113.Section 8 of the 1996 Act provides for SNH to make control schemes in respect of particular areas of land (known as control areas, see section 6 of the 1996 Act). Control schemes represent the most significant form of intervention in deer management and enable SNH to impose deer management measures on owners and occupiers of land and, if the owner or occupier does not comply with the scheme, take action itself and recover the costs from the owner or occupier.
114.Section 18 of the Act makes several adjustments to the process for making a control scheme and clarifies the reach and operation of control schemes. It also provides for the registration of a control scheme (and any variation or its revocation) against the title of the land in question, so binding successive owners and occupiers of the land to comply with the scheme.
115.Section 18(2)(a) of the Act makes an adjustment to section 8(A1) that is consequential on changes made to section 7 of the 1996 Act by section 16 of the Act.
116.Subsection (2)(b) of the Act removes the requirement in section 8(1) of the 1996 Act that SNH must have regard to the code of practice on deer management when considering whether action is necessary under section 7. However, the overarching duty to have regard to the code when exercising its functions under the 1996 Act still applies.(16) It also makes a consequential amendment to subsection (1) to reflect the adoption of sections 6ZA and 6ZB as containing the grounds for intervention that must apply.
117.Subsection (2)(c) repeals section 8(2) of the 1996 Act which limited the use of control schemes in connection with nature restoration activity. This has the effect of enabling SNH to make a control scheme whenever it has not been possible to secure a control agreement or where there has been inadequate compliance with such an agreement.
118.Subsection (2)(d) substitutes a new subsection (4) into section 8. The new subsection:
	reiterates that different measures may be taken by different owners or occupiers of land within a control area. So, for example, one owner may have to erect fencing along a boundary while another may have to undertake a cull of deer.
	confirms that a control scheme may relate to a particular owner or occupier within a wider control area contained in a control agreement. This is likely to be relevant where one or more owners or occupiers in a control area have not been engaging with SNH or refusing to comply with the terms of a control agreement. The control scheme can therefore target the land owned or occupied by that person and require compliance, failing which SNH can take the necessary action and recover the costs under section 9 of the 1996 Act (as replaced by section 19 of the Act).
	allows a control scheme to provide a means to extend any time period prescribed in the scheme.
119.Subsection (3) replaces schedule 2 to the 1996 Act with a new schedule 2. This covers the process for making a control scheme, its validity, registration and appeals. It has to be read alongside section 8 of the 1996 Act itself.
120.Part 1 of schedule 2 deals with application and interpretation of the schedule. Paragraph 1 applies the schedule to any process for making, varying or revoking a control scheme.
121.Paragraph 2 deals with the key terminology used in schedule 2. The key points are:
	As the process for making, varying and revoking a control scheme is the same in most respects, in schedule 2, the expression “the proposal” is used to refer to all three.
	The word “register” is defined to cover registration in both the Land Register and the General Register of Sasines as it is possible that some titles to land that may be affected by a control scheme may still be recorded in the General Register of Sasines.
	A “relevant person” is defined as an owner or occupier for the time being of an area of land upon whom a control scheme is proposed to be imposed or actually is already in place (in cases where the proposal is dealing with a variation or revocation of an existing scheme). It is also possible for a person to be a relevant person in a case where the land that the person owns or occupies is part of a control area of a control scheme, but the person is being added by means of a variation. This might arise, for example, where a person was not originally thought to have any interest in deer management measures, but it has subsequently come to light that it is appropriate for them to have to carry out some activity in connection with the scheme. It might also occur where an owner or occupier changes and agrees with SNH to a variation of the appropriate measures. Finally, a relevant person may be an owner or occupier who, in the opinion of SNH, are (or are likely to be) significantly affected by the proposal even though the person is not subject (or proposed to be made subject) to a requirement under the control order. This is likely to be people living within the area who are impacted by deer populations but who do not have any management capabilities or responsibilities in relation to the land impacted by the control scheme.
122.Part 2 of schedule 2 deals with the process to be followed for making, varying or revoking a control scheme (“the proposal”). While SNH lead the process, an important part of it is the Scottish Ministers considering any objections and deciding whether to give approval to a scheme being made, varied or revoked.
123.Paragraph 3 requires SNH to give notice of the proposal to each relevant person. The notice must provide details of the proposal (including a copy of any draft control scheme or, in the case of a variation, the control scheme as it is proposed to be varied). The notice must also inform the person that objections to the proposal may be made to the Scottish Ministers within 28 days of the notice being served(17) and provide details of how such objections are to be made. Paragraph 3 also requires SNH to publish a notice with details of the proposal, which must include the area affected, the date of first publication of the notice, specifying where a copy of the scheme and the map referred to in it may be inspected and stating that objections can be made by relevant persons within the period of 28 days of the first publication of the notice.
