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Justice 1 Committee

9th Report 2002

Stage 1 Report on Title Conditions (Scotland) Bill
Volume 2: Evidence

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SP Paper 687

Session 1 (2002)

 

SUBMISSION FROM HANOVER (SCOTLAND) HOUSING ASSOCIATION LTD

As a general comment we feel that the Scottish Executive has consulted widely and addressed some of the main concerns which we and other organisations expressed in our original response to the draft Title Conditions (Scotland) Bill dated July 2001 to the Scottish Executive.

One of our original concerns about the proposed changes to property ownership as it affects older owners in sheltered housing was, that unlike most other types of owner occupation, there are often two distinct groups of owners in sheltered housing. The first group tend to be younger, recent retired and more independent and often couples, the second group are often very much frailer and less independent.

Most of the difficulties which arise both for sheltered housing owners themselves and for the management of sheltered housing arises from balancing the often very different wishes of these two distinct groups and we are still concerned that the implementation of the Title Conditions (Scotland) Bill might inadvertently make this task even more difficult and costly for both owner and manager.

Some of these issues appear to have been recognised by the Scottish Executive as a result of their wide consultation on the Bill and we are very pleased that the Bill has been amended to identify certain core elements of `sheltered housing' and to specify that the provisions in the Bill permitting discharge of burdens by a simple majority will not apply to these core burdens.

Definition of Sheltered Housing

Hanover has concerns about the definition of sheltered housing provided in the draft Bill. At present, the definition given "...provided with facilities substantially different from these of ordinary dwellinghouses" seems very vague and inclusive of many types of property which would not normally qualify as sheltered housing.

As suggested previously, a possible solution would be to adopt the definition provided in the `Framework Code of Management Practice for Owner Occupied Sheltered Housing', devised by the experienced Working Group who spent a lot of time attempting to get a precise, but not too narrow definition of sheltered housing.

Minimum Age Requirement

We strongly support the protection of the minimum age requirement as regards sheltered housing which has now been inserted in the Bill. Whilst, however, fully supporting that there should be a minimum age requirement, we would be concerned if this meant that the existing minimum age in the Deeds of Condition could never be altered.

At present for example, some of Hanover's Deed of Conditions have different ages for entry to sheltered housing for men and women, and in a modern society this might not appear equitable and we would have obvious reservations about being unable to alter this, except with 100% consent of owners.

Perhaps therefore, there should be a minimum age e.g. 55 years which would not be capable of being lowered, but above that the age could be varied with e.g. 75% consent.

Delegation of powers to a Manager:

The amendment regarding the power to delegate to a Manager being subject to a majority of 75% would also seem to be an improvement on the original draft Bill as is the fact that it will not be possible for the Manager to vary a burden affecting the `core elements'.

Effect of Title Conditions (Scotland) Bill regarding the management of Hanover (Scotland) Housing Association Limited:

Despite the Executive's recognition of the `core elements' which distinguish sheltered housing from other owner occupied housing and the recognition that a simple 51% majority vote is not sufficient protection when voting to vary certain conditions, we do still have some concerns about the effect of the Bill.

One of the difficulties in managing the changes arising from the implementation of the Bill as far as Hanover is concerned arises from the differing/sometimes conflicting rule of Hanover as both manager for the owners and employer of the Warden and our need to remain and to be seen to be impartial when promoting and implementing change necessitated by the enactment of the new legislation.

Research seems to indicate that older owners moving to sheltered housing either do not receive, or do not fully appreciate the quite different lifestyle involved in being part of a sheltered housing development and, unlike other types of owner occupied housing, quite small changes in conditions which would not have been able to be changed prior to the changes in Property Law could lead to quite disproportionately adverse effects on some of our frailer owners. For example the possible removal of a burden allowing each owner to have one well behaved pet and perhaps have no pets could lead to great unhappiness for an elderly person.

· Even where changes are made which require a 75% threshold this could still leave 25% of the residents feeling very unhappy.

· At present, this unhappiness would normally be directed at Hanover (Scotland) Housing Association Limited as manager/superior but in the future this may well be directed at neighbours/friends instead, with obvious divisive results.

Independent Advice Service

We still feel very strongly that the Scottish Executive should consider the possibility of establishing and funding an independent advice/mediation service relating to the Bill even for a time-limited period.

The Abolition of Feudal Tenure Reform (Scotland) Etc Act 2000 and the Title Conditions (Scotland) Bill are highly complex pieces of legislation and, as stated before, it does not seem to be equitable that either owners themselves nor indeed the managers of this service should have to pay for legal/financial advice on this issue.

Organisations have already spent a great deal of time and money on issues arising from the implementation of the Bill, but it has to be recognised that for charitable, `not for profit' organisations, money spent in this area obviously means less resources are available elsewhere.

It is also important that owners receive independent advice since the impartiality of the manager (formally superior), will not be recognised for obvious reasons.

The longer term issue which arises is that, if the implementation of changes arising from the new legislation ultimately means that involvement in the owner occupied sector becomes economically not viable for charitable organisation and therefore obviously not for commercial managers, where does this leave the owners?

We have worked very hard to update the owners on the implications of the Title Conditions (Scotland) Bill and indeed have sent a copy of the Executive's excellent summary to all owners and asked for their comments.

Implications

Whilst it is true to say we have not been inundated with replies, several owners have taken the trouble to give us their views and we have enclosed copies of the letters received which sum up some of our remaining reservations regarding the effects of the Bill:

· Who will protect the interests of the very frail elderly who entered sheltered housing so as not to have to participate in meetings, decision making etc. but whose rights might now be adversely affected by the voting rights of an active possibly not very large majority of our other owners?

· Dismissal of the Manager - we repeat our original comment about this - it seems completely arbitrary and contrary to natural justice to have two different voting systems in operation here. There should be one voting system and we feel it should be 75% or at least 662/3rds. We feel strongly that 51% to dismiss the Manager is too low a threshold as regards sheltered housing.

· There appears to be an assumption regarding the dismissal of the Manager that the vast majority of owners wish to get rid of their existing Managers and appoint a new one. This view seems to derive from the lobbying of vociferous - but not numerous in terms of sheltered housing owners as a whole - body of active owners. Whilst not disputing their right to hold or express their views, it has also been a concern that the views of those who chose to buy a particular sheltered housing property only because it was administered by a specific manager has not really been considered. (See letter enclosed).

· In common with similar Housing Associations, Hanover (Scotland) Housing Association Limited is a charitable, `not for profit' organisation and as such, is subject to strict regulatory control by Communities Scotland, unlike many commercial managers. If this is one of the principal reasons for purchasing a property shared by e.g. 49% of owners, is it equitable to allow 51% to vote to dismiss the manager and choose e.g. a commercial manager who may well offer a financial incentive to encourage the change of manager? It is our experience, and for very obvious reasons, that financial considerations, often outweigh all other factors for owners operating within a very tight budget and decisions made solely for economic reasons could disadvantage other owners.

Appeals

Whilst the appeals procedure does now seem less complex than before we would still like to see some sort of mediation service operating for what we feel are bound to be a proliferating number of appeals on the part of owners and not just in sheltered housing. We feel recourse to even the Lands Tribunal is quite expensive and time consuming and particularly for the elderly not a route down which most would wish to embark. There is a need for a independent mediation/appeals procedure which will be seen as non threatening or either free or easily affordable. This applies to all owners and not just sheltered housing owners.

Deed of Conditions

As stated previously we are concerned with the situation where the existing Deeds of Conditions will not be adequate to cover the `gaps' left when the superiority is abolished.

Our own experience, and the legal advice we have taken to date confirms that a great deal of work will require to be carried out to `plug' the gaps left in our existing Deed of Conditions. This would appear to be a time consuming and a costly exercise involving the possible preparation of new Deeds of Conditions and it is obviously not equitable that this cost should be passed on to the owners through their existing management charge.

There is also the additional problem that it had been Hanover's intention to implement new Management/Factoring Agreements to fill this gap but there is an obvious problem if 100% of the owners will not agree to these changes.

Whilst Hanover (Scotland) Housing Association Limited is very pleased that some of the original concerns which were expressed have certainly been addressed, there are still outstanding issues which cause concern, to manager and owner alike.

Alison Honeyman

Housing Services Manager

Hanover Housing (Scotland) Ltd

26 July 2002

FURTHER SUBMISSION FROM HANOVER (SCOTLAND) HOUSING ASSOCIATION LTD

I am writing in response to your letter, addressed to me, dated 10 June 2002, seeking written comments on the general principles of the Bill. My staff have already submitted a paper (26 July 2002), commenting on the broad principles, and I fully support the comments they have made.

The Bill is a tremendous step forward and will help eliminate many of the difficulties which have been experienced in this area of property law.

There are two points which I would particularly wish to emphasise.

Definition of Sheltered Housing

Once the Bill is enacted, it will contain the first ever-statutory definition of sheltered housing in Scotland. Previously, the accepted definition was that contained in Housing Handbook 5 which was quite clear that "sheltered housing" included provision of a warden service. In contrast, "amenity housing" was defined as having similar design features but no warden service.

Any move away from the recognised and accepted definition of sheltered housing should be taken only after full and careful consideration.

The difficulty surrounds the potential uses to which a new, (and wider) statutory definition may be put.

Many existing documents, including many legal documents, refer to "sheltered housing", based on the accepted definition in Housing Handbook 5. Under the new, statutory definition, the essential feature of a warden is dropped. The danger lies in the potential for frail older people, who have bought into sheltered housing for the specific purpose of procuring a warden service, losing their rights to the level of support which they believe they need.

For the above reason, I would hope that the Justice 1 Committee would support a definition which protects the rights of frail older people to choose the services they perceive themselves to need, and be assured that these services are secure. If these services are not secure, some of the benefits of sheltered housing will be lost, both to individuals in need of housing support and to the community at large.

Development Management Scheme

It is disappointing to find that the proposed "Development Management Scheme" has been dropped, for whatever reason.

In common with most serious practitioners in this field, Hanover (Scotland) would have found it useful to have statutory backing for a management scheme which covered most of the issues encountered in managing domestic property. While there was no obligation to use the proposed scheme, its existence would, undoubtedly, have encouraged higher standards in the documentation setting up new developments (i.e. in Deeds of Conditions).

It is our firm hope that alternative means can be found to encourage the highest standards in setting up management development schemes.

Stewart H Kinsman

Chief Executive

Hanover (Scotland) Housing Association Ltd

7 August 2002

 

SUPPLEMENTARY WRITTEN EVIDENCE FROM HANOVER (SCOTLAND) HOUSING ASSOCIATION LTD

At the Justice 1 Committee yesterday, I was asked to submit additional information on two matters;

a) a more precise definition of Sheltered Housing; and

b) proposals for a mediation scheme

I will liaise with Age Concern Scotland (who made the original proposal) and come back to you on the Mediation Scheme.

As regards the more specific definition of Sheltered Housing, I believe the existing definition in the Bill, augmented by that appearing in the Code of Practice for Owner Occupied Sheltered Housing, would go a long way towards protecting sheltered housing for the benefit of both owners and the community at large.

I suggest the augmented definition should read:

"..."sheltered housing development" means a group of dwelling-houses which, having regard to their design, size and other features, are particularly suitable for occupation by elderly older people (or by people who are disabled or infirm or in some other way vulnerable) and which, for the purposes of such occupation, are provided with facilities and services, substantially different from those of ordinary dwelling-houses, including an alarm system and a warden."

Stewart H Kinsman

Chief Executive

Hanover (Scotland) Housing Ltd

11 September 2002

31st Meeting, 2002 (Session 1), 24 September 2002

SUBMISSION FROM CONVENTION OF SCOTTISH LOCAL AUTHORITIES (COSLA), SOCIETY OF LOCAL AUTHORITY LAWYERS AND ADMINISTRATORS (SOLAR) AND ASSOCIATION OF CHIEF ESTATES SURVEYORS & PROPERTY MANAGERS IN LOCAL GOVERNMENT (ACES)

Introduction

As democratically elected bodies with a remit touching upon a range of functions and activities, local authorities have a key role in the strategic control of land.

Local authorities have a history as major players in the property market ranging from residential, amenity/ community and commercial purposes and it is probably the case that the majority of land in local authority areas has at one time or other passed through their hands.

Local authorities are likely to continue to have a significant interest in property dealings in their areas when exercising their range of functions and duties including those as housing providers, education authorities and as significant facilitators of economic development in their areas.

Reform

It is recognised that in the 21st Century there is a need to move from an archaic and outdated feudal system to make ownership practices more relevant to modern day society and as such the fundamental reform of the system which has commenced under the Abolition of Feudal Tenure (Scotland) Act 2000 is welcomed by COSLA, SOLAR and ACES.

While a number of concerns previously raised by COSLA, SOLAR and ACES have been addressed in the Bill, a number of major items have not been addressed. The particular matters on which submissions are necessary are: -

The lack of any power granted to local authorities to impose development burdens similar to that granted to Scottish Enterprise.

The opportunity should be taken to introduce a statutory definition of "repairs " and "improvement " to allow for there to be an enhanced element of repairs permitted in common properties to reflect modern day standards.

The proposals in sections 77 to 79 in relation to the School Sites Act are a missed opportunity.

Land tribunal powers in relation to Section 75 Agreements - the exclusion of these from waiver by the tribunal is welcomed but, in light of other submissions to Justice 1 Committee, there is merit in explaining the reasons warranting such exclusion.

Compulsory purchase - the provisions in Section 95 to 97 in relation to the effect that schedule conveyances on existing burdens are confused.

Minor matters

The registration of notices will have resource implications for local authorities and a dispensation to register certain types of notices should be given to local authorities.

Our comments on each of these matters, in turn are as follows:-

Power to impose title conditions where necessary in pursuance of statutory functions.

In Section 101 of the Bill, the executive recognises the need for the Enterprise Companies to be able to impose title conditions in certain circumstances. The existing power to do so contained in Section 32 of the Enterprise and New Towns (Scotland) Act 1990 has been preserved in an amended form.

There are a number of reasons why the Enterprise Companies required such a power and these include:-

(a) The Enterprise Companies are under a statutory obligation to sell land at full market value. Often a piece of ground which is to be sold for industrial use will have a reasonable prospect of obtaining planning consent for retail or residential use. If the Enterprise Companies were unable to impose a user restriction, it would be necessary to sell the land for a price which reflected the potential for such use. This could deter a potential developer or inward investor. Accordingly, the imposition of a use restriction as a title condition can be a means of lowering the purchase price to attract inward investment. In a competitive market this can be very important.

(b) In many cases the Enterprise Company will have used public money to acquire and to regenerate land, often moving dereliction. It is important that if public money has been spent to secure a particular use, that such a use can be enforced by a title condition.

(c) Many developments involve additional monies from Europe and other grant authorities. Inevitably these grant making bodies require that the land be used for the purposes of the grant for a fixed period (usually 10 years). If this cannot be imposed by means of a title condition, then the grant may be repayable. As the grant is given to the Enterprise Company it will be the Enterprise Company, rather than the particular industrial concern, which will have to repay the monies.

All of the foregoing applies to local authorities, with equal force. Local authorities spend public money to acquire and regenerate sites and seek to attract inward investment. Similarly, local authorities require to satisfy Europe and other grant awarding bodies (such as the Lottery, SportScotland, National Foundation for Sports and the Arts, etc.) that the use will continue for a fixed period. If it is accepted that there is a justification for allowing the Enterprise companies to impose title conditions in pursuance of their statutory powers, then this should also apply to local authorities.

We would argue strongly therefore that local authorities should be given a power to enter into statutory agreements designed to restrict the development or use of land in the future, similar to that being afforded to Enterprise bodies. This power should accord with the new power of well being which is a power of first resort for local authorities to "do anything to promote or improve the wellbeing of the area".

