Time for one of those blog [sign]posts, which serves as a link to my recent contribution to the Journal of the Law Society of Scotland. This is, I hope, a more thorough and less rambling comment on the new Cost of Living (Tenant Protection) (Scotland) Act 2022, which I commented on (when it was a Bill) in an earlier blog post. Thanks as ever to Peter Nicholson and his team at the Journal for their help with this article.
This is a blog post where I seek to make sense of the Cost of Living (Tenant Protection) (Scotland) Bill, which was passed by the Scottish Parliament on 6 October 2022. Royal Assent is awaited. That being said, we already know that it bites from 6 September 2022 – one month before it was passed – which was the date when the rent freeze and eviction moratorium were first aired in the Programme for Government. This means that, for example, rent increase paperwork properly served by Scottish landlords before 6 September 2022 can take effect, but papers served after that date will be subject to the new legislation’s terms.
The bill cantered – perhaps even galloped – through Holyrood at quite a clip: it was laid before Parliament on Monday 3 October, then Stage 1 took place on Tuesday, Stage 2 on Wednesday, and Stage 3 on Thursday. It was classed as an emergency bill, owing to the current cost of living crisis.
The procedures around emergency bills are provided by the Scottish Parliament’s Standing Orders. There are legitimate questions about the level of scrutiny that is afforded to such bills in general, and there might be a question about whether this is indeed an emergency. These are questions I will largely dodge, although I will find it hard to resist the occasional observation. On scrutiny, this is a matter for better public lawyers than me to analyse, and I know my colleague Pablo Grez Hidalgo and others are looking into this in the context of Covid measures. Next, it can be acknowledge that these measures are time-limited, so the argument might be that we should not get too exercised about them. Then again, we have just witnessed previous emergency measures for Covid becoming decidedly non-temporary, by virtue of the Coronavirus (Recovery and Reform) (Scotland) Act 2022. Accordingly, this might be something to revisit later. And is it really an emergency? I don’t think it’s for me to make an authoritative call on that, but you don’t need to look too hard to find reports of big rent hikes in the Scottish private rented sector (like this report on STV News). Some context can also be found in this BBC News report.
As noted, my main blog goal from now on is to make sense of the Bill, in part as teaching prep for my own Housing Law class. That class is suffering not so much from one set of moving goalposts, but rather just when it seems one set of goalposts has stopped moving, another gyratory goalpost is unveiled for the syllabus to contend with. May you live in interesting times, and all that.
One thing I won’t do in this blog post is talk through all the interesting things that MSPs of different political persuasions tried to introduce to or remove from the Bill as it went through Holyrood. I will however give a wee overview of the amendments that did make it into the final form of the Bill at Stages 2 and 3.
Another thing I won’t do in this post is explain concepts or background legal matters in the manner I like to do on this blog, meaning I won’t explain (for example) what exactly a registered social landlord is, or what is meant by a Scottish secure tenancy and a short Scottish secure tenancy. A degree of knowledge is accordingly presumed. My apologies for that, but if anyone is flummoxed by anything do comment below and I’ll try to explain as best I can.
Please also note these are my initial thoughts after my first read through of the Bill. It may be that I don’t cover something that’s important, or perhaps even not quite get a handle on an important provision. This is very much me blogging to try to sort out my own thoughts, and if I also manage to get everything right by the time I hit “Publish” that will be a bonus.
Also, it’s over 3,600 words long. Sorry not sorry.
What does the Bill do?
Background information about two aspects of the Bill can be found in posts by the Scottish Parliament Information Centre, with one looking at the rent freeze and another at the evictions moratorium. The Bill is not a simple freeze though, and it is possible for rent increases to happen in some circumstances. That leads to some drafting about what sort of increase is indeed allowed. Also, and perhaps confusingly given the title of the Bill, it seems to introduce a private sector eviction ground allowing a landlord suffering financial hardship to move into the let property or sell it with vacant possession (but more on whether this can fairly be called a new ground below). There is provision relating to eviction for substantial rent arrears, either asking for a set number of months (in the private sector) or a set sum of money (in the social sector) of backlog before eviction can be granted. There is also quite a lot for Scottish Ministers to do in terms of reporting on the law in action and consulting with relevant stakeholders at staging posts in this law’s time-limited life.
Here is a PDF of the Bill as passed. I will work through its provisions as best I can now.
Part 1, entitled “RESIDENTIAL TENANCIES: RENT CAP AND EVICTIONS”, contains two short sections. Section 1 makes a schedule on rent control operative, then section 2 does the same for another schedule about evictions. Part 2 supplements Part 1, providing an initial end date of 31 March 2023, and also providing for two six month extensions (much like the Coronavirus (Scotland) Act 2020 had), but also with powers to suspend either or both of the rent cap or eviction protection provisions. There are also reporting and consultation obligations on Scottish Ministers, with special provisions about rent control in the social sector such that those must be properly considered before 31 March 2023 (this being a recognition of the particular funding challenges registered social landlords may face). Part 3 then introduces provisions on rent adjudication, with a later programmed end date of 31 March 2024 (and a possible extension to that of up to a year). I’ll now consider the “Rent Cap”, the “Protection from Eviction”, and “Rent Adjudication” in turn.
A warning: reading the various schedules without also having a handle on the governing statutes for the three private renting regimes that still exist in Scotland and the social renting regime in the Housing (Scotland) Act 2001 is a tricky exercise. The private sector regimes of the private residential tenancy (PRT), the assured tenancy and short assured tenancy, and the protected tenancy are found in the Private Housing (Tenancies) (Scotland) Act 2016, the Housing (Scotland) Act 1988, and the Rent (Scotland) Act 1984 respectively. The schedules of the Bill effect the changes in the law by way of amendments to these various statutes.
Rent Cap
Taking up over seventeen of the forty pages that comprise the PDF of the Bill, Schedule 1 “Rent Cap” is the longest Schedule to wrestle with. This is perhaps not surprising, given the complexity of the measures and the fact they need to be replicated over various private renting regimes and in the social sector.
The PRT is the main player in the Scottish private rented sector these days, so I will focus on that. I’ll also make a quick acknowledgment of the changes to the social sector, regulation of student residential tenancies, and the briefest nod to the other private sector vehicles.
In a curious but perhaps pragmatic opening gambit, the first thing that Schedule 1 actually caters for is more rent increases in a 12-month-period than would normally be permitted, but only if Ministers allow for this to happen by regulations. In non-emergency times, PRTs can be subject to a rent increase once per year, on three months’ notice.
Next though, a new section 22A of the 2016 Act provides that as from 6 September 2022 the landlord under a private residential tenancy may not increase the rent payable under the tenancy by more than the permitted rate, and that permitted rate is set at 0%. That is, as things stand, no rental increases are possible, or at least this will be the case unless the Scottish Ministers pass regulations to substitute a different percentage. Scottish Ministers are duty bound to review the permitted rate relatively soon in the social sector, but not in the private sector. It seems accordingly safe to assume there is no immediate prospect of a change to the permitted rate. This section also clarifies any rent-increase notice given on or after 6 September 2022 during a period when the permitted rate is 0% is of no effect – any landlord who speculatively sent off a rent-increase notice after reading the Programme for Government is accordingly caught by this.
Subsequent amendments to the 2016 Act suitably constrain the rent variation provisions when the permitted rate is 0%, or modify those provisions to e.g. stay a rent officer’s hand when it comes to ordering any increase when the permitted rate is more than 0%. Another curious effect of the modified rent increase regime is it removes the theoretical possibility of a rent officer reducing the rent after a landlord seeks a different rent and a referral is made. Rather, there is now an “upwards only” procedure, albeit capped at the permitted rent. Curious this may be, but again it is probably a pragmatic attempt at keeping the overall legislative scheme fair to landlords.
That’s not all though. A landlord may make an application to the relevant rent officer to increase the rent in a PRT by more than the permitted rate in terms of a new section 33A of the 2016 Act. They can do this in order to recover up to 50% of the increase in any “prescribed property costs” that the landlord has incurred during the relevant period (where these are suitably evidenced). A “prescribed property cost” is relatively tightly defined, so as to include: a) interest payable in respect of a mortgage [sic] or standard security relating to the let property; b) a premium payable in respect of insurance (other than general building and contents insurance) relating to the let property and the offering of the property for let; and c) service charges relating to the let property that are paid for by the landlord but the payment of which the tenant is responsible for (in whole or in part) in accordance with the terms of the tenancy. “Relevant period” means the period of 6 months occurring immediately before the day on which the application for an increase is made.
