26132744v3 POSSIBLE IMPACT OF LAND REFORM ON RENEWABLES
Background Land rights are critical to most renewable projects whether onshore wind, hydro or anaerobic digestion. Very often the land rights required may be extensive, covering large areas for wind protection, river catchment or feedstock security. When policymakers make land reform a priority, the renewable energy industry pricks up its ears and listen. Sustainable development is the watch word but insuring that the proposals do not impact negatively on projects is vital. Land reform levers can be wide-ranging, including: fiscal measures; rights to buy; tenancies; community empowerment; and registration of land. The Scottish Government has a target of 1 million acres within community ownership and has established review groups to report on Land Reform and Agricultural Tenancies to deliver this and other land reform objectives. Both groups have now reported. Shortly the policy makers will be proposing new laws. As you can see from this guidance note, there is much change and potential change affecting rural and agricultural land in Scotland. Some of these changes go to the root of relationships between landowners and their tenants. The potential impact and uncertainty that all this change creates is affecting both the approach of landowners, and tenants entering into transactions and some of the terms they are looking to include in their contracts. Given the range of potential changes, the point for developers is that there may be some aspect of a proposal they put to a landowner, seemingly commonplace, which may have an adverse impact on a landowner if some of the potential changes become law. To strike a deal, developers need to be ready to address such an issue, should it arise.
One issue for all parties to be aware of on CAP reform is the potential for consequential loss. The introduction of penalties for non-compliance by landowners or farmers may prompt the introduction of compliance terms into a lease or farming agreement. And the way in which the penalties are levied may mean consequential loss arising if a breach of a CAP compliance term occurs. Just because you lease only a small area of land does not mean that the penalty for any failure to comply with a CAP related rule will be calculated by reference to that plot of land. It may also contribute to a wider failure, which may attract a larger loss. For these reasons, all parties need to consider properly the framework for CAP compliance and liabilities. Understanding the land reform agenda, and navigating the challenges it presents for landowners, developers and funders is going to be critical for the renewables industry. At Brodies we have a specialised land and rural business team uniquely experienced in these issues. Here are some key points and a few of our thoughts. Strategic action points for developers and landowners consideration in Renewable Energy projects In no particular order of importance: Land Reform The land reform agenda will influence landowner decisions on land use. In some cases it may make landowners more cautious. In other cases it may increase the appetite for commercial development, seen as sustainable development and a hedge against the potential impacts of reform. Landowners concerns over succession and capital taxation will be at the forefront of landowners minds. The potential impact of renewable energy development on landowner inheritance tax positions will be a priority issue for many, and developers and funders may need to respond to this.
Community Empowerment Bill The proposed community right to buy is really an extension of the existing regime, but highlights the need to engage properly with communities and also move rapidly to secure land rights under contract and supported by adequate security. Identify any areas of abandoned or neglected land that may cause issues encourage landowners to undertake an active management programme as a prudent defensive measure. Check any existing registrations of community right to buy and seek to manage any issues. Conversely, community rights may also present opportunities for developers and communities to bring new sites to development. Agricultural tenancies Review any existing agricultural tenancies very early on in a project and put in place a programme to manage these. In particular identify any pre-2003 tenancies. Ensure all land managers dealing with these cases are fully briefed on the sensitivities. Consider options to remove land out of the tenancy or involve tenants in projects depending on circumstances. Tidy up any informal arrangements. Crofts Similar point as agricultural tenancies develop a management programme.
Forestry Be aware of the Scottish Government forestry objectives. CAP Reform Consider the impact of proposed projects on a landowner s CAP position. Devise a strategy to minimise impact. Breach of CAP schemes may give rise to substantial penalties for landowners. An early discussion with landowners will help to mitigate risks which a landowner will otherwise wish to pass on to a developer. Consequential losses are potentially significant. Land Registration Review the title position for each landowner at an early stage and identify issues. First registration under the new land registration system may increase costs in securing land rights. Land Reform Introduction The purpose of this guidance is to summarise the land reform issues in Scotland and to assist in identifying issues relevant to the renewable energy sector. There are a number of different strands to this, all of which have an impact on the future of land ownership and use in Scotland. Some issues relate to new legislation, some to legislation that is going through the parliamentary process, and others to reviews and consultations. Some are an expression of intent by the Scottish Government for the current legislative programme. Looked at as a whole they are all part of a land reform agenda.