We would strongly resist any suggestion that local authorities should be granted a similar power but restricted to use for economic development purposes. There is a good case that the local authorities require a much wider power to impose title conditions than contained in Section 101. Local authorities presently impose similar title conditions for purposes other than economic development. For example: -

(i) Local authorities impose restrictions on use where they sell community facilities or sports pitches to community organisations at less than market value;

(ii) The local authority receives external grant assistance from a wide range of bodies, for a wide range of statutory functions. Each of these is likely to require that the use of the properties be maintained for a defined period (usually ten years). For example, grants are available for a wide range of lottery purposes, to improve heritage and townscape and for sporting and recreational purposes.

(iii) Moreover, the Local Government in Scotland Bill imposes duties of community planning and a power of wellbeing. These envisage that the local authority will engage in a greater degree of joint working across the public, private and voluntary sectors, with flexibility through the delegation of functions from one public body to another, in order to deliver improved public services in the implementation of this Bill. Functions actually delivered by local authorities, particularly through joint ventures and partnering arrangements are therefore likely to expand. More local authority land will be transferred to such joint ventures or community organisations and there will be an increasing need for a power to impose title conditions to restrict the use of such ground.

It was understood that the Scottish Executive was prepared to consider the insertion of a clause in the Bill to grant such a power. We are disappointed to note that no such power is contained in the Bill. In our view this is essential. It has been suggested that local authorities can achieve a similar means of control by granting leases. This is not appropriate for two reasons. Firstly, the aim of the feudal system and title conditions reforms is to simplify the existing law, rather than result in a change to leasehold tenure. Secondly, leases will often not be acceptable to either grant making bodies or investors.

It is therefore suggested that local authorities be allowed to impose title conditions which are necessary to promote or improve the wellbeing of:

(a) its area and persons within that area; or

(b) either of those.

If the Scottish Executive is concerned that this may be too wide, then we would welcome provisions to the effect that title conditions should not be imposed in respect of existing residential properties and would accept a sunset rule of 50 years for such burdens. We would also accept that any such burdens should be subject to the jurisdiction of the Lands Tribunal.

As regards existing burdens, we accept that it is difficult to define which burdens should remain. In these circumstances we would accept a provision that existing burdens which met these criteria, should only remain in force in the event that the local authority recorded a notice to this effect, within a 10 year period.

Problems faced in mixed tenure estates

Local authorities face difficulties when factoring and managing a range of mixed tenure housing and commercial schemes and complexes. The fundamental problem facing Councils in relation to the management of mixed tenure housing schemes is persuading owner-occupiers to pay for repairs but even more so in relation to having owners participate in improvement work.

Clause 28 of the Bill will allow a majority of owners of units to effect the maintenance of common facilities. However, the Executive has rejected the argument that the majority rule should also extend to improvements. The definition of what constitutes "improvements" should be looked at so that where improvements offer better value for money than repairs, these should be enforceable by a majority of owners.

In its Policy Memorandum, the Executive concedes that real problems exist in mixed tenure estates. The Executive's proposed solution of requesting the Housing Improvement task Force to make recommendations on how these problems may be tackled is vague and unsatisfactory.

The regulation of the management particularly of council estates is invariably effected through the title conditions and the Council will therefore have to embark on a resource intensive and complex exercise of the task of evaluating and registering the burdens or Deeds of Conditions which it is desirable to retain. The Bill should either make an exemption to preserve the feudal burdens imposed by local authorities as superiors or set out a minimum set of maintenance obligations for owners of common property.

School Sites Act

Sections 77 to 79 of the Title Conditions Bill deal with reversions under the School Sites Act 1841. It is our view that, while the sections partially address some of the existing problems, they represent a missed opportunity.

At the outset, it should be recognised that this apparently obscure piece of legislation is causing widespread and significant problems to local authorities. In some local authorities (those where the bulk of estates were subject to entail in the 19th century), almost all of the older schools will be subject to School Sites Act restrictions. Often it will be those older schools which are least suitable for modern educational provision. It will be those schools which, under any rationalisation or PFI/PPP scheme, are most likely to come under the spotlight.

There are a number of problems which have arisen from the School Sites Act, which include: -

(a) The Keeper is not willing to grant a full indemnity for the sale of any old school, even if the title does not contain any reference to the School Sites Act. We accept that the Bill provisions, by changing the reversion into a right to compensation, will remedy this problem.

(b) The history of the School Sites Act is that it provided a means whereby estates subject to entail could dispose of sites for schools. The provision for the reversion was essentially a technicality, which avoided any breach of the entail. In the 19th century, estates accepted that they lost the ground, possibly in perpetuity. There is now evidence that Superiorities are being purchased by title raiders, who lack the philanthropy that the old estates had.

(c) There remains doubt as to which titles the Schools Sites Act 1841 applies to. It has been argued that, even if the title deed contains no reference to the 1841 Act, that it may still be burdened by the reversion. For this reason, the Keeper was not willing to grant a full indemnity for deeds which contained no reference to the 1841 Act. In addition, it is often difficult to identify the person entitled to the reversion.

(d) Even if the site remains in school use, if it is intended to redevelop the site by PFI or PPP, the lenders will look for evidence of a clear title.

With the exception of the first item, the Bill has not addressed the remaining issues.

Would urge the following changes:

· Some sales under the School Sites Act were at value. In the case of these sales the reversions should be revoked without compensation. The purpose of the School Sites Act was to enable heirs of entail to transfer properties. If they had already been compensated for the sale then they should not be compensated again.

· It is recommended that the right to compensation in terms of the reversion should not be triggered in the event that the local authority spends the capital receipt on education capital projects. Essentially this re-enacts Section 14 of the 1841 Act and puts reversion holders back into the same position as 1841. The abolition of Section 14 appears to have been an accidental and unwitting result of the repeal of the Act in 1845.

· Reversion holders should have a period of ten years in which to register a reversion under the School Sites Act. Thereafter all reversions would fly off. Since it is arguable as to which deeds the reversion applies to, provisions should be made for intimating any such notice to the local authority and for any disputes to be resolved, presumably by the Lands Tribunal. This solution has the advantage of allowing local authorities to plan with certainty, in the knowledge of which properties are affected by reversions.

· In Section 79, the prescription period is five years from the coming into force of Section 79 of the Title Conditions (Scotland) Act 2002. The five year period is welcomed, as there is doubt as to the application of prescription. Paragraph 10.52 of the Law Commission's report on real burdens contains a useful summary of the position regarding prescription, and indicates that prescription could be 10 or 20 years. In the light of this, it is questioned why the five-year period only runs from the date of the coming into force of Section 79. Would this not create a right to compensation in respect of properties sold ten or twenty years ago, where the right to compensation had previously prescribed?

It is understood that the Scottish Executive was reticent to entirely abolish reversions under the School Sites Act 1841 in light of human rights considerations. Presumably this was in light of Article 1 of the first protocol. It should however be noted that Article 1 contains a number of qualifications, referring to the public interest and the general interest. It is recognised that interference with possessions has to be proportionate. It is submitted that the COSLA proposals are proportionate. In dealing with issues of proportionality the following points are worthwhile to bear in mind: -

(a) The original purpose of the School Sites Act is to enable heirs of entail to sell or gift school sites. There was little if any, expectation that individual superiors would ever see sites returned, certainly within their lifetime. Instead the reversion was a device to ensure adequate educational provision, while getting round the restrictions of entail.

(b) As detailed in paragraph 10.50 of the Law Commissions report on real burdens, Section 14 of the 1841 Act empowered Education Authorities to sell or exchange the original site for another "more convenient and eligible site". The repeal of Section 14 in 1945 unwittingly reduced the flexibility open to local authorities under the original Act, increasing the frequency of reversions incurring and giving Superiors an unintended windfall.

(c) Both the Scottish Executive and local authorities are keen to improve educational provision in Scotland, to maximise best value, to rationalise resources where possible and to look to more innovative ways of providing resources (such as PFI and PPP). The existence of the School Sites Act restrictions hinders these laudable policy objectives.

(d) There are many title conditions or burdens which could conceivably have a value and come within Article 1 of the first protocol. The Bill abolishes the Superior's right to enforce these, except in limited circumstances where a notice can be recorded. In our submission, there is little difference between this legislative solution and the one proposed above.

(e) The notice provisions recommended by us have the benefit of certainty, insofar the notice procedure will provide clarification of what properties are affected by the reversion. Without the notice procedure this will remain in doubt.

(f) The evidence is that the right to enforce School Sites Act reversions is falling into the hands of title raiders, who have little if anything in common with the original estates who granted that title.

The Lands Tribunal and Section 75 Agreements

We welcome the Bill provisions which do not allow the Lands Tribunal to waive agreements under Section 75 of the Town and Country Planning (Scotland) Act 1997. However, it notes, with concern Professor Paisley's evidence to the Justice Committee that the Lands Tribunal should be able to review Section 75 Agreements.

In our view the law relating to Section 75 Agreement has developed as part of planning law, rather than the law relating to real burdens. Reference should be made to Scottish Officer Circular 12/1996 on planning agreements. This notes that such agreements should only be sought where they are required to make proposals acceptable in land use planning terms. They should only be used where it would be wrong to grant planning permission without them. Effectively, they are used where the planning authority does not have the power to impose planning conditions which would otherwise make the development acceptable. An example is where a development requires road infrastructure to be installed outwith the development site. This could not be dealt with by way of planning conditions, but could dealt with under a Section 75 Agreement. In the event that the Section 75 Agreement was not imposed, the alternative would be refusal of permission.

It should also be pointed out that a Section 75 Agreement is a tripartite agreement. It is between the Council as planning authority, the owner of the ground and the person applying for planning permission. The latter two parties are often different. A condition is invariably contained in the deed to the effect that if the obligations are breached, then the Council would be able to revoke any planning permission granted without compensation. Given this contractual relationship with the developer, and given the planning background, Section 75 Agreements do not fall comfortably within the normal law relating to title conditions.

It also appears unjust that where a developer has obtained planning permission by virtue of the existence of the Section 75 Agreement, that he should be able to apply for a variation or waiver by the Lands Tribunal. No one has ever suggested that the Lands Tribunal should have power to vary planning conditions. For the same reasons they should not have power to vary Section 75 Agreements.

Compulsory Purchase - Effect of Schedule Conveyances on title conditions

For Compulsory Purchase Orders, Section 95 to 97 of the Bill attempted to clarify the title condition position after the making of a Compulsory Purchase Order or schedule conveyance. Both COSLA and Scottish Enterprise had previously urged that clarification of the title position following a schedule conveyance should be inserted in the Bill. Very often a public authority is able to acquire land voluntarily and it would be a major disadvantage if they were no longer able to use schedule conveyances of a means of extinguishing previous ground burdens.

The received wisdom is that the effect of a schedule or statutory conveyance is to suspend the feudal chain upwards from the disponing proprietor to the crown during the ownership of the acquiring authority. What remained open to debate is as to the position of real burdens following disposal by the acquiring authority. The issues were thoroughly debated in articles in the journal of the Law Society of Scotland in June 1990, January 1992 and February 1992. In his February 1992 article, Professor McDonald took the view that all burdens flew off and did not revive, stating "on due recording of a valid schedule conveyance, the existing interest in the dominium utile acquired by the acquiring authority and all superiority interest intervening between that interest and the Crown are all extinguished absolutely and a new permanent statutory title is created in place thereof for the benefit of the acquiring authority and its successors and assignees whatsoever ... ... that leaves no conceivable basis to support an argument that, on a subsequent disposal by an acquiring authority holding on that new statutory title, an earlier land obligation affecting an interest now extinguished, whether in the form of a condition of tenure or a servitude, could possible revive and once again become enforceable".

Section 96 of the Bill attempts to deal with this. While the aim of the Section is laudable, we feel that it is unnecessarily complex, and introduces unnecessary requirements. The Section provides that notice of the statutory conveyance should be given to the owner of any benefited property, who can then apply to the Lands Tribunal for renewal of the title condition. Two points are worth making, firstly, there is presently no requirement for an authority exercising compulsory purchase powers to notify those entitled to enforce burdens. Secondly, there is no power at present for such a benefited proprietor to attempt to retain title conditions. As the existing law (that all burdens are extinguished on a schedule conveyance) is not amended, it is difficult to see the rationale behind these amendments. Certainly, they will result in further administrative inconvenience and delay in processing site assembly. Elsewhere, the Government is committed to increasing the speed of compulsory purchase and in simplifying it, and these steps are in the wrong direction. All that was needed was a provision to the effect that on recording of a statutory of schedule conveyance that any real burden or servitude over the land shall be extinguished in all time. Thereafter if, as at present, any benefited proprietor feels that he has a claim, then he can submit that claim to the acquiring authority.

Minor Matters

(a) Section 75 Agreements - Section 75(4) of the Town and Country Planning (Scotland) Act 1997 contains a reference to infeftment. Arguably this has feudal overtones and should be removed by amendment. The Title Conditions Bill would be an obvious place to make this small amendment.

Charging Orders - the abolition of the Feudal Tenure (Scotland) Act 2000 contains a provision to the effect that securities need only contain a description sufficient to describe the subjects. This is to get round the problems experienced in the Beneficial Bank case. It would also be useful to have a similar provision in relation to charging orders and notices of payment of improvement grant. The former are imposed by local authorities under a variety of statutes including The Building (Scotland) Act 1959, the Housing (Scotland) Act 1987 and the Health and Social Services and Social Security Adjudications Act 1983 (Community Care Charging Orders). The latter are imposed under Section 246 of the Housing (Scotland) Act 1987. It would be useful to have the provision in the 2000 Act applied to these Orders and Notices, since the effect of the Beneficial Bank case may be the same in relation to such orders.

Resource Implications

The effective management of the consequences of the Bill will to a resource intensive activity to search all properties held by Councils, register burdens to be preserved and Deeds of Conditions in the case of common properties, where possible or appropriate. If Councils do not effect this diligently there is scope for criticism in the event that the public purse is not adequately protected and third parties or owners take advantage of the gain in the event of certain burdens falling.

Lorna McGregor

Legal Consultant

COSLA

16 September 2002

SUBMISSION FROM CITY OF EDINBURGH COUNCIL

Recommendations of City of Edinburgh Council

The Title Conditions (Scotland) Bill and the Scottish Executive programme of property law reform has major implications the City of Edinburgh Council. These lie mainly in the Council's strategic housing and landlord functions, and its planning, estates and economic development roles. The Council welcomes the Bill. However there are a number of areas which, we believe, require further investigation and possibly amendment. These include:

· The Council welcomes the principle of majority decision-making in regard to common property but favours the extension of these powers beyond that of default provisions.

· The Council urges the Scottish Executive to liaise with the UK Government to create legislation to permit the establishment of owners' associations to provide an effective management of common property and enforcement of common obligations allied to an informal system of arbitration.

· The Bill should make provision for a minimum set of maintenance obligations for owners of common property.

· The Council seeks reassurance that the Bill will provide sufficient time for the proposed registration of Deeds of Conditions relating to mixed tenure estates.

· The Bill should be drafted so as to avoid any possible "gap" in the enforcement of amenity burdens in mixed tenure estates.

· The Bill should designate local authorities as conservation bodies entitled to enforce and create conservation burdens.

· Local authorities should be able, in the public interest, to enforce development value burdens.

· The Council welcomes the Scottish Executive's intention to protect the interests of local authorities in relation to clawback provisions.

· The Bill should amend the application of the 100 metre rule in relation to common burdens in a master plan/estate plan area.

City of Edinburgh Council and property law reform

The Title Conditions (Scotland) Bill is based on a draft Bill produced by the Scottish Law Commission. The content of the Bill is closely linked with the already enacted Abolition of Feudal Tenure etc (Scotland) Act 2000. The statutory regime represented by these two Acts raises very significant issues for the Council as a landlord and in relation to its strategic housing role.

The legislation also involves the interests of the Council as planning authority particularly in relation to conservation burdens which seek to preserve or protect the architectural or historical characteristics or other special characteristics of property.

