Guidance on Engaging Communities in Decisions Relating to Land

We support the aims, as laid out in Section 44(2) of the Act. However, in order to adequately provide support to Section 44(2) of the Act, the Guidance must provide sufficient clarity on when supplementary consultation is necessary, how to sufficiently consult a community, where the line lies between actions that require informal and formal engagement but that are outwith existing statutory requirements, how consultation is to be monitored, especially if failure to abide to the Guidance may be used in making a case for the involuntary transfer of land in a right to buy case.

The Guidance must ensure that consultation beyond what is already required in statute does not become overly burdensome. The Guidance must not inhibit those working to enhance and protect our natural heritage by increasing pressures on their time and resource, particularly charities.

The current review of the planning system is an opportunity to explore how community engagement could be a factor in planning decisions.

The draft Guidance states that “Land owners and land managers should look to carry out community engagement when a decision has the potential to significantly impact on the local community” but also that “regular communication and engagement can still provide benefits to both the community and the land owner, even when no significant decisions are being taken”.

We agree that there is a benefit to a productive and reliable communication with communities. However, due to the very broad scope of consultation the draft Guidance is calling for, communities and land owners and managers could perceive it to be overly time-consuming and confusing, and simply not engage.

The applicability and effectiveness of the Guidance should be improved by removing private householders from the scope of the Guidance.

A common criticism of the planning system is that it does not allow for local voices to be heard.
The Guidance could provide a helpful and substantive contribution to national planning. As the Planning Bill is currently being developed during this parliamentary term, if it was more explicitly linked with that legislation, it could be used as a helpful tool for planning consultation and to improve engagement in decision-making. Engagement or non-engagement might then be a consideration in subsequent planning decisions.

Yes. In assessing the impact of the Guidance, it would be useful to undertake research on impact in areas where engagement has taken place, and where it has not.

We support the Scottish Government’s aims to engage local communities in a more meaningful and collaborative way on decisions made on land that directly affect them. We also support the Guidance in its role in achieving their National Outcomes as they relate to the sustainable use of land, and conserving our natural heritage.

If the Guidance is to be used, as Section 1 states “as part of the evidence provided by a community body to support an application for the right to buy land to further sustainable development,” the Guidance should explicitly define certain aspects of the Guidance, such as when to consult, who to consult, how consultation is to be recorded, what is “significant impact” etc. in order not to create confusion and concern on how a largely informal mechanism of engagement is to potentially be used.

Yes, we agree that communities should be involved in decision-making that affects them. We strongly support the principle of community engagement, and as a community organisation working across Scotland, we endeavour to engage with communities and stakeholders of all kinds.

We agree that community consultation should be proportionate, collaborative and on-going. As previously stated, proportionality is key, particularly for charities. We would not wish for the Guidance to put undue pressure on our operations capacity when we are already complying with statutory requirements and actively engaging communities.

The draft Guidance also states that “Land owners and land managers should choose the means of engagement most appropriate to them and the decision being taken.” The Guidance must therefore state explicitly what “appropriate” engagement is in a given situation so as to ensure there is not an increased likelihood of discontentment or confusion on either side following the consultation.

Consideration should also be given to the capacity of community groups to respond to consultations.

It is stated that “Some decisions on land involve a statutory requirement for community engagement, for example, under planning or forestry regulations. If there is a statutory requirement to engage, then this must be complied with. There is no expectation that additional engagement should take place under this guidance.” We agree that there must be no duplication of effort when a land owner or manager is already abiding by the law in terms of engagement so as to not add unnecessary burden.

We agree that any action a land owner or manager plan that has the potential to significantly impact on the local community should be consulted on with the community. Though, if supplementary consultation is required beyond what is a statutory requirement, it must be explicitly stated when, how and with whom this would be done.

The Guidance states that if there is no statutory requirement to consult, though a decision will significantly impact the community “Land owners and land managers should carry out engagement in a proportionate manner, choosing the form or forms of engagement most suited to the context and available resources, and following the best practice principles for fair engagement.” This is a helpful grounding; however it would be beneficial to provide clarity around what type of engagement should be carried out in this circumstance, how to engage if the land manager or owner is has limited resources, and how engagement should be recorded if it is largely informal.

It would be useful to have a clearer definition of what determines whether engagement should be formal or informal as some actions may fall in aspects of both and it is unclear what actions would require formal consultation that would not be covered by existing statutory requirements. Another area that needs to be clarified is how results of engagement should be recorded.

Yes, though it is worth considering whether local community councils have the capacity to engage meaningfully with what could potentially be a high number of consultation correspondence from land owners and managers. Presumably if councils are considered as the main representative of the community, they will be tasked with disseminating the information received and could be held responsible if a member of the community was unhappy with their methods of engagement.

We would like some clarity on when supplementary consultation is necessary, and particularly when it is needed beyond what is already covered in the law. The Guidance currently suggests that engagement should be almost constant (“regular communication and engagement can still provide benefits … even when no significant decisions are being taken”), and while good and reliable communication is vital to positive working relationships, this would put significant pressure on charities as well as communities, and could be disproportionate to what is effective.

