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The Marine (Scotland) BillThe Marine (Scotland) Bill as introduced in April 2009 is likely to impact not only on conservation management but also on any party who carries out marine activities. The aim is to create a new legislative and management framework for the marine environ-ment, balancing the protection of natural marine features with the demands placed on the sea. The Bill seeks to define a Scottish marine area (designated in terms of the Bill as Scotland’s territorial sea and including the bed and subsoil of the sea within that area) meaning that all parties carrying out activities within a designated area should be aware of the changes envisaged. A new marine licensing regime is sought with a view to delivering a more simplified licensing system and those having interests in the marine environment would be restricted by the requirement of a licence for any licensable marine activities. The Bill lists the licensable marine activities and whilst similar to that applying under existing provisions, all forms of dredging will become licensable if the Bill comes into force. There is provision permitting the Scottish Ministers to add or remove any activities from the list which gives a degree of discretion to the Scottish Ministers but potential uncertainty to those carrying on marine activities. The licence may be granted unconditionally, the application refused or conditions imposed e.g. stating what precautions might require to be taken, what works are to be carried out or activities monitored. The licence could, for example, specify conditions governing the use of a marine structure and how it should be dismantled and removed from the sea at the end of its life. This would have a particular impact on fish farms.

The Bill gives the Scottish Ministers the right to issue a remediation notice to any person who has carried on or is carrying on a licensable activity if the activity is carried out without a licence or in a manner which breaches the conditions of a licence. The remediation notice could require the person to put right any damage caused, meet the cost of another body putting right that damage or require steps to be undertaken elsewhere in compensation for the damage caused. The other main impact of the Bill relates to the conservation of seals. It would be an offence to kill, injure or take a seal without a seal licence. The exception is where the actions are taken to alleviate suffering of a serious or disabled animal through humane killing or tending and releasing. Any person who kills, injures or takes the seal in accordance with this exception must report the matter to the Scottish Ministers and it is an offence to fail to comply with this duty.

While most of us would likely welcome further legislation to protect Scotland’s wildlife and promote marine conservation it remains to be seen how the Bill if introduced will marry with the needs of those having interests in the marine environment, particularly those active in aquaculture and fish farming.

We are delighted to announce the launch of Brodies’ Autumn Seminar Programme which explores challenges and opportunities of key interest to our clients and the wider rural business community. This programme sees the return of our Rural Affairs ‘mini-conference’ which will focus on ‘Renewables - an opportunity for the rural economy’ and be held in our Atholl Crescent office on 13th October. Other seminars featured in the programme include ‘Managing property in difficult times’, ‘Equal Pay – lessons from the front’, ‘Hearings as an alternative to public inquiries’, ‘Family buy-outs – an efficient way to pass on the family business’, ‘Local Review Bodies – embracing the challenge for planning’ and ‘We are family – what business owners and the self employed need to know about family law’. To register for any of our Autumn Seminar Programme please visit www.brodies.com/events/.

Anna Murray

Country MattersSeptember 2009, Issue No. 15

WelcomeBig changes are happening, or on their way. In this issue of Country Matters we report on major new or proposed Scottish Parlia-ment legislation on wildlife, flooding, the marine environment, climate change, planning and housing. Each of these will have an impact on many people who own and manage rural land.

We will keep you up to date on all of these subjects as proposals become laws, laws come into force and those affected start dealing with their practical application. In many cases the initial enabling legislation is only the tip of the iceberg and much more will follow.

Please let us know if you have any questions or concerns on any of these - or other - issues. In the meantime do please look at our Autumn Seminar programme which looks at various topical challenges, problems and opportunities - more details can be found below. I hope to see you there.

Odell Milne

What’s Happening In Brodies…?


Open The FloodgatesWe recently reported on the inception and progress of the Flood Risk Management (Scotland) Bill. The Bill received Royal Assent on 16th June 2009 as the Flood Risk Management (Scotland) Act 2009 (“the Act”). The Bill made a relatively untroubled passage through the parliamentary stages, reflecting both the strong political support for its aims and the compulsory parameters imposed by the 2007 EC Floods Directive. The Scottish Government did agree to amendments that placed a greater emphasis on sustainability and natural flood risk management options, reflecting the concerns of the Rural Affairs and Environment Committee that financially-pressed Local Authori-ties may otherwise incline more towards hard engineering solutions, where that would be the cheaper option. However the majority of the other concerns expressed by the Committee were met by reassurance that the concerns would be addressed in the implementation of the Act – essentially “don’t worry, we have it covered”!

