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.
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.
The Land Reform Bill concentrates mainly, but not exclusively, on rural aspects of land reform. Alongside this, the Scottish Government is currently undertaking a consultation programme on the recommendations made by the LRRG for urban land reform. These have potential fundamentally to change the operation of urban land markets in Scotland. If adopted, they could have significant impact on planning, housebuilding and real estate development across Scotland.
To help people better understand the LRRG’s proposals for urban land reform, Policy Scotland is publishing six briefing papers summarising their key elements. These papers have been prepared by Professor David Adams who acted as an independent adviser to the LRRG. For more information, please contact Professor Adams at firstname.lastname@example.org
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.
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.
The Scottish Government has announced the remit and membership of the Commission on Local Tax reform. I am very pleased to have been nominated as a member of the Commission on Local Tax Reform and look forward to meeting the other Commissioners on Monday at our first meeting.
The Commission will be co-chaired by Local Government Minister Marco Biagi and President of COSLA Councillor David O’Neill. The Commission will meet for first time on February 23 and will report to the Scottish Government and COSLA in the autumn.
Marco Biagi said:
“The Scottish Government believes the current council tax system is unfair and we are acting on our manifesto commitment, and the recommendations of the Local Government and Regeneration Committee, to look at alternative approaches to local taxation.
“The Commission on Local Tax Reform will consider progressive, workable and fair systems, taking into account domestic and international evidence on tax powers and wealth distribution, the autonomy and accountability of local government and the impact on individuals who pay the tax.
“The members bring a broad range of expertise and experience and I look forward to starting this important work.”
David O’Neill said: “A great deal of work lies ahead, but this Commission is a chance to take a step back and think about the best way to pay for the local services that communities rely on every day.
“Across Scotland people are looking for the debate to break new ground, and that’s why I am determined that this Commission will be listening to people and organisations from all parts of the country, and setting out what it would take to give our local communities a real say about what matters most to them, and the best way to pay for it.”
The Commission’s Remit is:
“To identify and examine alternative systems of local taxation that would deliver a fairer system of local taxation to support the funding of services delivered by local government. In doing so, the Commission will consider:
The impacts on individuals, households and inequalities in income and wealth;
The wider macro-economic, demographic and fiscal impacts, including housing market and land use;
The administrative and collection arrangements that apply, including the costs of transition and subsequent operation;
Potential timetables for transition, with due regard to the 2017 Local Government elections.
The impacts on supporting local democracy, including on the financial accountability and autonomy of Local Government;
The revenue raising capacity of the alternatives at both local authority and national levels.
In conducting its work, the Commission will engage with communities across Scotland to assess public perceptions of the emerging findings and to reflect this evidence in its final analysis and recommendations.
The Commission will be supported by an independent secretariat comprising staff seconded from COSLA and the Scottish Government.
The membership is as follows (the Scottish Conservative Party has declined to take part).
Councillor Susan Aitken, SNP Local Government Convenor and Leader of SNP Group, Glasgow City Council;
Councillor Catriona Bhatia, Leader of Liberal Democrat Group and Deputy Leader, Scottish Borders Council;
Marco Biagi MSP, Minister for Local Government and Community Empowerment (Co-Chair);
Councillor Angus Campbell, Leader of Comhairle nan Eilean Siar and Leader of the Independent Group at COSLA;
Councillor Rhondda Geekie, Leader Of East Dunbartonshire Council and Leader of Labour Group at COSLA;
Dr Angela O’Hagan, Research Fellow in the Institute for Society and Social Justice Research and Convenor of the Scottish Women’s Budget Group;
Isobel d’Inverno, Convenor of the Tax Committee of the Law Society of Scotland and Director of Corporate Tax at Brodies LLP;
Mary Kinnonmonth, Manager of Dundee Citizens Advice Bureau and Member of Citizens Advice Scotland Board of Directors;
Dr Jim McCormick, Scotland Advisor, Joseph Rowntree Foundation;
Councillor David O’Neill, President of COSLA (Co-Chair);
Don Peebles, Head of CIPFA Scotland;
Alex Rowley, MSP for Cowdenbeath and Shadow Minister for Local Government and Community Empowerment;
Andy Wightman, Writer and Researcher, representing the Scottish Green Party.