Other matters encompassed by the Bill are significant in relation to the Council's estates and economic development functions. This is particularly the case regarding development value burdens. This is where a condition has been imposed to ensure that land sold at reduced value continues to be used only for the specific purpose for which it was conveyed. Alternatively these burdens can make provision for clawback arrangements where, for example, if planning permission is secured for a change of use after disposal the Council obtains an additional payment.

Common maintenance in tenements and other property

One of the most pressing challenges for property owners in the Council's area, including the Council itself as landlord, is securing the effective common management of tenements and other jointly owned properties. Around 60% of Edinburgh's citizens live in flats where there are shared common maintenance and repair responsibilities. Most of these properties have no effective arrangements in place to allow owners to organise and fund common maintenance.

There are about 5,500 tenements in the Council's area which were built before 1919. Because of their age these older tenemental buildings require particular attention to ensure that they are safe and kept in a reasonable state of repair. Each year around 550 major repairs contracts, mostly on tenemental property, are undertaken as a result of the service of statutory notices by the Council in the absence of repair arrangements jointly agreed by owners.

Almost half of the Council's housing stock has been sold under "right to buy" legislation, thereby creating mixed tenure estates where the Council as landlord, individual owners and, increasingly, private landlords need to work together to maintain and repair the common parts of these properties.

Public safety in Edinburgh is increasingly at risk because of inadequate maintenance of older tenemental property. Several recent incidents in Edinburgh have highlighted the potential for deaths and injuries which result from falling masonry from ageing and poorly maintained buildings.

These factors specified in the preceding paragraphs point to the need for a clear and effective legal framework for the management of common property maintenance and repair. A fundamental existing problem is the ability of one party to prevent the implementation of desirable, and sometimes essential, repair work. Sections 27 and 28 in Part 2 of the Bill seek to address this problem in its provisions relating to "community burdens" and majority voting.

There are, however, several important factors which stand in the way of the creation of a fully effective legal framework. The first, and arguably the most fundamental of these factors, is that the majority decision-making provisions of the Bill to appoint managers and instruct repairs are default provisions. They do not apply if the title deeds already make provision for decision-making on common maintenance.

Some title deeds may contain provisions which define "majority" by reference to respective values of properties or, worse still, stipulate the need for an unanimous decision on the part of owners. As the Bill is currently drafted, these title deed provisions would continue to apply.

Another important factor that stands in the way of establishing effective "communities" is the lack of a mechanism to establish owners' associations or other form of corporate body to which flat-owners would have to belong as an obligation of ownership. Under the proposals for majority decision-making, owners in the majority who decided to appoint a factor or property manager or decided to undertake certain identified repairs would still face substantial difficulties in recovering costs from other owners in the minority who did not wish to co-operate. Owners associations or some other form of corporate body would help create a recognised framework for making decision and holding all owners to these decisions.

Owners' associations could be responsible for managing common property, undertaking regular inspections and providing a mechanism for obtaining contributions from individual owners. The ability to establish such owners' associations would also lend itself to a linked system of pre-court informal arbitration to resolve disputes amongst owners regarding common property maintenance. These proposals were included in the Council's proposals to the Scottish Executive Housing Improvement Task Force.

The Scottish Law Commission's draft Bill outlined a "development management scheme" which provided scope for the establishment of an owners' association as a body corporate for new developments. Such a scheme could have been extended to embrace traditional flatted property as well as new developments. It is therefore particularly disappointing that the current Bill omits these provisions. The Policy Memorandum published alongside the Bill explains that an owners' association would be a "business association" which is a reserved matter on which the Scottish Parliament cannot legislate. It is stated that the Scottish Executive is considering, with the UK Government, how to proceed. The Council feels strongly that the Scottish Executive should seek the enactment of legislation by the UK Parliament that would allow the establishment of owners' associations in Scotland.

The Bill does not make provision for a minimum set of maintenance and repair obligations to be placed on owners individually or as a community. Whilst it is difficult to deny that the primary focus must be on the democratic decision of the majority in common property, there are wider community and public safety interests which do point to a need for a minimum set of obligations to ensure that property is adequately maintained. These could include a regular property inspection and a schedule of works which require to be carried out on the building.

A related issue may be that some works which may be seen by the majority of owners as desirable might be regarded in law as improvements rather than maintenance. There were suggestions during the consultation exercise on the draft Bill that the majority rule should extend to improvements. This view is rejected by the Scottish Executive, primarily on the footing that it would be wrong to allow the majority to force other owners to spend money on improvements which they do not want. The Scottish Executive points out that the definition of "maintenance" (in section 110 of the Bill) is described as including "such ... improvement as is reasonably incidental to maintenance". This is a fairly restrictive definition and there should be scope for its widening to embrace work which is reasonably necessary to ensure that common property is seen to reflect the standards of provision applying to property generally as these standards are recognised as changing over the years.

Mixed Tenure Estates

One of the most complex aspects of the Bill is the effect that it, and the Abolition of Feudal Tenure etc (Scotland) Act 2000, will have on local authority and other social housing estates. For many years local authorities have created a feudal relationship with purchasers reserving power to enforce burdens. In terms of the 2000 Act amenity burdens currently enforceable by the Council as feudal superior would have been lost unless the Council registered a vast number of notices to preserve enforcement powers. The Scottish Executive has recognised the serious expressions of concern voiced by local authorities and social landlords about the magnitude of the task in registering notices.

The regime proposed by the Bill aims to provide for the saving of amenity burdens by their being treated as community burdens capable of enforcement by all owners in the community. This would be the position where all the properties in a development had been sold off subject to the same or similar burdens and therefore form part of the same common scheme.

A much more common situation is, of course, the mixed tenure estate where the right to buy has been exercised for only some of the properties. In that situation only the units which have been sold off form a "community" with the units remaining in Council ownership excluded from that community. A possible solution to that problem would be preservation of the rights of local authorities to enforce feudal burdens. That solution has been rejected by the Scottish Executive because (a) it is felt to be difficult to defend in face of accusations of discrimination and (b) it runs counter to the central philosophy of the legislation to remove feudal powers and empower communities.

The solution proposed by the Scottish Executive is to propose that local authorities should register Deeds of Conditions effectively burdening the properties which they still own with the same burdens as those affecting the properties which have been conveyed under the "right to buy" legislation. This would create communities in mixed tenure estates and provide the benefits of operating within a coherent community regime. Local authority and other social landlords would, along with other individual owner-occupiers in a community, then have an equal stake in majority voting.

The merits of this approach are recognised. Despite the description in the Policy Memorandum of the registration of Deeds of Conditions as "a relatively simple process" there is seen to be a need to scope the feasibility and logistics of the approach suggested by the Scottish Executive. This is particularly important since Deeds of Conditions require to be registered before the appointed day for implementation of the legislation. This will inevitably take substantial time and resources for local authorities and other social landlords to organise. The Scottish Executive need to ensure that the statutory regime provides sufficient time for the registration of Deeds of Conditions against local authorities own property.

The Bill's intention appears to be that amenity burdens will be saved by being treated as community burdens. Some amenity burdens are of particular significance given that they aim to prevent use of a property which would involve nuisance or disturbance to neighbours. The burdens must, of course, affect all the common properties in the same or similar way. In addition, however, the Bill indicates the need for an express reference in the deed to an intention to impose burdens on the properties with a common plan in mind or, alternatively, words implying the existence of a common scheme. Against this background it would seem prudent to emphasise to the Scottish Executive the need for the legislation to be structured to avoid any possible "gap" in the enforcement of amenity burdens in mixed tenure estates.

Conservation burdens

Part 3 of the Bill deals with conservation burdens. These burdens make provision for the purpose of protecting architectural or historical characteristics, or other special characteristics of particular land or property. Conservation burdens can only be created or enforced by bodies which are designated as conservation bodies in terms of regulations made by Scottish Ministers.

The Policy Memorandum states that local authorities "can be designated as conservation bodies". Given the Council's role as planning authority there would seem to be a case for the Bill itself expressly stating that local authorities will be conservation bodies.

Development value burdens

A development value burden is a real burden which has been imposed in exchange for a reduced purchase price. For example the Council may have sold land on the basis that it was to be used only for gardens or recreational purposes. The approach taken in the 2000 Act was that such burdens should not generally be saved but the feudal superior would be able to register a right to compensation if the burden was breached in the 20 year period following the date when the legislation came into effect.

Representations have been made that the intention of such a burden was to protect the particular use for which the property had been sold and this intention was not fulfilled by the payment of compensation. The Policy Memorandum states that the Scottish Executive has not been persuaded by these representations. The Council feels that the public interest is best served by an ability to enforce a development value burden.

Clawback arrangements

Clawback arrangements refer to situations where the seller of land anticipates the potential for enhancement in the value of the land being sold and seeks to achieve a share of that enhanced value. For example land may be sold at values based on agricultural land but the purchaser, or his successor in title, may subsequently obtain planning permission for housing development. Unlike development value burdens where the seller's intention is to restrict the use to that stipulated in the disposal, the seller's interest is to obtain payment reflecting enhanced value. The Scottish Executive's view is that clawback arrangements are not valid real burdens. They are aimed at protecting a financial interest and do not meet the test of benefit to other land. The Bill provides additional protection for standard securities over land supporting clawback provisions. Many public bodies have indicated to the Scottish Executive that standard securities alone do not offer sufficient protection.

The Council has made extensive use of clawback provisions in land disposals. The Council welcomes that the Scottish Executive accepts there are good arguments for allowing local authorities to protect land sales and its intention to discuss the best way of achieving this protection with COSLA and other public authorities.

The 100 Metre Rule

The 2000 Act makes provision for the protection of feudal burdens if the feudal superior owns a building used for human resort or habitation on neighbouring land within 100 metres of the land to which the burden relates. The burden can be preserved by registration of a notice. The special arrangements proposed for preserving amenity burdens in housing estates are referred to elsewhere in this evidence. These proposed special arrangements will not apply to the very considerable number of other feudal burdens created by the Council. The 100 metre rule will apply in these cases.

The Scottish Executive has resisted representations aimed at removal or amendment of the 100 metre rule. Nonetheless it is felt that, in one particular situation, the 100 metre rule is too arbitrary. When feuing arrangements based on an estate or master plan have been carried through the clear intention has been to establish a common and uniform system of burdens for the estate as a whole. A rigid and arbitrary application of the 100 metre rule defeats this intention when the Council does not own a building within 100 metres of all parts of the estate. In these circumstances an amendment allowing for registration of a notice when the feudal superior continues to have title to a building within the whole master plan/estate plan area or within 100 metres of any part of it would seem to be appropriate and reasonable.

Michael Thain

Private Sector Strategy Manager

City of Edinburgh Council

9 August 2002

SUBMISSION FROM LANDS TRIBUNAL FOR SCOTLAND

Outline of evidence to be given by John N Wright, QC, Member of the Tribunal and Neil M Tainsh, Clerk to the Tribunal.

The Tribunal is a judicial body and, as such, has been anxious to ensure that it expresses no views which relate, or appear to relate, to issues of policy. We accordingly did not seek to give evidence to the Committee. We appear by invitation to give such assistance as possible in relation to the possible resource implications of the Title Conditions (Scotland) Bill. We have always been willing to advise on any matters relating to the practical application of new legislation.

Brief Description of the Tribunal

Jurisdiction

The Lands Tribunal for Scotland has a range of jurisdictions falling into two broad categories: those involving valuation of land; and those involving certain categories of rights to land.

Valuation: Valuation of land taken by way of compulsory purchase.

Valuation of commercial land for the purpose of fixing rates.

Valuation of land in certain specific categories such as compensation for mining subsidence.

Rights to land: Disputes arising out of tenants' rights to buy their homes from public authority landlords. A typical example is the basic question of whether a particular applicants falls into the category of "secure tenant" so as to have a right to buy. Other disputes may arise as to what particular land is covered by the tenancy or what the conditions of sale should be.

Variation and Discharge of land conditions. A typical example is when someone has planning permission to build a new house or extension in his or her garden but the titles give the neighbours a right to prevent this to preserve their view. The Tribunal has jurisdiction to determine whether or not to discharge or vary the restrictive condition in question and therefore whether or not the development will be able to go ahead. The scale of such restrictions varies greatly. A current case raises the question of whether Aberdeen Harbour Board Trustees should be allowed to prevent Railtrack from building a shopping centre on the goods yard which currently takes harbour traffic.

Appeals from the Keeper of the Register. These can involve any aspect of title to land; including determination of boundaries, title conditions, and claims for compensation against the Keeper.

In addition, the Tribunal sometimes acts, in effect, as arbiter under voluntary references, brought jointly by disputing parties. This most commonly arises in relation to various types of compensation claims.

Members

Because of the range of jurisdictions the workload is subject to quite distinct swings. In recent years the Tribunal has not been over-extended and, as a result of retirements, the President has been able to cut back in staffing. Currently we have Lord McGhie as President. He combines this post with that of Chairman of the Scottish Land Court. Both organisations are administered from the one building but with separate office systems. Alistair MacLeary, FRICS, is a full-time surveyor member. John Wright, QC, is a recently appointed part-time legal member and Roger Durman, FRICS, is a recently appointed part-time surveyor member. In most cases the tribunal which takes the hearing is made up of one lawyer and one surveyor.

Administration

The Tribunal's administrative staff consist of the Clerk and the Deputy Clerk, each of whom is, in accordance with a practice of long standing, seconded from Registers of Scotland Executive Agency, and one administrative assistant.

Procedure

Although it is regarded as an "expert tribunal" it is important to keep clearly in mind that the Lands Tribunal functions in broadly the same way as a Court. The expertise allows for a quicker process _ the fundamentals can be taken as understood and parties can therefore concentrate attention on the particular issues arising in the case in dispute. However, the role of the tribunal is to decide between competing parties. It is up to the parties to put such evidence as they wish before the tribunal. The task of the tribunal is to assess the evidence. It applies its expertise in this assessment but will not simply substitute its own views. The aim is to reach a decision based on the evidence presented to it. The tribunal is not an investigative body.

Our prime consideration is to deal "judicially" with all issues coming before us. In other words to ensure that matters are dealt with fairly and impartially and with all parties having proper notice of issues and evidence. We try to conduct cases as informally as is consistent with maintenance of a proper judicial approach. Our Clerk and clerical staff are approachable _ and easily accessible by telephone to discuss procedures _ and regard it as their main function to assist parties dispose of cases in the most efficient way. We try to avoid formality when possible while recognising that where serious issues are in dispute a degree of formality is necessary to avoid any suspicion of unfairness.

The Tribunal usually sits in Edinburgh. However where there is a need for inspection or where the convenience of witnesses requires, it is common for us to sit in the locality of the subjects in dispute. When possible we sit in the local sheriff court but may have to sit in council chambers, hotels or other suitable public facilities.

The Tribunal Rules oblige decisions to be accompanied by a written statement of reasons. In addition, many of the disputed cases before the Tribunal deal with specialist issues which are in the nature of test cases. Accordingly the Tribunal tends to give detailed and considered opinions, which can take some time to prepare.

Effect of Title Conditions (Scotland) Bill on Tribunal's Workload

In general, we find it extremely difficult from our vantage point to assess changes in the number of applications to the Tribunal, particularly the extent to which the new jurisdictions to renew and preserve conditions will be used.

It may be appropriate to keep in mind the distinction between the administrative and the adjudication workloads, although some aspects of the tribunal's work - e.g. case management and procedural issues, span both.

Restatement of relevant factors in applications for variation or discharge (s.90). This of itself would appear unlikely to lead to any increase in the actual numbers of applications so, in this regard, the administrative workload would be unaffected. However the level of enquiries might very well increase and there may initially be a small but temporary increase in the number of cases requiring adjudication, as a result of the need to test the effect of the restatement.

It is possible that the reduction in enforceable conditions, by application of the `Sunset' rule (and the general abolition, under the 2000 Act, of superiority conditions which are not successfully reallotted under Part 4 of the Act) will reduce the number of applications for variation or discharge.

