Land reform proposals published by the Scottish Government have the potential to create an onerous and expensive regulatory burden for charities owning land in Scotland. This is the conclusion which Turcan Connell has reached in its response to the Scottish Government's consultation on the future of land reform, which closed on 10th February.
The proposals brought forward by the Scottish Government include the creation of a legal duty for charities to engage with the local community whenever they wish to sell land or to make changes in the way charity land is used or managed. This duty would represent an unnecessarily onerous burden for charities, which are already well regulated by the Office of the Scottish Charity Regulator (OSCR) and which, like other land owners and users, are subject to planning law and regulation.
In the consultation response lodged by Turcan Connell's Charities Team, it is questioned why it is deemed appropriate to single out charity trustees alone to be burdened by this additional duty of community engagement – other landowners will not be subject to this new duty. As charities are already under a duty to act with a high standard of care and diligence, the imposition of an additional duty seems unnecessary.
There are also practical questions about how the duty will be enforced or monitored. OSCR is already working within limited resources and it is unlikely that further responsibilities could be undertaken there, so the question which arises is whether some new regulator would begin to intervene in charity land transactions. The Scottish Government consultation does not explain how the new duty would be policed.
Speaking about the land reform consultation proposals, Gavin McEwan, Partner and Deputy Head of Charities said,"We would be concerned about the burden placed upon charities if compliance with yet another regulator is expected. But more than this, we question whether the imposition of a duty of community engagement is appropriate or will actually deliver any meaningful benefit to communities or to charities. The duty as presently framed appears to be onerous and impracticable."
Jon Robertson, Partner and Head of Land and Property, also commented on how the use of land could be affected by the duty to engage with the community on management issues."It is not clear from the consultation whether charities could be forced to let land to communities for them to farm or manage, rather than the charity itself doing so: but if that end result transpired there could be serious consequences. If a charity has a charitable purpose of managing land with a light touch, for the benefit of flora and fauna or to preserve a fragile ecosystem, then an obligation imposed on the charity to engage in intensive agriculture, for example, could put the charity in breach of its charitable purposes."
Gavin McEwan highlighted tentative benefits which could flow from the community engagement proposals, but questions whether charities should be forced to seek such potential benefits."It is arguable that local community engagement may increase local support for charities in some circumstances, particularly if the charity is focused on a local community. Whether a formal legal duty to engage with the community should be placed upon charities in order to achieve such increased support is, however, highly questionable."