CONSERVATION BURDENS AND LEGAL PROTECTION

Summary

This note discusses legal mechanisms that may allow rewilders to ensure that the ecological gains made on their land are protected in the future even when ownership of the land changes hands. In particular, this note looks at conservation burdens in Scotland and a novel private law legal mechanism that has been developed by the Lifescape Project with the aim of overcoming some of the shortfalls of other mechanisms (referred to in this note as the “Legal Mechanism”).

Practical scenarios

There are many different circumstances in which rewilders may wish to consider applying either conservation burdens or the Legal Mechanism to their land. We have set out below three examples of projects which may benefit from such protection.

2.1 What are conservation burdens and why are these special?

As with land elsewhere in the UK, land use in Scotland can be restricted and governed through the use of title burdens (covenants). These are rights of, or obligations on, a landowner that are recorded in the title of the property (which is a public document).

In general terms, in order to enforce a real burden the enforcing party would need to show both title and interest¹ . Title comes through the ownership of either an interest in the property of concern, or other property in the immediate vicinity. Interest, i.e., the legitimate interest that is protected by the terms of the burden, would be determined on the specific facts and circumstances. In extreme cases where enforcement was required this may require court proceedings in the form of an action for specific implementation or (where seeking to prevent an act) interdict (the Scottish equivalent of injunction).

From a rewilding perspective, a general title burden could comprise a restriction in the title to a piece of land to prevent it from being built upon or developed or used for a specific purpose. However, for a general burden, the enforcer of this right would need to own land in the immediate vicinity to give them title to enforce. This limits the use of straightforward title burdens in a rewilding context, as often a rewilder will not own other land in the vicinity.

However, there is one set of burdens which does not require the enforcer to own other property. These are known as conservation burdens. ² In short, conservation burdens may (provided the necessary criteria are met – see below) allow restrictions on the use of specific areas of land to be put in place, such as prohibiting actions to be taken which would reverse rewilding with such restrictions binding future owners of the land.

Conservation burdens are personal rights, not linked to specific property ownership. This means they are more flexible and can benefit specified organisations which have been designated as a conservation body (see below). As such these burdens would seem ideal candidates as a mechanism for the protection and enforcement of rewilding objectives (subject to the qualifications noted below).

The key characteristics of conservation burdens³ are that:

• they can be granted by any land owner, but can only be granted in favour of a conservation body or the Scottish Ministers;
• if someone other than a conservation body or the Scottish Ministers wishes to create a conservation burden they must first obtain the consent of the body which it is intended will hold the right to enforce the burden;
• they are to be granted for the purpose of preserving, among other things, the special characteristics of land derived from the flora, fauna or general appearance of the land;
• as it is not tied to a specific property, the right to enforce the burden can be assigned to subsequent conservation bodies (or the Scottish Ministers)⁴, which means that there is flexibility around the actual beneficiary;

• the burden is extinguished if the body which benefits from it ceases to be a conservation body; and
• they must be for the benefit of the public (see comments in the following section).

As these forms of burdens are relatively new there is as yet little guidance as to what specific purposes (or indeed special characteristics) could be covered – this would need to be considered depending on the circumstances of each case. Currently most conservation burdens have been used in the context of the cultural or built environment, rather than “natural” heritage. However, this emphasis may change as rewilding and other similar projects come to the fore. It is a natural progression to foresee burdens which could restrict the use of large areas of land for any commercial purpose and/or prevent certain actions being taken such as draining or exploitation of peat bogs.

Conservation burdens would therefore seem to be an appropriate mechanism to enforce land use restrictions to secure the legacy of a rewilding project. It is worth noting that, as a burden on land, a conservation burden (and indeed any other title burden) applies to any interest deriving from that land e.g. any tenant under a lease should be bound by its terms.

