The Scottish Land Commission (“SLC”) recently published two new protocols setting out best practice and expectations for private Trusts and Charities which own private land in Scotland; ‘Land Ownership by Private Trusts and ‘Land Ownership by Charities (“the Protocols”).
The Protocols are the third and fourth of their kind to be published as part of an initiative by the SLC to encourage Trustees to take steps to implement the principles set out in the Scottish Government’s Land Rights and Responsibilities Statement (“LRRS”) which aims to improve transparency, accountability and governance in relation to land ownership in Scotland. The Protocols address the following LRRS principals:-
- Principle 1: The overall framework of land rights, responsibilities and public policies should promote, fulfil and respect relevant human rights in relation to land, contribute to public interest and wellbeing, and balance public and private interests. The framework should support sustainable economic development, protect and enhance the environment, help achieve social justice and build a fairer society;
- Principle 3: More local communities should have the opportunity to own, lease or use buildings and land which can contribute to their community's wellbeing and future development; and
- Principle 5: There should be improved transparency of information about the ownership, use and management of land, and this should be publicly available, clear and contain relevant detail.
Scope of the Protocols
As the Protocols seek to set out practical expectations for Trustees of private Trusts and Charities in line with the principles above, they are applicable to all of the following:-
- Private Trusts/Charities which own and manage land in Scotland;
- Trustees, land managers or Trust/Charity employees with significant influence and control over land
- Community councils representing the area within which the land and/or a related community sits; and
- Relevant constituted community organisations who have an open membership, demonstrate community control and who represent a defined geographic area.
“Land” is widely defined in the Protocols as any right or interest in or over land, including buildings and other structures and land covered with water, urban or rural.
There are eight specific practical expectations contained in both Protocols and a further four included in the Charity Protocol only.
In summary, the practical expectations for Trustees are as follows:-
- To ensure that up-to-date information on the identity of the Trustees and contact details are publically available (ideally online).
- To follow the LRRS Protocol on Community Engagement in Decisions Relating to Land if the Trust/Charity is planning to make significant changes to the way land is used and managed which will affect the local community, or if a relevant community organisation makes a request for information.
- To regularly review their governance and consider the skills and local knowledge required to carry out their roles of land ownership.
- To appoint Trustees who have a significant connection to, and knowledge of, the local area and community where the land owned is situated.
- To consider whether any changes to the structure or governance of the Trust/Charity are likely to affect the local community and follow the LRRS Protocol mentioned at point 2 above.
- To consider how Trustees can work with the local community when reviewing their operational strategy.
- To consider a request from a relevant community body in relation to a lease or transfer of land owned by the Trust, subject to the Trustees’ duties and to provide open and transparent reasons about the decision-making process and decisions reached.
- To consider opportunities for small businesses or local residents to purchase or rent the land when considering a sale or lease of land owned by the Trust.
The additional expectations for Charity Trustees are:-
- To follow the LRRS Protocol on Community Engagement when making any decisions about land;
- To be proactive in sharing information in the Trustees’ Annual Report about land held, activities carried out on the land and public benefits received;
- To prepare Community Engagement Plans; and
- To consider any requests from a relevant community body to participate in decision-making processes.
Implementation and enforcement
The SLC suggests that a Trustee should bring the relevant Protocol to the attention of all fellow Trustees. The Protocols expressly state that the practical expectations do not overrule the terms of a Trust Deed or governing document and the legal duties of the Trustees will always take priority. The Protocols are designed to complement Trustees’ legal duties where possible and should be used as a guide for best practice. Advice may be sought from professional advisers such as land agents and Solicitors if the Trustees require it.
There are no provisions for sanctions for non-compliance contained within the Protocols (and indeed the SLC has no power to apply sanctions for non-compliance with any of their protocols or guidance).
Feedback of positive examples where the Protocols have created good working relationships between Trusts/Charities and the local community are requested, and it is intended that case studies will be prepared to inform and provide guidance for Trustees.
The Protocols are to be kept under review by the Scottish Land Commissioners to inform future recommendations to the Scottish Government.
If you would like any further information or to discuss the Protocols in more detail, do not hesitate to contact your Turcan Connell contact.