Jonathan Henson, Head of Rural in Scotland for property specialists, Savills, has put his mind to answering the question: ‘What are the implications for Scottish land and property of the Land Reform Bill?’
Savills has released his interim conclusions, offering, amongst other things, a worrying note on the way in which the detail of the as yet pretty vague criteria governing the impact of the Bill has been planned to pass into operation below the level of legislative scrutiny applying to the Bill.
Mr Henson says:
‘The Land Reform Bill, published in the Scottish Parliament yesterday9 [23rd June 2015], is a punctuation point in landownership history, with the proposed Bill being a starting point for further reforms. It establishes a Land Commission whose remit is to deliver an ambitious land reform agenda. However it is clear that its ultimate goal is the redistribution of land and property across Scotland, with the aim of achieving a ‘fairer society’. Yesterday’s Bill is only the start of that journey.
‘The provisions within the Bill that seek to establish an Absolute Right to buy for Sustainable Development for Community Bodies are a material change to property owning rights that have existed in the UK for many generations. Whilst yesterday’s news headlines focused on the impact on rural land, the reality is that these provisions apply to all types of Scottish land and property, both urban and rural, applying equally to brownfield land in inner cities and remote heather hillsides.
‘The Scottish land and property sector has a fundamental role to play in the future health of the economy. In the majority of cases landowners ensure their land and property works hard for the benefit of their communities, however even the most responsible will be rightly concerned.
‘The wording of the Bill has been vague on definition in some areas; for example what constitutes ‘sustainable development’ is unclear. This would appear to be a moveable feast over time, and such ambiguity is likely to be an obstacle to long term investment in the rural economy by landowners who will be unclear as to whether their plans will be deemed ‘sustainable’. It is also difficult to deliver effective legislation without clear definitions.
‘It is frustrating that the Bill is drafted in such a way that major legislation, relating to let agricultural holdings, will not be fully examined in Parliament with major policy objectives being dealt with by subsequent regulations rather than primary legislation. This makes it very difficult to effectively comment on the bill and will mean that the consultation process will be significantly muted. The bill mentions the introduction of subsequent regulations 40 times.’
This illumination from Mr Henson is of serious concern.
With minimal opposition in the Scottish Parliament at the moment – and very much of that virtually certain to cease to exist after the Scottish Election of May 2016, it is disturbing that the SNP Scottish Government is planning to neuter what opposition there is by putting the meat of the matter beyond the most rigorous scrutiny it really ought to have.
This is a Bill redolent of doctrinal and tribal division on an issue which is much less important to the vast majority of Scottish residents in practice than it is in propaganda. It is the shrillest of dog-whistle recruiting serjeants to the separatist cause, one which instantly inflames urbanites who have little if any experience or understanding of the country.
The Bill is long on rhetorical and divisive impact and lamentably short on the critical details of how it will work and what criteria will be used to determine how decisions on action will be taken.
It is dishonest and dangerous for such a Bill – which radically changes long standing land and property ownership rights in ways which fuel and arm the politics of envy at least as much as they may enable a greater volume of sustainable development – to be sheltered from undergoing the necessary due diligence.
Many will imagine that this legislation will hit only the big estate owners and are unconcerned with whether or not it is just.
But it specifically covers property as well as land, small as well as large.
It is entirely conceivable that someone owning a property with a large garden in an urban setting could find themselves the subject of a community proposal to buy that garden to turn it into an urban community market garden – for which an interesting case could be made for its social benefit and sustainability.
In this scenario, the owner of such a garden, in wishing to retain a lifestyle amenity for which they have probably worked to be able to own, would be likely to refuse to sell.
The Bill provides for enforced sales to communities where a landowner may be said to be obstructing sustainable development.
The sad reality is that the opposition’s opportunity to examine with the full scrutiny applied to proposed legislation the functional proposals for the implementation of the intentions of this Bill, is neutered.
Against an overall SNP majority, all the opposition can do is identify and give voice to any damaging inherent weaknesses in the prescribed functioning of the Bill. They cannot successfully amend or arrest anything.
With the implementational criteria reduced to the formal status of regulations and not included within the Bill as part of that legislative initiative, the opposition can only utter ritual protest and watch it all come home.
Mr Henson says: ‘Some will argue that the Bill’s reintroduction of Sporting Rates will have a negative impact on the fragile rural economies, many of which depend on sporting enterprises. Indeed the rural sector as a whole is already economically fragile and has little capacity for an increased tax burden.
‘The Bill has now been introduced to the Scottish Parliament and views will now be sought on the proposed legislation. The drafting of the Bill is hard to follow as it contains a series of amendments to other primary legislation. This means that it will take some time to fully consider the 104 sections.
‘We will be continuing to analyse the detail of the Bill and offering further objective advice in due course. However, the Bill can be accessed here; Explanatory Notes can be accessed here and the Policy Memorandum can be accessed here.’
Those with particular concerns about how the detail of the Bill may affect individual land or property holdings, are welcome to get in touch with Mr Henson by email: Jhenson@savills.com
