Why should tenants be evicted because the landlord wants to sell?

11. March 2016 · 36 comments · Categories: Democracy, Edinburgh, Housing, Land Reform, Land Rights, Legal affairs, Urban

lornestreet_citychambers_670

Lorne Street tenants protesting at City Chambers, Edinburgh November 2015

The American land and tax reformer, Henry George, observed in his book, Progress and Poverty, that “thirty thousand people have legal power to expel the whole population from five-sixths of the British Islands. The vast majority of the British people have no right whatsoever to their native land, except to walk the streets.”

The history of much of the world is a history of property, of the appropriation of territory and the framing of laws designed to protect the novel concept of private property. Those frozen out of this process – the poor and the landless – had to make do with belated concessions to protecting their rights – concessions that came too late for many as James Hunters’s new book on the Sutherland clearance, Set Adrift Upon the World, makes painfully clear. In the year of the Strathnaver Clearances in 1814, Sir John Sinclair, Caithness landowner and author of the first Statistical Account of Scotland ,observed that, “in no country in Europe are the rights or proprietors so well defined and so carefully protected.”

To be a landowner was to be endowed with economic, legal, social and economic power. On the basis that the primary responsibility of government was to defend the country, those who owned the country presumed to be best placed to monopolise the electoral franchise and undertake that task.

During the 18th and 19th century, fortunes were made through the ownership of urban land in particular. As cities expanded, demand for land enriched those fortunate enough to hold the title deeds to the fields and meadows that were acquired to build the houses, factories and infrastructure necessary to support a modern urban economy.

In Edinburgh, the street names reveal this history in Buccleuch Street, Hopetoun Crescent Roxburgh Terrace, and Moray Crescent. One of the beneficiaries of this legal dispensation was George Heriot, the Edinburgh jeweller, whose death in 1624 established the Heriot Trust which was run by the Provost, Baillies and Councillors of the City together with the Ministers of the town. It rapidly established a virtual monopoly on land around Edinburgh

“An exclusion zone was imposed upon Edinburgh by the activities of the Heriot Trust’s acquisitions” wrote urban historian, Professor Richard Roger. “Scarcely an acre in the neighbourhood came into the market which they did not instantly acquire for the benefit in perpetuity of Heriot’s Hospital”. By the end of the 19th century, the Trust owned over 1700 acres of land around the City. Much of this comprised land between Edinburgh and Leith.

edinburgh_1852_670

Samuel Hunter’s timber yard in Leith, 1852. Lorne Street was built along the south.

One of those who held a feu from the Heriot Trust was Samuel Hunter, a stonemason and builder who owned a yard on Leith Walk at Smith Place. He ran a successful business as a property developer and builder and in 1879, was granted a further feu by the Heriot Trust to erect blocks of tenements at the western end of what is now Lorne Street.

When he died in 1893, his daughter Agnes Hunter inherited a substantial property portfolio including her own elegant house on Dalrymple Crescent in the Grange. Upon her death in 1954, her executors established the Agnes Hunter Trust which continues to own over 90 tenement flats in Lorne Street occupied by over 200 residents. The Trust is a charity and provides grants to health and social welfare projects.

The Trust established a reputation as a landlord that provided long-term secure tenancies. “We were promised a tenancy for life”, said one tenant. “Stay as long as you like”’, another was told. The Agnes Hunter tenants comprised a close-knit community of all ages. The oldest resident has lived there for 74 years, having moved in aged 2 years old. The younger children all attend Lorne Primary School adjacent to most of the tenement blocks.

But whilst tenants felt secure, their homes suffered from poor maintenance. Damp persisted for years in flats, waste water rose through bath and kitchen pipes, window frames rotted and repairs were ignored. Many tenants undertook work themselves, installing bathroom sinks and even a heating system. Some tenants began leaving and others were evicted. In July 2015 all 200 of the Trust’s tenants were informed by letter that “retention of The Agnes Hunter Trust’s property portfolio was no longer in the interests of the Trust” and all households were to be evicted by the end of the year.

A determined campaign by residents was launched and the Lorne Community Association secured a stay of execution until the end of January 2016. Following a petition to Edinburgh Council, this was extended to July 2016 in order to allow time to try and establish a housing co-operative or similar solution.

To the wider world, evictions on this scale came as something of a shock. Few knew anything about the Agnes Hunter Trust. I had some vague recollections of my own from 7 years spent living in a flat on Lorne Street but I forgot all about it until the story appeared in the newspapers.

At a time when the Scottish Parliament is, at long last, considering a Bill – the Private Sector (Tenancies) (Scotland) Bill – to modernise tenants rights and provide greater security of tenure, it is worth reflecting on what a shocking state of affairs these evictions represent. Most tenants are on Short assured tenancies. Despite the assurances of lifetime security, most tenants in law were never more than 2 months from eviction.

The short-assured tenancy was introduced in the 1988 Housing Act. The idea was that these tenancies would provide a landlord-friendly tenure for the private sector, allowing it to grow at the same time as Housing Associations were given the freedom to access private finance. The result has been the growth of one of the most unregulated, liberal and (from a tenant’s perspective) insecure rental markets in Europe. Britain’s obsession with homeownership has led to eye-watering levels of private debt, house prices outstripping earnings, a speculative volume housebuilding industry that profits from land value appreciation and consumers spending growing proportions of their income on housing costs.

Sometimes it takes a case like Lorne Street to focus minds on long-standing policy failures. The private rented sector has grown in a haphazard manner driven by buy-to-let landlords and little in the way of a strategic plan. A system where 200 tenants can be evicted on a whim reveals serious flaws in Scotland’s housing tenure. One of the most glaring question (which has, as yet, not been addressed) is quite simple.

