Land for the People (Scotland) Bill

Andy Wightman has began to develop proposals for a comprehensive Land Reform Bill – “one that goes far further than existing proposals in reforming Scotland’s land governance”. It’s published here (with kind permission) but you can read the original on Andy’s blog here. I (re) publish it because its a significant bit of work in an area badly needing an overhaul and an injection of real urgency.

Introduction

This blog introduces my proposals for a comprehensive Land Reform Bill – one that goes far further than existing proposals in reforming Scotland’s land governance.

I plan to publish further blogs outlining in more detail the background rationale and details of each section of the proposed Bill. In Spring 2024, I will publish a draft bill (or as close to it as I can reasonably achieve) together with explanatory notes. Meanwhile, this blog sets out the key sections of the Bill together with a brief explanation and context for each.

The overall purpose of the Bill is to democratise land governance. In particular, it is designed to strengthen the role of local communities and local government, to secure more widespread ownership of land, to increase accountability in landownership, to protect and restore commons regimes and to fairly allocate the wealth accrued from land rights.

The Bill includes measures relating to land tenure, administrative law, fiscal policy and land markets.

The underlying philosophy of the Bill is that land is a common resource and Parliament has the responsibility to create the framework for a socially responsible, accountable, democratic and transparent system of land tenure, and associated rights of occupation and use.

Within such a system, owners and others should have the freedom to use their land in whatever way they wish. In other words we seek to correct deficiencies in the balance between private and public interests not by cracking down on individuals owners but by reforming the system within which they exercise their rights. By default this will involve greater local democratic governance.

Land for the People (Scotland) Bill

LONG TITLE

An Act of the Scottish Parliament to democratise the governance of land, to reform land tenure, to regulate land markets, to provide enhanced information and transparency to land governance and for related matters.

PART 1 THE LAND OF SCOTLAND

This part of the Bill defines the land it relates to and disclaims sovereignty over Rockall.

For the purposes of this Bill, the land of Scotland is the territory of Scotland bounded by the land border with England, the territorial seas out to the 12 nautical mile limit and the an indeterminate border both below and above ground. The Island of Rockall does not form part of the land of Scotland.

PART 2 LAND TENURE

This part of the Bill reforms and modernises various aspects of land tenure.

Ownership

Scotland has a long history of different forms of land tenure. Generally speaking this falls into two parts – the tenure governing rights of ownership and the (various) tenures governing possession or use (such as housing and agricultural tenancies). Scotland’s system of ownership was substantially simplified with the with the introduction and spread of feudalism across Scotland in the medieval period although Udal tenure survives in Orkney and Shetland.

Feudal tenure was abolished by the Abolition of Feudal Tenure (Scotland) Act 2000 and took effect on 28 November 2004 (Martinmas). No explicit term was used to describe the tenure that replaced it, but by abolishing all superiorities, it is now alloidal in character.

A key characteristic of landownership in Scotland is that it confers rights on owners but no responsibilities. What responsibilities that exist are applied post-hoc using administrative law (planning, environment etc). In 1999, I argued for a system based on rights and responsibilities with four tiers – the planet, the sovereignty territory, the community and the owner. Rights would flow down and responsibilities up as illustrated below. [1]

This section of the Bill will amend the 2000 Act and redefine Scotland’s system of land tenure as conditional tenure with (broadly defined) statutory responsibilities as well as rights. The particulars of how these will be interpreted can be set out in secondary legislation. They will include legal duties to conserve natural processes and restore ecosystems.

Thus, the basic framework of land tenure incorporates at its heart the principle of accountability and responsibility to others.

Residency

It shall be a condition of owning land that the owner (if a natural person) or the beneficial owner (if a legal person), is ordinarily resident on or close to the land they own. Applications can be made to the Scottish Land Court for exemptions based on a number of statutory criteria.

Charitable Bodies

Organisations with charitable status and which own more than a defined extent of land shall be obliged to have a membership which is open to all adults resident within the external boundaries of the landholding

Succession

The Bill will abolish distinction between heritable and moveable property in relation to the law of succession and thus allow children and spouses to exercise legal rights to inherit land. The fact that this right does not exist (or exists only in relation to moveable property) is one of the defining features of Scottish land tenure and distinguishes it from virtually the whole of continental Europe.

Crown Land

The Crown continues to own around half of the foreshore and all of the seabed out to the territorial limits. These rights are currently administered and managed by Crown Estate Scotland. The Bill will extinguish the Crown’s property rights to the foreshore and transfer it to local authorities. Rights to the seabed will be transferred to local authorities out to 3 miles and Scottish Ministers out to 12 nautical miles.

The bill will also abolish the Crown’s right to naturally occurring mussels and oysters and will repeal the Royal Mines Act 1492 and vest all rights to gold and silver with Scottish Ministers. The Crown’s rights to salmon will be abolished and transferred to local authorities.

Foreshore and the Seabed

The Bill will implement the recommendations of the Scottish Law Commission’s recommendations on the Law of the Foreshore and Sea Bed. This report, published in 2003, set out a new legal framework to modernise the law in this area but has never been implemented.

Agricultural Tenancies

The Bill will provide tenant farmers who hold a secure 1991 tenancy and have held it (either themselves or together with those from whom they have inherited it) for at least 25 years, with full rights of ownership.

Crofting

The Bill will take forward a range of existing proposals to modernise and simplify crofting tenure.

PART 3 COMMONS

This part of the Bill will provide for the protection of common land and modernise the governance arrangements to ensure accountable local management.