[Scots property lawyer heckle: the inclusion of the word “mortgage” is otiose. There is no such thing as a mortgage in Scots law, even if there was an Act called the Mortgage Rights (Scotland) Act 2001. That statute used that well-understood word for the right that a borrower gives to a bank in exchange for money in its short title, but the substance of the legislation then spoke about standard securities, the correct name for this security right under the Conveyancing and Feudal Reform (Scotland) Act 1970. It’s a shame this English law term has now found its way into a Scottish statute. It shouldn’t be there.]
Anyway, returning to the rental increase stuff, assuming an application is all properly documented, the rent officer can then sign off on an increase of no more than 50% of the hike in a landlord’s costs. To my mind, this represents a fair attempt at a balance by the devolved Scottish Parliament. When rent controls were introduced to the UK private rented sector in 1915, they came with mortgage* interest controls too. [Yes, I just used that m-word for ease, hypocrite that I am.] Holyrood can’t do anything in relation to mortgage markets, or indeed insurance markets. To hamstring landlords in one way without offering at least some mitigation in another could have been problematic, perhaps even in human rights law terms (see below).
The 50% maximum step-down of prescribed property costs can be changed by regulation. Given the provision is silent about the nature of such a change, this could go up or down.
Finally in relation to PRTs, the never used provisions on Rent Pressure Zones are suspended.
Analogous changes are made to the Housing (Scotland) Act 1988 in relation to assured tenancies and short assured tenancies, such that they too are capped in general but with up to 50% prescribed property cost increases allowed. No such changes were needed to the Rent (Scotland) Act 1984 with its different rental regime.
Next, we have the social sector, and its Scottish secure tenancies and short Scottish secure tenancies. Rent increases – as between the landlord and tenant – are comparatively less regulated in the social sector, albeit registered social landlords are highly regulated in terms of corporate governance etc. and are entirely geared towards providing housing on a not for profit basis. In terms of the private law relationship between landlord and tenant, the only additional regulation of rent comes from section 25 of the Housing (Scotland) Act 2001. That normally only asks for proper consultation with tenants, and then four weeks’ notice before the beginning of any rental period, where “rental period” means a period in respect of which an instalment of rent falls to be paid. When this Bill comes into force with its starting permitted rate of 0%, no rent increase will be possible. There is no comparator for prescribed property costs in the social sector, meaning there can simply be no rent increase when this regime applies. The fig leaf offered to the social sector here is the prospect of a prompt review of the provisions; no doubt social landlords will be pressing hard to allow for some kind of review of this if their unavoidable costs cannot be stepped down and no other funding is coming there way prior to the (usual, but not uniform) annual revisiting of rents at the start of April 2023
The last category catered for in Schedule 1 is the student residential tenancy. These tenancies normally escape specific regulatory regimes, being carved out from the PRT provisions of the 2016 Act, but that carve out now serves as the basis of a definition of this other set of landlord and tenant relationships where the rent cap is in play. As with the social sector, no rent increase whatsoever is possible for such leases to a student when the permitted rate is 0%.
Protection from Eviction
Schedule 2 is comparatively shorter than Schedule 1. It begins by restricting the effectiveness of eviction decrees from 6 September 2022 onwards. The restriction applies until either a) the end of a period of 6 months beginning with the day on which the decree for removing is or was granted, or b) the expiry or suspension of the restriction in accordance with Part 2 of the Bill.
There are some exceptions though.
First, having been drawn into the regulatory regime that they normally escape, student residential tenancies now get their own eviction grounds. Students who engage in relevant criminal or antisocial behaviour in the regulated time period can nevertheless be evicted.
Next, specific grounds from existing residential tenancy regimes also have a chance to apply notwithstanding what has loosely been termed a moratorium. For PRTs, these grounds include: the existing grounds of property to be sold by lender, tenant no longer being an employee, tenant not occupying let property, criminal behaviour, anti-social behaviour, and association with a person who has a relevant conviction or engaged in relevant anti-social behaviour; and the new grounds of landlord intention to sell the property to alleviate financial hardship, landlord intention to live in the property to alleviate financial hardship, and substantial rent arrears.
Whilst these are technically new grounds for eviction, and they look like they are new grounds given they standalone in the legislation, I think it can also be noted that they are in fact existing grounds on steroids. The existing grounds relating to a landlord’s plans for the property, already subject to a reasonableness test, are now made subject to a financial hardship criterion, as properly evidenced (see below).
Meanwhile, rent arrears of three or more months would normally be an eviction ground. The ground in the Cost of Living (Tenant Protection) incarnation asks for even more in the way of arrears. Substantial rent arrears is defined as a situation where the cumulative amount of rent arrears equates to, or exceeds, an amount that is the equivalent of six months’ rent under the tenancy at the point when notice to leave is given to the tenant.
In the other private sector regimes similar changes are made. The same is largely true in the social sector, although there is a set figure for substantial rent arrears in that context: £2,250.
Rent Adjudication
The final schedule makes provision in relation to the determination of private sector rents (under the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 1988 – i.e. for PRTs and assured tenancies and short assured tenancies). This they can do by stipulation matters to be taken into account, matters to be disregarded, and assumptions to be made in determining the rent. Further, they could limit the rent that may be determined to an amount that is no more than the rent specified by the landlord in a rent-increase notice (or analogous documentation under the 1988 Act). The point listed in the preceding sentence would end the possibility of a landlord getting a windfall when a tenant challenges a notice and then ends up with a rent being set at higher than what the landlord asked for in the first place. That does seem sensible, although it might also lead to landlords taking a punt and aiming high in a rent-increase notice knowing that there is no chance of getting anything higher. Rent-setters would need to be wise to this accordingly.
What about a potential human rights challenge?
I have said absolutely nothing about whether a landlord might seek to run an argument about a breach of their rights under Article 1 of the First Protocol to the ECHR. All I’m doing here is noting the fact that it is a theoretical possibility, although no doubt the provisions about eviction proceedings still being possible with certain levels of arrears, the new financial hardship ground, and provisions for possible increases in rent were introduced with this risk in mind.
What amendments were made?
There now follows a rather underwhelming conclusion to this blog post, where I abruptly end my substantive analysis but also set out what amendments actually successfully made it to the Bill (whether by non-Scottish Government MSPs or by Scottish Government MSPs as alternatives to proposals other MSPs brought forward).
Stage 2 gave us the following successful amendments
Amendment 39 (allowing removal where the ground for possession relates to demolition of, or substantial work on, the property);
Amendment 48 (allowing affidavit evidence in relation to the “Landlord intends to sell property to alleviate financial hardship” ground);
Amendment 71 (requiring Scottish Ministers to take steps to ensure that tenants receive appropriate information, advice and support for the period during the regime is in force) and related Amendment 85 (requiring Ministers to set out those steps in their three-monthly reporting cycle); and finally
Amendment 87 (requiring Scottish Ministers to consult such persons as appear to them to represent the interests of tenants and landlords, and also local authorities in connection with aforementioned reporting, and a need to explain who the views of consultees were taken into account by the Scottish Ministers in a report).
[Yes, a lot of amendments didn’t make it, which can be seen from the numbering of those that did.]
Stage 3 gave us the following amendments:
Amendment 2, relating to rent increases in the social housing sector, such that the Government must set out by mid-January 2023 (as part of the programmed three-month reporting requirements) whether they propose to (a) retain the rent freeze (by keeping the permitted rate at 0%), (b) increase the permitted rate, (c) make regulations for the expiry or suspension of the rent freeze in the social sector.
Amendments 4 and 5 regarding permitted rent increases, requiring rent increase paperwork for PRTs and assured tenancies to include a statement that the rent payable does not increase unless and until the relevant rent officer makes an order determining the rent or, where the order is appealed to the First-tier Tribunal, it makes an order determining the rent. [Incidentally, all the Tories voted against Amendment 4, as did Alex Cole-Hamilton of the Lib Dems, but he did so in error and put that on record. He voted for the (mirror) Amendment 5 though.]