Why should 100 families have to be evicted merely because the landlord wishes to sell their homes?

The short answer is, of course, because the law allows it. But this situation would never arise in, for example Germany. The fact that a pension fund might wish to sell its portfolio of flats in Hamburg to another investor does not mean that all the tenants have to be evicted. To the Germans such an idea would be ridiculous. Owning rental property is perfectly legitimate but if you sell it, tenants stay put in their homes. Tenants enjoy security of tenure and the landlord a regular return on their investment.

The complacency in addressing such fundamental questions was evident when the Chair of the Agnes Hunter Trust, Walter Thomson, spoke at the City of Edinburgh Council Petitions Committee on 5 November. In a statement that had tenants draw breath for its audacity and cold logic, he claimed that,

“The Trust is not in existence to provide housing.The properties are an asset which enables the Trust to make funding available for charitable causes. Miss Hunter’s trust has never been a social landlord.”

In other words, we have no responsibility to families we have housed for over 60 years. They are merely an asset to generate a revenue stream – this from the Chair of a Scottish charity which, among other things, funds homelessness projects.

Such attitudes are an indictment of 15 years of devolution. The Scottish Government’s Private Housing (Tenancies) (Scotland) Bill will have its final reading next Thursday 17 March. It introduces welcome changes to the private rented sector including a new tenancy that affords greater security for tenants. But, crucially, the wish to sell a tenanted property remains a lawful reason to evict a tenant. Whilst such a provision has a role in a transitional period, it will do nothing to contribute to the kind of long term security enjoyed by tenants in Germany.

Whilst crofting tenants, agricultural tenants and commercial tenants are lawfully entitled to remain in occupation of their crofts, farms and offices when the property is sold, people whose tenancy is their home are rendered homeless on the arbitrary whim of the owner. It is an antiquated state of affairs that has no place in a modern democracy.

As Tony Cain, the Policy Manager for the Association of Local Authority Chief Housing Officers observed recently,

The unstated, and unquestioned, view that underlies these provisions is that eviction and homelessness are appropriate management tools to address business failure or change.

These provisions ensure that private landlords or lenders can remove tenants when thing go wrong with the business or they want to disinvest. And most importantly, the value of the asset is protected by ensuring that it is linked directly the property values in owner occupation.  It also means they can borrow more to invest and make bigger returns on capital values.

Equally importantly what they also do is transfer the cost (aside from the personal trauma and disruption to the tenant) on to the public sector.

By protecting the value of private rented houses in this way and transferring the risk and costs of business failure on to the tenant and local authorities, landlord and investors can be confident that they can sell out relatively quickly and at very little cost to them. 

The Lorne Street tenants have been given until July 2016 to see whether they can devise a solution whereby they form a co-operative to take over ownership of perhaps persuade a housing association to step in. They deserve all the support we can provide.

Meanwhile MSPs should question whether it is right that folk who have lived in their homes for decades deserve to be treated as little more than collateral damage in pursuit of the owner’s short term interests. In particular, they should examine critically Schedule 3, Part 1 1(1) of the Private Housing (Tenancies) (Scotland) Bill – namely, “It is an eviction ground that the landlord intends to sell the let property”. If tenants are to feel secure in their homes, this provision should be removed.

Patrick Harvie MSP has tabled an amendment to remove this ground for eviction.

Scotland needs investment in a sustainable, high-quality, affordable rented sector. It needs to learn from successful countries such as Sweden and Germany. Above all, it needs to ensure that never again is a community treated with the contempt and arrogance faced by the families of Lorne Street.

Parliament House Update 2

04. June 2015 · 8 comments · Categories: Common Good, Democracy, Edinburgh, Land Registration, Legal affairs, Urban

This blog is long overdue (as indeed are many) but I understand that the City of Edinburgh Council’s Audit Committee will shortly be considering a report into the Parliament House fiasco. It is therefore appropriate to publish this second update on the affair. The original story is here and Update 1 is here).

In summary, Parliament Hall forms part of the common good of the City of Edinburgh but, through a series of apparent blunders, title was granted to Scottish Ministers in 2005 (see the original story for full background). In 2010, Fergus Ewing, Minister for Business, Energy and Tourism signed the Transfer of Property etc. (Scottish Court Service) Order which vests the property in the hands of the Scottish Courts Service.

On 19 February 2015, four days after the story broke, Alison Johnstone MSP asked the First Minister whether the Scottish Government would co-operate in resolving the matter (see above video clip and Official report pg 16 here). Alison Johnstone then wrote to the Scottish Government and received a reply. At the same time a Freedom of Information request revealed other elements of the story. These are outlined in what follows.

Alex Neil Letter

On 9 March, Cabinet Secretary Alex Neil wrote to Alison Johnstone and outlined how, in the view of the Scottish Ministers, Parliament House (or Parliament Hall as it is called in the letter) came to be regarded as being in their ownership. It appears that Scottish Ministers are relying on the Commissioners of Works Act 1852 which, in Section 4, vested all the courts and buildings of the Courts of Session and Justiciary in the ownership of the Commissioners of Works. Since Scottish Ministers are the statutory successors to the Commissioners, the argument goes, so Scottish Ministers were entitled to seek to obtain a Land Register title from the Keeper of the Registers of Scotland.

I do not find this a credible explanation. Acts of this sort are passed by Parliament to transfer the ownership of property from one public body to another. The 2010 Order mentioned above is a contemporary example of such legislation. Such Acts cannot lawfully transfer land or property owned by third parties (which includes land owned by local authorities such as the Royal Burgh and Corporation of Edinburgh.