I will be using this blog to explore in an open manner some of the issues to be resolved in devising an enduring and robust system of local taxation. The focus is very much on what to replace the Council Tax with but of course that replacement could involve not just a better system of domestic property taxation but the repatriation of non-domestic rating, sales taxes, local income taxes and other sources of local finance.
I am very clear that we need a new system of local government finance. Any new property tax should be designed in such a way as to endure over the long-term. It should be more reflective of land and/or property values, more transparent and be capable of contributing a greater proportion of autonomous local finance than is currently the case. Local finance and taxation is a vital part of rebuilding and strengthening local democracy.
Finally, this job is unpaid. On the face of it, this means that I will have to inevitably devote less time some of my other unpaid work on, for example, land reform. However, I plan to launch a crowd-funding appeal soon that will allow me to continue (and indeed increase) the time I can devote to that topic in what is a vital year ahead.
Later this afternoon I will publish a link to the Commission’s website. Meanwhile I welcome all views on the challenge that lies ahead.
“The latest developments in the story of Parliament House (see previous blog) are as follows.
Scottish Green Party Councillor Gavin Corbett has had meetings with senior officials in the Council and shares his thoughts here.
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?
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.”
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.
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”.
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.
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
The comedian and TV presenter Griff Rhys Jones is reported today to be ready to quit the UK in protest at plans by the Labour Party to introduce a mansion tax if it wins the 2015 General Election. As the Telegraph reports,
He himself lives in a “gigantic” house in a part of central London that was, when he bought it 15 years ago, a “slum”. He has a track record of buying large, run-down properties and turning them into homes for himself and his wife, Jo. His Fitzrovia house has appreciated so significantly that he is contemplating moving overseas if Labour win the election and introduce a mansion tax.
“It would mean I’d be paying the most colossal tax, which is obviously aimed at foreigners who have apparently come in and bought up all the property in London,” he says. “That sounds about as fatuous an idea as that immigrants are stealing all the jobs. I’d probably go and live abroad because I could get some massive palace which I could restore there.”
There has been a lot of nonsense talked about the mansion tax. This, from the Chief Executive of Legal & General, is typical.
“People who choose to prioritise buying a home have typically made sacrifices to do so: fewer foreign holidays, meals out or other luxuries. Through no fault of their own, their prudence would be punished by a Mansion Tax.” (Telegraph 27 October 2014).
The idea that folk who own houses worth in the millions have made sacrifices, saved hard or been prudent may well be true (at least for some). But that sacrifice, saving and prudence is not what has been responsible for their homes being worth so much money. The inflated price of houses in many parts of the UK is a consequence of scarcity and a lax fiscal regime. The financial gains made by homeowners are only in very small part due to their own efforts (for example, insulating or other improvements). The vast majority of the gains are as a consequence of rising land values.
Labour has yet to spell out the details of its plans but they involve a levy on properties worth over £2 million. Ed Balls announced the policy in an article in the Evening Standard on 20 October 2014. The Financial Times calculated that on average, the owners of properties worth over £3 million would pay an average of £19,000 per year.
Griff Rhys Jones and his partner Joanna own 2 Fitzroy Square (shaded red above) in the London borough of Camden. They bought the property for £1,450,000 in 1998 after Camden Council granted planning consent for a change of use from offices to a residential home (see Land register title). The couple then undertook the renovations and the property is now a domestic dwelling with 7 bedrooms, 3 bathrooms and 4 reception rooms.
Image: Extract from Title Plan for 2 Fitzroy Square.
According to Zoopla, the property is currently worth £7,012.156 and has risen in value by £3,015,251 over the past 5 years. The rental value is estimated at £16,167 per month (£194,004 per year). Rhys Jones currently pays £2640.96 in Council Tax to Camden Council.
Assuming that £1 million was spent undertaking renovations, the Rhys Joneses have seen their property rise in value by around £4.5 million. That sum is unearned increment (economic rent in economic theory) and, since principal residential properties are exempt from capital gains tax, the gain is entirely tax-free. This tax relief is worth an estimated £10.4 billion per year to homeowners according to the National Audit Office.(1)
Successive governments have put in place a fiscal regime for domestic property that allows Rhys Jones to make a £4.5 million tax-free capital gain without any effort on his part.
