The Scottish Government recently reiterated its commitment to bring one million of Scotland's acres into community ownership by the end of 2020. The policy shift towards community ownership, and the legislation that accompanies that shift, is a relatively new development in the Scottish land law reform process, operating within a mature system of property law that has traditionally afforded a great deal of importance to the entitlements that flow from ownership. Legislative routes for communities to acquire land are set out in the Transfer of Crofting Estates (Scotland) Act 1997, the Land Reform (Scotland) Act 2003, the Community Empowerment (Scotland) Act 2015, and the Land Reform (Scotland) Act 2016. Whilst the 1997 Act is about communities in the Scottish Highlands and Islands acquiring crofting land that happens to be in public sector ownership in a manner that is mutually beneficial, and there are certain similar rights for communities to request assets from a range of public bodies in the 2015 Act, the net effect of the 2003, 2015 and 2016 legislation opens up four methods for a community to acquire land from a private owner, in a manner that (on the assumption the legislation is complied with) either: forces that owner to deal only with the community as and when the owner decides to sell; or forces that owner to sell to the community as and when the community wishes to acquire.1 Section 1. See generally Combe, M. M., The ScotWays Guide to the Law of Access to Land in Scotland, (Edinburgh: John Donald, 2018) (with chapter 2 considering the right of responsible access in particular). Much more could be written about the right of responsible access, but for present purposes please see the analysis in Bob Reid's chapter in this volume. 2 See Parts 8, 2 and 4 of the 2016 Act respectively.
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Ownership of land is important for a number of reasons. One reason is the agenda setting role the landowner has in terms of its use, which in turn has an impact on the environment. Environmental law plays a role in regulating the use of land, as do other devices such as planning law and private law controls including the law of nuisance, but absent such regulation the decisions of the owner are crucial. Land reform, by which it is meant the process that is geared towards the reallocation of property rights, either: changes who is invested with that crucial decision-making power; or influences the decision making of an existing owner, who might act in a way to negate any policy argument for reallocation of ownership. Both of these reactions can impact on the environment. How well are those impacts understood, and to what extent do they feature in the law-making process or the application of land reform measures? This paper will use the contemporary Scottish scene, particularly its two land reform statutes of 2003 and 2016, to scrutinise where the environment sits in the land reform debate there, which in turn will provide an opportunity to assess the environmental impact of specific land reform measures and where the environment has featured in a specific land reform process.
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