New jurisdiction to determine validity, etc. of real burdens. We think that this will often be ancillary to applications for variation or discharge. We would expect it to lead to some increase in both administration and adjudication. However, it may ameliorate present practical problems in some applications where competency is in question, and in that way perhaps save some administrative time.

Certification. The `Sunset' rule (s.19), and the new power to discharge or vary community burdens (ss.32, 34) involve the new procedure of certification by the Tribunal or Clerk that no application to renew or preserve has been received. In the former case, s.22(b) introduces the further complication in cases where the application to renew only partially affects the proposed termination. These procedures will undoubtedly lead to some increase in the administrative workload. We find it impossible to predict the extent of that increase. In the case of the `Sunset Rule', it will depend on, among other things (a) how far solicitors go in alerting clients, and (b) how far clients decide to go in making applications - matters which are very difficult for us to predict.

Renewal (s.81(1)b - primarily, `Sunset Rule') and Preservation (s.81(1)c). In these cases, ex hypothesi, there is, at the time of the application, disagreement. Again, we find it impossible to predict the numbers of such applications or the extent to which opposition will be maintained so as to require adjudication. There will certainly be some increase in both the administrative and the adjudication workloads.

We appreciate that the Bill contains some other miscellaneous new jurisdictions for the Tribunal, but the impact of these would not appear to be large.

Section 88 (entitlement to the grant of unopposed applications) requires also to be considered. We would not expect this to result in any reduction in the administrative workload: applications will still require the same substantial input at the stage of intimation procedure and in the consideration of their competency and of the form of discharge Order to be made. As far as adjudication is concerned, almost all unopposed applications are presently dealt with without a hearing. The adjudication workload will therefore be only slightly reduced.

We understand that the `appointed day' may be fixed approximately 18 months after the enactment of this Bill. During that period, new tribunal rules and forms will require to be drafted and consulted upon, and substantial preparation and training of staff will be required.

Other New Jurisdictions

Abolition of Feudal Tenure Etc. (Scotland) Act 2000. This gives superiors the opportunity, prior to the appointed day, to apply to the Tribunal to reallot or save burdens where the `100 metres' rule is not satisfied, the procedure being, as we understand it, comparable to the applications to renew or preserve under the present Bill. It is, again, extremely difficult to predict the numbers of such applications. We have noted issues raised about rural situations, and it might be that a number of contested applications testing the approach to be applied under this provision can be expected, increasing both the administrative and the adjudication workloads. Any effect will of course only last for a definite period up to the appointed day.

Housing (Scotland) Act 2001 - amendments to `Right to Buy'. So far as we can see, it seems unlikely that these changes will result in any significant increase in applications to the Tribunal, although there may be some tests on the new exemption provisions.

Land Reform Bill. Disputed valuations following exercise of community purchase rights may not be numerous, but may be complicated and will apparently require `fast-track' adjudication. This would appear to impact primarily on the adjudication workload, with even a small number per year capable of having significant effect.

It should also be mentioned that proposed changes to the jurisdictions of the Land Court in relation both to Crofting and to Agricultural Holdings could affect the availability to the Tribunal of the President.

Conclusions

Any conclusions can only be tentative.

At this particular point in time, the Tribunal's workload does not cause problems, although surges in applications under the existing jurisdictions can happen, for example rating appeals following quinquennial Revaluations. The Tribunal's present complements, both of administrative and of adjudication personnel are, however, at minimal workable levels.

Previous evidence to the Committee from experts in the field seems to suggest a substantial surge of applications under the new procedures in the 2000 Act and this Bill, with some additional workload also coming from the provisions of the Land Reform Bill.

There will clearly be some increase in the administrative workload under the new procedures, leading to a need for some increase in office staff. In this connection, we would draw attention to the advantages in the present practice of secondment from the Registers of Scotland to the Tribunal. The existing expertise and experience of such staff is enormously useful in the administration of the Tribunal on the land rights part of its work, and it is to be hoped that this practice can be continued in any additions to the Tribunal's administrative personnel.

The increase in adjudication is extremely difficult to assess, but it does seem likely that there will at some stage, perhaps shortly after the `appointed day', be such an increase as to make some increase either in the membership or in the commitment of the present part-time members necessary. We think this will certainly be the case when this is taken along with the effects of other new jurisdictions.

We have noted the views of some of the experts who have given evidence to the Committee, but ourselves tend to the view that, at least looking at the net result of this Bill alone, there may not be such a significant volume of additional work as to cause any serious problem. The position might be different when the effect of other legislative changes, including those proposed in the Land Reform Bill, is also considered. Overall, however, it is difficult to predict with any certainty.

Neil M Tainsh

Clerk to the Tribunal

The Lands Tribunal for Scotland

13 September 2002

SUBMISSION FROM BRUCE MERCHANT, SOUTH FORREST SOLICITORS

I have been a solicitor in private practice for over 30 years. During that time I have taken a particular interest in housing developments as well as acting for both private householders and businesses in the purchase and sale of property.

I was a member of the Advisory Group which commented to the Scottish Law Commission on its proposals. I am also a member of the Conveyancing Committee of the Law Society of Scotland.

In the following comments I illustrate my concerns regarding certain aspects of the Bill by reference to houses. However similar considerations apply in relation to other types of property including industrial and commercial buildings and land.

Summary

One of the Bill's stated objectives is to reduce the number of outdated conditions on land by making it easier to discharge or vary them. Along with the Abolition of Feudal Tenure etc. (Scotland) Act 2000 it is intended to provide a modern and simplified framework from property ownership in Scotland.

I am of the view that there is a real risk that the Bill will fail to achieve these objectives for the following reasons:-

Breaches of conditions normally only come to light when a property is being sold. This is particularly common in the sale of private houses. [See 2 below]

The effect of the Bill will be that many house owners will now require to get the consent of numerous other house owners although they did not require to do so in the past. [see 3, 4, 5]

The combined effect of these provisions will be that a great deal of the good which is envisaged in the Bill will be nullified. [see 6]

These difficulties could be avoided by the following relatively simple alterations to the Bill:-

Section 8 Only owners should be entitled to enforce land conditions.

Section 48 & 52(1) a) Where there are already implied rights of enforcement, these should be restricted to properties within four metres of the burdened property; and

b) Where there are no implied rights of enforcement at present in a Deed of Conditions, these should not be created now.

Why are Title Conditions a Problem?

It is the practice in Scotland for developers and builders selling housing to impose conditions on house purchasers. The developer or builder commonly retains the right (as a feudal superior) to enforce these conditions by inserting them in the title of each house.

An example of such a condition might be a prohibition against any external alteration to a house without the permission of the superior (i.e. the former builder or developer).

That means that if the house owner wants, for example, to erect an extension at the rear of the house, he should first obtain the consent of the superior. In practice house owners rarely ask for this consent although they will normally get planning permission and building warrant for such works.

However when the owner comes to sell, a purchaser's solicitor will not normally accept the position because of the risk that the superior might later demand that the extension be taken down. Accordingly to get the purchaser to accept the title the seller has to go to the superior or superior's solicitor and ask for either:-

a) a Minute of Waiver - a formal document which is required where there is an absolute prohibition against alterations; or

b) a Letter of Consent on behalf of the superior where the condition says that alterations can only be carried out with the consent of the superior.

The superior may demand a payment and his solicitor will make a charge for giving the consent. The seller of the house has little alternative but to accede to this arrangement because otherwise the house sale cannot proceed.

That is the simple situation where one only has to deal with one person who has the right to object. It is apparent that if more than one person has the right to object, one must communicate with each of them and their legal advisers with a corresponding increase in cost. In essence, that is the problem with certain of the provisions of the Bill.

Enforcement of Conditions by other House Owners

Sometimes house owners in a development are given the right to enforce the title conditions against each other.

These rights may be given expressly in the house owners' titles by the builder.

In other instances they may arise by implication in accordance with complex legal rules.

If these rights exist then the problems for the house seller are multiplied as he must approach several house owners for consent instead of one superior.

These rights normally arise from the use of Deeds of Conditions.

Deeds of Conditions

Instead of repeating detailed conditions at length in the title deed of each house it has become common practice since the 1960's for the builder or developer to record a Deed of Conditions in the Sasine Register or Land Register before selling any houses in the development. The Deed of Conditions sets out all the conditions to apply to the houses in the development. In the title for each house it is stated that the conditions in the Deed of Conditions apply.

Depending on the wording of the Deed of Conditions:-

a) Each house owner may have express rights to enforce the conditions; or

b) Such rights may be implied by law; or

c) There may be no such reciprocal enforcement rights.

The Scottish Law Commission recommended that for case (b) only neighbours within four metres should retain these rights but otherwise there should be no change.

It is proposed in terms of Sections 48 and 52(i) of the Bill that, where there is a Deed of Conditions affecting more than four houses, all of the house owners will have the right to enforce the conditions against each other even where they do not have any such right at present.

The proposal that conditions which are not enforceable at present by neighbouring proprietors should in future be enforceable I consider to be of great concern and potentially very damaging.

Enforcement by Non-Owners

The right to enforce conditions is also extended by Section 8 of the Bill to tenants, liferenters and non entitled spouses of the owners. This provision, which runs counter to the recommendation by the Scottish Law Commission, creates several problems.

There is no register from which one can identify tenants of houses and non entitled spouses. It is difficult enough to get consents when those entitled can be ascertained by examining a register. However if the right to enforce is to be extended in this way, this will inevitably create considerable uncertainty and expense. This alone would make the Bill a backwards step as compared with the present position.

Even if one can trace the people involved, one will be faced with the additional expense of obtaining consent from each of them e.g. there could be separate consents required from the owner, his or her spouse and their tenants.

Practical Difficulties in Getting Multiple Consents

I can think of at least one development of one hundred houses where I have acted for developers in granting feu writs. As on numerous other building developments for which I have been responsible, I specifically reserved the right to vary or waive the conditions and to depart from any development plan so that no implied right to enforce the conditions is conferred upon the neighbouring proprietors. I recently acted in the purchase of one such house within that very development where it was found that an extension had been carried out to the property. This required the consent of the superiors which the seller had simply not obtained.

If it had been necessary to obtain the consent of every neighbour (of whom there might have been 6 or 7) there would have been little or no prospect of the purchase proceeding. It would probably have been impractical and the cost would have been prohibitive. It would certainly not have been possible to obtain or dispense with the consent of all 100 owners within a reasonable time.

Firstly it would be necessary to identify house owners. This could well involve searches in the Registers with a cost in excess of £100.

Secondly some might be unable to consent within a reasonable time. Some might be confused or very elderly with no person appointed to act on their behalf.

Thirdly each house owner would refer to his, her or their solicitors who would require to investigate the matter and make a charge for doing so which would have required to have been borne by the seller. In each case this could have been in the range £50-£250. Titles would often be with lenders who will charge £40-£75 for exhibiting them.

The alternative methods of getting or dispensing with consents in Sections 32 to 35 of the Bill would be unworkable.

That of course only deals with the owners. In addition there would be the difficulty of tracing tenants and non entitled spouses.

The system works reasonably well at present notwithstanding the theoretical difficulties arising where there are implied rights of enforcement because they are often ignored and there are few examples of enforcement.

However it requires to be appreciated that once new legislation is in place new life will be breathed into the remaining real burdens. Every purchaser's solicitor will require to assume that any breach of a real burden or condition is unacceptable and will require to obtain a consent or waiver. As explained above it could often be impossible to proceed with a sale because such consents could not be obtained:-

· at all;

· quickly enough; and

· at an acceptable cost

If new rights of enforcement are created this will have precisely the opposite effect of what the present reform is trying to achieve; the rights of feudal superiors will be enforceable by more people not fewer. The harm done will outweigh many of the benefits of the present reform.

Bruce Merchant

South Forrest Solicitors

6 August 2002

SUBMISSION FROM SCOTTISH LANDOWNERS FEDERATION

Previous Papers

SLF incorporates in its evidence its previous Parliamentary Submission and Executive response. It adopts and repeats the points and references it makes in those papers in this evidence. Points from those papers are selected for quotation and repetition below, but that is not to take away from SLF's positions as set out in the whole of the two earlier papers.

SLF's Interest in the Bill

SLF is the representative organisation for owners and managers of rural land of widely varying types and extents throughout Scotland. Members include many rural business people in all sectors - tourism, agriculture, and a range of diversified rural enterprises. Almost 60% of SLF members own less than 500 acres; SLF has a well informed, realistic perspective on the way the current system of tenure of land may affect a land manager whose land marches with that of a number of neighbours, and may indeed itself surround that of one or more neighbours. Members will have to operate the provisions of the new legislation on a day to day basis. Its detail is therefore of critical concern to them, and will impact directly on the financial position of farms, rural businesses of many kinds, and those holding and managing rural land for other purposes.

SLF's Concerns about the Contents of the Bill

While SLF is pleased to see that its representations at 3.5 of its Parliamentary Submission and in discussion point 35 in its Executive Response are largely met by the provisions of Section 102 (5) of the Bill, which would insert a new Section 65A Sporting Rights in the Abolition of Feudal Tenure etc. (Scotland) Act 2000, it continues to have grave concerns about two of the subjects dealt with in the Annex to the Policy Memorandum to the Bill. These are respectively: the 100 metre rule (paragraphs 147 to 154, both inclusive) and development value burdens and claw back (paragraphs 155 to 165 both inclusive).

The 100 Metre Rule

SLF is most disappointed at the Scottish Executive's decision not to amend the Abolition of Feudal Tenure etc. (Scotland) Act 2000 so as to remove the 100 meter rule (paragraph 154 of Annex).

SLF advanced detailed arguments against the 100 meter rule in both its Parliamentary Submission and its Executive Response.

The inflexibility of the rule, as drafted, is inappropriate. As the law stands at present, the beneficiary of a real burden which has been constituted in a disposition who seeks to enforce such a real burden must meet the test of demonstrating, qua owner of an area of land, a patrimonial (i.e., a monetary or amenity) interest to enforce. It is unlikely that such an interest could be demonstrated unless the benefited proprietor's land is adjacent to the burdened ground. But such an interest might well be demonstrable without the existence of a dwelling house within the short distance of 100 meters.

Circumstances in rural areas are so various that flexibility is essential. It may well be that it is difficult to differentiate between urban and rural areas for this purpose, but any such difficulty should not under any circumstances be allowed to become a reason for imposing upon rural areas any provision which is not adequately adapted to them and gives rise to injustice in practice.

In a rural context, the requirement for a dwelling house within 100 metres is not a relevant or applicable test. This can be well illustrated by the evidence of practical examples - for instance, the case of the working farmer who has "feued off" a cottage in the middle of his farm, but at some distance from other buildings. He undoubtedly has a very strong interest in the use to which that cottage may be put. Proprietors of burdened ground are protected by the "interest" test (see paragraph 3.3 below). The imposition of a "proximity" test, would be acceptable to the extent of being in practice a requirement to demonstrate interest, but any question as to the use of the benefited proprietor's land (e.g., for a dwelling house) should not be part of any "proximity" test. Apart from the practicalities of the situation it puts a former feudal superior at a significant disadvantage compared with an outright seller of land who faces no such test to determine the enforceability of burdens imposed by him as just explained. SLF believes that the Committee would be assisted by the opportunity of looking at evidence of illustrative examples in some detail on the ground. There cannot be anything to lose, and there could be a great deal to gain by doing this.

In many rural situations (and this must be contrasted with urban and suburban situations which will inevitably be different) the "100 meter" rule will not cover a case where a former superior has a very good reason to preserve a former feudal real burden, and the only possible option for someone seeking to do so will be to go to the Lands Tribunal - unless, of course, in a particular case, agreement can be reached.

The apparent justification for the imposition of this hurdle on former feudal superiors is the fear of indiscriminate registration of former feudal real burdens. That would of course be extremely undesirable.

SLF believes it can be demonstrated by practical example that this fear is unfounded.

First, many feudal real burdens could not possibly be enforceable now, because the superior can not demonstrate the necessary interest, if he is challenged. [At present, a feu superior's interest to enforce a feudal real burden benefiting his superiority is presumed, but it can be questioned and negatived.]