A sensible system of recurrent taxation would be designed to curtail such asset inflation by socialising this rent rather than allowing it to be appropriated tax-free by private interests. The mansion tax is a badly designed tax. As the Institute of Fiscal Studies commented in February 2013,
“Rather than adding a mansion tax on top of an unreformed and deficient council tax, it would be better to reform council tax itself to make it proportional to current property values.”
If property taxation was properly proportional and the Rhys Joneses paid the percentage rate (1.85%) that a mid-point English Band D property is liable for, then they would be paying £129,724 per year. The Mansion tax is liable to be about a tenth of that.
That kind of liability would deter most buyers who, as a consequence would offer less for the property so as to pay less in annual holding costs – which is precisely what a well-designed system of recurrent property taxation would do. Lower property prices means less indebtedness and more resources invested in the productive economy. But that is not the kind of economy that either Labour or the Tories appear to be interested in.
In the meantime perhaps Rhys Jones should be grateful.
This is a brief blog to note the fact that Glasgow City Council has advertised for lease 2.7 hectares of former playing fields in Victoria Park, Glasgow (top left in picture above and Rydens brochure here). The closing date for offers is 12 noon on 26 September 2014.
From the evidence I have seen, this park, which was acquired by the Town Council of Partick in 1887, appears to be inalienable common good land. A lease for a period of around 10 years or more would constitute a “disposal” for the purposes of Section 75(2) of the Local Government (Scotland) Act 1973 and thus require the approval of the Courts before it could be executed.
The Friends of Victoria Park group has raised this matter with Glasgow City Council on 8 September 2014 and awaits a response.
The law relating to common good is in serious need of modernisation. If this land in Victoria Park is indeed inalienable common good land then the City Council will be acting unlawfully if it attempts to lease it out on a lengthy lease.
Ian McHarg died this day in 2001 (NY Times obituary). He was a Scottish landscape architect who made his name in the University of Pennsylvania where he founded the world famous Department of Landscape Architecture and Regional Planning in1955.
He was born in Clydebank in 1920 and (for those with an interest in the history of mountaineering in Scotland), was one of the Craigallian Fire men.
Arguably his most famous legacy is his 1969 book, Design with Nature. One of his pupils and collaborators in the project was the Scottish landscape architect, Mark Turnbull, who is still practising in Scotland today [EDIT – Mark sadly passed away in May 2016 – obituary here]. His book sat on the shelves of my Dad’s study when I was growing up. He was an architect and, as a student, I thought it would make an interesting contribution to the forestry course I was doing at Aberdeen University. However, so dismal was the outlook of the staff there (there were a few honourable exceptions), that the notion of even reading such a book was regarded as too radical. I read it though and recommend it to anyone with an interest in environmental and spatial planning (McHarg invented the sieve mapping technique now standard in GIS – the European Geosciences Union awards a medal in his honour).
His vision of how to understand ecosystems and undertake regional planning was so advanced that, as this blog notes, he predicted the areas unsuitable for urbanisation on Staten Island (dark shading on right). He was ignored and those areas match almost exactly the evacuation zones (in yellow left) at the time of Hurricane Sandy (see below).
But my favourite story about Ian McHarg relates to his involvement in the scoping work for Scotland’s third new town. McHarg worked in the Scottish Home and Health Department between 1950 and 1954 and in his 1996 autobiography, A Quest for Life, he writes,
One day I was summoned by the chief of the new towns section, an architect named Alex Wylie. East Kilbride and Glenrothes new towns were underway. There was considerable interest in yet another; both the cities of Glasgow and Edinburgh thought that a site near Cumbernauld, between these cities, should be investigated. However, it was likely that this new town would be a satellite of Glasgow and administered by her. Would I undertake the study?
I immediately visited Cumbernauld. It had the virtue of proximity to the major highway connecting Edinburgh and Glasgow. As at East Kilbride several years before, the wind howled, the rain drove horizontally, the whole site was awash. Morevoer, the farms were few and scattered. Anthropologists long ago had learned that sparse human settlement bespeaks adverse environments and impoverished resources. I spoke to several farmers whose opinions were united. It was a miserable place, wetter than most, with intractable mud, poor soil, a high water table, few trees, and those wind-pruned.
The ideal site, in classical and Renaissance times, was a southeast-facing slope. That could not be found on the Glasgow-Edinburgh road nor on the south of the Clyde, but north of it were admirable classical sites, south and southeast-facing, at elevations above fog with beautiful views to the Firth of Clyde and, south, across the Clyde, to the Renfrewshire Hills. On the day I went there, the sun was shining; protected from the wind I lay in heather and exulted in the views. There was Dumbarton Rock, a volcanic cone with a ruined castle atop, ancient capital of Scotland, the gleaming Clyde, and , far out beyond the estuary, the Paps of Jura.
