3. Key Considerations: Remit; Scope; and Approach of the Guidance
Section 44(2) of the Act states that in preparing the Guidance, the Scottish Ministers must have regard to the desirability of:
a) Promoting respect for and observance of human rights.
b) Promoting respect for relevant internationally accepted principles and standards in relation to land.
c) Encouraging equal opportunities.
d) Furthering the reduction of inequalities of outcome due to socio-economic disadvantage.
e) Furthering the achievement of sustainable development in relation to land.
Question 1: Does the draft Guidance respond appropriately to the considerations of Section 44(2) of the Act? Please explain your answer.
3.1 28 (65%) respondents answered the closed aspect of this question; 34 (79%) answered the open aspect. Of the 28, 20 agreed that the draft Guidance responds appropriately to the considerations of Section 44(2) of the Act; eight respondents disagreed. Table 3.1 below summarises views by category of respondent.
3.2 Almost all of the private sector and professional bodies and community organisations and their representative bodies were in agreement that the draft Guidance reflects Section 44(2) considerations. In contrast, two of the three NDPBs who responded disagreed.
3.3 Amongst those who considered that the draft Guidance responds to Section 44(2) of the Act, mention was made specifically of the Guidance encouraging equal opportunities; sustainable development achievement; and reduction of inequalities.
3.4 Amongst those who viewed the draft Guidance as not responding to Section 44(2) of the Act, specific mention was made of lack of due consideration of human rights; tackling inequality; and achievement of sustainable development.
Table 3.1 Views on whether the draft Guidance responds appropriately to the considerations of Section 44(2) of the Act
|Category||Agree||Disagree||No. of respondents providing a view|
|Private Sector and Professional Bodies||5||0||5|
|Community Organisations and their Representative Bodies||6||1||7|
Views on how the draft Guidance can respond further to Section 44(2) of the Act
3.5 Four respondents considered that the Guidance, as currently drafted, was too brief and/or “light touch” to be effective. One community organisation suggested that statutory underpinning would strengthen the Guidance.
3.6 A recurring theme (seven mentions), particularly amongst NDPBs, was for the Guidance to be more explicit on how it has taken Section 44(2) into account, and what its provisions mean in practice:
“While we recognise the high-level nature of the guidance there would be benefit in extrapolating on some of these considerations. In light of this you may wish to consider more specifically addressing the key considerations listed in Section 44(2) of the Land Reform (Scotland) Act 2016. This could be done by listing these considerations in Chapter 2 of the guidance and more explicitly defining how these have been taken into account through showing connections and links between these considerations and how the guidance gives due regard to them” (Historic Environment Scotland).
3.7 Several respondents, from across a range of sectors, considered that the Guidance would benefit from additional detail in places. For example, two community organisations and one NNGO recommended an additional section be inserted, perhaps entitled, “Best practice basic principles and considerations”, in which explicit reference is made to Section 44(2), and which poses questions for land owners and managers to help them to identify whether they are reflecting Section 44(2) in their engagement with communities. This was seen as a potentially useful discipline, particularly in relation to larger and more formal engagement, and if linked to the Scottish Land Rights and Responsibilities Statement.
3.8 One NNGO suggested that the guidance should promote taking a human rights-based approach to participation, using the PANEL  principles to help to show what this means in practice.
3.9 A few private sector and professional bodies considered that case studies and/or examples of engagement which reflect Section 44(2) would be helpful in the Guidance. One NNGO envisaged the inclusion of practical examples of how engagement could facilitate the participation of those in poverty.
3.10 A few respondents emphasised that the Guidance should make clear that communities have the right to request that engagement takes place. One NNGO called for stronger messages about the positive impact on inequality of communities being engaged in decisions on places and services.
3.11 One community organisation and one NNGO shared the view that “sustainable development” requires a formal definition. One professional body requested definition of “community”, remarking that different forms of community will require different forms and levels of engagement.
3.12 One NNGO suggested that the Guidance will need to be supported by a wider framework of policy action in order to be effective, such as community land ownership grant programmes, and community capacity-building initiatives.
3.13 An individual considered that more directed support and associated training will be required for land owners, managers and the communities they engage with, in order to enhance the effectiveness of the Guidance.
3.14 A private sector respondent suggested that the Guidance should make it clearer from the start that it is voluntary; it applies to urban as well as rural land; failure to comply with the Guidance could be taken into account in connection with community right to buy applications; and if the land owner is undergoing statutory consultation, there may be no need to carry out additional engagement under the terms of the Guidance.
It is proposed that the Guidance should apply to all land in Scotland, including buildings and structures on the land, and watercourses. The Guidance is relevant to all land owners and managers taking decisions which could impact on a local community, including private, public or third sector organisations, or individuals. The Guidance should be considered in relation to decisions to land which could impact on a local community and its economic, environmental, social or cultural opportunities. The Guidance will apply when a decision is to be made on land use or land management, where this has the potential to significantly impact on a local community. This includes situations where the decision being taken is to continue with existing practices in relation to land, as this continuation may also have the potential to significantly impact on a local community.
