From land registration to access and security of tenure, this blog examines the extra layer of challenge to already highly complex projects that can arise when schemes cross the border between England and Scotland.

Traditional approaches to Land Registration and Land Tenure

One of the main differences which affect utility negotiations in the UK is land registration.

Scotland's system dates to the 17th century with the Register of Sasines, followed by the Land Registration (Scotland) Act 1979 which introduced the Land Register of Scotland. However, not all properties have transitioned; as of early 2024, only around 53% of Scotland’s landmass was registered, with efforts continuing to meet full coverage.

The land registration journey was more fragmented in England with voluntary efforts beginning in the 19th century until the Land Registration Act 1925 introduced compulsory registration in selected areas. Full mandatory registration came by 1990. The Land Registration Act 2002 modernised the system further and HM Land Registry now oversees a fully digital register.

Whilst both systems now aim for comprehensive digital coverage, Scotland’s transition from the Sasine Register is still ongoing showing delayed progress in comparison to the English success. The gap in digitisation means information may be harder to access which could present a risk to land strategies given the time-sensitive nature of infrastructure projects.  

Legal Differences: Access Rights and Legislative Approaches

Across both countries, a wayleave or a deed is typically used to protect the assets of utility companies such as electricity transmission towers. A Deed of Easement in England provides a registered interest in the land, available on HMLR, whereas a wayleave represents an access right with the current landowner that does not pass with the title, more detail of which can be found here. Although offering differing levels of security, both provide the utility companies with rights of access over their assets.

Scotland follows a comparable framework, albeit with distinct terminology, with a Deed of Servitude. This operates in the same way as a Deed of Easement and is shown across both the Sasine Register and the Scottish Land Register.

A more substantive legislative distinction arises in the context of security of tenure. In England, the Landlord and Tenant Act 1954 confers tenants the right to remain in occupation of business premises post-lease expiry and to seek renewal, subject to limited grounds for landlord objection.

Scottish law, by contrast, offers no direct equivalent for commercial leases. Security of tenure is only marginally addressed under the Tenancy of Shops (Scotland) Act 1949. This disparity has practical implications when negotiating access rights for utility maintenance and installation, as a lack of tenure certainty may complicate long-term tenancy planning and stakeholder engagement.

Practical Impacts of the Differences

While Scotland and England share numerous operational similarities, there are distinct differences that necessitate a nuanced, region-specific approach. A thorough understanding of this enables teams to tailor their approaches effectively. Increased awareness of these subtle but significant variations not only fosters trust among affected landowners, but also ensures clients receive advice that is both accurate and contextually appropriate.

Such considerations have become increasingly pertinent as utility and infrastructure sectors continue to evolve. For instance, the growing emphasis on offshore wind energy development has brought greater attention to the issue of foreshore ownership – a non-legislative distinction with practical implications. In England, foreshore areas are often under the control of public entities such as the Crown Estate, whereas in Scotland, a larger proportion tends to be privately owned. Recognising and accounting for these differences is essential to avoid presuppositions and ensure effective cross-border operations.

Overall, it is the acknowledgement of detail that facilitates seamless project delivery regardless of location.

Further information

Contact Ellie Crawley or Mererid Hopwood