Common Land

Scotland’s common lands have been extensively eroded through the process of enclosure, unlawful appropriation and poor governance.

Unlike England, there is no registration process for common land. The Bill will provide a legal means of registering areas of common land and protect them from appropriation and will give local authorities powers to establish governance arrangements for them

Common Good land in Scotland’s burghs continue to be governed by out of date laws dating back to 1491. The Bill will modernise governance arrangements and return ownership and control to those who live in the burgh.

The Bill will repeal the Division of Commonties Act 1695 which remains on the statute book and facilitates the legal enclosure of extant communities.

The Bill will also introduce new land restitution provisions to restore common land that has been appropriated unlawfully.

Community bodies will be given new statutory powers to take over ownership of land formerly owned by Scotland’s Parish Councils.

Atmosphere

The Bill will abolish private rights in the atmosphere above the height of existing or approved vegetation or infrastructure and convert these rights into common rights. A commons regime will then be put in place to regulate the management of the atmosphere and provide a democratic and public means of governing carbon and other greenhouse gases.

PART 4 LAND INFORMATION

This part of the bill will put in place a new legal framework to capture, store and make public a wide range of information on land.

Currently land information is held in many places by many organisations, with different formats and a range of access protocols. In 2015 the Scottish Government announced the development of Scotland’s Land Information Service (SCOTLIS). The project has never been completed.

The Bill will also set out an agreed transparency framework to make clear what information can be obtained, on what basis and in standardised formats.

PART 5 LAND MARKETS

This part of the bill will reform the way in which land markets function in order to democratise and open up the land market to many more people.

New Intervention powers

The Bill will create powers for local authorities to designate parcels of land necessary for social development. When they are proposed to be sold, local authorities will have the right to acquire them for their existing use value. For larger holdings, Councils will be able to acquire designated land for the average of the price paid per ha of the larger holding.
These powers can be devolved to community bodies.

Monopoly regulation

New powers will be given to the local government to regulate the market to break up monopoly ownership of land and property. Approval will have to be obtained before any legal or natural person can acquire more than a defined extent of land by value. This will be a Scotland-wide power so as to regulate the growth of monopoly ownership by the aggregation of multiple holdings.

PART 6 RIGHTS TO BUY

This part of the bill will streamline existing community rights to buy to make them easier to use, to expand the range of entities who can use them and to amend the decision making process involved.

There are number of rights to buy now on the statute book. They are complex and some of them have never been used. The Bill will simplify them, provide more options and open them up to use by, for example, registered sports associations and certain charities.

The decision-making process involved in approving rights to buy under the Bill will be democratised by removing them from the control of Scottish Ministers and vesting them instead in local authorities.

PART 7 HOUSING & LAND ASSEMBLY

This part of the Bill will increase the role of local authorities in assembling and master-planning land for the provision of new housing.

The Bill will introduce compulsory sale orders whereby the owner of land is obliged to put it on the market and sell it.

The Bill will also amend compulsory purchase powers in a manner similar to the provisions recently enacted in England to enable local authorities to acquire land at its existing use value and not the inflated value arising as a result of the anticipation of or granting of planning consent.

Modifications will be made to the The Town and Country Planning (Use Classes) (Scotland) Order 1997 to make holiday homes a distinct use class requiring planning consent in a similar manner as recently implemented by the Welsh Government.

PART 8 FISCAL MEASURES

This part of the bill will amend existing fiscal policy to ensure that all land is fairly taxed.

Non-domestic rates

The power to set the level of non-domestic rates will be returned to local government from whom it was removed by the UK Government under s.110 of the Local Government Finance Act 1992. It will also repatriate the powers to introduce relief schemes and to vary the rate for different types of non-domestic property.

The bill will require all land to be valued and entered on the valuation roll. Currently rural land such as used for agriculture and forestry is exempt. NDR valuation will be amended to require a split valuation of the land separate from any development upon it and local authorities will be required to set a rate for each element (which may or may not be the same).

The Bill will also re-introduce owners rates and make owners (rather than as at present occupiers) liable for paying the tax.

Council Tax

The Bill will reform Council tax by creating Bands of £10,000 valuation, mandating regular revaluations, introducing a tax free housing allowance, and setting the rate based on property valuations rather than (as at present), fixed multipliers.

Land and Buildings Transaction Tax

The Bill will scrap Land and Buildings Transaction Tax and incorporate the revenue foregone into non-domestic rates and council tax revenues.

Carbon Tax

The bill will make provision for a new tax on emissions from land.

PART 9 PUBLIC LAND

This part of the Bill will democratise the governance of land held by Scottish Ministers and by other pubic bodies.

The public have very little influence and control over land held on behalf of the public by Scottish Ministers and other public bodies. Then bill will improve democratic governance by, for example, establishing regional land boards with democratically elected members to oversee the management of public land. Boards will have the power to delegate decision making over land to different entities for different purposes. For example local authorities could be delegated powers to develop housing on land owned by Scottish Ministers.

PART 10 LAND SETTLEMENT

This part of the bill will update and modernise the Land Settlement (Scotland) Act 1919.

PART 11 NATURAL RESOURCES

This part of the bill will contain a range of measures to democratise the management of natural resources including game and freshwater and sea fish.

PART 11 MISCELLANEOUS PROVISIONS

This part of the bill will implement those recommendations from the Land Reform Review Group that are not included above and not yet implemented.

NOTES

[1] See Wightman, A, 1999. Scotland: Land and power. An agenda for land reform in Scotland. (Luath Press)