By Andrew Steven, Professor of Property Law, University of Edinburgh
In the pre-pandemic days of last autumn, the Scottish Government placed addressing climate change at the heart of its Programme for Scotland 2019-2020. The First Minister, Nicola Sturgeon, in her introduction to that publication, stated: “The consequences of global climate change will be severe. While in some parts of the world its effects are existential, we will also feel the impact here at home. We must act.” The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 is an example of the Scottish Government so acting.
Tackling climate change is the responsibility of everyone. Consideration of the issue by private lawyers in Scotland and elsewhere, as well as of environmental matters generally, has to date nevertheless been limited. This is certainly true of me.
It has therefore been welcome to have begun supervising, along with my public law colleague Navraj Singh Ghaleigh, a doctoral student, Pedro Cisterna Gaete, working in this area. He is considering the impact of climate change on informal settlements, in particular in Brazil and India, and how property law can be a barrier to the protection of such communities from the effects of global warming.
In the European private law sphere, the publication this summer by Intersentia of Contract and Property with an Environmental Perspective edited by Dr Siel Demeyere and Professor Vincent Sagaert of KU Leuven is also timely. The essays in the book are based on papers presented at a conference in Leuven in September 2019. They include contributions from Belgium, England, France, Germany, the Netherlands and Norway. The conference coincided with the occasion of Dr Demeyere’s public defence of her doctoral thesis. It happily has also just been published in book form by Intersentia as Real Obligations at the Edge of Contract and Property.
I must now declare my hand as a contributor to the book of essays and as one of Dr Demeyere’s examiners. Inspired by her thesis, which among many other things looks at real burdens in Scotland, I consider the use of our conservation burdens and climate change burdens. These are both provided for by the Title Conditions (Scotland) Act 2003. The focus here will be on the latter.
Climate change burdens
Climate change burdens were not introduced by the 2003 Act itself but by means of an amendment to that legislation by the Climate Change (Scotland) Act 2009. They joined the conservation burden as a new type of personal real burden. Such a burden – unlike the standard real burden (generally known as a “praedial real burden”) – does not require a benefited property. It can be held and therefore enforced, as the name suggests, by a person.
Like other personal real burdens, however, there are limitations as to the persons who can hold such a burden and on its content. The governing provision, section 46A of the 2003 Act, states:
Climate change burdens
(1) On and after the day on which this section comes into force, it shall be competent to create a real burden in favour of a public body or trust, or of the Scottish Ministers, for the purpose of reducing greenhouse gas emissions; and any such burden shall be known as a “climate change burden”.
(2) A climate change burden may only consist of an obligation, in the event of the burdened property being developed, for the property to meet specified mitigation and adaptation standards.
(3) For the purposes of this section, a “public body” means a body listed in Part I or II of the Schedule to the Title Conditions (Scotland) Act 2003 (Conservation Bodies) Order 2003 (SSI 2003/453).
Thus it may be seen that climate change burdens can require certain “specified mitigation and adaptation standards”. For example, there may be a requirement to reduce methane omission where an old industrial site is being sold or an obligation to plant trees with a certain carbon sequestration value.
Who can hold such burdens? First, the Scottish Ministers. Secondly, a “public body”. This is defined in subsection (3) as bodies on the secondary legislation list that are empowered to impose conservation burdens. That list, which is periodically updated, includes all local authorities and organisations such as the National Trust for Scotland. Thirdly, trusts. On its face, this might be taken to mean any trust, but a purposive interpretation would read it more narrowly: on a broad reading, the simple act of forming a trust would enable anyone to hold a climate change burden. However, exactly what such a reading would be is difficult to determine. Even with a narrower reading of “trust”, the list is quite a long one, although different in scope than the original proposal by Sarah Boyack MSP. It included all public bodies but not private conservation bodies.
This provision, which came into force a decade ago, might be said to be ahead of its time. A study of 25 European countries published in 2018 revealed that only France with its obligation réelle environmentale introduced in 2016, had something akin to our conservation burden, far less our climate change burden. Regrettably, the study only looked at England in the United Kingdom, where conservation covenants were the subject of a Law Commission Report published in 2014. It has yet to be implemented.
But facilitation of climate change burdens by statute alone is insufficient. The legislation needs to be used. When researching my paper, I attempted to find out how widely climate change burdens were being imposed in practice. Enquiries were made with Registers of Scotland, the Scottish Government Legal Directorate, local authorities and lawyers acting for conservation bodies. To my disappointment, I could not find a single title to land in Scotland (and there are over 2.5 million) on which a climate change burden had been imposed.
The essay suggests how this might be addressed. It would be helpful to amend the 2003 Act to subsume climate change burdens into the category of conservation burdens. This would follow the broader US approach in relation to conservation easements. It would also remove some technical deficiencies in the climate change burden provisions, one of which was mentioned above. There also needs to be government incentivisation of the use of these burdens, as there is in the USA and Australia where there is tax relief if a buyer agrees to subject their land to such conditions. As of 2019 it is estimated that more than 27 million acres of land in the USA are subject to conservation easements.
The position as regards climate change burdens contrasts sharply with some of the areas of property law on which I worked in recent years at the Scottish Law Commission. Thus when it comes to acquisitive prescription of moveable property and to moveable transactions the legal apparatus is simply not there in Scotland. But unlike so many other countries we have a property law mechanism already in place which can play a role in combating climate change. There is considerable room for improvement on both fronts. As Professor of Property Law at Edinburgh, I want to see this happen.
Andrew Steven, Professor of Property Law, University of Edinburgh