There was one problem; the site was steep. Now this had halted neither Rome, Siena, Frascati; nor San Francisco. This constraint must be transformed into an opportunity; we are not building for popes or cardinals. I recalled a project in Zurich, the Neubuhl, by Haeflie and Moser, where housing stepped down a steep slope and the flat roof of the lower house became terrace, balcony, and garden of the upper house. This would be the answer. Hanging gardens, stepped housing, each one having the merits of an attached single-family house, each with as much outdoor and indoor space, and the gardens entirely private. If the block was to be composed of four houses in depth, then the occupants at worst would walk down three flights or up one. In city where the commonest house form was a four-storey walk-up tenement, this was not a serious objection. So house plans developed, simple rectangles, L-shapes and T-shapes with different dimensions. They were all modular and could be fitted in various permutations, but all had uninterrupted views to south and east and all had private entrances and gardens. Open space equalled the building area. On the skyline, out of every view but overlooking the whole, were towers and slabs for older people, single households, and couples without children. The towers provided views of a landscape of gardens.
McHarg goes on to describe the detailed design, “extraordinary economies in construction costs” and the energy efficiency.
I submitted the plans to Alex Wylie, chief architect for new towns, who then arranged for me to present the material to the permanent undersecretary, Mr McGuiness, an Irishman with a Scottish accent. Wylie introduced the idea and gave his endorsment. I was asked to add my remarks. I spoke glowingly of the hanging gardens, the morning-golden windows, the beautiful views, access to workplaces on the Clyde, proximity to Glasgow, the beautiful landscape setting and, above all, of the greater economy of this scheme as compared with conventional bulding. There was a long silence.
“Well.” McGuiness said, “It is certainly revolutionary. There’s no doubt about that, and I am impressed by the arguments about its economy, but we can’t build this in Scotland. Why, they haven’t even built it in England yet.”
“Sir,” I said. “If the Scots have to wait for the bloody English to build something before we can, this is not the country for me. Good day, sir.”
That night, McHarg wrote to Dean Perkins of the University of Pennsylvania, and asked “Do you know of any opportunities which I might pursue in the United States? I find the professional life here is far from gratifying.”
He was immediately offered a position as an assistant professor to set up the Department of Landscape Architecture and the rest is history.
A small ceremony was held before my departure, at which time I was presented with a handsome briefcase. Kind words were said. I decided that this was not the occasion for criticism, thanked my colleagues, wished them well, and left.
The first blog of 2014 concerns the Kilngreen in Langholm and of how recent dealings raise concerns about the stewardship and governance of such an important area of community-owned land. It is a rather long blog but I hope that by reading it more folk are encouraged to research their collective land rights. I am grateful to Bill Telfer, a resident of Langholm, for research assistance.
In March 2013, I was invited to give a talk in the Crown Hotel, Langholm on land rights and burgh commons. In preparation for the talk, I undertook some quick research on the town’s common lands and quickly realised that I had a number of unanswered questions. After the talk, a number of us repaired to the bar and spent the rest of the evening discussing these. Prominent in our conversation was the legal geography of an area of land known as the Kilngreen and the role of the Duke of Buccleuch. Things became more interesting when we learned that some people had been advised not to attend my talk.
We decided to investigate matters further and what has emerged is a story of how powerful landed interests not only exerted considerable influence in towns like Langholm (which is the only enclave of land not owned by Buccleuch for many miles around) but continue today to exercise hegemonic influence on local political processes.
The Kilngreen is a seven acre parcel of common land to the north of Langholm. It was the site of the Langholm Summer or Lamb Fair held on the Kilngreen when townsfolk engaged in wrestling, horse-racing, greasy pole climbing and chasing the well-soaped pig (a traditional Borders games). The land forms part of the common lands of the town as narrated in the Proclamation of the summer fair.
Now, gentlemen, we are gaun frae the Toun, And first of a, the ancient Kilngreen we gan roun; It is an ancient place where clay is got, And it belongs to us by Right and Lot; And then from there the Lang-wood we gan thro, Whar every ane may brackens cut and pou; And last of a we to the Moss do steer, To see gif a oor Marches they be clear; And when unto the Castle Craigs we come, A’ll cry the Langholm Fair and then we’ll beat the drum.