The main concerns expressed by the Committee related to the practicalities of best ensuring the efficient implementation of the Act’s purpose, essentially to modernise and simplify the flood defence system in Scotland in preparation for the inevitable increase in flood risk. Those concerns can be summarised as:

Many parties, not least Local Authorities, will be waiting with interest for further statements and guidance from the Government on how the Act shall be implemented.

Robin Priestley

Lack of clarity on the costs of implementing the Act. The Committee requested that steps be taken as early as possible to ensure funding streams were synchronised with the implementation steps. Local Authorities will be required to fund projects out of their general budget – there will be no ring-fenced funding.

The need for prompt engagement with the relevant authorities to ensure that there will be a sufficient number of skilled staff to deal with the implementation of the Act.

Lack of guidance on how competing factors should be weighted when Local Authorities are making decisions on whether and how to proceed with a particular flood prevention scheme.

SEPA, as responsible body, may find that its traditional “environmental” responsibilities conflict with its role under the Act. The Scottish Government did not accept that was a risk.

Lack of sufficient emphasis on sustainable solutions. The wording was changed in the final Act, to place more emphasis on natural management, but this is just one of a number of factors that will come in to play, cost being another.

Draft Housing (Scotland) Bill - Scottish Government Consultation Paper

Graeme Leith

On 27 April 2009 the Scottish Government published a consultation on a draft Housing (Scotland) Bill. This is designed to safeguard and improve social housing, though the Government is still considering whether to include private housing before putting the Bill before Parliament. Two proposals tabled, which if included in the final Bill could have a significant impact on Scottish landlords, are an increase in the maximum fine for unregistered private landlords and the possibility of registered landlords being charged for nominat-ing an agent.

The first proposal would see the maximum fine raised from £5,000 to £20,000, in line with the maximum fine under the Housing (Scotland) Act 2006 for a landlord operating without an HMO (Houses in Multiple Occupancy) licence. This reflects the Scottish Government's commitment to ensuring all private landlords are registered. The latter would see an additional fee levied on landlords for using an agent. Recent government figures suggest agents are involved in between 40% and 50% of private tenancies in Scotland, therefore a significant number of landlords would be affected. The size of this fee is still to be confirmed, though it would represent another cost for landlords at a time when the housing market is struggling with recession. However the proposals still have a long journey ahead and we will keep you informed as to their progress.


Single Farm Payment timetableFarmers in Scotland will continue to receive their Single Farm Payment (SFP) from the start of December, as in previous years. Although the European Commission has announced SFP can be paid from mid-October this year, both the Scottish Government and the National Farmers Union of Scotland agree that the already-established timetable enables farmers to plan ahead with certainty. Last year, 70 per cent of farmers received their SFP in full on 1 December. This had risen to 90 per cent by the end of December and 97 per cent by the end of January. For further information go to http://www.scotland.gov.uk/News/Releases/2009/07/30164458.

Climate Change (Scotland) Act 2009The Climate Change (Scotland) Bill received Royal assent on 4 August 2009. It is described as "A Bill to set a target for the year 2050, an interim target for the year 2030, and to provide for annual targets, for the reduction of greenhouse gas emissions; to provide about the giving of advice to the Scottish Ministers relating to climate change; to confer power on Ministers to impose climate change duties on public bodies; to make further provision about mitigation of and adaptation to climate change; to make provision about energy efficiency; to make provision about the reduction and recycling of waste; and for connected purposes.". To see the Act in full go to http://www.opsi.gov.uk/legislation/scotland/acts2009/pdf/asp_20090012_en.pdf. To view the Scottish Government news release go to http://www.scotland.gov.uk/News/Releases/2009/08/05131424, also see article overleaf.

Scotland’s Planning SystemFurther measures to create a more effective planning system to support economic recovery have come into effect. To view the Scotsman’s comments on this go to http://news.scotsman.com/scotland/Stevenson-hails-new-rules-to.5516402.jpg, to view the Scottish Governments news release go to http://www.scotland.gov.uk/News/Releases/2009/08/03080507 for futher information on planning modernisation go to http://www.scotland.gov.uk/Topics/Built-Environment/planning/modernising/progress/Q/editmode/on/forceupdate/on.