Amendments 7, 11 and 12 (allowing private sector eviction for someone who is no longer an employee) and Amendment 9 (allowing social sector eviction by an islands council as an education authority). Other amendment attempts relating to eviction in the context of mortgage enforcement by a secured creditor and the level of substantial rent arrears were also discussed, but did not make the cut.
Amendments 15-18, relating to the new private sector landlord ground for possession in relation to financial hardship. As explained by Mark Griffin MSP in the Chamber, these provide across the private sector some further examples of what a landlord would need to provide to the relevant tribunal to demonstrate their financial hardship when seeking to evict in order to sell or live in a property, which now goes beyond a simple affidavit from the landlord and can also now include: a letter of advice from an approved money advisor or local authority debt advice service; a letter of advice from an independent financial advisor; and a letter of advice from a chartered accountant.
I have a Case and Comment piece in the new issue of the Juridical Review, the law journal of the Scottish universities, on a recent judicial review action relating to homelessness law.
On 5 July 2022, the Inner House of the Court of Session refused a reclaiming motion (i.e. an appeal) by City of Edinburgh Council, and approved an earlier Outer House decision to the effect that it had not fulfilled the statutory duties it owed to a homeless person (and his family). Here is a PDF of the opinion of Lady Dorrian for those who wish to go straight to the source.
The obligations of local authorities flow from the Housing (Scotland) Act 1987, the home of Scotland’s homelessness regime. In terms of that statute (as amended), there is a duty on all local authorities to investigate the circumstances of someone who applies to them for accommodation or assistance to obtain accommodation where they have reason to believe they are homeless or threatened with homelessness. Further, they must offer temporary accommodation and, if eligible, permanent accommodation to applicants.
In this case of Dafaalla v City of Edinburgh Council the applicant was seemingly eligible for accommodation, but had refused previous offers of permanent accommodation from the relevant local authority and had in fact been removed from temporary accommodation in January 2020. He then applied again at the start of the pandemic in March 2020, noting his medical conditions put him at increased risk of severe illness should he contract coronavirus and making his current arrangement where he and his family resided where they could from night to night untenable. The local authority did not entertain this fresh application, being of the view that its duties under the homelessness legislation were spent. As noted above, and as discussed in more detail in the article, the Outer House and then the Inner House of the Court of Session disagreed, ruling that the local authority remained bound by the statute and as such just because someone had refused accommodation in the past that did not mean they would never be able to get accommodation ever again in the future.
This was the first time the matter of what might be termed repeat applications came before a Scottish court. There has been some English case law though. Whilst there are some differences with the Scottish and English homelessness regimes – a point that led to some discussion in proceedings – the general similarity and shared history of homelessness law in Great Britain means English authorities can often be used in Scotland. The relevant English decisions developed a principle as to when an apparently new (further) application by someone for accommodation could be treated as “no application”. In the circumstances of a local authority receiving such a repeat application, the local authority can only be taken to be complying with its obligations under the homelessness legislation if that further application was based on the same facts as the one that preceded it. Applying that to the case at hand, Lady Dorrian was of the view the local authority here was wrong to not open up inquiries in relation to this particular repeat application.
The case has been welcomed in some quarters. Unsurprisingly, Shelter Scotland were amongst those putting the kettle on and declaring the case very welcome indeed, per this piece by Fiona McPhail in Scottish Legal News. That being said, there are some potential resourcing concerns for local authorities, particularly in relation to the provision of temporary accommodation whilst inquiries are being made. That duty will now unquestionably apply for a repeat applicant unless that person’s application is patently the same application as the one they made previously. Resourcing challenges aside though, there are wider policy and legal pushes towards adopting a sympathetic approach to the generally narrow category of those who genuinely do need to make repeat applications, including a backdrop of human rights instruments such as the right to “an adequate standard of living…including housing” (through the International Covenant on Economic, Social and Cultural Rights, Article 11).
All of this is discussed in the article which is available on Westlaw or in your local law library, with the citation Malcolm M Combe, “An Inquiry into Local Authority Duties to the Homeless: Dafaalla v City of Edinburgh Council” 2022 Jur. Rev. 167. I’m afraid it is subject to an embargo for the next year, at which point an open access version will appear on Strathclyde’s academic repository.
Finally, I’d like to think Peter Robson, Adrian Stalker and David Anderson for their comments on the article. This was my first dalliance with homelessness law for a publication and I am grateful to them all for their time.
I’m not going to offer as much analysis as she does in my own blog post. All I plan to do here is to highlight the differences between the old and the new versions of the “Vision” and the “Principles” of the LRRS, plus a few throwaway remarks. I’m not even going to offer much speculation about what these changes will actually mean in practice. What I will note in passing is that the current rather woolly effect of the LRRS may change if and when a new Land Reform Bill is enacted, all as discussed in my earlier blog post about the current consultation exercise on that proposed legislation. Incidentally, the consultation period for that has been extended, until 30 October 2022.
Vision
The new Vision, with changes emboldened, is as follows:
A Scotland with a strong and dynamic relationship between its land and people, where all land contributes to a modern, sustainable and successful country, supports a just transition to net zero, and where rights and responsibilities in relation to land and its natural capital are fully recognised and fulfilled.
As to these changes, community bodies under the existing Land Reform Acts already have to be geared towards sustainable development before they can acquire land under one of the community rights to acquire and then need to continue to comply with that requirement, so a nudge towards all landowners being sustainable might be seen as consonant with that.
Meanwhile, “just transition to net zero” now gets a nod, as does “natural capital“. Unscientifically, these phrases feel like newer lingo to me, and it is interesting to see these words working their way into the LRRS. What this will actually mean is not something I feel able to comment on in this “shooting from the hip” blog post, save to note that land use and what land users do with natural capital will clearly have an effect on whether Scotland can achieve what it wants to achieve in relation to its net zero goals, and in turn whether it can do so in a way that does not, for example, exclude people who might be particularly affected by changes in land use and land ownership from meaningful involvement in projects.
Principles
The Vision is followed by Principles, which now number seven rather than six. There is a new Principle 5, and there are tweaks to four existing Principles. Again, changes are emboldened.
The overall framework of land rights, responsibilities and public policies should promote, fulfil and respect relevant human rights in relation to land, contribute to public interest and wellbeing, and balance public and private interests. The framework should support sustainable economic development, protect and enhance the environment, support a just transition to net zero, help achieve social justice and build a fairer society for the common good.
[unchanged]
[unchanged]
The holders of land rights should exercise these rights in ways that take account of their responsibilities to meet high standards of land ownership, management and use. Acting as the stewards of Scotland’s land resource for future generations they should contribute to wider public benefit, sustainable growth and a modern, successful country.
Land ownership, management and use should deliver a wide range of social, environmental, economic and cultural benefits.
There should be improved transparency of information about the ownership, use and management of land, and this information should be publicly available, clear and contain relevant detail.
There should be greatermeaningful collaboration and community engagement in decisions about land.
Instant thoughts include: a reference to the common good in Principle 1 will please progressive property theorists; holders of land rights don’t get an automatic pat on the head in Principle 4, they should actually strive to do stuff of wider public benefit; and Principles 6 and 7 are less about changing things up, rather they are declarations of what should be happening.
I’ll leave it at that for now. I’ve a feeling this won’t be the last word on this particular matter though.
The article sets out the reforms to private residential renting contained in the Coronavirus (Recovery and Reform) (Scotland) Act 2022, such that all eviction grounds are now discretionary (i.e. must be considered by the relevant tribunal) rather than mandatory, and rent arrears actions must be preceded by suitable communications. This essentially carries forward the Covid-emergency measures that were introduced in April 2020 and were due to expire at the end of September 2022. These emergency measures, not including the extended notice periods which were allowed to lapse earlier this year, now have no expiry date and instead represent the law of the land.
If you want to read a bit more about the emergency changes themselves, my chapter in an edited collection published by Juta tries to shed some light on them (an open access version of that chapter is available online).
On 4 July 2022, the Scottish Government launched a[nother] consultation about land reform in Scotland. A related news release begins thus:
Scotland has a proud history of land reform going back to the early days of devolution. We are committed to bringing forward a new Land Reform Bill in this parliamentary session. Over the summer, we are undertaking a wide-ranging consultation on our proposals for the measures it should contain.
It might be noted in passing that Scotland dabbled in land reform before the early days of devolution, but let’s let that slide.