The following sections will look at the: Land Reform Review Group Agricultural Tenancy Review Group Possible Constitutional Reform The Scottish Referendum on Independence/Post Referendum Scottish Legislative Programme for 2014/2015 Community Empowerment (Scotland) Bill Common Agricultural Policy (CAP Reform) Land and Buildings Transaction Tax Land Registration (Scotland) Act 2012 Land Reform Review Group The Land Reform Review Group (LRRG) was established by the Scottish Government to look at land reform. The remit of the group was to look at the relationship between land and people in Scotland, and the pattern of land ownership. The group was charged with identifying how land reform will: enable more people to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland; and assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient and independent communities which have an even greater stake in their development. There is a theme here of communities and engagement. The LRRG produced its final report in May 2014, which included 62 recommendations. This does not mean that they will be accepted into the legislative programme. Details of the group and its reports are available at www.scotland.gov.uk/about/review/land-reform.
There are some recommendations that are already part of the Scottish Government policy/legislative programme and others have been included in the legislative programme by Nicola Sturgeon as First Minister. This note will identify a few of the recommendations to be aware of: The establishment of a permanent land commission to progress the land reform objectives Land Registration (see separate section on this topic below) Transparency of ownership there is a recommendation that only owners registered in the EU should be allowed to own land. There is a common theme about traceability and transparency. Some owners hold land through trust or nominees, which makes it difficult to trace ownership. We anticipate some requirement to disclose beneficial ownership, i.e. who has the actual benefit of ownership. Succession Law there are some changes proposed to succession which will affect land owners but will not have any impact where land is owned in a company. Compulsory Purchase this proposal is about reviewing the compulsory powers the government and local authorities already have to allow them to register a pre-emptive right if private land is sold. This mirrors some of the rights already given to private individuals. Forestry there is a proposal that the Scottish Government should develop a more ambitious program of land acquisition in Scotland. In practice this may be challenging. There are very difficult competing pressures from other existing land use agriculture on the better ground, and conservation and access on the open hill ground. The timber market is currently strong and demand is growing on the back of an improving economy and also the renewable biomass market (woodchip etc.). There is no indication of how this will be progressed. Pattern of Land Ownership the group has recommended that the Scottish Government gather land ownership statistics with a view to developing an approach to promote a fairer or wider and more equitable distribution of land ownership in Scotland. The group also recommends that the Scottish Government should set an upper limit on the amount of land any one landowner (or beneficial owner) can hold. No figure has been suggested.
Land Taxation there are three aspects here: Agriculture, forestry and other land businesses currently receive favourable tax reliefs at national level, primarily inheritance tax and capital gains tax. The group recommends a review of these exemptions. Most of these taxes are currently reserved to the UK (not Scottish) Government, but this may change. Local rates review rates exemptions and potential to introduce land value taxation. Specific mention of reviewing exemptions from rates for sporting businesses. It should be noted that these reliefs were introduced to allow rural businesses to survive. Many rural businesses operate at low margins or even a loss. It is not clear in the proposals how that economic issue would be addressed. Crofts/Agricultural Tenants The group recommends: simplifying the existing crofting right to buy; and some changes to the existing agricultural tenant s pre-emptive right to buy. Note: agricultural tenancies are also the subject of a separate review see Section 4 below) Review of Agricultural Tenancies This review is separate from the LRRG. The background is that there is a complicated body of law in Scotland regulating agricultural tenancies. It was based on a policy to give farm tenants security of tenure to farm and invest. This has led to a very complicated system and considerable limitation on freedom of contract. There is also friction in the sector on issues such as rent review, obligations to repair and maintain and a preemptive right to buy. There is a need within the industry to have a vibrant letting sector to provide opportunities for new entrants and expanding businesses.
