Land Reform (Scotland) Bill: New provisions for large land holdings

The much-anticipated Land Reform (Scotland) Bill is now upon us and was introduced in the Scottish Parliament on 13 March 2024. Although the Bill covers large land holdings and leasing this is a brief overview of the provisions on large land holdings. As with any bill, aspects could change when the corresponding act is published. We’ll share more information on this when we can.

What does the Bill say?

It’s not a straightforward read, but the main points can be summarised as follows:

Two types of large land holdings control

 Large land holdings would be subject to two types of control: land management (promoting community engagement) and restrictions on transfer.

Land management

The Bill would allow regulations to be made about management of large land holdings. Owners need to have a publicly available land management plan, created and amended with community engagement, detailing:

• the objectives and vision for land management and any plans for sale
• compliance with the Scottish Outdoor Access Code and deer management code of practice
• how management of the land will contribute positively to meeting the national net-zero emissions target, adapting to climate change, and the increase or sustainability of biodiversity

The plan would be reviewed every five years.

In addition, owners would be required to consider reasonable requests from community bodies to lease all or any part of the land.

Land affected

Mainland-land of more than 3,000 hectares or more than 1,000 hectares on an inhabited island (where that is more than 25% of the island’s land) would be affected. These thresholds are met by a single piece of land or a “composite holding”.

Composite holdings

Identifying composite holdings is potentially complex. In broad summary, land must be connected both physically and at the level of ownership (such as companies in the same group, or where one owner has a controlling interest in another).

Land and Communities Commissioner

The land management provisions would be enforced by a new Land and Communities Commissioner, who could require specific remedial action or impose a fine. Only the bodies listed in the legislation would be able to report breaches to the Commissioner. This list could be added to. It currently includes SEPA, SNH, HES, and community bodies.

Restriction on transfer: extending the opportunity to register a community interest

Land greater than 1,000 hectares (including composite holdings) would be affected.

Prohibition

Any transfer of the land would be prohibited unless the Scottish Ministers consent, to encourage use of the community right to buy. Owners could apply to the Ministers for an exception in cases of actual or potential financial hardship.

Prohibition lifted

Before transfer, an application would be made to the Ministers, who would publicise the intention to transfer and instructions for community bodies on how to register an interest in the land.

Anyone interested in knowing about a possible transfer could have their details added to a list held by the Ministers. They, and certain other bodies with a connection to the land, would be informed of an intention to transfer. The prohibition on transfer would be lifted 30 days later.

Another prohibition applied?

If the Ministers received notice within the 30-day period of intention to register a community interest in the land, a 40-day prohibition on transfer would apply (beginning on the day the notice was sent), provided that the Ministers were satisfied that it is likely that the registration would happen.

Further to the pre-conditions for registering a community interest in a standard application, the level of community support should be “significantly greater”, and the whether it is “in the public interest” part of the existing test would be applied more stringently.

Restriction on transfer: lotting of large land holdings

Land of a certain size could not be transferred without first getting a “lotting decision” from the Ministers.

Land affected

The proposed rules would apply to:

• land of more than 1,000 hectares, or
• land of more than 50 hectares in certain circumstances, including that it is a piece of a large holding of more than 1,000 hectares, and a notice of intention to transfer has been given to the Ministers regarding another part of the large holding

Lotted, or not-lotted?

The test is whether lotting would be “more likely to lead to [the land] being used (in whole or in part) in ways that might make a community more sustainable than would be the case if all the land were transferred to the same person”. In reaching a decision, the Ministers would consider:

• how often land is available to buy on the open market
• how concentrated ownership is in the area
• a report by the Land and Communities Commissioner

If the test were met, the Ministers would decide that the land can only be transferred in lots determined by them (or parts of a lot, if the Ministers agree). Each lot could only be transferred to different, unconnected, persons.

Where the test was met and there is actual or potential financial hardship to the owner, the owner can request to be able to transfer without lotting.

If the test were not met, the Ministers should decide that the land can be transferred without enforced lotting.

Exemptions

Some transfers would not be affected, such as gifts, or a transfer in consequence of the assumption, resignation, or death of a trustee.

We will continue to monitor the Bill’s progress but the message in the meantime is “watch this space”.

If you have questions on this or any other element of the Bill, contact Anne Chapman.

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