What follows here are some eclectic points that occurred to me as I read through the document, generally following the order adopted in the original (i.e. any points I make are not necessarily in order of importance). I skip over some of the proposals a tad – again, this should not be taken as a sign of importance or otherwise, it’s just that I don’t have much to say on such matters at the moment. I don’t intend for this to be the last word on the consultation. It certainly isn’t the first word either. In terms of other sources:
Calum MacLeod of Harper Macleod (a different Calum to the earlier Calum) touched on the consultation in his column for The Scotsman.
No doubt there are other offerings that I’ve missed.
I’ve not blogged in a while (sorry), and I fear this might be one for the land reform purists (sorry not sorry… but seriously, this is comfortably over 5,000 words). As such maybe this is not the best way to burst back onto the blogging scene. Anyway, here goes.
The consultation
After the usual Ministerial Foreword, the consultation begins with a quick scene-set about post-devolution land reform (Part 1) and the developments since the previous Land Reform Act (narrating the important work of the Scottish Land Commission, but also highlighting the combined commitments of the political parties with the MSP representation at Holyrood to make any new law) (Part 2).
The 2021 concordat between the [SNP] Scottish Government and the Scottish Green Party is known as the Bute House Agreement and it is specifically referred to in the consultation. On page 4 it states “The agreement sets out the following commitment”, namely:
The new Land Reform Bill will aim to ensure that the public interest is considered on transfers of particularly large-scale land holdings, and we will aim to introduce a pre-emption in favour of community buy-out where the public interest test applies, and where it is appropriate to do so. Our proposals will complement existing community right to buy mechanisms.
I might be missing something or being dim, but I cannot find that wording in the Bute House Agreement. Where I can find it is another source from earlier this year. On 31 March 2022, Màiri McAllan issued a Ministerial Statement on Interim Principles for Responsible Investment in Natural Capital, under the “Community Empowerment” heading. Unless I’m working from the wrong version, what the Bute House Agreement said about land reform was:
There should be a more diverse pattern of land ownership and tenure and a significantly higher proportion of land should be owned in Scotland by the communities that live and work there, as well as land held for the public good by the public sector… Recognising that devolved competence constrains what we can do, we aim to deliver legal mechanisms to tackle scale and concentration of land ownership in rural and urban Scotland. This will include a public interest test to apply to transfers of particularly large scale land holdings which will include a right of pre-emption in favour of community buy out where the public interest test applies…
I don’t want to get too bogged down in the front matter of the consultation. I did want to flag this though. If I am indeed missing something, please do let me know. Anyway, the nod towards the need for new measures to complement existing community right to buy mechanisms is something that I will come back to later.
The rest of Part 2 of the consultation highlights what land might mean in relation to net zero and just transition, including an assurance that “Actions taken in pursuit of tackling climate change and increasing biodiversity must not have the effect of displacing people from the land.” Otherwise, as things stand (and despite the title of the consultation), net zero does not directly feed into any blackletter land law reform proposals, but (as will be explained) there may be financial consequences for land owners in receipt of public funding who don’t comply with certain land governance standards and as such there may be knock-on effects from that. There is also an explanation that this exercise relates to rural land (with urban land to follow in the forthcoming Community Wealth Building Bill), and an acknowledgement of the human rights and devolved settlement implications for this bill; I will touch on those in this post if and when such implications arise. Finally, after setting out what the bill is likely to do – which I will not bother to do here and instead I will build the tension then only engage with relevant provisions when I get to the appropriate part of this post – there is an explanation of something the next Land Reform Bill will not do: the reform of compulsory purchase orders will also be a feature of that forthcoming Community Wealth Building Bill.
Next, there is an “Overview” of the consultation (Part 3). It begins by explaining that there are specific proposals that are to be consulted on, and then there are “other ideas and proposals” on which views are invited “which may or may not be included in the Bill“. With that level of commitment, I am not sure that all consultees will be moved to expend great energy on that latter category of general matters. In that vein, the focus of this blog post will be on the former (specific) proposals.
The first of the specific proposals have scale and concentration of land ownership in Scotland in mind. The plan is for these proposals to only apply to large-scale landholdings, meaning that – by definition – they would not apply to small-scale landholdings, and there is also a planned carve-out relating to “family farms”. It can be seen that one definition in particular will play a gatekeeper role, so a full Part of the consultation (Part 4) considers the criteria for large-scale landholdings. Then, some proposals this definition interacts with are introduced, namely: “Strengthening the Land Rights and Responsibilities Statement” (Part 5); “Compulsory Land Management Plans” (Part 6); and “Measures to regulate the market in large-scale landholdings” (Part 7). There is a possibility that this could also be relevant to “New conditions on those in receipt of public funding for land based activity” (Part 8) if this is narrowed to relate only to large-scale landholdings, and a further possibility that this could interact with the “Transparency…” provisions of Part 11 about who should be able to acquire such large-scale landholdings and a possible requirement that those seeking to acquire large-scale landholdings in Scotland be registered in an EU member state or in the UK for tax purposes. The centrality of the definition is accordingly plain to see.
Away from what has already been mentioned, the idea of a new land use tenancy for tenant farmers is introduced (Part 9), as is future consultation on small landholdings. Part 12 then asks general questions about “land related reforms”, namely “fiscal and taxation” and “community benefits and natural capital” matters. Of these, only the new land use tenancy will be discussed in this blog post. I stress, this is not because I am not interested in these topics (see e.g. this project where I worked with Annie Tindley and Micky Gibbard, and this post about the legislation review for small landholdings), it’s just a bit vague on small landholdings just now and this post is unwieldy enough already.
Large-scale landholdings
For reasons of space and/or personal laziness, I am not going to get into the merits of the debate about scale and concentration of landownership here. I’ll quietly point you to the work of the Scottish Land Commission on the topic, and signpost that the consultation itself acknowledges possible adverse impacts of scale/concentration.
Suffice it to say, large-scale landholdings in Scotland are being targeted, and in law-making terms that means a suitable definition is needed. The proposed definition has three arms to it. It begins with a fixed threshold of 3,000 hectares, then quickly suggests an exemption for family farms. More on that core criterion and the exemption below. There are then two alternative large-scale landholding qualifying criteria, namely: “Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme”; and finally “Land that accounts for more than a specified minimum proportion of a permanently inhabited island”.
I don’t have too much to say on the two alternatives, although I won’t resist the urge to make two sideswipes. On the data zone criterion, I don’t know about you but I tend to not to have an encyclopaedic knowledge of how this patchwork of 6,000+ areas fits across Scotland. The Accessible Rural Areas and Remote Rural Areas don’t trip off my tongue either. In theory I’m supposed to know a bit about stuff like this, or I like to pretend I do. If this is adopted, helping people to understand what it actually means would be important. (People may have a decent idea which local authority ward they are in from council elections, although knowledge of exact boundaries may be foggy.) On the inhabited island criterion, sure, this would prevent a Gigha-shaped island (Gigha has an area of less than 1,500 ha) from escaping the definition, but to be clear the definition only catches inhabited islands. Any already depopulated islands not comprising a 3,000ha holding remain depopulated and unregulated, and there may even be a perverse incentive to encourage those still living on such a sub-3000ha island to leave. [Disclaimer: I have absolutely no idea how many of such populated but fairly wee islands exist as at today’s date. Further island analysis, interspersed with lovely land reform analysis, can be found in this blog post by Professor John Lovett for the Scottish Land Commission.] Those sideswipes aside, I think it is better to have these additional routes to large-scale landholding status than note, albeit there is no indication of what the fixed percentage for a data zone/ward (or adjacent zones/wards) or minimum chunk of an island will be.
Returning to the main clincher, the exact figure of 3,000ha is not something I am going to offer any opinion on here. In fact, in its discussion paper on concentration of land ownership (at paragraph 7.3.1) the Scottish Land Commission also offered no fixed view, but noted, “It may be reasonable to expect that, for example, holdings over 10,000ha would always be in scope, while those under 1,000ha would always be exempt.”
Magnus Davidson angles for that lower figure of 1000ha in his recent piece, citing greater impact in that regard.