The result was that the Scottish Government established a review group of experts which has issued a final report. The Scottish Government has yet to confirm how much of the report it will take forward into legislation, although it has indicated that it is seen as a package. The current legislation provides a right to buy where the landlord chooses to sell. There have been calls for an absolute right to buy for pre-2003 tenancies. While the report stops short of recommending an absolute right to buy, it does recommend that the current pre-emptive right to buy will become an automatic right and will not require pre-registration by the tenant. The report recommends the establishment of a Tenant Farming Commissioner, who may ultimately have powers to intervene or impose penalties in the case of irresolvable breakdown of relations. The report also recommends that the fiscal regime (tax) relating to let agricultural land is reviewed. This may have an impact on landowner decisions on how to lease land or develop it. One thing is for sure, the legislation governing agricultural tenancies will remain complex, with a number of different types of tenancies continuing to exist that will need to be carefully navigated in the context of renewable energy projects. Constitutional Reform The Scottish Referendum on Independence/Post Referendum The referendum on independence was held on 18 September 2014, resulting in 55% voting against independence and 45% in favour. The turnout was 84.59%. In the final days of the campaign the UK parliament leaders (who were supporting the Union) issued a statement in the press called The Vow. They promised to deliver extensive new powers for Scotland, in return for a No vote. Following the referendum, the Smith Commission was established to come up with proposals to deliver these new powers. The Smith Commission reported on 27 November 2014. A useful summary is available here. Some of the new powers proposed for the Scottish Parliament that may be relevant to you are:
The power to set income tax rates and thresholds. This relates to non-savings income tax. Corporation tax is still reserved to the UK parliament. Aggregates levy tax on minerals extracted will be devolved to the Scottish Parliament Control of airport duty for Scottish airports. Responsibility for the management of the Crown Estate's economic assets in Scotland. The revenue generated from these assets would be transferred to the Scottish Parliament. This will include the Crown Estate's seabed, urban assets, rural estates, mineral and fishing rights, and the Scottish foreshore. Whether the Smith proposals are enacted as set out in the draft clauses, or subject to further modification may depend on the political make-up of the next UK Parliament, which will be responsible for enacting the changes. Scottish Legislative Programme for 2014/2015 Nicola Sturgeon has now replaced Alex Salmond as First Minister in the Scottish Parliament. She announced her government s legislative programme on 27 November 2014, which includes land reform. In particular, she proposes to bring forward legislation on the following (picking up on the LRRG recommendations): powers for ministers to intervene where the scale of land ownership or the conduct of a landlord was acting as a barrier to sustainable development; the establishment of a Scottish Land Reform Commission; measures to improve the transparency and accountability of land ownership and make information on land, its value and ownership more readily available in one place; action to ensure charities holding large areas of land are under an obligation to engage with local communities; the removal of business rates exemptions for shooting and deerstalking estates; and proposals to change the rules on succession which will apply to land. Note: this will not impact on land already held within companies.
Community Empowerment (Scotland) Bill This Bill is currently going through the Scottish Parliament. It introduces some of the proposals under the LRRG. It is aimed at both public and private sector. It aims to give local communities greater power/involvement in relation to provision of services and rights in relation to public land, i.e. land owned by local authorities. It also proposes to amend the existing community right to buy private land by extending the existing preemptive right not only to local resident groups but also to widen it to interest groups. These groups will still need to have a local connection. The pre-emptive right will only allow the body to apply to purchase the land if the land owner decides to sell, and subject to Ministerial consent. Land remains exempt if it is already subject to contract before the pre-emptive right is registered. So, for example, missives or an option would exclude it, but must be intimated to Ministers. The sale of shares in a company owning land will not trigger the pre-emptive right: only the sale of the land (title) itself will do that and only if an interest has been validly registered. There is also a proposal to extend this pre-emptive right to buy to an absolute right to buy in relation to abandoned or neglected land. This will apply to rural and urban land. Abandoned or neglected land is not defined in the Bill, and the Bill proposes that it is for the Minister to decide. Draft regulations have been prepared and are the subject of much debate and lobbying as the legislation proceeds. For example, is open hill land - or derelict hill crofts - abandoned or neglected? Or just subject to different modern economic use? Where is the tipping point? This legislation is currently still at Bill stage.
Common Agricultural Policy (CAP Reform) The new CAP regime came into force this year. The Scottish Government and the agricultural industry have been wrestling with the issue that Scotland has a large proportion of very poor farmland/hill land. If the CAP budget is spread across all that area, some of the productive farms will suffer while some large areas of unproductive land will gain. The EU legislation is very complex and there is considerable lack of clarity in the administration of the new scheme. In this first year of the new scheme farmers have to register their holdings and claim their entitlements, which will allow them to claim subsidy support in future years. Occupation of land and compliance with the scheme rules is particularly critical for farmers in this first year. This potentially creates issues for farmers taking land out of production for renewable project schemes. Land and Buildings Transaction Tax This is a new Scottish tax that replaces Stamp Duty Land Tax (SDLT). It effects all transactions completed after 15 April 2015. This will only apply in relation to new acquisitions at the point of purchase. The rates are different from SDLT, with winners and some losers depending on value. The tax is a progressive tax, i.e. there is a sliding scale for each proportion of value (compared with the single rate under the old SDLT). Click here to see a separate guidance note on this. It calculates the duty payable according to rents over the lifetime of the lease and not just the first few years, as is the case with SDLT. This means the new LBTT tax may be higher in those leases which contain provisions increasing the rent payable in later years. Land Registration (Scotland) Act 2012 It is the Scottish Government s objective to update the land registers in Scotland and move old titles onto a new modern map based system. This is seen as being part of the general updating of the land law system.
Large areas of Scotland, particularly rural land, are unmapped. Some estates are actively progressing first registration now. Over time the new land registration system will see more land brought onto the plan based system. There are a number of triggers which require first registration on the new system. These include any sale or transfer, and the grant of a lease of 20 years or more. This will trigger registration of the underlying title onto the new system. There is a lot of other detail in this Act about burdens and conditions relating to land, but these are largely technical matters for the conveyancing process and how settlement of property transactions is handled.