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Head of Policy Team's Blog - 17 April 2019

During the passage of the 2016 Land Reform Act, stakeholder discussions on issues around agricultural tenancies were often fraught writes Head of Policy Team Gemma Cooper.

This was compounded when choice morsels were played out in unhelpful detail by oft-polarised press coverage. Not surprisingly, the industry has considerable scars from the debate, something which continues to blight the sector three years on.

Creating a Tenant Farming Commissioner (TFC) position was refreshing, as it had universal industry agreement. Since taking over his post the TFC, Bob McIntosh, has been busy. Under the umbrella of the Scottish Land Commission (SLC), he has worked with NFUS and others to produce a suite of codes which provide a framework for dealing with the complexities of agricultural tenancies.

Interestingly, the Act also placed a requirement on Ministers to review the TFC functions within three years of commencement, which now makes such a review visible on the horizon.

In carrying out a review, the TFC and other interested parties will be asked if the powers conferred by the Act are enough for TFC duties. It is possible to foresee that this is likely to generate some interesting discussion.

In the meantime, it is good to see that the most recent TFC instalment is a guide to the conduct of agents, where an agent is noted to be a professional advisor acting for either party. Thus, it is likely to cover land agents, surveyors, factors, or solicitors.

Critics are likely to spot that this is a guide and not a code; thus, slightly softer in approach. However, it is important to note that most professionals will have behaviour underpinned by codes of practice from their own regulatory body.

That said, for this guide to work, there are some hurdles to overcome.  Not all ‘agents’ are accredited to any professional bodies.  The main example of this being those functioning as land agents who are not RICS accredited. Whilst arguably smaller in number, time has already shown that it is bad behaviour by a minority which tarnishes the majority. It should be said however, that in some cases those responsible for ‘bad behaviour’ are employed by firms, so there is hope that this guide will impact on such agents if these employers help in its enforcement.

In terms of this minority, TFC’s own survey showed that only 17% of landlords and 17% of tenants were dissatisfied by the conduct of an agent employed to act on behalf of the other party in respect of an agricultural holdings issue.  

It is a real shame that the 83% of agents providing a good service are tarnished with the same brush as the minority, and that the minority are those which make the polarising press headlines.

Indeed, the fact that the TFC must spend some of his valuable time on addressing an issue which should be a matter of professional principle is a frustration.  Time will tell if this latest guide has an effect.

If it does not have the desired impact, then perhaps the looming Ministerial review of TFC functions will focus minds!

Author: Gemma Cooper

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About The Author

Gemma Cooper

Gemma Cooper joined NFU Scotland in 2012 as Legal and Technical Policy Manager. Within her role, Gemma is tasked with leading on and developing NFU Scotland’s legal and technical policy and is responsible for the Legal and Technical Committee, Tenants Working Group, Tenancy Working Group, and Crown Estate Tenants Working Group. The policy portfolio for the legal and technical remit includes land reform, agricultural holdings law, Crown Estate, communities, planning, utilities, employment, and renewables. Gemma started her career working in estate management on large estates and fishings in Perthshire and Angus. Following this she worked as an agricultural and rural business consultant, with a specialism in SRDP and farm diversification. She graduated from Harper Adams in 2005.

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