Land ownership in Scotland is a key policy area for the Scottish Government. A number of changes in law and policy have been implemented in recent years with a view to ensuring the way land is owned, managed and used benefits everyone in Scotland. The Government’s view is that this can only be achieved if people are educated about their rights and responsibilities in relation to land and if information about land ownership and use is readily available to all.
The Land Reform (Scotland) Act 2016 (the Act) introduced a number of key changes intended to help the Government achieve this aim, including the requirement to prepare and publish a Land Rights and Responsibilities Statement (LRRS). The LRRS was released is September 2017 and contains three main aims:
- To assist the Government with developing policies in relation land;
- To encourage those with significant responsibilities over land (e.g. local authorities) to consider how their decisions could contribute towards implementing the LRRS; and
- To encourage everyone to recognise their rights and responsibilities in relation to land.
To assist with implementing the LRRS, the Scottish Land Commission (SLC) is publishing a series of “Protocols”. Any private trusts or charities which own land in Scotland should be aware of two recently released Protocols. Although trusts and charities which own land generally exhibit good practice, the SLC believes they could ‘further improve their transparency, accountability and governance’.
Land Ownership by Private Trusts
A trust is a legal arrangement which can be used for managing land. The Protocol asks the trustees, who manage the trust on behalf of the beneficiaries, to consider how they can reflect the principles of the LRRS in their management of a trust which owns land and their accountability to the beneficiaries.
To assist with the process, the Protocol outlines a number of conditions to be met by trustees, provided they can do so whilst complying with their obligations under the trust and their more general legal responsibilities. These conditions include:
- Ensuring up-to-date information about who the trustees are and that a main point of contact for the land is always available to the public.
- Consulting the Protocol on community engagement when considering a change in the way land is managed to ensure the change does not contradict the terms of the document creating the trust which is known as the Trust Deed.
- Appointing trustees local to the land if the terms of the Trust Deed permit.
- Reviewing the skillsets of trustees regularly and considering whether they have sufficient knowledge of the local community to allow decision making to be influenced by the priorities of the community.
- When changes are being made to the structure or governance of the trust, trustees should consider whether it is likely to affect the local community. If so, trustees should consult the LRRS Protocol on Community Engagement.
The SLC may produce further guidance or case studies to assist with the practical implementation of the Protocol.
Land Ownership by Charities
Charities are organisations which are set up to provide a public benefit, have only charitable purposes and allow funds and property to be used only for those purposes. In Scotland they are regulated by the Scottish Charity Regulator (OSCR).
The Protocol’s main purpose is similar to that for trusts; to invite landowning charities to consider how they can reflect the principles of the LRRS in their operations and decision making. It also contains a number of conditions which the trustees of the charity should meet.
The same conditions which apply to trusts also apply to charities. In addition, charities should consider including information about the land it owns, its use and the benefit to the public in its Annual Report and should also prepare community engagement plans.
The Protocols were drafted by SLC along with OSCR, the NFUS and Scottish Land and Estates and will be kept under review. SLC welcomes feedback from trustees and others affected by the Protocols on their user experience. Further Protocols will continue to follow whilst the SLC continue to provide guidance to landowners on how the LRRS will be implemented.
For further information and advice in relation to any aspect of land ownership, please contact a member of the Land and Rural Business Team.