Langhom was created a Burgh of Barony in 1621 and from 1643 until 1892 the Duke of Buccleuch became feudal superior and exercised considerable power over the citizens. Notwithstanding the abolition of his hereditary jurisdiction in 1747 and the establishment of a police burgh in 1845, he continued to appoint a baillie and the magistrates of the burgh until 1892 when, under the Burgh Police Act, a Town Council was established. In the report of the inquiry into Municipal Corporations in Scotland of 1833, Langholm was stated to belong to that class of burgh “where the dependence upon the superior subsists unqualified and where the magistrates are appointed by him.”
The original 1621 Charter had been conferred by James VI to the Earl of Nithsdale, Lord Maxwell and in 1628 Maxwell entered into a feu-contract (a heritable lease at a fixed rent) with ten men from his own family in which he gifted each one merkland within the lands of Arkinholm for an annual feu-duty of 25 Merks each. This conveyance made these ten men Langholm’s first Burgesses. They were obliged by this contract, to build “Ilke ane of them a sufficient stone house on the fore street, builded with stone and lyme, of two houses height at the least, containing fourty foots within the walls of length, eighteen foot of breadth, twelve foot of height”. The building of these houses heralded the birth of the town of Langholm.
Meanwhile, the commonty of Langholm was situated to the east of the town and occupied most of the Whita Hill. By the mid 18th century disputes had arisen between owners of the Ten Merklands as to their rights over the commonty and in 1757 one of them, John Maxwell, raised an action against the other owners under the Division of Commonties Act 1695 to divide the common lands.
After due legal process, on 24 February 1759 the commonty was divided between John Maxwell of Broomholm, John Little and the Duke of Buccleuch. The court ruled that the common moss belonged inalienably to Langholm and was to be left undivided together with the loan, 20 feet wide, leading to the Moss. The tenants of the Ten Merklands and the burgesses of the town of Langholm possessed the right to lead stones and win fuel from the Common Moss and had also free access to it.
As a result of a separate inquiry (and central to our story), the court declared that the the Kilngreen, with rights of pasturage, “had belonged immemorially to the town of Langholm” and that “the limits and boundaries of these various Common lands should hereafter be as the Commission had awarded.”
The marches were described in sworn testimony to the Commissioners as follows,
“The march begins at the little Clinthead, where a pit was made, and from thence to another pit made at the corner of Johnathan Glendinning’s park nook, and from thence to another pit made at the side of a dyke at Janet Bell’s pathhead, and from thence along the dyke on the head of the Green Braes to a pit made at the lower ledge of the bridge, and along the said bridge to another pit made where the old watercourse was, and from thence to another pit near the foot of the mill dam, and from thence by pits made along the old watercourse, until it joins with the water of Esk at the foot of the old Castle garden, and down Esk till it join with the water of Ewes at the little Clinthead, where the said marches began.”
The award of the common moss and Kilngreen to the citizens of Langholm placed an obligation on the burgesses to ensure that the boundaries of the towns lands were clearly delineated and cairns were built and pits dug to mark them. It also led to the establishment of the common riding of the marches of Langholm, an annual custom that continues to this day as narrated in the proclamation above. It was decided to hold it on the day after the Langholm Summer Fair – at one time Scotland’s largest lamb sales and so began over 250 years of tradition. In 1979, the film-maker, Timothy Neat in collaboration with Hamish Henderson captured the essence of the occasion in his film “Tig, For the Morn’s the Fair Day”.
At first the annual inspection was carried out by individuals whose duty it was to “see gif a the marches they be clear” and to “report encroachments, clean out the pits, repair the beacons and generally protect the interests of the people”.