As noted in the original blog, Parliament House is a building about which much is known. The City accounts of 1875-76 place on record the Council’s ownership of the building. A comprehensive report of 1895 on the Municipal Buildings of the City does the same. And the comprehensive asset survey by the Town Clerk and City Chamberlain in 1905 (Report of the Common Good of the City of Edinburgh by Hunter & Paton) re-iterates the Council’s ownership.

It is inconceivable that theses officers of the Corporation could be recording the ownership of this building in 1875, 1905 and 1925 if, as argued by Scottish Ministers today, ownership of the property had been transferred by an Act of Parliament in 1852. Had the 1852 Act transferred ownership, the Council would know all about it. But the Act did not do this because such Acts cannot ( in the absence of a court order or other legal means of acquisition) transfer the ownership of property that is not already in the ownership of a public body accountable to Parliament.

Scottish Government Correspondence

In information released as part of a Freedom of Information request to Scottish Ministers (6,2Mb pdf here), it is evident that the Council had made contact with Scottish Ministers as far back as February 2014. Further internal correspondence relates to media enquiries made in February 2015 by Gina Davidson from the Evening News who worked on the story with me.

City of Edinburgh Council

The Council appears to have made contact with Scottish Ministers as far back as 6 June 2014 in a letter outlining its concerns (see here).

The fatal letter that was written on 9 May 2006 by the City of Edinburgh Council to the Scottish Government declaiming any interest in Parliament Hall has also come to light – extract below (full pdf here)

 Faculty of Advocates

Finally, I have obtained a fax from the Faculty of Advocates dated 19 June 1997 that claims that the Laigh Hall (which used to store the Maiden, the gallows and the City lamps) had come into the ownership of the Faculty from the Town in exchange for properties to the north of the Signet Library. There is no evidence that this claim has any foundation in fact.

To Conclude

Whether the City of Edinburgh Council will be able to recover ownership of Parliament Hall is yet to be determined. The most interesting revelation from the above is the assertion by Scottish Ministers that the 1852 Act was the basis upon which they proceeded to assert their title. I think this view is flawed.

The City of Edinburgh Council’s Audit Committee meets on 18 June.

Parliament House Update 1

18. February 2015 · 5 comments · Categories: Common Good, Democracy, Edinburgh, Land Registration, Legal affairs, Urban

“The latest developments in the story of Parliament House (see previous blog) are as follows.

ONE

Scottish Green Party Councillor Gavin Corbett has had meetings with senior officials in the Council and shares his thoughts here.

TWO

The Leader and Deputy Leader of the Council (Andrew Burns and Steve Cardownie) have tabled an urgent motion for the Corporate Policy and Strategy Committee on 24 February 2015. It will require to be ruled urgent by the Convener if it is to be considered. The full text can be read here. it concludes by recommending that the Chief Executive of the COuncil writes to the Scottish Government Permanent Secretary to seek a voluntary resolution of the issue.

There is quite a bit of interest in this motion.

Under item 5, the Committee is invited to note that in June 2008 it was resolved that a review of common good would only be carried out if and when property was being sold. The motion omits to mention, however, that the question of Parliament House had already been raised in my report of April 2006 in which I asserted that Parliament House should have been included in a list of common good assets that had been supplied to me in 2005. The Council’s responded by preparing a Review of the Common Good for a meeting of the Resource Management and Audit Scrutiny Committee on 12 October 2006 in which, under the heading “Parliament House/The Old Royal High School”, it said nothing about Parliament House but narrated the history of the High School (click here for relevant extract).

I replied in a further paper here in which I argued that,

“It should be noted that Parliament House and the Old Royal High School, as listed on page 3 of my October Report are not the same. Parliament House is located off Parliament Square opposite the City Chambers. The Old Royal High School is on Regent Road.

Parliament House was ascertained by Hunter and Paton to form part of the Common Good in 1905 (p.31). I know of nothing that has happened since then that would have removed it from the Common Good but perhaps it has. If so, it would be useful to have the information.”

The 12 October 2006 Review, however, was withdrawn and never tabled. As I wrote at the time,

“Then I waited. I looked at the agenda for the 12 October meeting but there was no mention of the Common Good Review. Likewise, at the next meeting on 16 November, there was no mention of the issue. What had happened? Why had the Review of Common Good in Edinburgh not been tabled?

As of today (25 November 2006) I do not know the answer to this question. Hopefully I will know soon.”

I never did find out. But in December, a paper was tabled at the Executive of the Council which says nothing about the investigations reported in the October 2006 review. Then in January 2008, a further Review was published which this time contained exactly the same wording under the heading “Parliament House/The Old Royal High School” and said precisely nothing about Parliament House.

We now know from item 1 in the motion tabled today that the Council knew in April 2006 that Parliament House (in its mistaken view) did not form part of the common good and was not owned by the City. My report was tabled in April 2006 So why, in 2006 and 2008, did the Council not divulge that Parliament House was not (in its view) owned by the City and, instead, stay silent on the matter? DId they know and rather not admit it?

THREE

Given that Scottish Ministers had no prior title to Parliament House, it would have been normal practice for the Keeper of the Registers of Scotland to have withheld indemnity for that part. In other words, the Keeper would say, “maybe you (Scottish Ministers) do indeed own it but I am not satisfied that there is sufficient evidence“. The state guarantee granted in the Land Register would have been withheld and the title would have been open to challenge by the true owner (City of Edinburgh Council) for ten years i.e. until November 2015.

Why did the Keeper not withhold indemnity? I asked the Registers of Scotland this question today and they provided the following statement.

