After many months of consultation, the controversial Land Reform (Scotland) Act 2016 received Royal Assent in March 2016.
The Act deals with farm tenancy law, community rights, control of land, sporting rates, deer management and access rights and aims to ‘end the stop-start nature of land reform in Scotland’. However, the Act is striking in its lack of detail. With a huge amount of secondary legislation required to fill the gaps, at this point it seems simply to add to the ever-growing complexity and volume of land reform legislation.
What is missing?
Notably, the Act doesn’t clarify the complicated legislation of the tenanted farm sector. It introduces a new letting vehicle known as the Modern Limited Duration Tenancy (MLDT) which replaces Limited Duration Tenancies and will have a minimum term of ten years. We would have liked to have seen a more flexible option introduced to enable land to be let for more than five years but less than ten.
Various other elements are also likely to deter landlords from letting their land. There is the threat of tenants being given the ability to force landlords to sell their farms to them if the landlord can be shown to be in breach of the lease. And in certain circumstances the tenant will be able to assign their tenancy for value.
Frustratingly, the Act makes the rent review process in Scotland more open to challenge too. It will now be based on the productive capacity of the holding rather than open market criteria, making one wonder how those involved will ever agree.
Enhancing community involvement…
The Act aims to strengthen the Government’s Community Empowerment agenda with its aim of achieving one million acres of land in community ownership by 2020. However, it gives no information on the types of land and decisions in which the community may have a say. Instead it’s left to Scottish Ministers to issue guidance.
A highly controversial part of the Act allows community bodies to apply to force a sale of land to the community in the interests of furthering sustainable development. All land and property in Scotland will be subject to this new right to buy apart from owner occupied homes, crofts, Crown land and any other type of land or property that the Scottish Ministers choose to exclude. However, strict requirements will need to be met:
- development must be in the public interest and be likely to further sustainable development
- (defined generally as having regard to long-term consequences including creating opportunities and environmental wellbeing)
- it must be the only or most practicable way of achieving significant benefit to
- the community
- refusal of consent is likely to result in harm to that community.
The Act is striking in its lack of detail, with a huge amount of secondary legislation required to fill the gaps.
Where to now?
There’s little in the Land Reform (Scotland) Act 2016 to show how its provisions will operate in practice, so the Government is under great pressure to get the regulation right.
However, it’s not all doom and gloom. The hope is that both landowner and community body will be able to enter into voluntary negotiations regarding the ownership of land without the use of the Act. Community groups can become rural landowning businesses and many are already operating successfully as such. Bidwells acts for various community groups across Scotland, including the Isle of Gigha Heritage Trust, that have taken on the mantle of ownership and expanded economic growth.
Community groups can become rural landowning businesses and many are already operating successfully as such.
Despite the vacuum in legislation we are still letting successfully for landowning clients. And whether acting for landlord or tenant, we’re pleased to say that most issues are resolved in a friendly and open manner – often around the farmer’s kitchen table.
Acres of land in community ownership by 2020 is the aim of the Government’s Community Empowerment agenda