124.While the usual approach will be to serve and publish notices under paragraph 3 at the same time, if the period for objections is different (for example where notice is served before publication occurs), it is the later date that will apply.
125.It is worth noting that only relevant persons can object. The publication requirement does not entitle persons who are not going to be part of the control scheme or who are not (or are not likely to be) significantly affected by it to have objections considered. Of course, that does not prevent other people from making representations, including to the effect that they should be a relevant person, but the Scottish Ministers are not obliged to consider them.
126.Paragraph 5 sets out the steps that the Scottish Ministers are to follow in relation to objections. The first step is to consider whether the objection is concerned with the process followed by SNH or whether it is related to the substantive content of the scheme. If an objection deals with both, the Scottish Ministers can deal with the procedural issues and substantive issues as if they were separate objections. Further, if an objection is late, doesn’t meet the requirements set out in the notice or the Scottish Ministers are satisfied that it is frivolous or vexatious, they may disregard it. Further, the Scottish Ministers may require a person who is making an objection to provide the grounds for it in writing. A failure to comply with such a requirement will mean that the objection may not be considered.
127.Objections which relate to process will always fall to be considered by Scottish Ministers. If the objection is substantive, the Scottish Ministers may choose to consider it as it stands or, if they feel they need advice on its merits, they can refer the question to an expert, or experts, appointed for that purpose to advise on the objection. If there are multiple objections, the same expert or experts can be asked to consider some or all of them.
128.Where Scottish Ministers do not require advice, they may proceed with considering the substantive objection. However, if they have asked for advice, they must consider the objection having had regard to the advice received. They are not bound to follow the advice.
129.Once all objections (if any) have been considered, the Scottish Ministers may confirm the proposal as it was originally proposed, confirm the proposal with modifications or reject the proposal. But, if the Scottish Ministers wish to make modifications they must give notice of the modification to the relevant owners and occupiers and either obtain the consent of those persons or consider any further objections that may be made. The process for considering objections at this stage is the same, but the period for making the objections is shorter: 14 rather than 28 days. The Scottish Ministers must confirm or reject the proposal within 6 months after the expiry of the period for objections mentioned in paragraph 3(b)(iv) (28 days beginning with the date of first publication of the notice). However, that 6-month period may be extended by giving notice to SNH and any relevant person. The notice must include the reasons for the extension and an indicative date for a decision.
130.Paragraph 12 of schedule 2 enables the Scottish Ministers to appoint an expert or experts for the purpose of asking for advice in relation to objections. An expert may be appointed for a particular objection or objections(18) or as a standing expert to consider objections from several schemes. The provision also allows regulations to be made about the terms and conditions of appointees.
131.Part 3 of the schedule deals with the making, variation or revocation of control schemes, how they are to be registered and appeals. However, it should be read with section 8 of the 1996 Act (as amended).
132.Paragraph 13 requires SNH to give notice that a control scheme has been made, varied or revoked to all relevant persons. That notice must also indicate the date by which appeals against the scheme, variation or revocation are to be made. An appeal against the scheme may only be made by a relevant person falling within paragraphs 2(c)(i) and (ii) (owners and occupiers upon whom a control scheme proposes to, or does, impose a requirement, and so does not include owners or occupiers who are significantly affected by the proposal, but not subject to requirements under it). SNH must publish the control scheme, the scheme as varied, or as the case may be, a notice that the scheme has been revoked, in such a manner as it thinks fit (which may be on its website). SNH are also to proceed with registering the control scheme against the titles to the land in the control area (whether in the Land Register or in the General Register of Sasines). A control scheme has effect, and must be complied with by the relevant persons, from the time when it is confirmed by the Scottish Ministers (see section 8(7) of the 1996 Act).
133.A relevant person who is aggrieved by the decision to confirm the making, variation or revocation of a control scheme, or any terms of conditions of such a scheme or variation, may appeal to the Scottish Land Court. However, as noted above, only relevant persons falling within paragraphs 2(c)(i) and (ii) may appeal to the Scottish Land Court. Appeals have to be made within 28 days of service of the notice informing the relevant person of the confirmation of the making, variation or, as the case may be, revocation of the scheme. Appeals are to consider the merit of the scheme, variation or revocation, rather than a review of the process. On an appeal the Land Court may affirm the scheme, direct SNH and the Scottish Ministers to revoke it, or make such other order as the Land Court thinks fit. For example, the Land Court may decide to suspend the operation of a control scheme (or its variation or revocation) or a term or condition of a scheme, while considering the appeal.
134.Paragraph 14(1) provides that the making of a control scheme, its variation or revocation is not open to be challenged otherwise than by an appeal under paragraph 14(2). This reflects the current position in the 1996 Act.
The Act Deer management plans, control agreements and control schemes Section 18 – Control schemes