It is not intended that all decisions relating to land will require engagement. The draft Guidance advocates a proportionate and reasonable approach, meaning that engagement will not be required for many decisions with very little or no impact on a community.
Question 2: Do you agree with our proposed scope for the Guidance? Please explain your answer.
3.15 27 (63%) respondents answered the closed aspect of this question; 32 (74%) answered the open aspect. Of the 27, 18 stated that they agreed with the proposed scope for the Guidance; nine respondents disagreed. Table 3.2 summarises views by category of respondent.
Table 3.2 Views on the proposed scope for the Guidance
|Category||Agree||Disagree||No. of respondents providing a view|
|Private Sector and Professional Bodies||4||1||5|
|Community Organisations and their Representative Bodies||4||3||7|
3.16 The proposed scope for the Guidance, set out in paragraphs 16 – 22 of the draft, was welcomed as being “admirably wide” (Scotland’s Regeneration Forum); striking a good balance between the rights and responsibilities of communities and owners/managers (community organisation); and not overly prescriptive ( NDPB), although this latter respondent suggested that some illustrations of what might constitute a proportionate demonstration of community engagement would help to clarify the expectation of when engagement should be carried out.
3.17 The principle of proportionality was identified as helpful by nine respondents, including five NNGOs.
3.18 A few respondents suggested that a framework of training and support should be developed in conjunction with the Guidance, so that engagement becomes “natural” and not prescribed (Academic); public bodies and other individuals/organisations can provide timely advice (Individual); and use can be made of bodies such as the Local Environmental Quality Networks ( NNGO).
3.19 Specific mention was made of needing to put in place support to help parties deal with tensions which may arise during engagement, in order to avoid leaving negative impacts should there be diverging views, as suggested in paragraph 20 of the Guidance.
3.20 In contrast, two respondents, one a professional body, the other a community organisation, clearly considered the scope of the draft Guidance to be overly broad and lack the specificity required for effective use. It was suggested that without more prescription, the Guidance could be open to misuse and/or raise community expectations which land owners and managers cannot meet.
Views on where greater clarity is required
3.21 Many respondents requested further clarity around terms and concepts used in the draft Guidance. These are summarised in Table 3.3 below.
Table 3.3 Summary of terms and concepts where greater clarification was requested
|Term or concept to be clarified||Comments|
|Communities||11 respondents from a range of sectors requested clarity. A recurring view was that the draft Guidance placed too much emphasis on communities of geography and not enough on communities of interest. A few agreed that local communities were the primary focus, but interest communities should also be acknowledged.|
|Communities initiating engagement||Four respondents from different sectors considered that the Guidance should make it clearer that communities can be proactive in initiating engagement.|
|Community engagement and “Community Plan”||Three respondents from two sectors emphasised what they perceived to be the need to distinguish in the Guidance between consulting with the community (e.g. regarding an estate plan), and developing a “community plan”.|
|Involvement of all land owners||Three respondents from two different sectors suggested the Guidance should state clearly that it covers all land owners and managers, and not just private land owners.|
|Involvement of owners and managers of buildings||Two respondents from different sectors suggested the Guidance should be more explicit in stating that its scope covers buildings in addition to land.|
|Involvement of urban areas||Two respondents from different sectors considered that clarity is required on how the Guidance applies in urban areas.|
|Involvement of long-term lease holders||One professional body suggested that some commercial occupational lease holders should be considered for inclusion within the scope of the Guidance, where the lease is long-standing.|
|Short-term and long-term decision-making||One NDPB considered that the Guidance should make more distinction between the concept of decisions relating to short-term disruption which may require informal engagement, and decisions relating to longer-term change, where formal engagement may be more appropriate.|
Views on terms requiring definition
3.22 Two terms were identified by respondents as requiring definition:
- Paragraph 17: “The Guidance will apply when a decision is to be made on land use or land management, where this has the potential to significantly impact on a local community.” Definition was requested on “significantly impact” by four respondents across different sectors.
- Engagement. The James Hutton Institute suggested that there would be merit in clarifying what is meant by “engagement”, in view of the various typologies of engagement existing relating to both formal and informal approaches.
Views on potential additions to the draft Guidance
3.23 Three potential additions were suggested:
- Mention of the role of local authorities, who may have a key relationship with land owners, managers or developers.
- Reference to accountability issues, and in particular some form of complaints and redress mechanism.
- Mention of links to broader planning frameworks and policy.
Specific comments relating to individual paragraphs
3.24 A few community organisations and a NNGO considered there to be undue focus on “constraints”, without acknowledging that personal preferences also play a part in decision-making.
3.25 One NNGO suggested that the paragraph should emphasise that, by engaging with communities, land owners and managers will benefit from having a better understanding of community perspectives.
3.26 Four respondents across different sectors called for engagement to be advocated not just when decisions are made, but also at the stage of developing strategy which underpins those decisions.
3.27 Four respondents, three of them NNGOs, cautioned that requiring engagement over existing practices and prior decision-making would, in their view, be overly onerous and perhaps at odds with paragraph 18 which states that engagement will not be required for decisions with very little or no impact on a community.