No, not at present. As the draft Guidance states that abiding to its principles may play a role in determining a right to buy land case, much more clarity is required around when and how land owners and managers should be engaging with communities, and how this engagement should be recorded as well as the acceptable means of consultation in particular situations.
We would also agree that the Guidance should not be overly prescriptive, though it is important that land owners, managers and the community know clearly when and how they should be engaging or engaged with.

Community engagement necessary: Mar Lodge Estate:

At the Trust’s Mar Lodge Estate, which extends over 29,000 hectares, we engage regularly with the community as the estate has a significant economic and social impact on the local community and, has the potential to deliver even greater benefits for the Braemar area. There is an obvious mutual dependency. Open, honest engagement provides a host of opportunities for Mar Lodge Estate to consult interested parties about its ambitions and plans, as well as to update the community on progress and any initiatives being undertaken, such as in woodland restoration.

Actions we currently undertake to better engage with the community include meeting with the Braemar Community Council and neighbouring estates, publicised open days to encourage the involvement of the community and volunteering in estate management, regular newsletters providing updates on the work of the estate and contributions to the local community newsletter, the Braemar Buzzard.

Community engagement necessary: St Kilda:

The archipelago of St Kilda, the remotest part of the British Isles, lies 41 miles (66 kilometres) west of Benbecula in Scotland's Outer Hebrides and its exceptional cliffs and sea stacks form the most important seabird breeding station in north-west Europe as well as being of huge cultural importance to Scotland. Due to this, the Trust implements a policy of minimal intervention which can take the form of recording, consolidation and at times repair of the relict structures. Little if any management of the natural heritage is undertaken, natural processes normally being allowed to take their course without intervention, unless they threaten an element considered to be of greater heritage significance.

The Trust cares for St Kilda, however it is not the only organisation with an interest in how the islands are managed. As a dual World Heritage Site; as an integral part of the Western Isles, its culture, identity and economy; and as the site of a unique test and evaluation facility for the Ministry of Defence, collaborative working and engagement is crucial to its on going conservation. Though there is no immediately resident community, we produce a five-year plan after consultation with interested parties, including communities of place and communities of interest.

We strongly support the principle of community engagement, and as a community organisation working across Scotland, we endeavour to engage with communities and stakeholders of all kinds.

The community engagement element of the Land Reform Act 2016 has promise, but to realise its full potential we consider that a number of developments are needed:

• Scope – the Guidance should be targeted as the most significant property owners, defined by scale and type of activity, rather than all property owners in Scotland. At the very least individual homeowners should be excluded, as they are under the Land Reform Act 2016 right to buy provision.
• Robustness – the Guidance makes it clear that there is a link between failure to engage with communities and the application of the Land Reform Act 2016 community right to buy. To withstand legal challenge on this point, the Guidance will therefore need to be explicit as to who should consult, on what issues and in what manner.

• Impact – with an explicit link to the new right to buy, property owners and managers can be expected to undertake new engagement programmes, if they are not already doing so. There will therefore be an additional administrative burden. To ensure this is proportionate to the Scottish Parliament’s ambitions for the Act, the Guidance should be very clear as to when and how property owners and managers should consult.

Scope
When the Scottish Government first consulted on a possible Land Reform Bill, community engagement was envisaged as a duty for charitable trustees only. This has now been sensibly broadened to cover public and private landowners too, who are the majority of owners in Scotland.
However, by making the scope too broad there is the risk that the Guidance is ignored or applied only patchily. The right to buy provision in the Land Reform Act 2016 excludes individuals’ homes and it would make sense to at least exclude private householders from the Guidance.
Public sector organisations with property and land holdings could be used as test cases for engagement, helping determine when it is appropriate to engage with communities and in what form.

Robustness
The consultation document states that:
“There is a link between the powers under Part 5 and the Guidance on engaging communities on decisions relating to land…if a land owner has not shown regard to the Guidance, Scottish Ministers could consider this as part of the evidence provided by a community body to support an application for the right to buy land to further sustainable development. This would be the case for any land owner.”

By linking community engagement and the right to buy in this way, the Guidance will need to be able to withstand potential legal challenge, if Scottish Ministers are to rely on this in their decision-making. That is, the Guidance will need to be explicit as to who should consult, on what issues, and in what way, in order to meet this legal test. The Guidance will also need to state how the actions and results of such community engagement exercises should be recorded and stored.
As before, private householders are excluded from the relevant right to buy, and the Guidance should make this clear.

Impact
The consultation document states that:

“The Guidance on engaging communities on decisions relating to land is advisory, and will not directly impose new regulatory burdens on businesses, charities or the voluntary sector.”

However, by linking the Guidance with the right to buy, property owners and managers will need to assure themselves that they have undertaken all appropriate efforts to engage. This does therefore create a new regulatory burden. To keep the burden to an appropriate level, the Guidance should therefore be explicit on:
- When to consult
- How to consult
- Recording of engagement efforts and results
- What the definition is of “significant impact” on communities
- What the definition is of “meaningful impact” on decision-making by communities