2.2 Limitations of conservation burdens

A conservation burden is a legal burden and is subject to the same requirements for effective enforcement as those noted above (i.e., title and interest – see above). Title would be provided by conservation body status and interest from the substance of the burden itself. This must be either an obligation to do something, or (more likely in the case of rewilding) an obligation not to do something e.g. a prohibition on farming, shooting or development of land.

Real burdens can be relatively inflexible and rigid and will be given a restrictive interpretation, meaning they need to be very clearly drafted.⁵ In a rewilding context this would be especially relevant to obligations restricting the use of a property as these are especially strictly enforced. This may cause further challenges as circumstances applicable to a rewilding project may evolve over time as land is left to rewild. Appropriate expert input is recommended to ensure that the burden is as precise as possible to accommodate this evolution and reduce the risk of successful future challenge.

Conservation burdens must also be drafted to operate for the benefit of the public. Unfortunately, this requirement is not clarified in the Land Reform Scotland Act 2003 Act, but it should be assumed that provision would need to be made expressly in the real burden for some public benefit e.g. a statement that the purpose of the Burden is to facilitate the Right to Roam, or the protection of a specific natural feature, so that it could be demonstrated that that the public benefit test was met.

As with any land burden, conservation burdens are open to challenge. Primarily this would be if the burden was not clearly drafted, as there is a presumption that any burden would be applied in the least burdensome manner as it impacts on the right of an owner to deal with their property. Rewilders should note that conservation burdens for the protection of the natural environment are new and as yet untested with most existing conservation burdens relating to the built, rather than the natural environment.

The Lands Tribunal for Scotland has the power to vary or discharge any land obligations, including conservation burdens, on the application of a property owner whose title is affected. A consideration of all of the factors which must be taken into account in any decision of the Lands Tribunal is outwith the scope of this briefing note. However, Section 100 of the Title Conditions (Scotland) Act sets out the specific factors which must be considered by the Lands Tribunal in making their decision. These are not applied in any particular order with the exception that the Tribunal has stated that it will look first at the purpose or intention behind the original imposition of the title condition – in this case rewilding.

If at any point the land was incorporated into plans for a major infrastructure project or development seen as key to an area’s development in the eyes of a Local Planning Authority, the land could be subject to a compulsory purchase order, which would effectively wipe out the conservation burden on completion of the acquisition. There are ways to challenge such a decision, including judicial review (which are outwith the scope of this briefing note). However the prospects of successful claim in these circumstances are often low.

It is also worth understanding that as conservation burdens are created under public law, it is possible that in the future the regime established by the Title Conditions (Scotland) Act 2003 may be altered by government, potentially strengthening or weakening its impact.

Conservation burdens can be amended, either by agreement of the parties or by the Lands Tribunal for any reason on the application of an affected party. This means that the future strength and enforcement of a conservation burden can never be absolutely certain.

2.3 What is a conservation body and how are these created?

The Scottish Ministers may by order⁶ , prescribe such a body as they think fit to be a conservation body. However, these powers may only be exercised in relation to a body if the object, or function, of the body (or, as the case may be, one of its objects or functions) is to preserve, or protect, certain characteristics of land for the benefit of the public, including a special characteristic derived from the flora, fauna or general appearance of the land.

To date (2022) only around 30 conservation bodies have been constituted. A full list can be found at: The Title Conditions (Scotland) Act 2003 ( conservation bodies) Order 2003 (legislation.gov.uk)

The Lifescape Project is hoping shortly to join this list as it is currently well advanced in the process of registering as a designated conservation body. Lifescape would be open to discussions with interested landowners to facilitate the

creation of conservation burdens (the benefit of which would be held by Lifescape) to protect current and future rewilding projects by this mechanism.

2.4 How could conservation burdens be used to assist Landowners A, B and C?

The landowners in Rewilding Projects A, B and C may want to consider whether conservation burdens could be useful and applicable to them.

