Scottish Land Commission protocol on land ownership by private trusts

On 23 June 2020 the Scottish Land Commission published a protocol on 'Land Ownership by Private Trusts' (the protocol). The protocol sets out the practical expectations for private trusts owning land in Scotland and is designed to encourage trusts to consider how Scotland's land rights and responsibility principles are reflected in their governance structures.

Sally Reynolds, Land Commissioner highlighted:

"Land is Scotland's biggest asset, so it is important that it is owned, managed and used in a fair way that benefits everyone. Private trusts and charities own significant areas of Scotland's land. These protocols will help improve understanding and transparency about the way trusts and charities operate as landowners."

(There is a separate protocol on "Land Ownership by Charities" - we have commented separately on it.)

The protocols focus on the following three principles of the land rights and responsibilities statement:

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.
2. 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.
3. 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.

Who does the protocol apply to?

It applies to:

• Private trusts that own and manage land in Scotland;
• Trustees, land managers or trust employees with significant influence and control over land;
• The community council representing the area where the land and/or a related community sits; and
• Relevant constituted community organisations that have an open membership, demonstrate community control and represent a defined geographic area.

What are the expectations?

The protocol sets out expectations that private trusts, trustees, land managers and trust employees should aim to follow. These include:

• Trustes should provide (ideally online) up to date, publicly accessibly information about who they are and who the main point of contact is for land matters.
• When making a decision that affects a local community and significantly changes the way land is used or managed, or when making changes to the structure or governance of a trust, trustees should follow the LRRS Protocol on Community Engagement in Decisions Relating to Land.
• Trustees should regularly review their governance and consider the skills and knowledge they need to carry out their roles. They should also establish whether they have sufficient knowledge of the local community in areas where the trust owns land and identify the skills they need to carry out their roles.
• If there is an approach from a community organisation to lease or take ownership of land from a trust, trustees should consider this in line with the terms of their trust deed and take into account their duties as trustees. Trustees should be open and transparent about their decision-making process and give clear reasons for their decisions.
• When considering the possibility of selling or leasing land to any person, Trustees should consider the opportunities for different types of organisations, small businesses and local residents to buy or take over the property.

How is compliance with the protocol monitored and/or enforced?

The protocol sets out that everyone covered by it should comply, provided that it is in line with the trust deed and the trustees' duties.

The protocol does not make provision for sanctions for non-compliance (and there is no provision in the legislation that created the Commission for it to have the power to apply sanctions for non-compliance with this kind of protocol or guidance).

However, the protocol requests that any person who has experienced a situation different from the expectations to contact the Commission with supporting evidence. The protocol confirms that, where appropriate, the Commission will provide advice and work to deal with any difficulties and improve practice.