Adding a Conservation Body to Title Conditions: FOI release

Information requested

Guidance to help you understand the process through which a new conservation body can be prescribed under the Title Conditions (Scotland) Act 2003. You are "keen to understand:

• The criteria an organisation would have to meet to be accepted as a Conservation Body
• The process by which an organisation could apply to be added as a Conservation Body
• The process by which an Amendment SSI would be written and signed off by ministers
• Roughly, how long this process might take.”

Response

The answer to your question is as follows.

It may be helpful if I provide a general overview of section 38 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) which sets out the criteria to be met in order that a body be prescribed as a ‘conservation body’ for the purposes of creating conservation burdens.

You will also wish to refer to the 2003 Act: https://www.legislation.gov.uk/asp/2003/9/section/38 and Explanatory Notes https://www.legislation.gov.uk/asp/2003/9/notes/division/4/3/1

General overview

Section 38(1) of the 2003 Act allows for the creation of conservation burdens in favour of designated conservation bodies. Conservation burdens are title conditions set out in the title deeds of property which ensure the preservation or protection of architectural, historical or other special characteristics of any land (including, without prejudice to this generality, a special characteristic derived from the flora, fauna or general appearance of the land), for the benefit of the public. A conservation body is entitled to enforce conservation burdens created in its favour.

Section 38(4) of the 2003 Act provides that Scottish Ministers may, by order, prescribe such bodies as they think fit to be a conservation body. The Scottish Ministers may prescribe a body as a conservation body only if at least one of the body’s objects or functions is to preserve, or protect for the benefit of the public, the architectural, historical or other special characteristics of any land. In the case of a trust, the conservation body is the trustees of that trust.

The right to enforce a conservation burden runs with the conservation body itself and not the land. A simple example would be burdens imposed in a Deed of Conditions by the National Trust for Scotland where a number of houses have been restored.

A conservation burden is extinguished if the holder ceases to be a conservation body or if the holder ceases to exist.

Application process

By virtue of section 38(5), the Scottish Ministers may prescribe a body as a conservation body if at least one of its ‘objects or functions’ is in line with the aforementioned criteria. When designating a body, Ministers would also need to be satisfied that:

• Designation is within the powers given to Ministers under section 38;
• The conservation burdens likely to be created in favour of the body would benefit the public;
• The conservation burdens likely to be created in favour of the body would preserve or protect the architectural or historical or any other special characteristics of land:
• The objectives of the body seeking designation as a conservation body could not be met through existing means (such as, for example, the planning system).

There is no particular format for making an application however, an application should include information in order to address the questions below:-

• What benefits would accrue to the body from being designated as a conservation body;
• What benefits would accrue to the public from the body being designated as a conservation body;
• What activities the body would intend to carry out as a consequence of being designated as a conservation body;
• Why the outcomes the body are seeking cannot be achieved through other means (such as, for example, the land-use planning system)

Where a body considers that their purposes meet the statutory criteria, then they should submit an application to Scottish Ministers outlining in the covering letter how the body would use the status of conservation body. A copy of the body’s constitution and/or memorandum and articles of association (to demonstrate that they include the appropriate objects or functions as described above) along with any relevant paperwork which the body think would be helpful to support and demonstrate the reasons for the application.

An indication in the covering letter of whether a body has any particular date which they ideally wish to achieve conservation body status is helpful. Applications are dealt with according to the Scottish Parliament’s process and timetable. The likely timescale is around 6 months.

Ministerial process

As stated above section 38(4) of the 2003 Act provides that Scottish Ministers may, by Order, prescribe such body as they think fit to be a conservation body.

Once the application and supporting information is received, Scottish Ministers will consider whether or not it would be appropriate to designate a body as a conservation body by drafting a Scottish Statutory Instrument (SSI) in the form of an “Order” to be laid before the Scottish Parliament for at least 28 days when the Parliament is sitting.

If so, the SSI will make an amendment to the Title Conditions (Scotland) Act 2003 (Conservation Bodies) Order 2003 by adding a body’s’ name to the list of prescribed conservation bodies. A policy note is drafted to accompany the Order.

The order is by secondary legislation and is subject to the negative parliamentary procedure. An example of previous orders made The Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2016 (legislation.gov.uk)

One of the functions of the Scottish Parliaments Delegated Powers and Law Reform Committee is responsibility for checking secondary legislation coming before the Parliament for legal and technical accuracy. MSPs have 40 days to lodge a motion to annul the Order, which may also be considered by a Committee.

When the period of laying has cleared if there has been no successful challenge to the Order a letter will be issued confirming that Scottish Ministers have prescribed the body as a conservation body. It will state when the Order comes into force and a link to the legislative website to view the Order.

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