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A Response to the Land Reform Policy Group's  'Identifying the Solutions' (Orange Paper) of September 1998

By Graham Boyd (November 1998) The Caledonia Centre for Social Development

Some brief considerations of the following topics:

 

Feudal reform

Law of succession to land

Public access

Law of tenancy

Safeguarding social land ownership

Law of tenement

Better information on land ownership and land use

Law of the land market

Multilateral Agreement on investment (MAI)

Compulsory land purchase

 

Feudal Reform

Reform of feudalism is necessary but the important principle of conditionality inherent in the system must not be abolished. The new land system should not be moved to one based on absolute ownership. All land must be held conditional on the wider public interest. The principles of wider land reform and not simply the technical agenda of conveyancing reform must guide the Scottish Law Commission.

Law of Succession to Land

The laws of succession require to be altered to give spouses and children equal rights to heritable property as they currently enjoy to moveable property. The lack of this right is central to the current concentrated pattern of land ownership.

Public Access

A straightforward unambiguous right to roam on all land subject to no damage and conditional on observing a code of responsible behaviour including respecting the privacy of private dwellings, crops, vulnerable wildlife and fragile historic sites, livestock, etc.

Law of Tenancy

Modernise crofting law by, for example extending the current right to buy common grazings from public land to private land. Extend existing rights of crofting tenants to agricultural tenants particularly the right to buy. Extend tenancy and leasing rights to state forests and abolish the landowner' s right to ownership or a share in the surplus from trees planted and managed by tenants.

Safeguarding Social Land Ownership

There is a need to safeguard the long term interests of social and not-for-private-profit land ownership from being under mind by extreme individualism, opportunism and HM Treasury directives. Land Reform legislation needs to protect the social land ownership sector from laws that empower individuals, legal bodies and State agencies from taking advantage of land and assets that have been purchased through Government funding, charitable donation and public appeal.

Law of Tenement

The Scottish Law Commission’s report on the reform of the law governing tenement owner’s common property duties should be part of the first programme of legislation of a Scots Parliament. It will have the effect of making tenement properties more attractive residences by eliminating the extreme individualism of the present common law in which a small number of owners can thwart a common desire to carry out repairs. This will contribute to the regeneration and vitality of our city and town centres. It will do this at no cost to central and local government.

Better Information on Land Ownership and Land Use

The exclusive focus on Land Registration is not the only answer or even the most appropriate answer to the need for better information. The Land Register is designed to record and protect real property rights. The Register is a self-financing executive agency of government and thus there are no new or additional costs to the taxpayer.

What is required is to have proper (non-legal) cadastral surveys of ownership and occupation available in every local authority office and public library. The information on land owners and their assets held by Local Authorities, the District Valuers Office, Department of Agriculture (IACS), Forest Authority, Crofters Commission, Scottish Natural Heritage, etc should be networked on GIS and computer databases and made available for land ownership and land use research. Grants paid by the Department of Agriculture, Crofters Commission, Forest Authority, Scottish Homes, Historic Scotland and Scottish Natural Heritage should be published in local newspapers in a similar way to those of the Local Enterprise Companies. All Inland Revenue inheritance and other tax breaks to landowners and other beneficiaries should be similarly published in the local papers and in publicly accessible registers.

Social auditing ⁽¹⁾ should be compulsory for all land owners in receipt of public funds.

Law of the Land Market

The Government must develop a system whereby the public interest has the opportunity to intervene in the land market. A notification system of public interest land and areas of special community interest, which could trigger an application for pre-emption within fixed time limits, from interested public and civic organisation is essential. This could secure the public interest in sites for social housing, community facilities, valuable wildlife and historic sites and strategic resources of water, etc.

There is also a need to have a mechanism to regulate the monopolisation of land in a locality by a few landowners. This could be provided by limits to existing holding size, limits to expansion or a land merger regulator. In particular sporting estates are commercial businesses (either family or company) and should be regulated in a similar way that the DTI does with other commercial businesses. Family executry trusts should be stripped of their charitable and tax benefits. This is an abuse of the widely held public view on what constitutes a charitable organisation for tax purposes in Scottish society.

Multilateral Agreement on Investment (MAI)

The MAI is a free-standing international treaty on the protection and liberalisation of international investment. It is being negotiated by the OECD countries. The UK government wishes to sign up to this initiative in April 1999. However the UK government has not attempted to exempt any land use, natural resources or environmental laws. Many countries - especially in Scandinavia - have exempted laws on land ownership and natural resources from the MAI to protect the interests of local communities and the environment. The MAI will be binding on a Scottish Parliament and therefore no agreement should be signed by the UK government until the Scottish Parliament has had the opportunity to consider the range and type of exceptions that it would wish to include.

Compulsory Land Purchase

A simplified and devolved process of Compulsory Land Purchase (CLP) free from call-in or referral to Scottish Office Departments should be developed thereby allowing local authorities, quangos and other devolved arms of government (water and sewage boards) to exercise their powers without Scottish Office interference. The new CLP should be based upon consolidating existing legislation to provide enabling powers for acquisition in the public interest and to satisfy social needs. The decision as to what is in the public interest should be determine through citizens’ juries ⁽²⁾ and not by the civil courts. A jury of ones peers should judge the pros and cons of public interest in the development process not the technicians of the law. A process of arbitration should be introduced before any legal appeal can be commenced. An enhanced Land Court siting in the locality should hear legal cases. The burden of proof requires to be placed more on the owner to demonstrate greater need or use of the land.

System of Rental Taxation

There is a need to reintroduce the principle that land and natural capital (3 types - resources, ecosystem services, aesthetics) should be the basis for a proportion of public revenues. The current use value of land and natural capital (excluding improvements) is the natural source of public revenues. Sporting taxes should be reintroduced and linked to standards of resource management.

Merger, Democratisation and Devolution of Quangos

A Ministry of Natural Resources should be established through the merger of the Forestry Commission, Agriculture Department, Crofters Commission, Red Deer Commission, Scottish Natural Heritage, Crown Estate Commissioners (minus the urban properties). This Ministry should operate in a similar way to the Enterprise Agencies (SEN and HIE) with a core and a network of Local Natural Resources Agencies (NRA). Each local NRA should have all its technical staff located in one building. It should have a devolved budget and be required by legislation to devise through public participation a 5-year rolling development strategy. These local NRAs (or Locality Land Councils) would be accountable to an elected local board. The board members could be elected at the same time as the Local Government elections for councillors while voter eligibility would be based upon the electoral register. The elected Board would operate in accordance with the Nolan principles and standards. All public grants made by local NRA’s should be published in the local newspapers in a similar way to the Local Enterprise Companies. The NRA should have a statutory duty to carry out annual social and financial audits. The financial audit should be carried out by the Accounts Commission for Scotland. All Board meetings should be open to the public and the Board minutes should be in the public domain in both hard and electronic text.

A Programme of Land Law Reform

All the above should be developed into a programme of land law reform that will guide the development of land reform measures throughout the next two to three decades.

Footnotes:

1.    Social Auditing is a process that enables an organisation to assess and demonstrate its social, economic and environmental benefits and limitations. It is a way of measuring the extent to which an organisation lives up to the shared values and objectives it has committed itself to. Social auditing provides an assessment of the impact of an organisation’s non-financial objectives through systematically and regularly monitoring its performance and the views of its stakeholders.

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