Maria, Struan and Charles were law student scholars, participating in the WS Society Summer Scholarship programme during July 2025. This article summarises their research and presentation.
Introduction
Land reform has been a legislative priority since devolution and has seen several landmark pieces of legislation passed including:
Abolition of Feudal Tenure (Scotland) Act 2000
Community Empowerment (Scotland) Act 2015
Land Reform (Scotland) Act 2003
Land Reform (Scotland) Act 2016
The latest in this series is the new Land Reform (Scotland) Bill which was introduced in March 2024. Part 1 of the Bill seeks to improve transparency in the management of land, strengthen existing community rights to buy, and provide for the breaking up of land prior to sale and is based on the recommendations of the Scottish Land Commission which concluded that: “In some parts of Scotland concentrated landownership appears to be causing significant and long-term damage to the communities affected”. - Scottish Land Commission (2019)
This feature aims to explain and analyse Part 1 of the Land Reform (Scotland) Bill, in particular the proposed systems for Land Management Plans, the community right to buy and lotting.
Land Management Plans
Section 1 of the Bill requires “that there is a publicly available land management plan in relation to the land”. This applies to all landholdings exceeding 1,000 hectares (2,471 acres) in area. Land management plans (LMPs) can be compared published corporate objectives or mission statements, setting out future goals and policy. The Scottish Government hopes that it will enable stronger links between the day-to-day management activities of land and the long-term strategic objectives for a landholding, thus making passive landownership difficult. LMPs, however, are not entirely new. The forestry sector in Scotland has been burdened with a similar system for some time, as they are required to have an ‘issues log’, which has comparative elements to an LMP. The ‘issues log’ publishes concerns raised by stakeholders and how those engaged in forestry work will address them. Although there are similarities to this system, the Bill represents a significant expansion of the obligation.
Community Engagement Regulations will set out the information to be included in a land management plan. It must include information on four key points:
Details of how the ownership of the land is structured.
The long-term objectives for managing the land, including any potential sale.
Details of how the owner complies with the obligations in the Community Engagement Regulations, the Scottish Outdoor Access Code and the Code of Practice on Deer Management.
Details of how the owner manages the land in a way that contributes towards achieving the Scottish Government’s net-zero emissions target, adapting to climate change and increasing or sustaining biodiversity.
There is significant support for LMPs, with 77% of those involved in the public consultation agreeing that there should be a duty on landholders to demonstrate their plans for land management. These plans could help shape a future vision of Scottish land use that prioritises the environment, transparency, and local communities. At their best, LMPs will provide a clear format for affected landholders to demonstrate their compliance. They may also assist long-term decision-making by landholders and encourage more consideration about the use of the land. Moreover, they may improve access to information about land for local communities, investors and developers.
Landholders will have five years to produce an updated version starting from the date the first land management plan was made available.
LMPs and their impact remain unclear, with important questions remaining unanswered. For example, as mentioned, section 1 requires that landholders illustrate how they will adapt to climate change and sustain biodiversity on their land. The extent of a landholder’s obligations under these provisions is unclear. For example, would there be a statutory obligation on affected landholders to incorporate climate change measures? Moreover, breaches may result in fines of up to £40,000, and it is unclear how much information and to what depth will be required. We may only know the answer to these questions when the decision is taken to issue a fine for the first time. There have also been concerns raised that an owner may be required to disclose potentially confidential or commercially sensitive information, especially regarding the potential sale of the land.
Community Right to Buy
The Bill introduces significant changes for future landownership in Scotland. Such changes will expand the existing community right to buy provisions and introduce new requirements on large landholders for the benefit of communities. The Bill goes a step further to define the area to which the new provisions will apply. It provides that the land subject to the provisions will be a single or composite holding exceeding 1,000 hectares in area. These provisions apply to landholders wishing to sell or transfer all or part of their land. The Bill also makes no distinction between arable and non-arable land, meaning all large landholdings, regardless of their use, will be subject to the new requirements.
Pre-notification, Prohibition and the New Procedure
The new pre-notification requirements in the Bill add to the existing community right to buy provisions in Part 2 of the 2003 Act and Part 5 of the 2016 Act. It will impose further obligations on large landholders, including a requirement to give notice to the Scottish Ministers when they intend to transfer their land, and they will be prohibited from acting on this intention until the prohibition is lifted. Notification to the Scottish Ministers is required regardless of whether a previous community right to buy interest has been registered, providing a late registration procedure for communities.
The new prohibition will mean that large landholders caught by the pre-notification requirements must follow the proper procedure, which prevents them from transacting. Once Ministers receive the landholder’s notice regarding their intention to sell or transfer their land, they will publicise this information for communities to exercise their rights accordingly. Alongside this, the Ministers must also provide details on how community bodies can then register their interests to purchase the land. Once this is completed, Ministers must also send a notice of the possible sale or transfer to a prescribed list of people and organisations who have pre-stated their interest in the land in question.
