopt a similar approach as other public bodies in Scotland. |
| Administrative implications Any such changes would require the Crown Estate to modify its procedures to some extent. |
| Costs Any change in the Crown Estates remit which gave less weight to income generation would be likely to reduce overall income to the Exchequer. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: the Crown Estate should probably be encouraged voluntarily to increase its accountability to the Scottish Parliament eg by providing MSPs with separate data on its Scottish operations and offering to appear before committees, and to adopt a similar approach as other public bodies in Scotland and work where appropriate in partnership within Rural Partnerships and with local authorities and other public bodies. |
| Land Ownership 15 |
| Vision for the future More local involvement and accountability and more employment of local people by non-Governmental organisations who own land in rural Scotland. |
| Possible legislation and
other action to achieve this Encourage non-Governmental organisations (NGOs) to secure community involvement eg by settingup local liaison committees; and to maximise employment of local people by asking them to adopt voluntarily the same approach as public bodies in Scotland. |
| Legislative implications No legislation required. |
| Administrative implications The process of identifying appropriate community involvement and working with local communities to put such arrangements in place might be time-consuming. |
| Costs NGOs would face some extra costs for community liaison, and compensation might be sought. |
Advantages
|
Disadvantages
|
| Overall assessment Probably yes: NGOs are likely to wish to be exemplars of best practice, like public bodies in Scotland. |