Second, superiors will only go to the considerable time, trouble and expense of seeking to preserve the former real burdens that really matter, and will concentrate efforts to do so on those alone - typically, in a rural context, in the house in the middle of the farm case already mentioned. The identification of every individual feu pertaining to each superiority, and the registering of the appropriate notices in each case would involve a huge amount of work, and enormous cost. That is a very effective practical deterrent against any attempt to go for a mechanical mass preservation of existing feudal real burdens.

Third, any person seeking to enforce a former feudal real burden which has been realloted by one of the methods set out in the Bill will have to demonstrate interest to do so. That is a severe but appropriate test. It is the test which currently has to be met when seeking to enforce a non-feudal real burden. It would be utterly illogical and quite pointless for a former superior to seek to reallocate a feudal real burden if there is in fact no prospect of enforcing it, and no former feu superior would waste his own time and money trying to do so. That fact provides a "built in" filtering mechanism.

Fourth, the "interest" test, applied to a realloted former feudal real burden, fully meets both the policy objectives involved - that of weeding out redundant burdens, (for the reasons just given), as well as that of placing former feudal real burdens on the same footing as ordinary burdens created in dispositions. It is the only test which should be adopted to qualify a former feudal real burden which has been duly registered for preservation by reallotment (thus giving "title" to enforce) for enforceability.

It does not advance attainment of the Abolition of Feudal Tenure etc. (Scotland) Act's policy objectives to require a feu superior to pass a former feudal real burden through the distinctively different and more severe test of demonstration of "substantial loss or disadvantage" to him if the burden were to fall (or, at least, not to subsist in a modified form). The "substantial loss or disadvantage" test is not applicable at any stage in the process of seeking to establish either title, or interest to enforce a real burden constituted in an ordinary disposition. The imposition of the "substantial loss or disadvantage" test in the Act inevitably puts a superior at a disadvantage as compared with an ordinary seller of land. The Policy Memorandum on the Bill explicitly stated that such a result would be unfair. If there is to be a double test at all, and there are very strong arguments against that, then putting the very much more difficult, new test first must be to put the cart before the horse; it makes the second test ("interest") redundant.

It must be borne in mind that even if a real burden, whether a feudal burden, a former feudal burden which has been preserved, or a burden created in an ordinary disposition can be enforced, there is still a further protection for the proprietor of the burdened land. He may apply to the Lands Tribunal to have any land obligation, which includes any type of real burden however created or preserved, varied or discharged, and many such applications are wholly or partially successful.

All SLF's experience and enquiries suggest that increasingly from the end of the First World War, to the extent that it has become general practice, it is a question left to the preference of individual solicitors acting in land transactions whether missives call for a feu disposition or an ordinary disposition. Thus, when a farmer sells off a plot of land on his farm and quite reasonably wants to ensure that the buyer can only use the plot in ways that will not adversely affect the working of his farm, it can be a matter of chance whether the burden or burdens imposed on the plot when it is sold are attached to his farm land or his superiority. In such circumstances, and many parallels arise in urban and suburban areas, it will be quite unjust if the farmer is to be put to all the trouble and expense of having to build a house within 100 metres or go to the Lands Tribunal in an attempt to preserve his protection just because one conveyancing mechanism has been used rather than another. And what happens to the burden registered under the 100 metre rule when the relevant dwelling falls into disuse, or is demolished? The land management considerations involved are precisely the same in each case.

SLF accepts that the further back one goes, the more examples will be found of burdens constituted in feudal writs in cases in which the feu superior does not also own property contiguous to the burdened property. In such cases, while the feu superior's right to enforce a burden was (and is until the relevant provisions of the 2000 Act are brought into force is) to be presumed, such a presumption has always been capable of displacement. In reality, in all but a very few cases, where the feu superior did not own land contiguous to the burdened land the presumption could have been displaced, because the owner of the burdened land would have been able to show that the feu superior did not in fact have the necessary interest.

SLF's point is that there is a very sharp distinction to be made between two classes of feudal burdens.

The first class is where the feu superior does own land immediately contiguous to the burdened land, and where as a consequence prima facie he could successfully, as a matter of fact rather than of law, rebut an allegation by the proprietor of a burdened property that he had no interest to enforce the burden. As a matter of law, under the 2000 Act, a burden in precisely similar terms could have been automatically preserved, irrespective of the existence of a dwelling on the ground if only it had been constituted in a disposition rather than a feu disposition. SLF can see no justification whether on land management or conveyancing or public policy grounds for such discrimination in the case of feudal burdens falling within this class and is of the opinion that it will give rise to ECHR difficulties.

The second class is formed by those feudal burdens where the feudal superior does not own ground contiguous to the burdened ground, and where consequently the presumption that he has an interest to enforce could readily be displaced. Further, if he attempted to create a burden by way of a disposition, he would almost necessarily lack the interest to enforce it and would be thrown back on any contract in so far as he might be able to enforce the same. It will be very unlikely that any ECHR difficulty could arise under the 2000 Act provisions on preservation in relation to burdens in this class.

There are two further points to be made. First, the Scottish Law Commission's assumption that no interest can exist without a dwelling house in the vicinity was misconceived, at least in a rural context. It would, to take an extreme example, be hard to say that the owners of the farm next to the Raychem factory near Falkirk would not have had an interest in preventing such an activity on their boundary, if they had had the benefit of an appropriate condition. And we do not see that our contiguity test would be more liberal in an urban situation, which is where the existence of apparently (but not actually) enforceable conditions causes difficulty and, perhaps, injustice; on the contrary, the contiguity test in a town is more stringent than the 100 metre rule.

Second, no former feudal superior is going to devote the resources necessary to register burdens indiscriminately. It will only be worthwhile to register burdens in which there is a real interest to enforce, since only those burdens will be enforceable. That will require an exercise to identify the title to burdened property, and the particular burdens, before carrying out the elaborate registration process which must be done on a "case by case" basis. The cost of registration alone is unlikely to be less than, say, £300 in fees and registration dues, and the time cost of the whole exercise two to three times that, per property.

Recommendation

Accordingly SLF strongly recommends that the 2000 Act is amended so that "the 100 metre test" is replaced with the requirement that the land to which the benefit of a superior's condition must be transferred is land which is contiguous with the burdened land. Thus he can preserve it in exactly the same way as he would have been able to do if in the first place the burden had been created in favour of his land, rather than his superiority, as would have been perfectly possible. The SLF notes the arguments in favour of continuity of implied rights of enforcement for immediate neighbours in Paragraphs 86-91; a similar 4 metre test would be appropriate as a definition of "contiguous."

In the case of former feudal real burdens which benefit superiorities where the former feu superior does not own land contiguous to the burdened land, it is unlikely, as has already been pointed out, that as a matter of fact the feudal superior would be able to demonstrate the necessary interest to enforce. This critical and significant difference does justify a difference in approach and accordingly SLF believes that in the case of burdens falling within this class a former feudal superior should only be able to preserve it where the proprietor of the burdened property agrees to this course, or in what would inevitably the very rare case in which he could persuade the Lands Tribunal that he should be allowed to do so.

SLF is sure that if these recommendations are adopted the Scottish Executive would have nothing to fear from indiscriminate attempts to preserve former feudal real burdens, since only those former feudal real burdens with the same qualification for enforcement as ordinary real burdens would be eligible for automatic preservation. In all other cases, a filtering mechanism would apply, and as has been pointed out, it seems likely that many former feudal real burdens would fail to pass.

Development Value Burdens and Claw back

SLF believes that there are good reasons for the Scottish Executive to reconsider its decision not to change the 2000 Act to allow development value burdens to be saved (Paragraph 159).

In the first place, SLF believes that in cases (and there are a considerable number of them throughout the country) where superiors parted with land for a considerably reduced payment, or indeed for no payment at all, reflecting a feuing condition restricting the use of the land concerned (to give examples of such uses, those of amenity ground, sports fields, building of school houses), the feuing condition imposing the restriction should be capable of preservation on the same basis as a right to enter or otherwise make use of the burdened land or a right of pre-emption. (In some cases, the relevant restriction may continue to be enforceable in some other way, i.e. by means of a standard security, but that will by no means always be the case). Such a provision would be only fair to former superiors and their successors.

In the second place, even if a development value burden does fall as a consequence of the provisions of the Act, there certainly ought to be an effective prohibition upon former feuars becoming able to make what could be potentially very large windfall profits as a consequence of transactions (e.g. with housing developers) which were originally excluded by a restriction on use imposed in conjunction with a reduction in consideration for the grant of the feu, or indeed in a feudal grant for a nominal or nil consideration.

SLF cannot understand why the right to claim compensation is only assignable in the limited circumstances set out in Section 33 of the Act. The Scottish Law Commission stated that it did not wish to see a market in compensation rights, which is a small risk when compared with the inconvenience of a restriction on something which would otherwise be freely transmissible.

The basis of compensation must take account to an appropriate extent of the realities of present day land values and the loss of legitimate expectations to enforce particular rights. The Act does not do that.

Rights of Pre-emption

Your Clerk specifically asked us if we could offer some comments upon the merits or otherwise of rights of pre-emption. From our perspective, representing the owners of farms, rights of pre-emption enable farming families to sell plots of land to members of their families, employees and other purchasers with the facility of being able to bring the plots back into the farm where reasons exist to do this. For example, the location of a particular plot may make it entirely suitable for a family or an employee with previous involvement in or knowledge of farming and its operational requirements whereas it might not be so suitable for a general purchaser. A sale subject to a right of pre-emption might allow the farm to generate a capital receipt without the risk of operational difficulties in future. Not everyone understands the constraints of living near stock and crops and possible conflict is thus avoided.

SLF is aware that some criticism has been directed against rights of pre-emption on the grounds that where someone holding a right of pre-emption is determined to exercise it in a particular case, other offerers are bound from the start to be disappointed. However, SLF would point out that all but one offerer are bound to be disappointed in every sale, and in many cases, it may be possible for the seller and the holder of the right of pre-emption to reach agreement, thus obviating the need to go to the open market.

SLF's recommendation to the Committee is that given the current restrictions upon the exercise of the right of pre-emption, it should be left alone as a useful facility in a rural context.

Finally, SLF would be pleased to assist the Committee further, and looks forward to responding to the Committee's invitation to give oral evidence in due course.

Michael PG Smith W.S.

Legal Adviser

Scottish Landowners Federation

7 August 2002

SUBMISSION FROM THE SCOTTISH LANDOWNERS FEDERATION IN RESPONSE TO THE SCOTTISH EXECUTIVE CONSULTATION PAPER ON THE SCOTTISH LAW COMMISSION'S DRAFT TITLE CONDITIONS (SCOTLAND) BILL

Introduction

SLF is responding to the Scottish Executive's consultation paper on the draft Bill from its perspective as the organisation representing owners and managers of holdings of rural land of very widely varying types, patterns of use and extents throughout Scotland. In that context, SLF's primary concern is that there should be a fair, reliable and economical system of attaching appropriate and useful conditions to pieces of land, usually at the time of sale. SLF firmly believes that the guiding principles of fairness, reliability and reasonable economy of administration, must for the sake of good land management, be applied to existing real burdens just as much as to such burdens to be created in the future.

SLF has been fortunate in having two most helpful meetings with the Scottish Executive's Bill Team on this Bill, and the following points are made in the light of discussions at those meetings.

Discussion Points 32 and 33

Do you think that the 100 metre rule should be retained?

In the Discussion Paper, the Executive has said that it considers that in the overall context of the abolition of the feudal system the different treatment of feudal and non-feudal burdens is reasonable and justifiable.

All SLF's experience and enquiries suggest that increasingly from the end of the First World War, to the extent that it has become general practice, it is a question left to the preference of individual solicitors acting in land transactions whether missives call for a feu disposition or an ordinary disposition. Thus, when a farmer sells off a plot of land on his farm and quite reasonably wants to ensure that the buyer can only use the plot in ways that will not adversely affect the working of his farm, it can be a matter of chance whether the burden or burdens imposed on the plot when it is sold are attached to his farm land or his superiority. In such circumstances, and many parallels arise in urban and suburban areas, it will be quite unjust if the farmer is to be put to all the trouble and expense of having to build a house within 100 metres or go to the Lands Tribunal in an attempt to preserve his protection just because one conveyancing mechanism has been used rather than another. And what happens to the burden registered under the 100 metre rule when the relevant dwelling falls into disuse, or is demolished? The land management considerations involved are precisely the same in each case.

SLF accepts that the further back one goes, the more examples will be found of burdens constituted in feudal writs in cases in which the feu superior does not also own property contiguous to the burdened property. In such cases, while the feu superior's right to enforce a burden was (and is until the relevant provisions of the 2000 Act are brought into force is) to be presumed, such a presumption has always been capable of displacement. In reality, in all but a very few cases, where the feu superior did not own land contiguous to the burdened land the presumption could have been displaced, because the owner of the burdened land would have been able to show that the feu superior did not in fact have the necessary interest.

SLF's point is that there is a very sharp distinction to be made between two classes of feudal burdens.

The first class is where the feu superior does own land immediately contiguous to the burdened land, and where as a consequence prima facie he could successfully, as a matter of fact rather than of law, rebut an allegation by the proprietor of a burdened property that he had no interest to enforce the burden. As a matter of law, under the 2000 Act, a burden in precisely similar terms could have been automatically preserved, irrespective of the existence of a dwelling on the ground if only it had been constituted in a disposition rather than a feu disposition. SLF can see no justification whether on land management or conveyancing or public policy grounds for such discrimination in the case of feudal burdens falling within this class and is of the opinion that it will give rise to ECHR difficulties.

The second class is formed by those feudal burdens where the feudal superior does not own ground contiguous to the burdened ground, and where consequently the presumption that he has an interest to enforce could readily be displaced. Further, if he attempted to create a burden by way of a disposition, he would almost necessarily lack the interest to enforce it and would be thrown back on any contract in so far as he might be able to enforce the same. It will be very unlikely that any ECHR difficulty could arise under the 2000 Act provisions on preservation in relation to burdens in this class.

There are two further points to be made. First, the Scottish Law Commission's assumption that no interest can exist without a dwelling house in the vicinity is misconceived, at least in a rural context. It would, to take an extreme example, be hard to say that the owners of the farm next to the Raychem factory near Falkirk would not have had an interest in preventing such an activity on their boundary, if they had had the benefit of an appropriate condition. And we do not see that our contiguity test would be more liberal in an urban situation, which is where the existence of apparently (but not actually) enforceable conditions causes difficulty and, perhaps, injustice; on the contrary, the contiguity test in a town is more stringent than the 100 metre rule.

Second, no former feudal superior is going to devote the resources necessary to register burdens indiscriminately. It will only be worthwhile to register burdens in which there is a real interest to enforce, since only those burdens will be enforceable. That will require an exercise to identify the title to burdened property, and the particular burdens, before carrying out the elaborate registration process which must be done on a "case by case" basis. The cost of registration alone is unlikely to be less than, say, £300 in fees and registration dues, and the time cost of the whole exercise two to three times that, per property.

Recommendation

Accordingly SLF strongly recommends that the 2000 Act is amended so that "the 100 metre test" is replaced with the requirement that the land to which the benefit of a superior's condition must be transferred is land which is contiguous with the burdened land. Thus he can preserve it in exactly the same way as he would have been able to do if in the first place the burden had been created in favour of his land, rather than his superiority, as would have been perfectly possible. The SLF notes the arguments in favour of continuity of implied rights of enforcement for immediate neighbours in Paragraphs 86-91; a similar 4 metre test would be appropriate as a definition of "contiguous."

In the case of former feudal real burdens which benefit superiorities where the former feu superior does not own land contiguous to the burdened land, it is unlikely, as has already been pointed out, that as a matter of fact the feudal superior would be able to demonstrate the necessary interest to enforce. This critical and significant difference does justify a difference in approach and accordingly SLF believes that in the case of burdens falling within this class a former feudal superior should only be able to preserve it where the proprietor of the burdened property agrees to this course, or in what would inevitably the very rare case in which he could persuade the Lands Tribunal that he should be allowed to do so.