The figure has to be somewhere. The consultation plonks for 3,000ha. It does so with reference to some methodology. That methodology has been criticised by Andy Wightman in his blog post of 22 July (and a semi-related piece in The Sunday Post might also be of interest). Having dodged a discussion of the merits of focussing on scale and concentration I will also dodge a discussion of the methodology, save to note Andy makes some useful points. In that blog post he also raises the crucial issue of how individual parcels of land will be treated – that is to say, one parcel of land that is registered in a holding of slightly less than 3,000ha, then (perhaps just down the road) another parcel of land is owned by the same owner, albeit under a different (registered) title, which would normally be the case if the land was acquired at separate times (i.e. they were divided into separate holdings in the past). This really is important in terms of working out where the legislation bites.
Andy provides an example of someone owning some land in Aberdeenshire and more land in Lanarkshire not being covered by the proposals. That this would not be caught is just about justifiable if the focus is on local control, but what about his hypothetical situation of 100 people or entities each owning 10,000 8ha holdings. That would not, apparently, be caught. Okay, sure, such a specific arrangement maybe seems far-fetched, so here’s a simple, recent example of a real situation where an aggregation would be caught and disaggregated land would not. As reported by the BBC, the Langholm Initiative last year acquired approximately 5,200 acres (2,104ha) of moorland in Dumfries, and this year it secured a further 5,300 acres (2,145ha). The 4,000+ hectare site will only be caught as a large-scale landholding if it is agglomerated.
This needs to be bottomed out. If it is not, it is possible that some situations will (or will be engineered to) escape the definition. I will touch on this again below in the context of the “public interest test”, where it seems adjacent holdings can be measured as if they will be one holding as and when they come into the same ownership. Perhaps I am overstating this issue accordingly.
One other point falls to be quickly discussed: exemptions for family farms. It is more than understandable that some businesses wish to escape further regulation, and I am sympathetic to the particular context here. In fact, I have written about catching family farms in a crossfire on this blog in the context of the reform of the law of succession, when family farms (tenanted or owned outright) and succession law reform collided (in relation to the recurring issue of whether family members should have indefeasible rights to inherit land – in Scots law such indefeasible rights in the estate of a deceased party only relate to the deceased’s moveable property). Malcolm Rudd wrote a detailed article about this for the Juridical Review, as we distilled for a blog post hosted by the University of Aberdeen’s School of Law. The implications of a farm being caught by this particular reform are not quite the same here (management plan imposition does not equate to the shotgunned subdivision of a farm, necessitated to meet a deceased’s children’s respective claims), but the principle of some kind of an exemption could be sound. The definition of it needs to be appropriate though. This is worth watching.
That concludes my analysis of the “what?” in relation to large-scale landholdings. What does it mean though? As noted above, this particularly interacts with any strengthening of the Land Rights and Responsibilities Statement (LRRS), compulsory land management plans, and market regulation for large-scale landholdings. I’ll consider these in turn, giving a brief overview of the LRRS and the plans then a bit more detail on the market regulation side of things.
The Land Rights and Responsibilities Statement
At the beginning of Part 5 of the consultation, we are reminded that the Land Reform (Scotland) Act 2016 put Scottish Ministers under an obligation to produce a statement on land rights and responsibilities, and the LRRS was duly published in 2017. It has a vision, six principles, and no particular legal clout in domestic law. That last point might seem uncharitable and simplistic, but I’m going to be a provocative blackletter lawyer about this for the moment and let that hardnosed statement speak for itself. The LRRS is however supported by advisory notes, case study examples, and a series of good practice protocols developed by the Scottish Land Commission.
The consultation proposes that owners of large-scale landholdings would be placed under a legal duty to comply with the LRRS and its associated codes/protocols. Now that really would be a change that would alert the antennae of Scots private lawyers. Further, it would upgrade the Commission’s protocols to something that was decidedly not envisaged in the 2016 Act. The 2016 Act did introduce statutory codes of practice in relation to tenant farming matters so an analogy could be developed, and this is recognised by the consultation, but make no mistake that such beefed up codes/protocols (that being the slight of hand introduced in the consultation to reflect the upgraded status of the LRRS protocols) would be an innovation in this area.
A statutory process to rule on non-compliance, a procedure for the reporting of potential breaches (by selected bodies), and a Commissioner to investigate and report publicly on their findings are all discussed. Consequences of a breach are also discussed, as are enforcement powers (with financial penalties and “cross-compliance” penalties (i.e. being disbarred from accessing public funds) aired). The consultation is also careful to cover why this is being discussed, which is important as this reform would engage Article 1 of the First Protocol to the ECHR as a control of property. Such a control is permissible in human rights law terms (and in turn devolved law-making terms) when it is in the general interest, so reference is made to expanding the “demonstrable benefits” that have come about through the LRRS protocols and the work of the Good Practice Advisory Group. Next, benefits to Scotland on a number of levels are flagged, with it being noted that the change would (on a national level) contribute to the “Just Transition to net zero” mission and (on a local level) contribute to the Government’s approach to Community Wealth Building, and improve relationships between landowners and communities. Possible economic benefits are also aired.
This would undoubtedly be a change for large-scale landowners, that much is obvious. Can it be justified on any other grounds? Perhaps certain analogies might be drawn with community groups who have used existing land reform legislation already having to comply with ongoing sustainable development and corporate governance requirements, or the obligations crofters find themselves under in relation to much smaller holdings, but I appreciate such analogies can also be characterised as simplistic. The other point is this starts to make real the whole “land rights mean land responsibilities” shtick, which has been pushed at least since the 2016 Act. That marked something of a shift in the culture around land in Scotland, and the law seems to be following in the wake of that.
Compulsory Land Management Plans
The Scottish Government sets out in its consultation the view “that it is a reasonable expectation that any large-scale landholding should prepare and publish a management plan.” The consultation then notes that such a plan will: link to the LRRS (including by demonstrating how land will be used and managed so as to meet requirements for sustainable management, in turn contributing to net zero and nature restoration goals); set out plans for engagement with local communities in line with the Scottish Government’s Guidance on Engaging Communities in Decisions Relating to Land (which ties in with Part 4 of the 2016 Act); offer a chance to increase the transparency of an owner’s objectives and operations; and set out how these connect with local priorities, opportunities, and public policy. It is specifically proposed that plans should integrate with “relevant land use, economic and community development priorities and opportunities, as set out in community plans, regional land use strategies, and national policy”, meaning these plans can’t be a back of an envelope job.
Again, penalties for not playing ball are discussed, and once again cross-compliance penalties are mooted. That said, it might be noted that any consequences appear to be linked to a failure to provide a plan rather than an issue with the quality of (or ultimate implementation of) the plan itself; again there is some resonance with the tenant farming commissioner set-up here, such that financial penalties apply when there is no engagement rather than suboptimal engagement. The consultation also seeks views on how frequently such plans should be published, which I offer no view on here.
Regulating the market in large-scale land transfers: a new Public Interest Test, and a requirement to notify an intention to sell
Property lawyers can get excited about certain core elements of ownership. The right to exclude others from an asset is often characterised as a key, perhaps the key, constituent of the right of ownership, and I’ve written about the right to exclude and Scots law in the past. The right to dispose is another important aspect of ownership: that is to say, the right to transfer or otherwise deal with your asset in a manner and at a time of your choosing. There are some extreme situations where someone’s right to dispose is limited by law, perhaps owing to an insolvency process. Existing land reform measures might also afford a community body first dibs on an asset, such that an owner who decides to sell a land asset is prevented from selling the asset to anyone else when there is a registered community interest in land over the particular area.
Suppose though you simply own a chunk of land and nothing particularly special has happened – it’s not been bought with proceeds of crime, you haven’t gone bust, and no community interest in land has been registered by a local community body. As things stand, you can sell it when you want to and to whoever you want to (subject to the incoming owner having legal capacity to deal with you, which would not be the case if you were dealing with a wean in terms of the Age of Legal Capacity (Scotland) Act 1991, but I digress).
This strong autonomy might be about to change, on two levels. First, the consultation indicates a plan to “take forward the recommendation of the Scottish Land Commission for a Public Interest Test (PIT)”. Second, the consultation explores proposals for the inclusion within land management plans (discussed above) of information about areas of land that landowners would consider transferring or leasing to a community group and information about future ownership intentions, plus a requirement to give prior notice – 30 days’ worth – of intended sales to local community bodies as defined in existing land reform legislation and perhaps other worthy bodies such as registered social landlords (often still called housing associations, and now regulated by the Scottish Housing Regulator). This accords with the even more recent Scottish Land Commission recommendation from its Natural Capital and Land: Recommendations for a Just Transition Advice to Scottish Ministers.
