Land ownership and obligations

Farmer fined for destroying burial site

A recent story reported by the BBC involved a farmer from Skye who was fined £18,000 after being found guilty of destroying what is thought to be an ancient burial cairn. The farmer had partially excavated the site, which stands on his land, for a building project. It is reported that Historic Environment Scotland (HES), the public body at the forefront of protecting Scotland’s historic environment, contacted the farmer on three separate occasions to alert him to the existence of the monument. This was in addition to their routine site visit every ten years. By excavating the site he was found, therefore, to have shown complete disregard for its historical significance. The procurator fiscal commented that landowners have a duty to help protect monuments such as these and emphasised the serious nature of such offences.

The breach in this case was of the Ancient Monuments and Archaeological Areas Act 1979. This legislation gives the Scottish Government the power to confer protected status on culturally important landmarks, such as cairns, and have those landmarks entered into the Schedule of Monuments. Registered titles should contain burden entries in the title sheet narrating any such entries in this Schedule.

Section 2 of the 1979 Act sets out the general offence:

“If any person executes or causes or permits to be executed any works to which this section applies he shall be guilty of an offence unless the works are authorised under this Part of this Act or by development consent.”

Breaches carry a penalty fine of up to £50,000. If the breach is considered very serious however, the accused will face a jury trial and will be subject to a fine on conviction.

It is important to note that often landowner obligations extend beyond acts of the landowners themselves. In 2014 for example, a landowner was held liable for the poisoning of a buzzard by his gamekeeper. The offence, a breach of section 18A of the Wildlife and Countryside Act 1981 resulted in a £675 fine.

The seriousness with which the offences for breaches are treated can be seen in the Scottish Government’s implementation of the Land Reform (Scotland) Act 2016, and the consequent publication of the ‘Land Rights and Responsibilities Statement’.

Principle 4 of the Statement says that “[landowners] should exercise [their] rights in ways that take account of their responsibilities to meet high standards of ownership, management and use”. This is to be achieved by managing land in a way that also benefits the wider community through, for example, food production, job creation, accommodation creation, maintenance of buildings and infrastructure.

The vast majority of landowners understand that with ownership rights always come responsibilities and they exercise their ownership and management of their land accordingly. An example of this is the lease of land to local communities for the construction of renewable energy schemes. Such a lease has been put in place near Loch Broom, in the North West Highlands, on land administered by Forestry and Land Scotland. BroomPower Community Hydro both generates income for a Community Benefit Fund and up to 100kw of electricity from the ‘run of river’ hydro scheme located on the burn known as Allt a’ Mhuilinn. The scheme is subject to operating conditions put in place by the Scottish Environment Protection Agency to protect the aquatic ecology, which demonstrates the consideration shown for the natural environment in which the scheme is situated.

The consultation for the next Land Rights and Responsibilities Statement began in 2021 in line with the obligation to review the Statement every 5 years. Part of the Scottish Government’s proposal for the 2022 Statement ‘Vision’ is that “rights and responsibilities in relation to land and natural capital are fully recognised and fulfilled.” This suggests that more legislation may be introduced with regard to landowner obligations. It’s certainly clear from the seriousness with which the Skye case was treated, that preserving Scotland’s cultural rural landscape is a priority for the Scottish Government.

If you are aware of a monument on your land and are concerned about your obligations as a landowner, Harper Macleod’s rural team will be able to advise on the associated legal implications.