SLF is sure that if these recommendations are adopted the Scottish Executive would have nothing to fear from indiscriminate attempts to preserve former feudal real burdens, since only those former feudal real burdens with the same qualification for enforcement as ordinary real burdens would be eligible for automatic preservation. In all other cases, a filtering mechanism would apply, and as has been pointed out, it seems likely that many former feudal real burdens would fail to pass.

Discussion Point 34

SLF supports the principle of the amendment proposed. However, it must again be said that where a feudal real burden could perfectly well have been constituted and enforced as an ordinary burden, because the feu superior owns ground contiguous to the burdened ground, it would be discriminatory to disadvantage the former feudal superior merely because of the way in which conveyancing has been done, and in that case - the first class referred to above - a former feudal superior should not have to go to the Lands Tribunal to save his enforcement rights. However, SLF accepts that this would be a reasonable requirement in the case of feudal burdens falling within the second class referred to above, and in that case, it is reasonable that the test for preservation of entitlement should be the same as the test for enforcement.

Sporting and Fishing Rights

Discussion Point 35

SLF has already drawn attention to the formidable difficulties involved in attempting to preserve a feudal burden of sporting rights as an ordinary burden. This matter has already been fully treated in SLF's submission on the 2000 Act Bill. While conversion of sporting rights into positive servitudes might be a satisfactory solution in some cases, unfortunately it still does not cover the case where the former superior does not own any ground at least nearly adjacent, if not contiguous, to the burdened subjects.

SLF's enquiries in representative areas of the country - Aberdeenshire, Perthshire, and Dumfriesshire - reveal that there are cases, particularly where estates, or parts of estates, were sold off in comparatively small lots in the 1920s and 1930s, where the feu superior will no longer own property in favour of which a positive servitude could be constituted. In such cases, which are difficult to quantify, but fully deserving of proper treatment, the proposed arrangement would not work and valuable rights would be lost. This would undoubtedly give rise to ECHR considerations, in the absence of proposals for adequate compensation.

SLF thinks that a possible solution which should be considered would be the constitution of these rights as a burden directly in favour of a person, on the same basis as burdens in Part 3 of the Bill. Such a solution would appear to meet the needs of all the various cases which could arise. SLF would be pleased to discuss this particular proposal in further detail.

Pre-emption & Reversion

Discussion Point 27

The Scottish Executive's Bill team specially asked for SLF's views on this point.

This proposal does not appear to have any potential to put the holder in any worse position than if he had decided not to match an offer after the seller had gone to the market, and accordingly SLF believes that it would in allowing the seller to accept an offer as normal after a close set in the usual way, be a useful reform.

Discussion Point 28

SLF thinks that in principle at least this reform would be useful. However, SLF fears that if a question as to what was or was not reasonable arose, market offers would have gone away long before it had been resolved.

Accordingly, for the reform to be as useful as it might be in certain circumstances, there would have to be resort to a very speedy dispute resolution process.

Discussion Point 6

The Scottish Executive Bill team particularly asked for SLF's views on Section 7 (3) (a).

SLF believes that interest is already sufficiently and well defined in case law and that on the whole it would be a mistake to complicate matters by attempting what is after all not simply a statutory statement of a definition, but a statutory redefinition. Inevitably it would lead to litigation, and to some degree of uncertainty until a new corpus of case law had been established. There is already a great deal of new territory in both the 2000 Act and the Bill for all concerned, not least the end users, namely the land owners and managers, to assimilate and work with, and where there are serviceable existing definitions, they should be retained.

On the particular redefinition proposed, the SLF believes that "detriment" is a sufficient test without it necessarily being material. The purpose of a real burden is to protect the benefited ground, and if it is only protected against material detriment, the protection is incomplete. The SLF agrees with the Commission's conclusion in Paragraph 42 that flexibility to take account of differing circumstances is important and further tests would not be right.

Discussion Point 5

The SLF has reservations about this proposal, particularly in the case of tenants. The tenant does not really have a separate interest from the owner - if the land is threatened by some detrimental action both have an interest in stopping it.

If on the other hand one is prepared to agree to a change in a burden, and the other is not, where stands the burdened proprietor?

Discussion Point 17

Yes.

Discussion Point 26

Yes and No.

SUBMISSION FROM THE SCOTTISH LANDOWNERS FEDERATION TO THE JUSTICE AND HOME AFFAIRS COMMITTEE OF THE SCOTTISH PARLIAMENT IN REGARD TO THE ABOLITION OF FEUDAL TENURE ETC (SCOTLAND) BILL

SLF's Interest in the Bill

SLF is the representative organisation for owners and managers of rural land of widely varying types and extents throughout Scotland. Members include many rural business people in all sectors - tourism, agriculture, and a range of diversified rural enterprises. Almost 60% of SLF members own less than 500 acres; SLF has a well informed, realistic perspective on the way the current system of tenure of land may affect a land manager whose land marches with that of a number of neighbours, and may indeed itself surround that of one or more neighbours. Members will have to operate the provisions of the new legislation on a day to day basis. Its detail is therefore of critical concern to them, and will impact directly on the financial position of farms, rural businesses of many kinds, and those holding and managing rural land for other purposes.

SLF's Approach to the Principle of the Bill

As long ago as February 1996, on a consideration of the Scottish Law Commission's 1991 consultation paper, SLF Law and Parliamentary Committee resolved to support the principle of the abolition of the remaining features of the feudal system, subject to appropriate safeguards for the preservation of existing and the creation of future useful permanent conditions on land. In particular, the Committee took the view that anyone seeking to enforce a real burden should have to demonstrate interest to do so. Further, SLF strongly supports the stated policies of placing the superior in the same position as the ordinary disponer of land, and the "filtering out" of feudal burdens which no longer serve any useful purpose or could not be enforced for lack of interest to do so. Accordingly, SLF supports the broad policy objective of the Bill.

SLF's Views on the Detail of the Bill

SLF does have some serious concerns about the way in which certain provisions of the Bill, as they are presently drafted, would work in practice. It asks the Committee to look at these in detail, and to obtain and consider evidence about how they would work, not just from legal and other experts, but from the people who will have to operate them and will be affected by them.

The main provisions and matters of concern to SLF are: -

Section 17 (7) (a) - "100 Metre" Rule

The inflexibility of the rule, as drafted, is inappropriate. As the law stands at present, the beneficiary of a real burden which has been constituted in a disposition who seeks to enforce such a real burden must meet the test of demonstrating, qua owner of an area of land, a patrimonial (i.e., a monetary or amenity) interest to enforce. It is unlikely that such an interest could be demonstrated unless the benefited proprietor's land is adjacent to the burdened ground. But such an interest might well be demonstrable without the existence of a dwelling house within the short distance of 100 metres.

Circumstances in rural areas are so various that flexibility is essential. It may well be that it is difficult to differentiate between urban and rural areas for this purpose, but any such difficulty should not under any circumstances be allowed to become a reason for imposing upon rural areas any provision which is not adequately adapted to them and gives rise to injustice in practice.

In a rural context, the requirement for a dwelling house within 100 metres is not a relevant or applicable test. This can be well illustrated by the evidence of practical examples - for instance, the case of the working farmer who has "feued off" a cottage in the middle of his farm, but at some distance from other buildings. He undoubtedly has a very strong interest in the use to which that cottage may be put. Proprietors of burdened ground are protected by the "interest" test (see paragraph 3.3 below). The imposition of a "proximity" test, would be acceptable to the extent of being in practice a requirement to demonstrate interest, but any question as to the use of the benefited proprietor's land (e.g., for a dwelling house) should not be part of any "proximity" test. Apart from the practicalities of the situation it puts a former feudal superior at a significant disadvantage compared with an outright seller of land who faces no such test to determine the enforceability of burdens imposed by him. SLF believes that the Committee would be assisted by the opportunity of looking at evidence of illustrative examples in some detail on the ground. There cannot be anything to lose, and there could be a great deal to gain by doing this.

Section 18 - Reallotment by Agreement

SLF supports the principle of reallotment by agreement, wherever that is possible; it is the ideal solution, when it can be achieved. But its limitations should be fully explored. For example, the former vassal's land may already be subject to a standard security, the terms of which would prevent him entering into an agreement burdening his land even where he is perfectly willing to do so.

Section 19 - Reallotment of real burden by order of Lands Tribunal.

In many rural situations (and this must be contrasted with urban and suburban situations which will inevitably be different) the "100 metre" rule will not cover a case where a former superior has a very good reason to preserve a former feudal real burden, and the only possible option for someone seeking to do so will be to go to the Lands Tribunal - unless, of course, in a particular case, agreement can be reached.

The apparent justification for the imposition of this hurdle on former feudal superiors is the fear of indiscriminate registration of former feudal real burdens. That would of course be extremely undesirable.

SLF believes it can be demonstrated by practical example that this fear is unfounded.

First, many feudal real burdens could not possibly be enforceable now, because the superior can not demonstrate the necessary interest, if he is challenged. [At present, a feu superior's interest to enforce a feudal real burden benefiting his superiority is presumed, but it can be questioned and negatived.]

Second, superiors will only go to the considerable time, trouble and expense of seeking to preserve the former real burdens that really matter, and will concentrate efforts to do so on those alone - typically, in a rural context, in the house in the middle of the farm case already mentioned. The identification of every individual feu pertaining to each superiority, and the registering of the appropriate notices in each case would involve a huge amount of work, and enormous cost. That is a very effective practical deterrent against any attempt to go for a mechanical mass preservation of existing feudal real burdens.

Third, any person seeking to enforce a former feudal real burden which has been realloted by one of the methods set out in the Bill will have to demonstrate interest to do so. That is a severe but appropriate test. It is the test which currently has to be met when seeking to enforce a non-feudal real burden. It would be utterly illogical and quite pointless for a former superior to seek to reallocate a feudal real burden if there is in fact no prospect of enforcing it, and no former feu superior would waste his own time and money trying to do so. That fact provides a "built in" filtering mechanism.

The "interest" test, applied to a realloted former feudal real burden, fully meets both the policy objectives involved - that of weeding out redundant burdens, (for the reasons just given), as well as that of placing former feudal real burdens on the same footing as ordinary burdens created in dispositions. It is the only test which should be adopted to qualify a former feudal real burden which has been duly registered for preservation by reallotment (thus giving "title" to enforce) for enforceability.

It does not advance attainment of the Bill's policy objectives to require a feu superior to pass a former feudal real burden through the distinctively different and more severe test of demonstration of "substantial loss or disadvantage" to him if the burden were to fall (or, at least, not to subsist in a modified form). The "substantial loss or disadvantage" test is not applicable at any stage in the process of seeking to establish either title, or interest to enforce a real burden constituted in an ordinary disposition. The imposition of the "substantial loss or disadvantage" test in the Bill inevitably puts a superior at a disadvantage as compared with an ordinary seller of land. The Policy Memorandum on the Bill explicitly states that such a result would be unfair. If there is to be a double test at all, and there are very strong arguments against that, then putting the very much more difficult, new test first must be to put the cart before the horse; it makes the second test ("interest") redundant.

It must be borne in mind that even if a real burden, whether a feudal burden, a former feudal burden which has been preserved, or a burden created in an ordinary disposition can be enforced, there is still a further protection for the proprietor of the burdened land. He may apply to the Lands Tribunal to have any land obligation, which includes any type of real burden however created or preserved, varied or discharged, and many such applications are wholly or partially successful.

Summary of SLF Submissions on Reallotment of Former Feudal Real Burdens in General Cases

The "100 metre" rule should be dispensed with, but if it is not, it must be radically modified to provide the flexibility which would be very necessary under rural conditions.

If the "100 metre" rule is dispensed with, there is no need to provide for the complex and expensive procedure for reallotment by order of the Lands Tribunal; if, however, that procedure is to be adopted, the test to be applied should be one of demonstrating an interest to enforce, and not that proposed.

Section 17 (7) b(i) and c(ii) Reallotment of Real Burden By Nomination of New Dominant Tenement - A Special Rural Issue

SLF has serious concerns that the Bill as drafted, either directly or indirectly, will destroy shooting and fishing rights (other than salmon fishings rights) reserved to the Superior. This is a not infrequent situation. It is an issue of significance to the important sporting tourism industry. The Bill treats such rights has being real burdens affecting the feu. It is appreciated that this is the advice which the Executive has received from the Scottish Law Commission, but the Scottish Law Commission's view, with all respect to them, is not one which is universally held. Even if the Commission is correct, the rights in question are in jeopardy because of the terms of the Bill for the reasons explained in Appendix 1. There is also attached as Appendix 2 the Opinion of the Solicitor General dating from 1962 which is relevant. Particular attention is drawn to the Solicitor General's reference to the joint Opinion of Lords Mackenzie and Kinloch in Leith - v Leith and Others 1862 24D 1059.

Burdens Ancillary to Minerals and Salmon Fishings

Provisions should be made in the Bill so that burdens ancillary to rights to minerals and to salmon fishings are preserved without need to proceed to registration. Rights to minerals and salmon fishings are, in effect, no less than ordinary neighbouring properties. Such rights may well have been, and very often will have been, sold off to other parties by former superiors. Owners of such rights would not be alerted to the need to register such burdens in order to preserve them, if such a need arose, because the feu they will nominally have benefited is nothing to do with them. It may be added that the same principle applies to any other former feudal real burdens which are clearly conceived to be for the benefit of an already identifiable area of ground. Such burdens should continue to be enforceable by the proprietor at the time of minerals and salmon fishings without any need for registration.

Section 32 to 38 - Compensation: "Development Value" Feudal Real Burdens

It needs to be emphasised that land has often been feued at less, and much less than market value, or for no consideration at all for purposes in the general community interest or to benefit specific groups in some way e.g. sports teams.

In the first place, SLF believes that in cases (and there are a considerable number of them throughout the country) where superiors parted with land for a considerably reduced payment, or indeed for no payment at all, reflecting a feuing condition restricting the use of the land concerned (to give examples of such uses, those of amenity ground, sports fields, building of school houses), the feuing condition imposing the restriction should be capable of preservation on the same basis as a right to enter or otherwise make use of the burdened land or a right of pre-emption or of redemption, as currently provided for in Section 18 (7) (b) of the Bill. (In some cases, the relevant restriction may continue to be enforceable in some other way, i.e. by means of a standard security but that will by no means always be the case). Such a provision would be only fair to former superiors and their successors.

In the second place, even if a development value burden does fall as a consequence of the provisions of the Bill, there certainly ought to be an effective prohibition upon former feuars becoming able to make what could be potentially very large windfall profits as a consequence of transactions (e.g. with housing developers) which were originally excluded by a restriction on use imposed in conjunction with a reduction in consideration for the grant of the feu, or indeed in a feudal grant for a nominal or nil consideration.

SLF cannot understand why the right to claim compensation is only assignable in the limited circumstances set out in Section 33. The Scottish Law Commission stated that it did not wish to see a market in compensation rights, which is a small risk when compared with the inconvenience of a restriction on something which would otherwise be freely transmissible.

The basis of compensation must take account to an appropriate extent of the realities of present day land values and the loss of legitimate expectations to enforce particular rights. The Bill does not do that.

Section 65

SLF believes that the term should be increased to 200 years. Many financial institutions are not prepared to grant commercial loans over leases any less than 150 years.

Conclusion

SLF would welcome an opportunity to be heard on these detailed points, and would do its utmost to assist the committee in an enquiry into the way in which provisions would work in practice. It would particularly welcome an opportunity to provide the Committee with witnesses who could speak to the way in which the legal machinery involved might be expected to function.

Appendix 1.