I’ll start with the PIT, which builds on the Scottish Land Commission recommendation that the forthcoming Land Reform Bill should include “a public interest test for significant land acquisition, at the point of transfer, to test whether there is a risk arising from the creation or continuation of a situation in which excessive power acts against the public interest.” For completeness, I’ll quickly acknowledge that in its Recommendations for Action in January 1999 the Land Reform Policy Group suggested that a law should be passed to allow time to assess the public interest when major properties change hands (at paragraph 3.2). Over twenty-three years later we might be on the way to actually having a legislative provision for something like this, even if it is not quite what Lord Sewel’s LRPG had in mind.
The proposed PIT would, as I understand it, be applicable to large-scale landholdings that are being transferred. I am taking this to mean someone selling 3,000ha or more, but then again I’m not sure this interpretation is the only one that can be adopted, and I note in Lovett’s blog post for the Scottish Land Commission he envisages it to apply to sellers who own a total of 3000ha or more then sell off any of that, giving the example of an owner of a 3,002ha holding selling 5ha. It would also apply where a large-scale landholding is to be created, such that someone who already owns neighbouring land acquires new land in a way that brings about a large-scale landholding. Remember my example of Langholm above? Apparently that second acquisition would engage the PIT.
The next thing to consider is who is affected by this test. Conscious of the possible human rights implications of any scheme for existing owners (given that it is those with possessions who can rely on Article 1 of the First Protocol to the ECHR for protection), the Scottish Land Commission targeted prospective buyers of land (i.e. the concern was where a purchase could create or exacerbate a scale/concentration issue if the buyer already held land in the area). The consultation suggests a “dual approach”, such that “the seller would need to demonstrate that they were able to proceed with selling the land. This could potentially be managed as part of the conveyancing process, with information about whether or not the property fell within the scope of the test.”
Confession time: I’m not 100% sure what this means for a seller in practical terms. What if the seller is not able to proceed, for whatever reason? Presumably the seller could withdraw from the sales process, and if so shouldn’t that be that? Presumably there is no chance of the PIT shanghaiing the existing owner into continuing the sales process once it starts, so what consequences would there be? I fully understand that a seller might properly be obliged to make clear when a large-scale landholding is being sold, but beyond that I’m really not sure what is planned.
A test for a buyer, either of a brand new large-scale landholding for them, or where they are creating a new one, is easier to conceptualise. In terms of how it works in practice, not to mention how it might work in relation to transactions of company shares that own large-scale landholdings, a bit more consideration will clearly be needed.
As to the consequences, the consultation highlights these potential outcomes of the test if it were to be conducted on the seller before sale.
The first is that there is insufficient public interest to warrant interference in the sale, and the land in question could be sold as the seller wishes. That’s the easy one.
Next, the consultation imagines that there is sufficiently strong public interest in reducing scale/concentration and as such the sale can only proceed subject to specific conditions (related to the reason(s) that the sale is not in the public interest). Conditions could include: that the land in question be split into lots and could not be sold to (or acquired by) one party as a whole unit; and/or the land, in whole, or in part, should be offered to constituted community bodies in the area, and the sale can only proceed if the bodies consulted, after a period of time, indicate that they do not wish to proceed with the sale.
Without meaning to be too obtuse, any sale by a large-scale landowner will reduce the scale and concentration problems in relation to that landowner. That’s axiomatic. As such, I think care needs to be taken to ensure this proposal does not undermine itself, and the wider benefits of allowing a proliferation of smaller holdings or new players to get involved really will need to be engaged with, studied and catered for when framing the legislation. Further, and perhaps perversely, part of me fears such a scheme could even influence current owners not to sell larger parcels of land at all.
Granted, there is a heck of a lot more to this than my simplification above suggests, and past landowner conduct to engage a local community and indeed to diversify ownership can be taken on board. Maybe these are not the large-scale landowners we need to worry about though.
As for what could happen in relation to a prospective buyer, there is a suggestion that the application of the test could result in an outcome placing specific conditions on the buyer. The example given is a requirement to include in a management plan provisions to restore degraded peatland or to make part of their holding available to local compliant community bodies. Presumably also there could be an outright veto of a specific buyer, but that isn’t mentioned.
Next, there is the prior notification of intention to sell.
This proposal seeks to allow communities to get information about planned transfers of landholdings that are local to them, but it does so in a way that, quite deliberately, does not in any way undermine the pre-emptive community right to buy found in Part 2 of the 2003 Act. The best way for a community to be notified about goings-on in relation to a parcel of land is to register an interest in it. By design, the prior notification plan will never reach the high watermark of the 2003 Act scheme.
The proposal for non-Part 2 registered land is that large-scale landowners be obliged to give notice to suitably constituted community bodies in the surrounding area and/or such other worthy bodies who seek social and/or community benefit in the area that they intend to sell. This would entail a public register of bodies that could benefit from this scheme for a large-scale landowner to check. The consultation suggests that there should be 30 days for the community body or bodies to inform the landowner whether they are interested in proceeding with the sale. Assuming that a community body wished to proceed, it is envisaged that that body should be able to register their interest with Scottish Ministers under a new statutory mechanism, and that there should be a further six month period for the community body and the landowner to negotiate the terms of the purchase and for the community body to secure funding [which is slightly less than the eight months under the Part 2 scheme]. Situations where prior notice is not possible (such as the sudden death of a landowner) are to be catered for.
For my part, I have mixed views on this. I incline to the view that prior publicity of significant land dealings is a good thing, and in previous work on interventions in land markets I was part of a team that considered e.g. measures in Australia to that effect. This is not quite blanket prior publicity though. Rather, it is tipping off people who are organised enough to register their community body at a new register to the effect that they are generally interested in land in their area, yet not specifically interested enough in a particular parcel of land so as to register in relation to that land. I also fear six months is quite a tight turnaround for negotiations and, more importantly, putting together a funding package. On balance, I would prefer for this prior notification to be there than not, it’s just I hae ma doots as to how much impact it will actually have.
New conditions on those in receipt of public funding for land based activity
“Cross-compliance” has been mentioned a few times already, in terms of e.g. the need to comply with the LRRS and produce land management plans to be assured of public funding. The Scottish Government is also exploring whether there might be any additional requirements for land based public funds that could be placed on future awards.
One potential requirement is that the land related to the claim is registered in the Land Register of Scotland. There is an ongoing (optimistic) drive to “complete” the Land Register by 2024, so in that regard any driver towards this is understandable. In this context though, this proposal comes from pretty much nowhere. My own gut reaction is this is unnecessary distraction from existing methods of completing the Land Register, and in any event the team at Registers of Scotland have enough to worry about in terms of applications that have piled up (per this article from the August issue of the Journal of the Law Society of Scotland).
There is also a proposal that all recipients of Scottish Government land-based subsidies be registered and liable to pay tax in the UK or EU. This issue crops up again later in the consultation as well, in Part 11 on Transparency. Over and above all the existing moves towards transparency (including the (Scottish) Register of Persons Holding a Controlled Interest in Land and the (UK) Register of Overseas Entities), there is an indication that the Scottish Government would like those seeking to acquire large-scale landholdings in Scotland to to be registered in an EU member state or in the UK for tax purposes.
It likely won’t have escaped your attention that Scotland is no longer in the EU, so why bother putting EU citizens and/or entities in a privileged position as compared to (say) a Norwegian or a New Zealander? Needless to say, politics are at play, but for what it’s worth I don’t think this arrangement could easily be challenged by a non-EU citizen on e.g. human rights grounds. Also, in this situation, the relatively simple expedient of a Norwegian or Kiwi registering an entity in the UK or EU (or becoming a taxpayer in the EU/UK themselves) would allow for them to own land in Scotland. I don’t want to get too bogged down in all of this, as such I will now move to the one further aspect of the consultation that I think merits a bit of detailed analysis.
Land Use Tenancy
The final thing I consider in this already monster blog post is tenancies, and specifically the introduction of a new form of tenancy.
