Rights on forestry access and limited partnerships

Land Reform Act – woodlands

A close examination of the Land Reform (Scotland) Act 2003 suggests that the Scottish Executive has exempted woodlands from access rights.

Section 6 specifies the exemptions. These include land “in which crops have been sown or are growing” (section 6(1)(i)). By section 7(10), “crops” mean “plants which are cultivated for agricultural, forestry or commercial purposes”.

A tree is clearly a plant. A dictionary defines “tree” as “any large woody perennial plant with a distinct trunk giving rise to branches”. The same dictionary defines “cultivate” as “to plant, tend, harvest or improve (plants)”.

The Executive apparently intended only to exclude tree nurseries from access rights. This, certainly, is how Scottish Natural Heritage interprets the provisions in the draft Scottish Outdoor Access Code. I suggest that this is not correct. Trees grown commercially are just as much a crop as wheat or barley. Within the growing cycle, they are “planted, tended, harvested and improved”. It follows that, until they are felled, they are “cultivated for… forestry… purposes”.

My conclusion is that access rights will not be exercisable in commercial woodlands and possibly not in amenity woods or woods established by natural regeneration, where trees may well be tended, improved and harvested, although this is, perhaps, debatable.

But, under section 8, Ministers have power to modify sections 6 and 7, either generally or by making provision which relates to particular areas, locations or classes of land. Section 98(5) requires the statutory instrument which would be needed, to be approved by the full Parliament.

Also, section 8(3) provides that, before exercising the power of modification, Ministers are to consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit. This, presumably, includes all persons involved in the forestry industry.

Agricultural Holdings Act – limited partnerships

With one exception (section 72(2)), sections 72 and 73 of the Agricultural Holdings (Scotland) Act 2003 are now operative. These apply to any agricultural lease where the tenant is a limited partnership and any limited partner is the landlord or an associate of the landlord or a partnership or a company in which the landlord has an interest.

Where the limited partner purports to terminate the lease by dissolving the partnership by notice, renouncing or breaching the tenancy, on or after 16 September 2002, the general partner has the right, within 28 days of the purported termination of the tenancy, to claim it in his own right and, if he does so, it continues in the general partner’s individual name.

The landlord does, however, have remedies which differ if the action taken by the limited partner to terminate the tenancy was taken before or after 1 July 2003 (date prescribed by SSI 2003/294).

If before, the landlord may, by the later of 29 July or 28 days after the date of the tenant’s notice, apply to the Land Court to overrule the general partner’s claim to the tenancy. The court is bound to do so if satisfied that the original acting by the limited partner purporting to terminate the tenancy was undertaken otherwise than to deprive the general partner of any right deriving from section 72, and it is reasonable to do so.

Section 72(2) gives a general partner claiming the tenancy in his own right the right to buy under Part 2 of the Act. N.B. subsection (2) has not yet been brought into operation.

If the original action by the limited partner was on or after 1 July 2003, the landlord has no recourse to the Land Court but can, instead, bring the tenancy to an end (under section 73) by double notice as follows:

(a) Intimation of intention to terminate the tenancy – not less than two nor more than three years before the expiry of the lease (or of a continuation) (“the ish”); and

(b) (Having waited at least 90 days) notice to quit – not less than one year or more than two before the ish.

These time limits may be shortened by the Land Court on an application by the landlord, which the court is bound to grant if satisfied that the original acting by the limited partner was not to deprive the general partner of the right to buy and it is reasonable to make the order.

Finally, these provisions seem to apply only where the original tenancy is terminated by some positive action on the part of the limited partner. Automatic dissolution of the partnership, for example by the expiry of a fixed period or the death or bankruptcy of the general partner, does not appear to give the general partner the right to claim the tenancy.

Alasdair G Fox WS, Anderson Strathern WS