Rights to Shoot and Fish Attached to Feudal Superiorities

SLF has serious concerns about the continuation of rights to shoot and fish attached to feudal superiorities. Although Section 47 does define a real burden as including a non-exclusive right of fishing or game, provided that it is constituted as a real burden, SLF believes that the prior question arises to whether or not such a right is in law a real burden. Even if it is a real burden, there is still the question as to whether it could be enforced as such in future. Whether the right is regarded as a pertinent of the superiority interest, or as a real burden enforceable by the superior, the critical point is that as matters stand at the moment the superiority interest exists in the same land as the land over which the right is to be exercised, and hence there is the superior's interest as such to enforce it, even if the right is properly classified as a real burden. But if the title to enforce, (always assuming that the rights concerned can be real burdens), is transferred to adjoining ground it would appear that interest to enforce would automatically be lost, because the loss of such a right would not in any way adversely the affect the value or amenity of the ground to which the right to enforce the burden is attached i.e. no patrimonial interest would be at issue, and if the right is not properly classified as a real burden but as a full part of the superiority interest, that right will be lost with the abolition of the superiority. Accordingly, for a former superior's right to shootings and fishings to survive, this subject requires more extensive treatment in the Bill than it has received at the moment. Otherwise, many former superiors will find that they have been deprived of a valuable right. If such rights are lost, then a right to compensation must arise.

Appendix 2.

Opinion For The Director Of Forestry (Scotland) Re Shooting Leases

I agree with the view expressed in the Memorial that there is conflict in the authorities, and that if the most recent statements be accepted, then this questions would fall to be answered in the affirmative. Unfortunately these recent judicial dicta and text-book statements do not mention and appear to have overlooked the bind Whole Court case of Leith v. Leith and others 1862 24D 1059, and certain subsequent cases proceeding thereon. That case is entered in the Faculty Digest only under "Entail" and "Expenses", which may have contributed to the omission of reference to it in the more recent books and dicta. It was concerned with whether or not shootings fell to be valued for certain entail purposes. The Whole Court, however, in order to determine that question had to consider as part of their ratio decidendi whether or not a lease of shootings was a mere delegation of a personal privilege (as had been held in various cases hitherto), or whether it was a true separate estate in land enjoying the common law realty of an agricultural lease. By a majority of 6 to 5 the Whole Court discarded the previous view. Lords Mackenzie and Kinloch, two of the majority, in their joint Opinion at p. 1967, said that till a comparatively recent period shootings had not, in our law, the character of property. They then mentioned Pollock, Gilmour & Co., 1828,.6 913, and Inner House case to the contrary, and described how the law has moved since then to regard shootings as real leases, and as property in themselves, a not as mere delegated privileges. This decision of the Whole Court was quoted to, and followed (as it had to be, there being no option), by the first Division in Stewart v. Bulloch 1881 8R. 381. At p. 383 Lord President Englis said, "if indeed it was the Law that a right of shootings was a mere personal franchise as at one time the Court appeared inclined to hold - there would be a great deal to be said against the application of the words of the Statute to a lease of the shootings, but I think it has now been laid down in a series of decisions that this is not the nature of a right of shootings, but that what the tenant receives under such a lease is a right of occupation of land, as much as in the case of an agricultural tenant." This observation is the more significant as Lord President Inglis, along with the Lord Justice Clerk, 19 years earlier had been among the five dissentions in Leith who had been in favour of the old view that a shooting lease was merely a delegated privilege. In Marquis of Huntly v. Nicol 1896 23 R. 610, the First Division held that a right of game shooting was capable of being real, and was so in that particular case, and binding on successors. The decision is not quite in point, however, as the right arose not by lease but by a real condition contained in the infeftment. It is however, a further nail in the coffin of the Institutional Writers' view that shooting rights cannot be more than mere franchises.

In my Opinion the conflicting line of authority cannot prevail, upon examination. Pollock, Gilmour & Co., 1828 6S 913 though an Inner House case was considered by the Whole Court in Leith in 1862, in the context of being part of the older law over-ruled by them. Birkbeck v. Ross 1865 4R 272 though reverting to the old law, was only an Outer House case. Lord Barcaple in reporting to the Second Division, considered at p. 274 (Note) the effect of Leith to be that it was of no importance whether or not the shootings were let, and he considered Pollock, Gilmour & Co still to be law. This, however, can only have proceeded on accepting the views of the over-ruled minority of five Judges in Leith. an easy mistake, as they are printed first in the Report. It may not be without significance that the Second Division, who acquiesced in his Report, included the Lord Justice Clerk, Lord Benholme, and Lord Neaves, all of whom were in the dissenting minority of the Whole Court in Leith, and who might therefore be predisposed to distinguish it if at all possible.

In the century following the Whole Court case and its followers-on (e.g. Stewart v Bulloch) there have been several dicta favouring the old view, both in cases and in text-books, but in none has the dictum been necessary as part of the binding ratio decidendi, and in none of these adverse cases had Leith been cited as a reminder to the Court in argument or commented on or referred to in the judgements.

Thus in Campbell v. McLean 1870 8M. (H.I.) 40, a case concerning pasturage, Lord Chancellor Matherley at p. 44 stated that a shooting lease was a mere privilege, not binding on singular successors. In Earl of Galloway v. Duke of Bedford 4F. 851 at 861, Lord President Kinross said "It is, like the right of shooting, merely a delegation of a personal privilege not capable of being made real, and not binding .... upon a singular successor." This too was obiter, as the decision concerned trout fishings, not shootings, and again the binding Whole Court decision was not even cited in argument, presumably because of its obscure position in the Digest. A similar criticism can made of Lord Glasgow's Trustees v. Clark 1889 16R 545, where at p. 549 Lord President Inglis said that shootings were only a "so-called" lease, and were a mere personal franchise. (A reversion to his dissent in the Whole Court case). In Beckett v. Bisset 1921 2 S.L.T. 33, it was held in the Outer House that a right to shootings could not be made effectual against singular successors by the particular machinery of a real burden in a Disposition.

This was a correct result, as a right to shootings can be conferred on a person living far from the lands in question and thus packs the "neighbourhood" characteristic which is an essential of all real burdens in Dispositions other than those for a fixed sum of money. Leith was referred to by the Lord Ordinary but he disregarded it, although such was not necessary for the decision of the case. In the more recent case, Marner v. Flaws 1940 S.L.T. 150, in the Outer House Lord Robertson held that as with shootings in Beckett a right to trout fishing could not be made a real burden a disposition. He made certain observations on shootings to the effect that there might be a distinction between the law applicable to them and to trout fishings. Leith was not among the many cases he considered.

Gloag and Henderson's Scots Law (5th Ed.) p, 336, quotes only Pollock, Birkbeck and the Earl of Galloway, omitting the all important Leith line of authority, in arriving at the author's view. Farquharson 1870 9M 66 is also footnoted, but that is a favourable case, not supporting Gloag and Henderson's proposition. Lord Kinloch at p.75 said "Whatever was at first held theoretically, I think the progress of society and the practice of the country have now placed shootings in the category of property, and given to a lease of shootings the proper character and legal affect of leases generally." Burn's Conveyancing (4th Ed.) p.180 contains a statement that a right to shootings effectual against a purchaser, cannot be created even by lease. The statement, with great respect to the late author, is somewhat misleading to the profession as the Whole Court case is not adverted to, and the sole authority footnoted by Professor Burns to support the proposition is Beckett v. Bissett 1921 2S.L.T. 33, on Outer House case which it was not thought necessary to include in the official Session Cases, and which dealt with only one type of machinery, the real burden in a disposition. That case did not purport to deal with conditions in a Feu Charter binding on successive vassal-purchasers, nor with leases binding per se by virtue of their equiperation to agricultural leases at common law in Leith, and in Stewart. Green's Encyclopaedia Vol.9 para. 148, in the article by Professor Morrison then of the Conveyancing Chair at Aberdeen University, states that a lease for shooting purposes is good against singular successors, but in footnoting only Farquharson (supra) in support, the author founds on a case which though favourable, proceeded as ratio upon the specially that the leases land had no occupier other than a shooting tenant, and no fruits or yield other than deer and game. The Whole Court decision is again overlooked. Rankine on Leases (3rd Ed.) p.504 starts by saying that shooting leases are not valid in questions with singular successors, but on the next page goes on to consider Leith v. Leith and ends by accepting the view that shooting leases are on a par with other leases and that the earlier law no longer applies.

In these circumstances the weight authority is to the effect that shooting leases, and thus valid against singular successors, unless the ineffective machinery of trying to constitute the arrangement by real burden in a disposition instead of by lease, is attempted. The apparent statement to the contrary in dicta and text-books are each vulnerable in that they proceed on citation of superseded, and in some cases of Outer House, authority in conflict with the Whole Court decision, and such a position once having been started each author tends to follow his predecessor's views.

I therefore answer this Question in the Negative, with the undermentioned Qualifications. While this involves departure from the advice which the Memorial states has been provisionally tendered to the Memorialist by the Agents, the position must, despite the reasons I have mentioned in support of my views, nevertheless contain a substantial degree of uncertainty. For the Court today, though technically bound by the Whole Court decision, might nevertheless be disposed to distinguish it in a manner I have not foreseen, especially looking to the narrowness of the 6 to 5 decision, the Judges themselves differing markedly. It would, therefore, be a question of circumstances as to whether to risk contesting a particular case against a given singular successor, and would depend on the value of the shootings at stake, and the chance of obtaining a suitable substitute shoot, against the above element of uncertainty which pervades the matter, although in my view the chance of success would be substantially greater than the risk of failure.

Strictly this Question does not arise in view of the above Negative answer, but in view of the qualifications attached to the answer, I deal with this Question, as ob majorem cauteiam, it would be advisable to protect shootings tenants by a more certainly effective course than the lease itself. In my opinion only the first method, vis:- a reservation in a Feu Disposition, would be effective. It is quite settled that matters which cannot be made Real Burdens in an ordinary Disposition because they may lack one or more of the elements considerated in Taylors of Aberdeen as the leading case, can nevertheless be effective as Real conditions when inserted in a deed where Superior and Vassel are the parties. The principle applied, is that privity of contract is deemed to exist between a Superior and every successor in the Vasselage. Menzies on Conveyancing p.575. 577. Marquis of Tweedale's Trustees. 1888 3R. 620. See also Stewart v. Duke of Montrose 1860 22D 755 per Lord Dees at p.803 - "Almost any obligation of a definite nature however collateral - however extrinsic ... and however temporary ... may be created a real burden over the heritable estate either of Superior or Vassel." Hemming v. Duke of Atholl 1883 11R. 93 exemplifies a case where the Superior's right (to shoot deer) faired against singular successors of the Vassel for the reason that it was not worded precisely enough. Lord Craighill at p.99 gave it as his opinion that a properly worded shooting right could be reserved "as a condition of the feu." Lord Young reserved his opinion on this point. As an analogy trout fishing rights as between singular successors where the relationship is that of Superior and Vassel would derive their effectiveness from the national continuing privity of contract. (Patrick v. Napier 1867 5M. 683 per Lord President at foot of p.695). The main loophole which can exist occurs where a vassel disposes to a purchaser who holds uninfeft on a personal title, and who is strictly thus not yet a vassal qua the Superior. The reservation of the shootings should therefore be made expressly binding on such a person (Menzies p.575 deals with this necessity). A Feu Contract with its bilateral content is slightly preferable to Feu Disposition, for these purposes, but both would, in my Opinion, be effective. There should be express reference in the deed, to the vassal remaining bound whether the Superior retains the shootings in his own hands or whether he delegates or alienates them (or has already alienated them) by lease for a period:- if such necessity to recognise delegation thus becomes a contract with the first vassal I can find no authority to delegate from the general principle that there would be national privity with the successors in the feu.

Only above vis:- a lease entered into with the proposed shooting tenant, probably binding without further machinery, but fortified ob majrem cautelam by the Superior's right being inserted in a Feu Disposition or Feu Contract as the instrument of "sale" to the purchaser.

This Question is superseded in view of the negative answer to Question 1, but in view of the qualification settlements may not be out of place where the sums are not large, and I therefore, deal with it. There is very little authority about the measure of damages in shooting lease cases. Critchley v. Campbell 11R. 475 concerned the value to be put upon dispossession from two beats on a shoot, but no principle can be derived from the case. It is thus necessary to look at the measure of damages in leases of other kinds, to extract such principles as would appear applicable also to shooting leases. In England, is leases generally, a measure referred to in Mayne and McGregor on Damages (12th Ed.) p.479 and 483, is the market value of the rent for the number of years of the unexpired period less the rent in fact contracted for i.e. loss of the bargain. I think such a rule with the undermentioned modifications would fall within the general principles of Scots Law also, as regards measure. A low rent if enjoyed is thus an element which does not restrict damages to a low figure, but which operates to make the loss the difference between that and the larger market-value rent which the disposse tenant would have to pay to get a similar shoot elsewhere. (A comparable principle is the measure between contract price and market price and market price in a sale of Goods (Sale of Goods Act, 1893, Sec.51). This measure would probably be restricted to a period less than the outstanding duration, if there were reasonable prospect of obtaining a like favourable bargain in comparable subjects, sooner. If the breach occurred early on in a 25 years lease I think it doubtful whether more than a proportion of the outstanding period would ever be taken as the number of years by which to multiply the measured difference. For the lease is personal to one tenant and other possible terminations other than by breach would need to be allowed for. That would be a question of probable forecast for a judge to estimate, as would an element of solatium for the inconvenience of dispossession from the actual enjoyment and for the trouble of seeking elsewhere. (Rankine on Leases (3rd Ed.) p.496 and direction to the jury in Dalziel v. Duke of Queensbery 1825 4 Mur. 10, 18).

I have nothing to add.

The Opinion of (Sgd). D.C. Anderson

Solicitor General

Crown Office

9 Parliament Square

Edinburgh

8th March, 1962

 

SUPPLEMENTARY WRITTEN EVIDENCE FROM BRUCE MERCHANT, SOUTH FORREST SOLICITORS

I refer to my written evidence of 6 August 2002 and the oral evidence which I had the privilege of giving to the Committee on 24 September. I very much appreciated the opportunity of being heard.

I have followed with interest reports of subsequent meetings of the Committee and from these it is apparent that I failed adequately to explain the difficulties which will face house buyers and sellers in Scotland and their advisers if the Bill is brought into law in its present form.

I would refer particularly to the evidence given by the Deputy First Minister and Minister for Justice, Mr Jim Wallace, on 1 October. As he pointed out, there is no reason why the owner of a house should be prejudiced because his non-entitled spouse or his tenant enforces some of the conditions to which he is entitled as the benefited owner; the conditions will not be enforced against the spouse or the landlord but rather against the proprietor of another house in the development.

That is not the problem. It is rare for anyone in right of a real burden to take active steps to enforce it against another owner. For example, under the present law, it is unusual for a superior to take the initiative in enforcing a condition.

It is commonly only when people come to sell their houses that it is realised by the solicitors acting for purchaser and seller that alterations have been made (or other acts have occurred) for which the consent of the superior should have been obtained. Typical wording in the title might be:-

"no external alterations or additions shall be made to the dwellinghouse without the written consent of the superiors".

Retrospective consent of the superior can usually be obtained relatively easily (although at a cost of about £100-£200) as the solicitors acting for the larger superiors are well known and used to granting such consents.

However, under the new regime, the wording of the Deed of Conditions would in effect be re-written to provide:-

"no external alterations or additions shall be made to the dwellinghouse without the written consent of every owner, non-entitled spouse of an owner, tenant and liferenter of a house within the development".

If that becomes the law, then instead of getting consent from one person (the superior) it will be necessary to approach every one of, say, the hundred owners in a development and their tenants, spouses etc. It just cannot be done.

As Mr Wallace pointed out in his evidence, if a tenant or non-entitled spouse were themselves trying to enforce a condition, they would require to demonstrate that they were entitled to do so. That would be a relatively straightforward matter. However it is entirely different from the point of view of somebody trying to get a consent from every owner, non-entitled spouse, tenant etc. It is difficult enough to find out who all the owners are although this could be done by searching the Registers in Edinburgh albeit at significant cost. However there is no way of finding out who the tenants and non-entitled spouses might be and so one could never be certain that one had obtained all necessary consents.

