A new burden is born

Nestling within the Climate Change (Scotland) Act 2009 is a provision that may have implications for any solicitor who is dealing with property, primarily for or with the Government or local authorities. When s 68 of the 2009 Act comes into force, it will amend the Title Conditions (Scotland) Act 2003 to insert a new s 46A, thus creating the first new personal real burden since land tenure reform came into effect on the appointed day.

The new burden is to be called a “climate change burden” and its express purpose will be to reduce greenhouse gas emissions. The terms of the burden itself, which will be in favour of a public body or trust, or the Scottish Ministers, may only consist of an obligation for the burdened property to meet specified mitigation or adaptation standards in the event of it being developed.

Meshing with the law

As you might expect, the normal rules for drafting real burdens will still apply. It will be interesting to see how mitigation or adaptation standards can be enforced without, for example, falling foul of the “four corners” rule. The details for the measurement and quantification of such standards are usually to be found in extraneous legislation, such as the Energy Performance of Buildings (Scotland) Regulations. Although specification of an EPC or BREEAM rating is sufficient for contractual purposes, it is unlikely to translate well into a real burden. It is possible – it will probably just require a long schedule.

Given that an obligation to mitigate or adapt beyond any planning requirement might have a serious negative impact on value, local authorities will be mindful of their duty in terms of s 74 of the Local Government (Scotland) Act 1973 to obtain the best value for property disposals, and therefore they may think again before deploying this burden voluntarily when they dispose of property.

But which public bodies?

The section as passed in fact falls a good distance short of Sarah Boyack MSP’s original amendment, which provided that the climate change burden would benefit a person or body with functions of a public nature. It was decided at committee stage that this admirable piece of draftsmanship should be “reworked” by the civil servants. Did the parliamentary draftsmen instead substitute the definition of “public body”, meaning a Scottish public authority within the meaning of the Freedom of Information (Scotland) Act 2002 as is separately provided in s 44 of the 2009 Act, so as to cover the whole Scottish public sector? Did they in fact try to improve it to include reference to UK public bodies as defined in the Freedom of Information (Scotland) Act 2000?

Er, no. And here the story takes an unexpectedly quixotic turn. Despite having world-leading climate change targets to meet, the civil servants for some reason decided that in reworking the section, the definition of a “public body” would apply (in addition to the Scottish Ministers and local authorities) to… conservation bodies. Hooray. As a result, the St Vincent Crescent Preservation Trust can impose a climate change burden on its property sold for development, but not Scottish Water, SEPA, Scottish Enterprise, HIE etc. So can Sir Henry Wade’s Pilmuir Trust, but not the Ministry of Defence, the Coal Authority or a health board and so on. Nor is it open to an individual or a company to impose a climate change burden as a personal real burden.

Other means?

It may well have been in the civil servants’ minds that most climate change mitigation and adaptation standards will be enforced by means of planning conditions. If a real burden is required then planning authorities can impose planning agreements. If the Parliament is as serious as it states it is in relation to leading the global efforts to tackle climate change, it could have adopted this useful measure into the public sector. Although adaptation or mitigation standards above what the rest of the market has to endure would inevitably impact on the bottom line of the Government’s capital receipts, it is a voluntary measure, and the Government could have been an exemplar to all of us to invest in energy efficiency. The recast of the Energy Performance of Buildings Directive is likely to require the (whole) public sector to take a lead in setting the standards.

It seems an opportunity to lead has been lost. It may therefore be some time before this new type of burden is deployed in practice – if at all.

Euan Sinclair is a professional support lawyer at Burness LLP