The law of landlord and tenant is something of a research area for me and I feel like I should get excited about the new “land use tenancy” proposal. As things stand though, I’m a bit easy-osey about it all, save for a couple of key points: conversion of existing tenancies; and whether or not this new vehicle nevertheless offers the chance for a landlord and tenant to come to their own arrangement (i.e. they are non-compulsory).
I should explain briefly what the proposal is. In the view of the Scottish Government, the current system of rural tenancies creates some barriers to “those who want to undertake a combination of agricultural and nonagricultural activity within a tenancy” and that “[t]his can prevent tenants from delivering a range of environmental benefits, and may result in them ending their tenancy early.” In response to this, a “Land Use Tenancy” could allow for multiple eligible land use activities within one tenancy (with the examples of “woodland management, agroforestry, nature maintenance and restoration, peatland restoration, and agriculture”.) Of course, a landlord and tenant might agree a lease in relation to some of these activities anyway, but the plan is to have a legal framework that would set out key terms and conditions of the tenancy for a tenant and their landlord, including in relation to benefit sharing.
This does sound interesting, but as I say, will it be compulsory in some or all circumstances where the scheme is applicable? If not, it will need to be sufficiently attractive for both parties, lest take-up be affected.
Finally, there is a note to the effect that tenant farmers and small landholders would be able to convert an existing tenancy into a Land Use Tenancy, to “allow them to undertake a range of diverse land management activities to deliver national climate and environmental objectives without leaving the landholding”. From the consultation questions, it appears that a landlord would have to agree to this change. This insulates the scheme from a human rights law challenge, but it might prevent some existing tenants from unlocking the benefits of the scheme and as such perhaps incentives for sceptical landlords may need to be considered.
Conclusion
That’s quite a big blog post really – over 6,000 words, which is far too long and much more than I would ever allow for any blog posts I edit as part of my day job. I’ve ignored my own rules though and thought it was best to keep everything together in a single post, rather than split it up into separate posts. As I say, this makes it one for the land reform purists.
This is a whopper of a post and I fear I’ve not said much about human rights. I’ve also not said what the consultation doesn’t cover, which can be as interesting as what it does, although I suppose there is Part 12 on “Other land related reforms” which will allow for consultees to make wider points about other matters, such as fiscal/tax matters, and a final catch all about “any additional ideas or proposals for Land Reform in Scotland”. The eclectic responses to that question will no doubt make interesting reading for the consultation team.
Anyway, you’ve got one month left to respond to the consultation. Hopefully this blog post serves to help people understand what this is all about. If not, I think it at least helped to formulate my own thoughts on it all. I’ve had my fun and that’s all that matters.
Snip from cover of Land Reform in a Net Zero Nation Consultation Paper.
A wee blog [sign]post, simply to direct you to my post on the Strathclyde Law Blog about a recent judicial review case: Gartmore House v Loch Lomond and the Trossachs National Park Authority [2022] CSOH 24. In that litigation, a landowner unsuccessfully challenged the adoption of a new core paths plan (in terms of the Land Reform (Scotland) Act 2003) by one of Scotland’s national park authorities.
That blog post is in turn a digestible (I hope) version of an article I contributed to the SPEL journal.
A few weeks ago, the journalist Kieran Beattie got in touch with me to ask if I would consider contributing to a piece about public access to land in Scotland. Kieran was keen to explore and debunk misconceptions about the law. I did me best to explain what I could and offered some responses. You can now find the resulting article on the Press & Journal’s website.
For information, there were three further questions that Kieran had asked me that landed on the cutting room floor. I don’t have the same word constraints here – ah, the perks of your own blog – so here are my responses to the other questions that were asked (written with a newspaper audience in mind).
And yes, I was chuffed when Kieran used a photo of me in a 19/20 Aberdeen away strip, with a specific caption to that effect. Another perk of publication in the P&J.
You can fish wherever you want
This is a definite “no” in terms of the access legislation. Hunting, shooting and fishing activities are excluded, so if you are fishing at a loch or a river you really should check with the relevant landowner or – in the case of salmon fishings – the person with rights to that. Coastal rock fishing/sea angling might be okay though.
You can go down any river in a boat
There are actually quite a few legal options here for taking access to a river. The first point to note is the right of responsible access applies to inland waters, so you can go for a swim or a paddle. There is an exception for motorised vehicles though, so if you are using an on-board motor you can’t rely on the Land Reform Act. The next possibility is Scottish common law does recognised traditional rights of navigation in many situations. I might not go as far saying “any river” though – if you were to get in the way of a big boat at the mouth of the River Dee, I don’t think the harbour master or the crew of the ship would want to debate the finer points of access law with you.
Right to roam doesn’t count when it comes to protection of wildlife
Protection of wildlife – especially creatures specifically covered by nature conservation rules – will invariably “win” when pitted against the right to roam. To give an example, a few years ago I went for a walk at Forvie and there was signage up relating to ground nesting birds (terns, as I recall), directing walkers away from the usual walk up the side of the Ythan. I changed my route, but at one stage as I looked back towards the beach I actually saw some people in the restricted area. By chance, I finished my amended walk at roughly the same time they did, and I witnessed them getting a dressing down – quite correctly – from a local ranger. If access to a site is regulated by conservation laws, such laws take precedence. Even when access is not specifically regulated, you still need to be responsible around wildlife.
Signage about a wildlife exclusion zone at Forvie, just north of Aberdeen, photographed by me in 2017
This blog has hosted a fair few posts on the right of responsible access, aka the right to roam, that has applied in Scotland since Part 1 of the Land Reform (Scotland) Act 2003 came into force. I won’t revisit how the regime works in this new post in great detail. In summary though, it allows people to access the Scottish outdoors without prior permission or authority in many circumstances, subject to some exceptions based on either the land in question or the means by which access it taken.
A point to remember is that this statutory right of responsible access did not supersede and replace any pre-existing public access to land regime. This allows for the continued existence of, and co-existence with, common law rights relating to coastal access (at the foreshore), the use of navigable rivers, and passage along public rights of way.
It is the co-existence and indeed interrelationship of the right of responsible access with the creation of public rights of way that is the focal point of this blog post. With that in mind, a bit of background about the legal status of public rights of way, and how they come into being, is necessary before launching into that.
Public rights of way operate to link public places by a more or less defined route. Of course, they don’t just spring into existence overnight when someone decides on a new, handy route. In contemporary Scots law, it takes twenty years’ use of a suitable route by members of the public without challenge by the landowner to create a public right of way: a process known as positive prescription that is regulated by the Prescription and Limitation (Scotland) Act 1973.
Naturally, a landowner cannot [successfully] challenge legitimate access under the 2003 Act. It would accordingly be strange, perhaps even counter-intuitive, to allow positive prescription to operate for new rights of way over someone’s land when the right to roam has been deployed by a stravaiging stranger.
The 2003 Act reacted to this through its section 5(5). That provides the following.
The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.
This all seems sensible, but is there a sting in the tail?
How do you make new public rights of way?
Okay, sure, the right to roam might provide access to a place in many circumstances, so you might not need a public right of way, right? Well, yes, but then again the right of responsible access over any particular parcel of land won’t survive that land somehow becoming excluded under section 6 of the 2003 Act, plus the right of responsible access can be suspended by a local authority (or, where relevant, national park authority) in some circumstances. The right to roam is also subject to the “responsible access” framework of the 2003 Act, whereas a public right of way simply allows someone to take passage (subject of course to complying with the wider criminal law and not, for example, interfering with other access takers, plus a requirement to take passage with the minimum disruption that is practically possible). Public rights of way accordingly still matter. Denying the chance for new rights of way to blossom also matters accordingly.
We don’t exactly have a new court case on this provision now, but we do have a precedent of sorts. This relates to an access dispute at Ferry Road, Monifieth, not too far from Dundee.
This dispute first appeared on my radar when it was reported in the local newspaper The Courier. I don’t know Monifieth particularly well; I camped there once, in a previous (much fitter) life as a stopover on a cycle from Aberdeen to Edinburgh, but otherwise I can offer no insights or anecdotes about the place. More importantly, I can offer no view at all on the merits of this particular flashpoint, save that a quick check on Google Maps and Street View shows that the flashpoint is quite near a burn and seems to be a shortcut to an area of open greenery. That is to say, it does appear from that cursory online check to be a tantalisingly attractive path, so I can understand why this might have come to a head.