“When the first registration application was presented the Keeper undertook a detailed examination of the prior titles. As one might expect with such property the Sasine titles were mostly old and contained fairly vague common law descriptions. Notwithstanding the evidence of title that was presented in support of Scottish Ministers, we sought additional assurances in respect of a small number of other bodies who may also have been able to demonstrate an interest to the area in question – this enquiry reflected the historic nature of the evidence of title that was presented. That included Edinburgh City Council. We asked Scottish Ministers, as applicant, to confirm the position in relation to these other bodies. All of the bodies identified confirmed they had no right title or interest to the area in question. Accordingly, we considered an exclusion of indemnity was not required.”

That’s all for now.

Edinburgh Council loses Parliament House

16. February 2015 · 29 comments · Categories: Common Good, Democracy, Edinburgh, Land Registration, Legal affairs, Urban

Image: De Wit version of Gordon of Rothiemay’s original 1647 plan showing Parliament House seven years after construction. Reproduced with the permission of the National Library of Scotland.

Regular readers of this blog will be familiar with the subject of common good land. This is land and property in the Burghs of Scotland that is the historic property of the burgh held on behalf of the citizens. (1) This blog has reported on many cases of maladministration of these assets where Councils have been sloppy in their record-keeping and where the interests of the citizen has been poorly served by the Councils that replaced the Town Councils in 1975.

But Scotland’s four ancient cities do not have any real excuse. Unlike Kirkcaldy or Hawick, Glasgow, Edinburgh, Dundee and Aberdeen have enjoyed continuity in having always had a council governing the affairs of the city. So one might expect them to have a good idea of what properties they hold as part of the common good. Which makes this tale of unmitigated incompetence just that little bit more shocking.

As revealed in the Evening News today, the City of Edinburgh Council has lost the ownership of one of the handful of the most historic properties in the City. It didn’t sell it by accident in some fearful and misguided property deal. It didn’t even know that it no longer owned it. It just realised one day that something had gone very horribly wrong. Quite why remains unclear since the history of the building is very well documented in the Council’s own records.

Parliament House

The building is Parliament House which sits largely hidden from view behind the High Kirk of St. Giles and can be glimpsed from George IV Bridge just north of the National Library of Scotland. The history of the building is recounted in great detail in “The Municipal Buildings of Edinburgh – A sketch of their history for seven hundred years written mainly from the original records”, a book commissioned by the Town Council in 1895 and written by Robert Miller, the Lord Dean of Guild. The actual construction is recounted over 79 pages in “The Book of the Old Edinburgh Club”, Volume 13, 1924. This is a building about which a great deal is known.

Image: Ordnance Survey 1852 Reproduced with the permission of the National Library of Scotland.

In the 16th century the Scots Parliament had no fixed abode and sat in Perth, Linlithgow, Stirling and Aberdeen as well as in Edinburgh. (2) In 1632 Charles I requested the Town Council build a new home for the Parliament and construction extended from 6 April 1632 to 11 November 1640. (Update – see comment from Alan MacDonald to effect that this is not so and that the Town Council took their own initiative. My source for this was Historical Monuments Commission). The land upon which Parliament House sits was part of the old churchyard of St Giles which was gifted to the Town Council in a Charter by Queen Mary in 1566.

The total cost of construction was £10,554,17s,7d. with 64% of the funds paid out of the common good fund and the remainder raised by public subscription from the citizens of Edinburgh. (3) The buildings were to be occupied rent free by the parliament of Scotland and the College of Justice. The Town Council paid for the upkeep of the building and for nearly two centuries Parliament House was the public hall of the city hosting civic receptions and even musical festivals. The Edinburgh Festival of 1815, 1819 and 1824 witnessed concerts of Haydn’s Creation and Handel’s Messiah.

In 1816, the Town Council handed over responsibility for the upkeep of the building to the Exchequer since the Courts of Law made almost exclusive use of it. The most recent known civic use of the building was for a reception on the occasion of the state visit of the King of Norway in 1962.

City of Edinburgh Council loses ownership

In 2004, work began on a plan to redevelop the Court of Session including Parliament House which was by now under the day-to-day administration of the Scottish Courts Service. The £60 million project was completed in 2013. In order to expedite the project, Scottish Ministers decided to record a title to the complex of buildings by way of a voluntary registration in the Land Register.

In 2005, Scottish Government solicitors appear to have been under the impression that, since the Scottish Courts Service had occupation of Parliament House, it was owned by Scottish Ministers. My understanding of what follows is derived from a source within the Scottish Government.

The Keeper of the Register of Scotland was not satisfied that Scottish Ministers had any evidence of ownership and so advised them to contact Edinburgh Council who, it was thought, was the true owner. The question was put to the Council who apparently confirmed to the Scottish Government that the it had no right, title or interest in Parliament House. The title was then registered in the name of Scottish Ministers.

Scottish Ministers’ Title – MID83631 title and plan (1.2Mb pdf)

Thus did the Council lose ownership of one of the most historic buildings in the City – a national Parliament in the capital city of an ancient European nation and a building constructed on common good land and funded by the common good fund and members of the public.

But stranger things were then to follow. The Faculty of Advocates has for centuries regarded Parliament House as theirs. They had almost exclusive use of it and so, by means as yet unclear, within a month of Scottish Ministers taking ownership, the Faculty persuaded Scottish Ministers to convey to its ownership for no consideration the room known as the Laigh Hall within Parliament House. The subjects are a bit odd comprising “the room on the lower floor shown edged red on the title plan (said subjects extending only to the inner surfaces of the walls, floor and ceiling thereof)”. The use is restricted to a library and study area for members of the Faculty of Advocates and for associated seminars and exhibitions. Scottish Ministers retain a right of pre-emption should the Faculty ever choose to sell this historic block of fresh air.

Faculty of Advocates Title – MID86039 title and plan

Why did this happen?

