Charges on Land for Environmental Liabilities: A Matter Of ‘Priority’ For Scotland

Abstract

This article examines the viability and utility of introducing a statutory power in Scotland enabling its environmental regulators to take a first-ranking charge over land. It would facilitate recovery of costs incurred in undertaking the unfulfilled environmental obligations of a recalcitrant or financially distressed operator. Such a charge has been characterised as contrary to Scots land law. The article makes two original contributions, the latter of which is pertinent to other jurisdictions considering implementing such a charge. First, Scots land law is found to be receptive to such a charge provided there is appropriate publicity and its priority as compared to other charges created in favour of third parties at an earlier date is expressly stated in statute. Secondly, with the policy rationales for the 'polluter-pays' principle of European Union environmental law used as a frame through which to understand the multi-faceted functions of corporate environmental liability, such a charge is shown to play an important role in facilitating these. Recommendations are made for its implementation in statute.