During this period, a 30-day prohibition will be imposed from the start of the landholder’s notification to the Ministers. Within this time, community bodies will need to send the Ministers a note of interest for the large landholding. If none are received and there is no pre-registered right when the 30 days lapse, the landholder is free to transact with their land.
If the Ministers receive notes of intention, then another prohibition of 40 days will be placed on the landholder. This is to provide the community bodies with enough time to make a formal application to the Ministers, stating their intention to exercise their right to buy. Once an application is received, another prohibition will be placed to allow the Ministers to decide the outcome of the application. It is also important to note that any sale or transfer of affected land that breaches these requirements will not be effective.
The new provisions aim to give community bodies a greater chance of purchasing land by providing them with more time to do so, while also attempting to prevent landholders from circumventing community ownership law. By placing further obligations on landholders, the Bill seeks to compel them to have regard for the community.
Lotting
Section 4 of the Bill proposes to amend the Land Reform (Scotland) Act 2003 by creating a prohibition on transferring large landholdings if no ‘lotting decision’ has been made in relation to the land, and a prohibition on transfer contrary to a ‘lotting decision’.
A ‘lotting decision’ refers to a decision taken by the Scottish Ministers as to whether land should be transferred in lots (in other words, in smaller parts), rather than as a whole.
The Bill provides that ‘lotting decisions’ may be made in relation to land that is greater than 1,000 hectares in area. The prohibitions extend to areas of land that exceed 50 hectares (124 acres) and form part of a larger landholding that exceeds 1,000 hectares, if parts of that landholding are also being transferred. According to the James Hutton Institute, there are 1,066 landholdings greater than 1,000 hectares in Scotland.
The Scottish Land Commission stated that the aim of the threshold should be to exclude “family farms and small businesses […] but that modest estates that could pose risks” would be caught.
‘Transfer Test’
The Bill provides for a ‘transfer test’ to determine on which basis ‘lotting decisions’ will be made. The Bill allows the Scottish Ministers to make a ‘lotting decision’ that the land is to be transferred in lots only if they consider it in the public interest to do so. It then provides that it will not be in the public interest unless they are satisfied that this would make it more likely that the land will be used in a way that might make the community in the vicinity more sustainable.
The Scottish Land Commission noted that all parties involved require clarity as to the criteria to be considered by the Scottish Ministers. It considered that a public interest test would best achieve this.
“Making the public interest explicit … therefore provides a clearer, longstanding, and well-understood frame of reference for the transfer test.” - Scottish Land Commission.
When making a ‘lotting decision’, the Scottish Ministers must take account of a report from the Land and Communities Commissioner (a new office created by the Bill) and a decision must be made within six months. Where the landholder wishes to transfer the land to alleviate financial hardship and waiting is likely to worsen this, the Scottish Ministers may determine that the land need not be transferred in lots.
Review and Appeals
The landholder may apply to have the decision reviewed after one year and may appeal a ‘lotting decision’ to the Court of Session. The landholder will be entitled to compensation from the Scottish Ministers for loss incurred in complying with the procedural requirements of the Bill or loss attributable to the transfer of the land being required in lots.
The Scottish Ministers may offer to buy the land in question if, following a review of a ‘lotting decision’, they are satisfied that the land has not been transferred because the ‘lotting decision’ has made it less commercially attractive.
Impact of the Bill
Many stakeholders rejected the Bill’s rationale, highlighting the benefits that can be derived from the management of land at scale.
“... not only is scale not detrimental to delivering benefits for all, it is almost essential for the delivery of some as it allows a diversity of activities … and enables a landscape scale approach to be taken, on timescales which are simply not achievable with fragmented landownership patterns.” - Scottish Land & Estates.
There are likely to be many financial impacts associated with the Bill. The Scottish Government highlighted that owners of large landholdings will be subject to additional costs related to delays in selling. The process may also discourage sellers and buyers from entering the market, thus negatively affecting land prices and causing an overall disruption to the market.
Many stakeholders have fundamental reservations about the interference with property rights. Article 1 of Protocol 1 of the ECHR on the protection of property seeks to balance individual rights with the public interest. James Mure KC notes, in his report for the Scottish Land Commission, that the public interest is intrinsically broad and defined mainly by national legislatures. Meaning that these rights may be interfered with if public interest outweighs them.
This is a controversial and complex Bill that seeks to address the concentration of landownership in Scotland. It proposes to make many changes to the law, some technical, others more radical. When in force, it will represent a significant shift to the way land is managed, owned and sold in Scotland.