On what basis did the Council claim to have no interest?

The Council’s records demonstrate quite clearly that Parliament House belongs to the City.

The Council has good records of ownership

As noted by Miller in 1895, the accounts of the city 1875-76 puts on record the City’s ownership of Parliament House which had been built by the City on land owned by the City and formed part of the common good of the City. It noted that, despite the day-to-day management being in the hands of the Courts, “ownership had never been forgotten but there had not arisen any necessity to assert it.”

In the famous Report of the Common Good of the City of Edinburgh by Thomas Hunter (Town Clerk) and Robert Paton (City Chamberlain) published along with a beautiful map in 1905, it is recorded that “The large hall with certain portions around it, still belongs in property to the Corporation. The rooms underneath the large hall appear to have been handed over by the Corporation for the use of the Advocates’ Library”.

Concerned about the state of the common good in the city, in April 2006, I wrote a Report on the Common Good of the City of Edinburgh and submitted it to the scrutiny committee of the council. In it, I noted a number of properties that had been missed from the 2005 list of common good assets that had been supplied to me by the Council. These included The Meadows and Parliament House.

The Council responded in October 2006 with a Review of the Common Good in Edinburgh. It appeared to confuse Parliament House with the Old Royal High School and, uniquely among the properties being discussed, failed to address the question of Parliament House’s history. (4) I now suspect why it did this. – it was aware of the  inadvertent ceding of ownership to Scottish Ministers.

What happens next?

The Council issued a terse statement to the Evening News in response to its enquiry.

“We are aware of this issue and have raised it with the Scottish Government and the Scottish Court Service.”

The owner of Parliament House is now, in law, Scottish Ministers and the Faculty of Advocates. Under the law as it was in 2006, the Council has no legal means of recovering ownership. The best that can be hoped is that Scottish Ministers and the Faculty agree to return the property to the Council’s ownership. The full council should then pass a resolution to the effect that the building is owned by the Council and forms part of the common good of the City.

This is a shocking display of incompetence by the Council. It begs the question whether anyone noticed it since 2006. Perhaps the author of the October 2006 Report did and chose to conceal the fact. The fiasco underlines the need for a proper register of common good properties and for an open and freely available land register so that the citizen can spot land transfers like this. (5)

I await developments with interest.

NOTES

Blog Updated 1045hrs 16 February after realising that October 2006 report of Council referred exclusively to Old Royal High School.

(1) Read more here and under Blog Category/Common Good

(2) See http://www.rps.ac.uk/static/mapstext.html

(3) See Accounts of the Treasurer for full details.

(4) The report then proceeds to confuse matters by claiming that it had been sold in 1977 when in fact, this refers to the Old Royal High School. See extract below.

(5) The Community Empowerment (Scotland) Bill currently before Parliament contains a provision requiring a statutory register of common good assets.

Who owns this land?

28. January 2015 · 26 comments · Categories: Edinburgh, Freedom of Information, Land Registration, Who Owns Scotland

The land illustrated above (Midmar Paddock on the eastern slopes of Blackford Hill, Edinburgh) is currently for sale via Strutt & Parker (sales brochure here – 925kb pdf).

The reason for publishing this blog is to ask “who owns this land? Does anyone know?

Strutt and Parker refuse to divulge the answer.

The land is not registered in the Land Register but deeds are probably recorded in the Register of Sasines but it will probably cost around £50 and 1-2 days work to find out the answer there. I have neither.

So I thought I might ask you. Can anyone help?

The map below shows the location.

Improving access to information on land forms part of the Scottish Government proposals for land reform. See Briefing (1.7Mb pdf).

 © OpenStreetMap contributors Data is available under the Open Database License

UPDATE 31 January 2015

I have now determined the ownership of the Midmar Paddock. The Register of Sasines Search Sheet can be found at the foot of this text for those who are interested to see how land transactions were recorded prior to the Land Register which has been in operation in Midlothian (the old county including Edinburgh) since 1 April 2001.

1923 John Gordon of Cluny sells 18.6 acres (Midmar Paddock and allotments to the north) to Alexander Grant.

In 1938 the land is transferred to the Trustees of Sir Alexander Grant, 15 Hermitage Drive, Managing Director of McVitie & Price, Biscuit Manufacturers, Edinburgh & London.

1954 Allotments area conveyed by Trustees to Graeme Ellizabeth Laing. Midmar Paddock remains with Trustees.

1958 Midmar Paddock conveyed to beneficiaries of Trust – Hector Laing, Alexander Grant Laing and Robert Douglas Grant Laing.

1973 Hector conveys his ⅓ interest to Trustees for Anthony Rupert Laing

1973 Alexander conveys his ⅓ share to Trustees of Alexander Grant Laing.

1973 Allotments area conveyed by Graeme E Laing to Trustees of Alexander Grant Laing.

1983 Trustees of Anthony convey their ⅓ share to Anthony.

1993 Robert conveys his ⅓ share to Nettling Properties Ltd.

1999 Nettling Properties conveys its ⅓ share to Flagstaff Properties Ltd (Turks and Caicos Islands).

2011 Flagstaff Properties Ltd. conveys its ⅓ share to Midmar Properties Ltd.

28 November 2014 Trustees of Alexander G Laing conveys allotments site to Blackford Hill Ltd.

This means that:-

The allotments site to the north is owned by Blackford Hill Ltd.

Midmar Paddock (the site currently for sale) is owned by :-

Anthony Rupert Laing, Coulmony House, Morayshire
Trustees of Alexander Grant Laing
Midmar Properties Ltd.

Blackford Hill Ltd. is a company registered in Scotland No. SC466028 with its registered office at Logie Estate Office, Logie, Forres, IV36 2QN (see here for details of shareholders).