Nor does it appear to be what the public expects or wants. In its Report on Real Burdens (No 181) the Scottish Law Commission included a "Survey of Owner/Occupiers' Understanding of Title Conditions" as Appendix C at page 465ff. It is interesting to see that, while some 90% of those consulted thought that they should obtain consent from next door neighbours where there were enforcement rights, only 2% thought that they should require to get consents from everyone in the development. This was a material part of the reasoning of the Commission (page 243) when it recommended the four metre rule in relation to implied rights.

This is not a small problem. In more than half the developments in Scotland where there are Deeds of Conditions (which means virtually every private development of significance in the last 30 or 40 years) house owners do not have conditions in their titles which can be enforced by other owners (SLC Report on Real Burdens Appendix D p.502)

Mr Wallace also made the point that consents as such will be of little value. However as will be seen from the example quoted there is often a provision which says that something can be done but only with consent.

The Bill has the potential to create real problems which would strike at the heart of the process of buying and selling houses in Scotland. I find it very difficult to believe that this is desirable, particularly in view of the efforts of HITF. I believe that it would operate to the significant disadvantage of the people of Scotland.

I have given some thought to how one would address these problems if I were acting for the seller of a house who had carried out an extension without getting all necessary consents. I attach a separate note setting out in order the seven steps which I would follow. I fear that in many instances one would be left with the remedy of an application to the Lands Tribunal. In the context of a sale of a house that is an alarming prospect because of the substantial delay, not to mention the cost which would be involved.

The purpose of the Abolition of Feudal Tenure Act combined with the Title Conditions Act is to rid our society of archaic and unnecessary restrictions upon the use of one's property. If the Bill is passed in its present form, I fear that it will substitute a multiplicity of new problems and will in many instances actually make the position worse. I accordingly remain of the view that the Bill in its present

form could be immeasurably improved by three relatively simple steps:-

· Amend Section 8 to provide that only owners should be entitled to enforce land conditions;

· Where there are already implied rights of enforcement, as opposed to express rights, these should be restricted to properties within four metres of the burdened property; and

· Where there are no implied rights of enforcement at present in a Deed of Conditions these should not be created now.

Bruce Merchant

South Forrest Solicitors

16 October 2002

Appendix

I have considered how a solicitor might advise the seller of a house who has carried out works such as an extension where the Deed of Conditions contains words such as "no external alterations shall be carried out without the written consent of the superior".

If the conditions were enforceable by other house owners in terms of the Title Conditions (Scotland) Bill then I would suggest that the points for consideration would be as follows:-

Was the work done more than 5 years ago?

If so, there is no problem because of the new five year negative prescription introduced by s.17.

If not:-

Did everyone who could enforce the burden either consent to it or did they fail to object to it?

If they simply failed to object, were they or should they have been aware of it?

This would require that every owner, tenant, liferenter and non-entitled spouse in the development knew or ought to have known of the work. If so, the acquiescence provisions in s.16 come into play. Eight weeks after the substantial completion of activity involving expenditure there is a presumption that each such person knew or ought to have known of the carrying on of the works. However that presumption is rebuttable. If there were a development of, say, one hundred houses it would not be difficult for a proprietor, tenant, non-entitled spouse etc. at the other end of the development to claim that there was no way that he or she could have known of the work being carried out.

Can one therefore rely on s.16?

If not:-

Can you argue that some of the owners and tenants have no interest to enforce even if they have title?

This depends upon an interpretation of s.8 of the Bill which provides that "a real burden is enforceable by any person who has both title and interest to enforce it".

In general there has been no willingness to restrict interest to those within, say, a four metre radius. The Executive has taken the view that in certain circumstances more remote owners might have an interest to do so. It is stated in s.8 (3)(a) that there is an interest to enforce if "in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person's ownership of, or right in, the benefited property".

The difficulty with that is that it is a subjective test and it is difficult to know how, for example, the Keeper will interpret it in relation to entries in the Land Register. Is a purchaser's solicitor prepared, for example, to accept consents from nearby neighbours, tenants etc. and take a view that those who live one or two houses further away will not be prejudiced and therefore have no interest to enforce?

If not:-

Can you get consent from all owners, tenants, liferenters, non-entitled spouses etc. covered by the Deed of Conditions?

How does one know who the tenants etc. are? This might just be possible in smaller developments but would be impractical in larger ones.

If not:-

Can one get a Discharge from a majority of all entitled owners?

There is provision for this in s.32 of the Bill. The characteristics of this are:-

Owners only are involved - they cut out tenants, liferenters and non-entitled spouses.

The Discharge is a formal deed (not a consent) and has to be registered against each of the titles. It would appear to involve seeing all the titles of those involved which, even if it were practical, could be very expensive.

Even if one can surmount this obstacle one then has to send a Statutory Notice and an explanatory note to all the owners who have not granted the deed. Any of them can object to the Lands Tribunal within eight weeks.

Would this ever be practical in the context of a normal house sale?

If not:-

Can one get a Discharge from the owners of all adjacent units?

There is provision for this in s.34 of the Bill. Again we are dealing with owners only. The requirements here are:-

· Every owner within a four metre radius (ignoring roads so that it includes properties on the other side of the road) must grant a formal Discharge.

· This also requires to be registered against every property so there are the same problems about seeing all title deeds.

· After you have got all the neighbouring proprietors to sign, you must send a copy of the deed and a Statutory Notice to every other owner in the development who has not granted the deed. Alternatively, one must post a Notice on the house and on one or two nearby lamp posts. If there are no lamp posts one must advertise in a newspaper.

· Again there is an entitlement for anyone receiving Notice to go to the Lands Tribunal.

If not:-

Application to the Lands Tribunal

Bruce Merchant

South Forrest Solicitors

11 November 2002

32nd Meeting, 2002 (Session 1), 1 October 2002

SUBMISSION FROM NATIONAL TRUST FOR SCOTLAND

Introduction

The National Trust for Scotland has statutory purposes relating to promoting the conservation and enjoyment of Scotland's natural and cultural heritage. Real burdens are fundamentally important to its ability to implement these purposes, because they are one way in which it can promote them over land which it does not own. The Trust therefore takes a strong interest in this Bill, particularly Part 3, Conservation and Maritime Burdens. The Trust responded to the consultation over the draft Bill in July 2001.

Title Conditions and The National Trust for Scotland

At present the Trust can impose real burdens when selling land by feu or by outright, i.e. non-feudal, disposition. It holds over 1,000 feudal superiorities; most of these have been created by the sale of land during its 70 years of existence, but some have been acquired as superiorities, usually in connection with the acquisition of other property. The Trust can also impose title conditions which are not real burdens but are analogous to them by concluding a restrictive agreement (usually known within the Trust as a 'Conservation Agreement') under Section 7 of The National Trust for Scotland Order Confirmation Act 1938, either when selling land, or by agreement with the owner of land which it has never owned.

Conservation Burdens

The Trust welcomes in principle the proposals for conservation burdens, as they will enable it and other conservation bodies to continue to have a mechanism for ensuring the conservation of important land or buildings when their sale is required for whatever reason. Indeed, as long ago as 1992, in response to the 1991 Scottish Law Commission Discussion Paper on the Abolition of the Feudal System, the Trust argued that some feudal burdens should be preserved, as they were imposed in the public interest rather than for private interests.

However, the definition of the purposes of conservation burdens at Section 37(1) of the Bill should be improved. For example, flora and fauna wrongly seem to appear rather as an afterthought to architectural or historical characteristics, and the phrases 'any other special characteristics' and 'general appearance' are unsatisfactorily vague. As a conservation organisation concerned with the integrated management of the natural as well as the cultural heritage of Scotland, the Trust proposes that there should be a more holistic definition of the purposes of conservation burdens which give equal weight to both natural and cultural heritage. This might be, for example 'to preserve or protect, for the benefit of the public, the natural or cultural heritage of any land'. Indeed, a more satisfactory definition appears in Paragraph 164 of the Explanatory Notes ('for the benefit of the public, burdens which protect the built or the natural environment'). There might also be merit in including specific reference to, for example, biodiversity, landscape or public enjoyment in the definition.

The Trust raised this issue in its response to the consultation over the draft Bill, but the Scottish Executive has not addressed it in the Bill as introduced.

Conservation Burdens - Exception from Sunset Rule and Variation

Section 19 introduces a new termination procedure for real burdens which are at least 100 years old. The Trust supports the proposed exception for conservation burdens from this 'sunset rule', the valid argument for such exception being that the significance of land for conservation normally endures into the long term, far beyond 100 years or any other arbitrary 'sunset' period. In its response to the consultation over the draft Bill, the Trust requested clarification, however, that conservation burdens could be varied for good reason by agreement between the conservation body and the burdened owner. Paragraph 180 of the Explanatory Notes makes clear that such variation can indeed take place under Section 44(2), by registering against the burdened property a deed which partially discharges the conservation burden whilst otherwise leaving it in force. The Trust therefore considers that its concern over this aspect has been satisfactorily answered.

Definition of Conservation Body

The proposed definition of a conservation body at Section 37(4) appears to extend to both public and voluntary bodies, and does not specify that they must have the power to own land. It therefore appears to cover a wide range of potential bodies, including public bodies and non-landowning voluntary bodies as well as landowning voluntary bodies such as the Trust.

The proposed definition of a conservation body seems likely to result in due course in an increasing number of bodies becoming able to conclude conservation burdens, as opposed to the present situation where the Trust's 'Conservation Agreements' are the only option available to a private owner wishing to conclude such an agreement with a voluntary conservation organisation. The Trust therefore welcomes this development, as it should give the owners of land or buildings of conservation significance a wider range of potential partner bodies from which to choose the most appropriate in the particular circumstances. This should broadly benefit the cause of conservation in Scotland, by providing greater opportunities for a wider range of conservation bodies to extend their influence without the expense of owning or managing land. The Trust welcomes the commitment at Paragraph 67 of the Policy Memorandum that the list of conservation bodies will be subject to scrutiny by the Scottish Parliament, although it is unclear where the Bill provides for this.

However, there are concerns that the relatively loose definition of a conservation body at Section 37(4) might allow organisations whose primary purpose is not conservation to qualify too easily as conservation bodies by adding the necessary clauses to their constitution, and then to use conservation burdens for ends which are not necessarily in the public interest. It is therefore important that more detailed guidelines on the selection procedure for conservation bodies should be set out, either in the Bill or in subordinate legislation. This could set minimum standards for a conservation body covering, for example, democratic structures, size of membership or length of time in existence.

The Trust raised this issue in its response to the consultation over the draft Bill, but the Scottish Executive has not addressed it in the Bill as introduced.

Maritime Burdens

Given the great importance of the foreshore and seabed to the public interest, for example in terms of conservation, recreation, navigation and fishing, the limited proposals for maritime burdens at Section 42 are disappointing. For example, conservation bodies should be able to conclude conservation burdens over areas of the foreshore or seabed owned by themselves, by the Crown or by others. The Crown owns most of the foreshore, but not all of it; for example the Trust owns stretches at some of its properties. The Bill represents an important legislative opportunity to enhance the conservation and management of the foreshore and seabed, so the Trust seeks improved provisions in the Bill for the conservation and management of areas of foreshore and seabed of conservation importance, along the lines suggested above.

The Trust raised this issue in its response to the consultation over the draft Bill, but the Scottish Executive has not addressed it in the Bill as introduced.

Ability of former superiors to nominate a Conservation Body as the benefited proprietor for burdens which are similar to Conservation Burdens

The Policy Memorandum raises, at Paragraph 66, the issue of those feudal burdens imposed in the past by private individuals for altruistic reasons, to protect some aspect of the natural or cultural heritage. These are therefore like conservation burdens, in that they were imposed principally in the public rather than private interest. In the consultation over the draft Bill, the Scottish Executive canvassed the possibility of introducing provisions to allow a feudal superior to nominate a conservation body as his or her successor as the benefited proprietor for such burdens, which would then become conservation burdens. The Policy Memorandum goes on to assert that this proposal was supported in consultation, and states that the Bill therefore includes a provision to allow this, presumably Section 102(3).

The Trust accepts that this proposal would potentially introduce an additional legal means by which it could further its statutory purposes of promoting the conservation and enjoyment of Scotland's heritage, and is therefore greatly interested in it. However, the Trust is concerned at the likely costs of taking on this potentially large additional responsibility. It would have to consider the extent to which it could accept such burdens, if at all, without additional funding support, and whether it might be necessary to restrict such commitments to land or buildings of the highest national importance. The process of assessing each case offered against a set of criteria for acceptance as a conservation burden would potentially generate a substantial and largely unpredictable additional workload and cost, at a time when, following the passage of the Abolition of Feudal Tenure Act, the Trust is already faced with the task of assessing each of its own more than 1,000 superiorities for possible conversion to conservation burdens. The concerns raised by the Trust therefore still remain, and may well also apply to other potential conservation bodies.

The Trust raised this issue in its response to the consultation over the draft Bill. The Scottish Executive has partially addressed it in Section 102(3) of the Bill as introduced, but the Trust remains concerned over the potential additional workload and costs for conservation bodies.

Compulsory Purchase - Effect upon Conservation Burdens

Section 95 extinguishes real burdens when land is acquired by a compulsory purchase order, and Section 96 applies to cases of acquisition by agreement in circumstances where compulsory powers could otherwise have been used. The draft Bill, at Section 99(2)(c), made an exception for conservation burdens in the latter case, but this has been removed from the Bill as introduced. The Trust suggests that there should be exceptions for conservation burdens in both Sections 95 and 96. The argument for this is that the purpose of conservation burdens is to protect the conservation significance of the land concerned, despite future changes in ownership. Such significance should be protected when that land is acquired by compulsory purchase or by agreement under statutory powers, in the same way as when it is sold by a willing seller to a willing purchaser.

Relationship between Title Conditions Bill and Land Reform Bill

Part 2 of the Land Reform (Scotland) Bill gives rural communities the right to buy land under certain circumstances, when the owner of that land wishes to sell. Part 3 of that Bill gives crofting communities an absolute right to buy land under certain circumstances, even if the owner does not wish to sell. These situations raise issues similar to those raised above in relation to Sections 95 and 96 of the Title Conditions (Scotland) Bill. If a community or crofting community wishes to exercise these rights over a property over which a conservation burdens is held, it seems reasonable that such a burden should not be extinguished, given that it will have been created for the benefit of the nation as a whole. Once again, the argument is that the conservation significance of the land concerned, which the conservation burden has been created to protect, is unlikely to be diminished by the acquisition of that land, and that therefore the burden should survive such acquisition.

It is unclear, presumably because neither Bill has yet been passed, whether Section 95 would apply to purchases under the Land Reform Bill. It should be made clear that the exception for conservation burdens under Section 95 proposed above should extend to land acquired under Parts 2 or 3 of the Land Reform Bill. On the assumption that the Land Reform Bill will be passed before the Title Conditions Bill, the most appropriate way to achieve this might be to amend the latter.

The Trust did not raise these issues in its response to the consultation over the draft Bill, as they have come to light subsequently following further consideration of the relationship between the two Bills and the introduction of the Title Conditions Bill.

John Mayhew

Policy and Planning Adviser

The National Trust for Scotland

31 July 2002

 

SUBMISSION FROM SCOTTISH NATURAL HERITAGE

Thank you for your letters seeking SNH's written evidence on the above Bill and inviting SNH to give oral evidence to the Justice 1 Committee on Tuesday 1 October.

Please find attached our written evidence on the Bill. The main concern that we raised in response to the Executive's consultation last August, was about the way in which the proposed changes might affect the arrangements for registering designated sites and statutory agreements to titles to land. We have now received assurance from the Justice Department that these arrangements will not be affected. As a result, most of our submission concentrates on the issue of conservation burdens.

Ian Jardine

Chief Executive

Scottish Natural Heritage

11 September 2002

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