Protocols on land ownership by charities and trusts



[co-author: Christie Jamieson]

Scotland boasts significant areas of beautiful greenery, much of which is owned by private trusts and charities. Last year, the Scottish Land Commission introduced two protocols in its Good Practice Programme which provides guidance for trusts and charities that own private land. The protocols were introduced with a view to encouraging the practical implementation of the Scottish Government’s Land Rights and Responsibilities Statement (LRRS) which aims to tackle land issues across Scotland. The protocols focus on the LRRS principles of:

  • promoting human rights in relation to land to help achieve social justice and enhance the environment;
  • providing local communities with the opportunity to own or lease land to contribute to community development; and
  • enhancing transparency of information regarding ownership, use and management of land.

The protocols set out 12 expectations for landowning charities and private trusts. These include:

  • to review regularly their governance regarding land ownership;
  • to consider how trustees can work with the local community when reviewing their operational strategy;
  • to consider opportunities for small businesses or residents to purchase or rent land;
  • to be proactive in sharing information in trustee annual reports about the land and its use; and
  • to consider requests from communities to participate in decision-making.

The overall aim is to encourage appropriate governance structures and practices which ensure that the land is owned, managed and used in a manner that is fair and considers the needs of local communities, and engages local communities in decisions on the land. Trusts and charities are encouraged to think about how their governance structures for the land take account of land rights and responsibilities. The protocols set a high bar for trusts and charities and some may be difficult to fulfil. The protocols clarify that the governing document and legal duties of the trustees override the protocols which are largely unenforceable by law. However, it would be good practice to implement the protocols to the extent possible.

The spirit of the protocols is one of community engagement and interests. Across both protocols, it is clear that landowners should consider taking steps to ensure that the interests of the community are taken into account. Whether by direct representation by locally-based trustees or by inclusion of local people at specific decision-making points, proactive community engagement is expected of charities and private trusts. Both protocols seek to achieve a level of accountability to the local communities where land is held. The focus on transparency means that trustees should be aware that contact and trustee information should be made available to the public. Each deals with expectations regarding requests for information about changes to land use, and protocols which should be adhered to in relation to community engagement in decisions.

A special thank you to Christie Jamieson, trainee, who contributed to this article.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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