Midmar Properties Ltd. is not a registered company in the UK and is probably incorporated in the Turks and Caicos Islands.

Interestingly, what this reveals is that the 2003 Tree Preservation Order referred to by Robin in comments names only one of the three joint owners. Additionally, the link to the Local Development Plan response provided by Dave Leslie in comments reflects the views of only one of the three co-owners (Trustees of AG Laing). It also contains a useful map showing the two separate ownerships (though not the up to date owners) and interesting insights into why the owners are wishing to sell the land.

Search Sheet

Midlothian Search Sheet 18364 page 1
Midlothian Search Sheet 18364 page 2
Midlothian Search Sheet 18364 page 3
Midlothian Search Sheet 18364 page 4
Midlothian Search Sheet 18364 page 5
Midlothian Search Sheet 18364 page 6
Midlothian Search Sheet 18364 page 7
Midlothian Search Sheet 18364 page 8
Midlothian Search Sheet 18364 computerised search sheet

 

National Galleries of Scotland

28. January 2015 · 4 comments · Categories: Common Good, Edinburgh, Legal affairs

The Evening News has an exclusive story today by John-Paul Holden that the National Galleries of Scotland is planning to expand into East Princes Street Gardens as part of a £15 million plan to create a “world class” home for its Scottish collections. The extent of the land involved is unclear from the article but it talks about a 5 metre-wide strip to “allow [its] boundary to be aligned with that of the Weston Link”. This implies that is it the strip of land to the east of the walkway above the railway (see image above) which would extend south from the cafe extension to the north.

East Princes Street Gardens is common good land under the ownership of the City of Edinburgh Council who will have to obtain the permission of the courts to dispose of the land. The land concerned is also subject to the provisions of Section 22 of the City of Edinburgh District Council order Confirmation Act 1991 which prohibits the construction of any buildings in the park with the exception of “lodges for gardeners or keepers, hothouses and conservatories, monuments, bandstands, public conveniences, police boxes and buildings for housing apparatus for the supply of electricity or gas.” The Galleries thus requires a private act of Parliament to remove the land concerned from this restriction (the article implies that it is the common good status that necessitates the private act whereas in fact that only necessitates an order from the courts).

This is not the first time such a move has been made. The National Galleries of Scotland Act 2003 provided authority for the extension of the gallery into the gardens at the north end. The act was the first private legislation to be passed by the Scottish Parliament. The deal included some land on the banks of the Mound being given to the Council in exchange for land in the gardens. (1)

It remains to be seen what the Council, the Courts and Parliament make of this proposal. On the face of it it appears modest but if I was an MSP, one of the questions I would be asking is

“You came here to obtain an act of parliament in 2003. Now you are back again 12 years later. Is this going to be a regular occurrence?”

NOTES

(1) Promoters Memorandum & Explanatory Memorandum of 2003 Bill. Explanatory Notes of 2003 Act (HMSO website)

Foodies Festival holds public to ransom

10. August 2013 · 14 comments · Categories: Democracy, Edinburgh, Land Rights, Legal affairs

The above photograph was taken earlier today (Saturday 10 August 2013) in Inverleith Park, Edinburgh. It shows members of the public queuing up to pay money to enter a part of the park that has been fenced off for a “Foodies Festival”.

They are being held to ransom.

Three years ago, a similar event, Taste of Edinburgh, set up in Inverleith Park and once again held the public to ransom with no legal authority to charge people to cross that part of the park. I attempted to do so and was threatened with arrest for breach of the peace even although the same police officer had earlier re-asured me that, were I to enter the festival area, it would be a straightforward civil matter. I later wrote up the story in a piece for the Guardian.

The issue centres around the interpretation of the public access provisions in Part 1 of the Land Reform (Scotland) Act 2003. This Act provides members of the public with a legal right of responsible access to land in Scotland. There are some areas of land that are exempt from this legal right but public parks are not one of them.

Thus the first thing to establish is that I and others have the legal right to walk across public parks subject to any local bye-laws (which may provide for example, that parks can be shut at night-time). These legal rights therefore apply to Inverleith park and to the land occupied by commercial festivals that charge an entrance fee.

If anyone wishes to exclude the public from an area for more than six days (which was the case in 2010 and is the case with Foodies which is a 3-day festival with 2 days before and after for setting up and clearing the site during which time the public is excluded), then they can apply for a Section 11 Order under the Land Reform Act which will entitle the occupier to exclude the public. This is commonly used for car rallies and such activities. Having excluded the public from access, the organisers of such events are able to charge an entrance fee. It goes without saying of course that any commercial operator needs also to obtain the agreement of the landowner – in this case the City of Edinburgh Council.

My issue in 2010 was that no Section 11 Order had been sought and thus I was perfectly within my rights to enter the festival area and the organisers have no legal authority to charge me money for doing so. Park rules that were drawn up for Dundee and Glasgow made it explicit that commercial events that charged an entrance fee required a Section 11 Order or they would be in contravention of the Land Reform Act.

Back in 2006, the Local Access Forum in Edinburgh noted that existing park rules at the time conflicted with access legislation on ten points and yet, by 2010, nothing had been done to update them. The Council, in response to my complaint in 2010, asserted that it had the authority under the Local Government and Planning (Scotland) Act 1982 to set aside any area of land for an appropriate purpose and any such land would be covered by Section 6(d) of the Land Reform Act which states that access rights are not exercisable over and land “to which public access is by, or under any enactment other than this Act, prohibited, excluded or restricted“. It went on to claim that nothing in the 2003 Act gave me the right to act in the manner I proposed (entering Taste of Edinburgh) and “which may constitute a criminal offence“. This latter claim was, I believe made to intimidate me as such matters have nothing to do with the criminal law as the Police informed me at the time.