Banks to disclose all offshore account information to HMRCOn 12 August 2009 the Tax Chamber of the First-tier Tribunal ordered over 300 banks to give details to HM Revenue and Customs (HMRC) about their customers who hold offshore accounts. HMRC can now issue the information notices to banks ahead of the new disclosure opportunity (NDO), which will allow people with unpaid taxes linked to offshore accounts or assets to settle their tax liabilities at a favourable penalty rate. To use the NDO a notification of the intention to disclose must be made to HMRC between 1 September 2009 and 30 November 2009. To view the Scottish Government’s news release go to http://nds.coi.gov.uk/Content/Detail.aspx?NewsAreaId=2&ReleaseID=405807&SubjectId=2.

Wild Deer Management

Game Laws

Invasive species control

Licences relating to protected species

Muirburn

Snaring

Legislation relating to the protection of Badgers

David Houldsworth

Snippets

Wildlife and Natural Environment BillThe Scottish Government’s consultation on the Wildlife and Natural Environment Bill closed on 4 September 2009. New legislation will focus on the sustainable management of the countryside for the public interest and will modernise and harmonise outdated laws. The main areas covered in the consultation were:

It is hoped that the Wildlife and Natural Environment Bill will support sustainable economic activity in the countryside by ensuring that the wildlife and natural environment legislation is efficient, effective and proportionate. No timeframe has been put forward for when the Bill will be introduced to Parliament.

For more detailed information on the issues arising from the consultation please visit the legal update section of our website http://www.brodies.co.uk/publications/details/?id=920.

15 Atholl Crescent, E dinburgh EH3 8HA 2 Blythswood Square, Glasgow G2 4AD T 0131 228 3777 F 0131 228 3878 T 0141 248 4672 F 0141 221 9270 www.brodies.com

Odell MilnePartnerT: 0131 656 0189

E: [email protected]

Robin PriestleyAssociate & Country Matters EditorT: 0131 656 0168


Graeme LeithAssociateT: 0131 656 3748


Anna MurrayAssociateT: 0131 656 0013


David HouldsworthPartnerT: 0131 656 0172



Actions Speak Louder Than Words - Historic Climate Change Legislation As Pylons Decision Awaited

Robin Priestley

Articles By:

On 4 August, the Climate Change (Scotland) Act 2009 entered the statute book, “an historic groundbreaking bill that sets an international example that we hope others will follow”, according to First Minister Alex Salmond MSP. Key provisions in the new Act include statutory greenhouse gas emissions targets of a 42% reduction by 2020 and 80% reduction by 2050 (compared to baseline 1990 levels for most “greenhouse gases”).

This far reaching legislation is hugely significant, given the Scottish Government’s aim to create a low carbon economy, underpinned by the Act and the mass of subsidiary legislation and policy which will follow it. But its true test will of course be whether words are translated into action – by the Scottish Government itself and by other public stakeholders who collectively need to instigate our new “low carb diet”.

Those awaiting action by the Scottish Government should not wait long, given that a decision on the Beauly to Denny powerline upgrade project is due before the end of this year. Submitted 4 years ago, over 17000 objections to this application were lodged and its Public Inquiry lasted a year. The Inquiry Reporters have made their recommendations and the Scottish Ministers’ decision is awaited.

The proposal, to upgrade existing National Grid powerlines between the Central Belt and the Highlands (with fewer but taller pylons passing through scenic mountainous areas and some sensitive wildlife habitats), is certainly controversial. Whatever one’s opinion on the aesthetics of wind turbines (love them or hate them) there are probably few people who love the sight of electricity pylons and overhead lines. Environmentalists and green campaigners of all types have been split on whether advantages (the National Grid needs to be much stronger to carry the output of new windfarms from the Highlands to the Lowlands) outweigh disadvantages (visual impacts and potential effects on wildlife).

Politically, the First Minister’s Government is anti-nuclear and pro-renewables, aspiring to make Scotland a world leader in renewable energy technologies and techniques. That is unlikely to happen if large renewable energy projects in the Highlands and Islands cannot be connected to an electricity grid strong enough to transport power where it needs to go. So, having just passed legislation requiring action on climate change to be taken, it seems likely Mr Salmond will approve Beauly-Denny, and perhaps other planned grid upgrade projects in the future. What is already a notable feature of the climate change era, is that as many environmental campaigners may criticise such approvals as will support them.

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