In relation to each of these projects, the landowners will also need to consider that agreeing to an onerous conservation burden binding all successive owners could make it more difficult to sell or secure their land and could reduce its value. Further, careful thought will have to be given as to the terms of the conservation burden agreement in light of this mechanism’s relative inflexibility and the uncertainty inherent in rewilding projects. It may be impossible to predict the outcome of nature-led processes in Rewilding Projects A and B from the outset, and the actions needed (if any) to support the land or the wildlife on it may change over time. In order to ensure enforcement the partner conservation body must be carefully chosen and, where possible, steps taken to ensure they are adequately funded for the task.

Before deciding if a conservation burden is the best option to achieve their objectives, Landowners A, B and C should consider the risk that any conservation burdens they put in

place may be altered or amended in the future by agreement between the parties or by an action brought through the Lands Tribunal, or may even be removed altogether if there is a compulsory purchase of the land. As a relatively untested form of land restriction a conservation burden may also be open to challenge – albeit careful preparation should minimise this possibility. There is also the inherent risk in public law mechanisms that future governments may alter the underlying legislation and that any changes may both weaken or strengthen the applicable regimes.

Given the challenges which might face the constitution and enforcement of conservation burdens, Lifescape have been working in conjunction with Clifford Chance LLP in England and Burness Paull LLP in Scotland to develop the Legal Mechanism. This is designed to offer comfort to landowners through the knowledge that a ‘guardian charity’ (equivalent toa conservation body referred to above) of their choice will have the enforceable legal right to preserve their original conservation vision.

Two different structures are envisaged under the Legal Mechanism, both of which rely on long established principles of heritable (freehold) and leasehold interest in land:

• The first requires the transfer of the heritable (freehold) interest in the land to the guardian charity and the creation of a long-term⁷ leasehold interest (175 years) in favour of the landowner. Under this structure, it will be the leasehold interest which is passed on to all future “owners”, with the heritable (freehold) interest being retained by the guardian charity, including at the end of the 175-year lease.

• The second envisages the heritable (freehold) interest staying with the landowner with the land leased to the guardian charity and then under-leased back to the landowner. This second structure ensures that the heritable (freehold) interest would remain with the landowner’s successor in title with the leasehold, and under-leasehold, interests terminating at the end of the 175-year period.

Both structures should allow the landowner (and the successors to their interest in the land) to retain day to day control, with the guardian charity being able to enforce obligations as to the management of that land.

In either structure, the leasehold agreement between the landowner and the guardian charity will set out obligations for maintaining biodiversity etc., on the relevant land and restricting its future use in accordance with rewilding principles. These terms are fully negotiable between the landowner and the guardian charity and do not need to meet any of the technical criteria required for statutory conservation burdens, albeit they would still be subject to potential challenge through the Scottish Land Tribunal.

The Legal Mechanism (in either form) would be applied to land using precedent legal documents developed by the Lifescape Project and Scottish lawyers.

In much the same way as for conservation burdens, the guardian charity (e.g. the Lifescape Project or another elected charity) would then enforce the agreed obligations and protections over the land in the future, particularly once the land has passed out of the original landowner’s hands (i.e. on an open sale or successor in title).

This structure has been designed to provide comfort to donor landowners that their conservation or rewilding legacy would be protected. In particular, when compared to conservation burdens, the proposed mechanism:

• limits controls by the Scottish Government as to who can be the guardian charity;

• limits potential future government interference through the removal of bodies from the list of conservation bodies;
• limits the cancellation of conservation burdens by government action if policy objectives change; and
• may also be able to prescribe more detailed management obligations on the land compared to conservation burdens.

We encourage landowners and rewilders who are interested in these two concepts to reach out to the Lifescape Project team to discuss potential application of either of these two useful approaches. Please contact Elsie Blackshaw-Crosby at the Lifescape Project on elsie.blackshaw@ lifescapeproject.org

Thank you to Burness Paull LLP for their legal support in producing this briefing note.

This publication does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. You should not assume that the case studies apply to your situation and specific legal advice should be obtained.

The hyperlinks to legislation, guidance and various other external sources within this briefing are correct as of October 2022.