The following year, in 2011, I inquired again of the Council whether the Taste of Edinburgh festival (which had by now moved to the Meadows) was subject to a Section 11 order. This is what the Council told me.

In our opinion the event: 

 – does not significantly affect access rights within the Meadows;

– has the broad support of the community & the Council;

– does not warrant the additional bureaucracy/costs required by a section 11 application.

Section 11 guidance states that ‘if you are organising a corporate, community, or social event such as an agricultural show, car boot sale, wedding reception, music festival or a car rally, you can ask people to avoid using a particular route or area for the duration of the event.  Informal arrangements will be sufficient to ensure that any interference from the exercise of access rights is kept to a minimum.’

Given this guidance and the advice from the National Forum, which has reaffirmed that a section 11 notice is not needed in most cases, we feel that a common sense approach should be taken in this and future events in parks and other city spaces.  In this case the common sense view is not to require an event taking up a relatively small part of a public park andfully supported by the Council to apply for section 11 exemption.

Now of course a Section 11 Order is not mandatory. The Act merely states that it “may” be applied for. However, if it is not, then my argument is that access rights apply and no-one has any lawful authority to hold the public to ransom. In the context of this weekend’s event therefore, we are back at the position argued in 2010, that the 1982 Act constitutes an enactment for the purposes of Section 6(d) of the Land Reform Act. I contend that it does not. It merely gives authority to the Council to set aside land for an appropriate purpose. The one further development since 2010 is the adoption of new park rules which, unlike Dundee and Glasgow, say nothing about Section 11 orders.

To conclude, the Council has the authority to set aside part of the park for commercial events. it does not, however, have the authority to allow commercial operators to charge the public a fee for entering that part of the park unless there is a Section 11 Order in place. This is an argument accepted by other local authorities. North Ayrshire Council, for example, takes the view that a Section 11 Order is necessary where “there is a requirement to enforce the exclusion of land from access rights”

And that is why the public are, this weekend, being held to ransom in inverleith Park.

Anyone fancy a walk in the park tomorrow?

The battle over Portobello High School

20. December 2012 · 21 comments · Categories: Common Good, Democracy, Edinburgh, Legal affairs, Portobello

The City of Edinburgh Council is consulting the citizens of Edinburgh about whether it should promote a Private Bill in the Scottish Parliament to build a new Portobello High School on Portobello Park. As previous posts have discussed, the Court of Session has ruled that it is illegal to construct the school on the park because it is (allegedly) inalienable common good land (see previous posts here and here).

The residents of Portobello are thus engaged in two energetic campaigns.

The “yes” campaign – New Porty High – has published a very smart website and produced the rather engaging video (further details here).

The “no” campaign is run by Portobello Park Action Group. It has not produced a video (yet) but is no less energetic.

The consultation runs until 31 January 2013 and is open to all residents of Edinburgh. Somehow I doubt there will be much of a break for Christmas or Hogmanay.

Is Portobello park common good (2)?

08. December 2012 · Comments Off on Is Portobello park common good (2)? · Categories: Common Good, Democracy, Edinburgh, Legal affairs, Portobello

By way of introduction to this blog, I should stress that I have no interest one way or the other in whether Portobello Park is common good. I am, however, interested in the law relating to common good and this case is interesting. Previous blogs contain background to the story (including 22 Sep 2012 which examines whether the park is common good).

On 5 December2012, Edinburgh Council published the legal advice it obtained in November 2012 as to whether Portobello Park forms part of the common good of Edinburgh or not.

The question as to whether the park forms part of the common good was not put at issue in the Court of Session cases. Both Portobello Park Action Group and the Council both agreed that it is common good. The fact remains, however, that only a court can answer this question and to date none has. The illegality of building a school on the park rests upon the presumption that the land is common good.

I am not legally qualified but I have been in and around common good issues for the best part of a decade. I am going out on a limb here in querying the opinions of a prominent Edinburgh law firm and a QC. I do so, however, in the full knowledge that I may be proved wrong. Anyone who thinks I am wrong is welcome to says so by commenting on this post.

BACKGROUND

Portobello Park was acquired in order to fulfil the statutory obligations contained in Section 74 of the Edinburgh Extension Act 1896 which stated that,

”The Corporation shall, within seven years from the passing of this Act, acquire, dedicate, and thereafter maintain for public use a public park or recreation ground in some situation convenient for the inhabitants of the present burgh of Portobello, and under such regulations as the Corporation may from time to time make.” (see image above)

Following Lady Paton’s ruling in the Court of Session on 12 September 2012 that the Council could not build a school on the park because it was “inalienable common good land”, the Council has since been exploring ways of overcoming an outcome that they view as “extremely disappointing and entitrely unexpected”. At the Council meeting on 25 October 2012, Councillors agreed to explore afresh the question of whether the park was common good. Brodies were asked for their view and they, in turn sought advice from Gerry Moynihan QC. The advice was reported to the Council on 22 November 2012 and published on 6 December 2012.

The legal opinions both conclude that the park forms part of the inalienable common good of Edinburgh. In so far as both opinions derive from a mis-reading of two leading common good cases, I argue that they are flawed in coming to this view.

BRODIES OPINION (link here)

Brodies argue that the Magistrates of Banff vs Ruthin Castle SC36 1944 case provides the litmus test of whether land is common good or not. This is correct. Moreover, the test has most recently been upheld in Wilson v Inverclyde 2003 SC 366.

Lord Wark in the Ruthin Castle case observed that.

