Following the publication of the Land Reform (Scotland) Bill today, please find below comment from Alex Buchan and Clive Phillips, who are partners in the land & rural business team at Brodies LLP.
One of the most controversial aspects of the Land Reform (Scotland) Bill is the right for communities to buy land to further sustainable development. In essence this allows prescribed community bodies to buy land from owners or tenants whether or not they wish to sell; it has been variously described as “forced sale” and a “land grab” but is subject to procedural requirements and controls.
Alex Buchan, a partner in the land & rural business team at Brodies LLP, warned that the lack of a clear definition in the Bill of what constitutes “sustainable development” raises the prospect of legal challenge to the enforceability of these provisions.
“It is curious that ‘sustainable development’ is not defined,” said Buchan. “That omission, along with the widely drafted ‘sustainable development conditions’ that will need to be met before a land transfer is authorised, is likely to open the door to a lot of legal argument around interpretation and enforcement of this right. It remains to be seen whether further amendment will refine the provisions as the Bill progresses.”
Clive Phillips, a working farmer and partner in the land & rural business team at Brodies LLP, welcomed the decision to retain Short Limited Duration Tenancies.
“The survival of the Short Limited Duration Tenancy in the agricultural holdings part of the Land Reform (Scotland) Bill will be welcomed by commercial agriculture because we need flexible, farmer-to-farmer lets of this kind,” he said. “Recent CAP reform will undoubtedly lead to an increase in farmer-to-farmer letting as businesses restructure, requiring short term flexibility.”
He added: “The extension of the right to buy through forced sale in the case of landlord breach will be seen as going too far by many, and not far enough by others. In some ways reform is needed but in others respects this Bill adds another layer of regulation, and yet another form of tenancy into an already heavily regulated and complex sector. Whether this will encourage or discourage new lettings remains to be seen.”