Professional briefing - The Journal Online

Property Climate change
As the Copenhagen summit attempts to tackle climate
change, Euan Sinclair questions the ability of one provision
in the new Scottish Act to make much impact
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
58 / theJournal December 09
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
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
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
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