The Title Conditions (Scotland) Act 2003 introduced new types of title burdens, including conservation burdens. 18 years since enactment, however, they are still a relatively rare beast. This article explains how conservation burdens are used in practice and discusses how, with the growth of carbon capture, they might come to the fore in supporting that emerging market.

 

What are conservation burdens? 

A burden, the Scottish equivalent of a restrictive covenant in England, is an encumbrance on one property (the burdened property) in favour of the owner of another property (the benefited property). A very common burden would be for the owners of land either side of a fence to maintain that boundary fence. 

The general rule is that the burdened property carries with it the obligation to comply with the burden and the benefited property carries with it the right to enforce the burden. This means the burden is binding upon successive owners of the burdened and benefited properties. However, conservation burdens are slightly different, because, while the burdened property carries with it the obligation to comply with the conservation burden (and that is binding on successive owners) there is no benefited property to which the burden attaches. Instead, the conservation burden is enforced by a conservation body, who might not own any land in the vicinity of the burdened property.

 

Conservation bodies 

The Scottish Ministers determine who can be conservation bodies.  The list presently includes all Scottish local authorities, as well as a number of other bodies who deal with the preservation and conservation of property, including the Scottish Ministers themselves.

 

Conservation burdens in practice 

Conservation burdens can be created to preserve or protect, for the benefit of the public: 

(a)    the architectural or historical characteristics of the property; or

(b)   any other special characteristics of the property (including a special characteristic derived from the flora, fauna or general appearance of the property). 

The context in which conservation burdens are most often used is where an owner obtains grant funding from a conservation body, who gives the funding in exchange for a conservation burden being registered against the owner’s property. 

Conservation burdens can also be a useful tool to consider when succession planning, in the event the testator wishes to ensure that the inherited property is only used by the beneficiary for conservation purposes. 

Conservation burdens might also be used to suppress the value of property, such that a particular purchaser, who is interested in conservation use only, can afford the purchase price. For example, many public bodies require to achieve best value for the property they sell. If the property had the potential for commercial forestry, then the best value would include the, currently, strong prices for forestry land and could price out a purchaser who intends to use the property for conservation purposes. By registering a conservation burden against the property, the best value is calculated on the basis of the use of the property being restricted to conservation purposes only.

 

Why are conservation burdens not extensively used? 

Notwithstanding the various ways in which a conservation burden can be used, evidence shows that they are rarely adopted.  The most obvious reason why is because an owner, generally, wishes to limit the extent to which their property is subject to any restrictions, to have freedom to use their property as they please and to achieve the best price on selling the property. 

It might be thought that conservation bodies who sell their property would burden the purchaser with a conservation burden to continue to use the property for conservation purposes, but if the conservation body is selling their property, then it is questionable what continuing interest the body would have in enforcing the conservation burden.  Which raises the question of who is monitoring compliance with conservation burdens, who is enforcing them, and who finances that monitoring and enforcement?  Currently, there is no public oversight of the content of conservation burdens or their enforcement, and conservation bodies are not required to work together to co-ordinate activities across multiple landownerships, which could be seen as a flaw where conservation on a large scale is needed to truly achieve the environmental aims behind the conservation burden.

 

Carbon capture and biodiversity loss 

But that lack of uptake may change if conservation burdens are used as a tool to facilitate carbon capture and sequestration. For readers unfamiliar with these terms, they refer to the process of capturing and storing atmospheric carbon dioxide, with that process creating a “carbon credit” to offset one’s own emissions or selling the carbon credit to another party who wants to off-set their emissions. 

The Peatland ACTION Fund is a government-backed initiative aimed at mitigating climate change and stabilising the carbon cycle, while the Woodland Carbon Code (WCC) and the Peatland Code (PC) are voluntary standards that have enabled conditions for a private market in carbon sequestration. Within the WCC, there is evidence that some projects have adopted conservation burdens, imposing legally binding conservation obligations on the land for present and subsequent owners in order to ensure continued compliance with the conservation objective of carbon capture. 

The Peatland ACTION Fund shows an appetite for government funding within the area of climate change and biodiversity loss, and conservation burdens could become a more widely used tool in helping to achieve the desired environmental aims on a large scale.  Arguably, the greater the public expenditure incurred in projects utilising conservation burdens, the more important the governance-related issues and accountability become, and to dovetail what is happening in the public law sphere with the emerging private carbon market.  The obligations and restrictions contained within the conservation burden also become more important.

 

Legal drafting 

Scots law values stability and predictability, but that does not necessarily sit well with biological systems that are constantly evolving. Any long-term specific obligations in a conservation burden could quickly become inappropriate or outdated. If a conservation burden is very widely drafted to allow it to have greater longevity, it could be so vague as to be meaningless and be difficult to enforce. Careful consideration is therefore required to translate specific ecological needs into the legal domain of a conservation burden in a meaningful way and, if conservation burdens are to be a tool used to address climate change and biodiversity loss, in a way which can adapt to changing circumstances and the needs of an emerging carbon market.

 

Turcan Connell are experienced in dealing with conservation burdens and for more information or advice, please get in touch with your usual Turcan Connell contact or contact us on 0131 228 8111 or through the website.