I really don’t want to get into the rights and wrongs of this situation. I narrated the above for context, nothing more. Suffice it to say though, an access dispute relating to this site landed on the desk of someone at the relevant local authority. Local authorities (and national park authorities) have a statutory role to champion access rights and, if necessary, take enforcement action to allow access rights to continue to be exercised. Steps might need to be taken when land that is not excluded from access under section 6 is nevertheless blocked off, or perfectly responsible access is characterised as not responsible for spurious reasons. Section 14(2) of the 2003 Act allows for enforcement action to be taken when someone has acted or indeed omitted to act in a way that is primarily designed to block legitimate access.
With due acknowledgement of the commendable publicity of all of this, anyone wishing to read more about this can go online. Paperwork pertaining to the issue can be found on Angus Council’s website, with the papers from the Land Reform Sub-committee of 15 February 2022 being particularly relevant.
This is where it gets interesting for my purposes.
There is a Report available on Angus’s website. A passage from this Report of the Vibrant Communities and Sustainable Growth (great name) provides as follows (starting at paragraph 10.2).
An initial assessment of the evidence suggests that a public right of way was unlikely to have existed prior to 1990. The evidence suggests that the volume and nature of public use since 1990 was likely to be consistent with the criteria necessary for establishment of a public right of way. However, exercise of access rights under the Land Reform (Scotland) Act 2003, which came into effect in 2005, do not in themselves count as possession for the purpose of establishing a public right of way. The availability of access rights may therefore have interrupted the necessary prescriptive period and prevented establishment of a public right of way
As access rights are considered to exist, it is not appropriate to investigate the possible public right of way further at this time.
Sensibly they parked the issue of whether there is indeed a public right of way here. As to the legal principle though, I think that is a fair interpretation of section 5(5). And if it is correct, it means a nascent public right of way that began its prescriptive journey in 1986 will never grow into a legally enforceable right of passage, with all the consequences narrated above.* [Edit – see note below.]
This is not an original point by me, I hasten to add. I know Professor Roddy Paisley made this point in a ScotWays guide published in 2006. No doubt others have made the point too. It’s just interesting to see it writ large in this instance.
Does this mean new public rights of way cannot now be created at all? Not quite. It’s only access that flows from the 2003 Act that is not counted in the prescriptive process. Repeated motorised access cannot be attributable to the 2003 Act (owing to this being excepted from access rights under section 9 in most circumstances), so twenty years of intermittent quad-biking might positively prescribe a public right of way. Alternatively, repeated access over excluded land (say cutting across a school site) might also allow for a new right of way. It’s fair to say these would be rare situations though.
A quick aside from a slightly different perspective. My view is using an existing public right of way – i.e. one that was fully established in 2005 – in a manner that seems to overlap with the right of responsible access does not mean that the existing public rights of way will negatively prescribe owing to non-use after twenty years. This is because section 5(5) specifically relates to the constitution of new public rights of way (and indeed servitudes, i.e. a right of use for a neighbour), rather than the extinction of rights by non-use.
So that’s the legal point. For those who have had their interest piqued about what happened next in this particular dispute, you can read about it in a later issue of The Courier (subscription needed), or you can view the relevant meeting on Angus Council’s YouTube channel.
By way of conclusion, okay, I will offer one quick view on what happened in this case. There was some argument about safety at this site, a recurring feature in access disputes (this is being argued over in relation to an access dispute in Ardnamurchan (as reported in The Guardian), and was a point of contention at times in the Drumlean litigation), and there was some discussion about antisocial behaviour. There is no doubt that these can be important factors that weigh against responsible access in some situations. Be that as it may, the council here took what I think was a pragmatic approach, ordering the removal of obstructions to access, but acknowledging that the owner could bring an action under section 28 of the 2003 Act to seek to establish that the land is not subject to access rights after all or that certain access takers are not responsible. I guess we now wait to see what happens next.
Before I go though, here is a final, final thought. I do wonder if there is a certain danger for a landowner arguing that responsible access is not possible for safety reasons, because that would mean such access could not be ascribed to the 2003 Act. As such, could a public right of way then be constituted by that apparently unsafe, not responsible access? That would, I imagine, be difficult to argue in terms of the quality of the prescriptive possession under the 1973 Act, but it might be a prickly wee esto submission.
*Update 4 March – After publication, I was contacted on Twitter by someone who pondered whether post-2005 instances of access chaining on to earlier non-statutory access might not be “in themselves” 2003 Act access, but rather to be considered alongside earlier use. This is an arguable point and one I thought worth capturing for posterity in the blog post. Also, I tweaked this paragraph slightly after publication, to note the Council’s interpretation was fair (mitigating down the earlier draft which might have been seen as complete support for that interpretation).
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“An inquiry into local authority duties to the homeless: Dafaalla v City of Edinburgh Council” – article for the Juridical Review
I have a Case and Comment piece in the new issue of the Juridical Review, the law journal of the Scottish universities, on a recent judicial review action relating to homelessness law.
On 5 July 2022, the Inner House of the Court of Session refused a reclaiming motion (i.e. an appeal) by City of Edinburgh Council, and approved an earlier Outer House decision to the effect that it had not fulfilled the statutory duties it owed to a homeless person (and his family). Here is a PDF of the opinion of Lady Dorrian for those who wish to go straight to the source.
The obligations of local authorities flow from the Housing (Scotland) Act 1987, the home of Scotland’s homelessness regime. In terms of that statute (as amended), there is a duty on all local authorities to investigate the circumstances of someone who applies to them for accommodation or assistance to obtain accommodation where they have reason to believe they are homeless or threatened with homelessness. Further, they must offer temporary accommodation and, if eligible, permanent accommodation to applicants.
In this case of Dafaalla v City of Edinburgh Council the applicant was seemingly eligible for accommodation, but had refused previous offers of permanent accommodation from the relevant local authority and had in fact been removed from temporary accommodation in January 2020. He then applied again at the start of the pandemic in March 2020, noting his medical conditions put him at increased risk of severe illness should he contract coronavirus and making his current arrangement where he and his family resided where they could from night to night untenable. The local authority did not entertain this fresh application, being of the view that its duties under the homelessness legislation were spent. As noted above, and as discussed in more detail in the article, the Outer House and then the Inner House of the Court of Session disagreed, ruling that the local authority remained bound by the statute and as such just because someone had refused accommodation in the past that did not mean they would never be able to get accommodation ever again in the future.
This was the first time the matter of what might be termed repeat applications came before a Scottish court. There has been some English case law though. Whilst there are some differences with the Scottish and English homelessness regimes – a point that led to some discussion in proceedings – the general similarity and shared history of homelessness law in Great Britain means English authorities can often be used in Scotland. The relevant English decisions developed a principle as to when an apparently new (further) application by someone for accommodation could be treated as “no application”. In the circumstances of a local authority receiving such a repeat application, the local authority can only be taken to be complying with its obligations under the homelessness legislation if that further application was based on the same facts as the one that preceded it. Applying that to the case at hand, Lady Dorrian was of the view the local authority here was wrong to not open up inquiries in relation to this particular repeat application.
The case has been welcomed in some quarters. Unsurprisingly, Shelter Scotland were amongst those putting the kettle on and declaring the case very welcome indeed, per this piece by Fiona McPhail in Scottish Legal News. That being said, there are some potential resourcing concerns for local authorities, particularly in relation to the provision of temporary accommodation whilst inquiries are being made. That duty will now unquestionably apply for a repeat applicant unless that person’s application is patently the same application as the one they made previously. Resourcing challenges aside though, there are wider policy and legal pushes towards adopting a sympathetic approach to the generally narrow category of those who genuinely do need to make repeat applications, including a backdrop of human rights instruments such as the right to “an adequate standard of living…including housing” (through the International Covenant on Economic, Social and Cultural Rights, Article 11).
All of this is discussed in the article which is available on Westlaw or in your local law library, with the citation Malcolm M Combe, “An Inquiry into Local Authority Duties to the Homeless: Dafaalla v City of Edinburgh Council” 2022 Jur. Rev. 167. I’m afraid it is subject to an embargo for the next year, at which point an open access version will appear on Strathclyde’s academic repository.
Finally, I’d like to think Peter Robson, Adrian Stalker and David Anderson for their comments on the article. This was my first dalliance with homelessness law for a publication and I am grateful to them all for their time.