3.28 One NNGO suggested that the wording of a sentence in paragraph 17 is ambiguous: “The Guidance is relevant to all land owners and managers taking decisions which could impact on a local community, including private, public or third sector organisations, or individuals.” They expressed confusion over whether the definition of all land owners and managers includes private, public or third sector organisations or individuals, or, whether the wording relates to the definition of “local community” in which case this would infer a much wider scope of engagement.
3.29 One NNGO suggested that this paragraph should make clear that the Guidance sets out a minimum standard of engagement.
3.30 Two NNGOs considered that the Guidance should set out clear expectations relating to community engagement for communities, land owners and managers.
Relationship with existing statutory requirements to consult
Community consultation can be a statutory requirement, for example, under town and country planning legislation, environmental regulations and forestry licensing. The Guidance does not require separate engagement to be carried out in addition to these statutory requirements. However, it may help inform how statutory consultations are conducted, and land owners and managers may wish to consider the benefits of supplementary engagement in relation to any decisions which are not subject to statutory engagement.
Question 3: Do you agree with our approach to the relationship with existing statutory requirements? Please explain your answer.
3.31 25 (58%) respondents, representing all sectors, answered the closed aspect of this question; 27 (63%) answered the open aspect. Of the 25, all but one individual respondent agreed with the approach taken to the relationships with existing statutory requirements. The reason for disagreeing was given as the omission of reference to the access rights enshrined in the Land Reform (Scotland) Act 2016.
Views in support of the approach taken
3.32 Some respondents were explicit in why they supported the approach taken. The key reasons given were:
- It is appropriate to link engaging communities in decisions relating to land, with statutory consultation, and make it clear that the former is not intended to replace or replicate the latter.
- Supplementary engagement could add value to statutory consultation.
- Avoids duplication of effort.
- Good to mention the benefits of supplementary engagement.
- Avoids deterring owners from carrying out property developments.
- The Guidance has no statutory basis, therefore a pragmatic approach to supplementary engagement is appropriate.
Views on where further clarification is required
3.33 Five respondents from four different sectors called for further detail and clarity on the circumstances in which statutory consultation is required. One local authority described how there may be debate and confusion on this particularly at the “statutory margins” such as the procedures around Agricultural Notification, Prior Approval and Permitted Development.
3.34 Four respondents across different sectors requested further clarification on what is meant by “supplementary engagement”.
3.35 The James Hutton Institute and one individual respondent remarked on what they considered to be the interchangeable use of “consultation” and “engagement” in this section of the Guidance, and suggested that this required further distinction.
3.36 One community organisation cautioned that the way in which the approach is communicated is important in avoiding devaluing non-statutory engagement.
Relationship with the National Standards for Community Engagement 
The National Standards for Community Engagement are good-practice principles designed to support and inform the process of community engagement, and improve what happens as a result. They provide detailed performance statements that everyone involved can use to achieve the highest quality results and the greatest impact. They are designed to help the public, private and community sectors to involve and work with communities in planning services and developments.
The Scottish Government considers that the National Standards for Community Engagement should inform the Guidance on engaging communities in relation to land. The best-practice principles set out in the National Standards can be used in a proportionate way for both formal and information engagement.
Question 4: Do you agree with our approach to using the National Standards for Community Engagement to inform the Guidance? Please comment if you have ideas on how we could better integrate these Standards.
3.37 27 (63%) respondents, representing all sectors, answered the closed aspect of this question, with all agreeing with the proposed approach to using the National Standards for Community Engagement to inform the Guidance. 28 (65%) answered the open aspect.
3.38 Recurring comments were that that this approach was logical, appropriate, would promote consistency in practice, and that the Standards were only recently updated and user-friendly. A few respondents considered that the Standards would provide a benchmark against which to assess the degree to which appropriate engagement is being undertaken, with the need for a process to record dissatisfaction, should this result.
3.39 A common view across a range of sectors was for the National Standards for Community Engagement to become integral to the Guidance, perhaps replacing some aspects of draft Sections 3 and 5.
3.40 Three respondents, two of them NNGOs and the other a private company, emphasised the need for the Standards to be communicated in a way which could be readily understood by all parties, with the perception that at present they are in “public sector” language and may need re-wording.
3.41 Three respondents, across different sectors, suggested that the Standards should be proofed for suitability in remote rural areas, where there may be additional challenges in achieving aspects of them.
3.42 A few respondents identified further texts which they considered could inform the Guidance:
- McKee, A. and Roberts, D. 2016. ‘Good practice in overcoming barriers to community land-based activities’. Report for the Scottish Government, June 2016. Published online: http://www.gov.scot/Publications/2016/07/7298
- Good Practice Guide to Public Engagement in Development Schemes. Planning Aid Scotland. http://www.rtpi.org.uk/media/6312/Good-Practice-Guide-to-Public-Engagement-in-Development-Scheme-High-Res.pdf
- United Nations Guiding Principles on Business and Human Rights.