“…there was in the end no dispute between the parties that all property of a Royal Burgh or a Burgh of Barony not acquired under statutory powers or held under special trusts forms part of the common good” (my emphasis)

Brodies reference and articulate this view (para 4.2) that assets are not common good if they are held in a trust or if

“(ii) they were acquired or dedicated by the Burgh for specific statutory purposes or specific statutory powers …...” (my emphasis)

But Lord Wark said nothing about “dedication for statutory purposes” in the Ruthin Castle case.

Brodies then go on to review the documentation surrounding the acquisition of the park before turning to their analysis of the matter. At paragraph 6.1.1 they argue that,

“the initial assumption is that the Property is assumed to be Common Good unless (i) it is held in a specific trust; or (ii) it has been acquired or dedicated for specific statutory purposes or powers.” (my emphasis)

Again, however, Lord Wark says nothing of the sort.

Brodies proceed to argue in 6.1.3 that the wording of the 1896 Act “dedicate and thereafter maintain for public use a public park … would, on the face of it, appear to be a clear obligation .. to dedicate the property to common good use.” They further argue that “we are of the opinion that Section 74 could be seen as a statutory provision requiring the purchase of land specifically for the common good” although “we are not aware of any court authority that either supports of contradicts this view.”

They conclude in para. 6.2 that “the property became common good when it was purchased..We cannot, however, be certain of this – the law relating to common good is, unfortunately, sparse and largely historic in nature.”

Brodies thus proceed from an erroneous interpretation of Ruthin Castle (which never said anything about dedicating land to common good) to conclude that Section 74 represents an obligation to dedicate the land as common good and thus its acquisition is a statutory provision requiring the purchase of the land for the common good.

Section 74 obliges the Council to dedicate the land for use as a park but does not oblige them to dedicate it as common good. The term common good is never once mentioned in any of the paperwork surrounding the transaction. Indeed the Ruthin Castle test makes clear that statutory acquisitons are by definition not common good. I know of no case where any statutory power has been used to acquire land for the common good (though there are statutes that remove land from the common good).

The Brodies Opinion starts out from an erroneous interpretation of Lord Wark’s words and concludes with the novel idea of the statutory acquisition of land for the common good – an oxymoron as far as the Ruthin Castle case is concerned.

GERRY MOYNIHAN QC (link here)

Gerry Moynihan QC also proceeds from an erroneous interpretation of a leading judgement. In a series of ten short paras (4-13) that contain little by way of detailed argument, he asserts that “Dedication to public use is the paradigm indicator of common good land: Lord Maclean in Murray vs Mags of Forfar (1893) 20R 908 at 918-919.” (para. 8)

He then concludes (para. 13) that “the default positon applies here: the park is part of the common good of the council” and concludes that the common good is inalienable.

There are three problems with his argument. The first is that he does not even cite the Ruthin Castle case. The second is that he appears to think that the statutory powers test relates to how land is held and owned by a Council on an ongong basis (see para. 7 for example). It does not. It relates to how land was acquired (a point which he actually acknowledges in para. 7 where he notes that the land was acquired “under the Edinburgh Extension Act 1896, Section 74″).

It is the third problem, however, that is fatal to his argument.

Lord Maclean in the Magistrates of Forfar case did not say that dedication to public use is a paradigm indicator of common good land. Murray vs Magistrates of Forfar (in which dedication to public use was indeed a critical issue) was not a case that sought to define common good land. It was a case concerning whether land which was indisputably common good was alienable or inalienable. In other words it was a case about the classification of common good and not about whether land was or was not common good in the first instance.

Brodies and Moynihan also discuss (having concluded that the park is common good) whether it is inalienable common good as opposed to alienable common good.

CONCLUSION

Both Brodies and Moynihan appear to misunderstand the two leading cases of Ruthin Castle and Magistrates of Forfar and proceed on this basis to conclude that the park is common good (and then further that it is inalienable). I concede that if the park is indeed common good then the arguments that both make about inalienability are probably correct. But I reject the reasoning adopted to classify the park as common good in the first place since it proceeds on a false premise.

The park was acquired using a very specific statutory power to acquire land for a park.  Admittedly this opens up the very interesting question posed by Andrew Ferguson in his book Common Good Law (Avizandum, 2006) in which he points out the difficulty in common good definition in cases where statutory and common good purposes appear to coincide.

“More extreme difficulties of proof will arise, of course, in relation to the types of statutory purpose which could also be said to be common good purposes, such as the provision of public recreation spaces, and there the burden of proof might be said to shift towards showing that the property had not simply fallen into that public use rather than having been specifically acquired under statutory purposes using rates income for that purpose.” (page 83)

If Ferguson’s line of reasoning were to be followed, I suspect a court would rule that Portobello Park is not common good.

To conclude, these two opinions may well be correct. I don’t know since only a court can resolve this question and it has never yet been faced with this particular set of circumstances. What I do assert, however, is that in reaching the views they have, both opinions rely on a misreading of existing cases. If read correctly, the Ruthin Castle case suggests that Portobello Park is not common good since it was acquired using a very specific statutory power. The fact that Section 74 mandated the council to then “dedicate” the park to be used as a park would make the park inalienable common good only if the land was already common good.

As a coda, I am intrigued by the claim in Brodies opinion that such is the strength of Gerry Moynihan’s opinion (that the land is inalienable common good), that “he has confirmed he would decline to act for the council should it seek to assert that the Property is not Common Good or that it is not inalienable Common Good.” (para. 6.5)

It is an important principle that an Advocate “should not, when available to accept instructions, refuse to accept instructions to act for any litigant” (Fifth Edition of the Guide to the Professional Conduct of Advocates, Section 8.3). I am unclear what exceptions contained in Section 8.3 to this general principle could apply that would support such a refusal.

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