The first person to perform the inspection of the boundaries was “Bauldy” (Archibald) Beatty, the Town Drummer, who walked the marches and proclaimed the Fair at Langholm Mercat Cross for upwards half a century. In 1816 the marches were inspected on horseback for the first time and the Riding of the Common began. The first person to ride on horseback over the Marches was Archie Thomson, landlord of the Commercial Inn. In the previous year, Thomson, like “Bauldy” his predecessor, went over the boundaries on foot alone, but in 1816 he was accompanied by other townsmen – John Irving, of Langholm Mill and Frank Beatty, landlord of the Crown Inn being probably the most prominent. These local enthusiasts, sometimes referred to as the “Fathers of the Common Riding” were also responsible for introducing horse-racing, which took place on the Kilngreen until 1834, when the races and sports were transferred to the Castleholm across the river. (1)
Cumberland Wrestling at Langholm Common Riding Fair Games Image: Tom Hutton
One might expect the legal record of ownership of the Kilngreen to reflect this clear and unambiguous history. However, what is revealed is something else entirely.
In 2009, a small building on the Kilngreen (the former tourist office) was sold to Buccleuch Estates Ltd. The deed transferring ownership of the tourist office from Dumfries and Galloway Council to Buccleuch Estates Ltd. (Land Certificate and Plan) reveals that the Kilngreen, far from having been owned by the town since time immemorial (as the court ruled in 1759) was actually gifted by the Duke of Buccleuch and Queensberry to the Provost, Magistrates and Councillors of the Burgh of Langholm in 1922 (we will return to this matter later).
Here is how the Eskdale & Liddesdale Advertiser reported the Langholm Town Council meeting on 1 May 1922.
LANGHOLM TOWN COUNCIL ORDINARY MEETING
Gift of the Kilngreen
Provost Cairns said he had been approached personally by the Duke of Buccleuch, and also Mr Milne Home, offering the Kilngreen to the town of Langholm, and he had been requested to approach the Council privately on the matter. Since then, he had received the following letter:
“His Grace has for some time past had under consideration the gifting of the Kiln Green to the Town Council. Owing to the uses to which the Kilngreen is put, and the control which it is essential to exercise over the travelling caravans which occupy the ground from time to time, the Town Council as a public authority, is already closely concerned.
The Kilngreen, as you may be aware, measures 2,838 acres, and what His Grace desires to convey to the Town Council is:
1. The whole title to the Kilngreen so far as His Grace has right thereto, with authority to levy and collect such dues as may be exigible from such subjects.
2. The area conveyed would be that shown upon the OS Sheet XLV.II, Dumfriesshire, Second Edition, 1899, as No.333, and measuring 2.838 acres, bounded on the West by the Ewes Water, and on the East partly by the Townhead Toll and the adjoining garden.
3. His Grace would reserve free and unrestricted access to the Toll House across and over the Kilngreen either for carts or foot passengers.
4. As it is His Grace’s desire that the ground should be maintained in all time coming as an open space for the use of the inhabitants of Langholm, the only reservation made in the gift is that no buildings of any description should be erected upon the ground without the consent of His Grace or his successors in title, and that the Town council should not have power to sell the ground or do any act which might divert it from the public use.
5. His Grace will grant a disposition to the Town Council, the draft of the disposition being submitted to them in the first place. This will enable the Council to complete their title in any way they may think best’’.
He had much pleasure in moving that the Council accept His Grace’s gift, and that they advise Mr Milne Home accordingly. Up to now there had been a certain amount of dual control over the Kilngreen which was not satisfactory, but now the inhabitants of Langholm would have full use of it as a recreation ground for all time coming, and he felt sure the town would greatly appreciate His Grace’s kindness. He had, therefore, much pleasure in formally moving the acceptance of His Grace’s generous gift, and that the best thanks of the Town Council and the inhabitants of Langholm to be conveyed to him.
Councillor E. Armstrong, in seconding, said he was sure the general public would greatly appreciate His Grace’s generosity. The Kilngreen had always been a touchy point as to ownership, but now that it had been handed over to the town they would say with all truth:
“It’s an ancient place where clay is got,
An’ it belangs to us by right and lot.”
But if the Kilngreen belonged to the people of Langholm from time immemorial, what on earth was the Duke doing gifting it to the Town Council and what was the Town Council up to in accepting it in such a sycophantic manner (His Grace, generosity, kindness etc.)? How in fact did the Duke himself come to own the Kilngreen? This latter question is answered in the 1922 deed.
The deed, recorded on 14 November 1922 opened,
“I, John Charles, Duke fo Buccleuch and Queensberry, K.T., heritable proprietor of the subjects hereinafter disponed, considering that as indicating my feelings of goodwill towards the inhabitants of the Burgh of Langholm, I am desirous of devoting to their perpetual use, benefit and enjoyment, the area or piece of ground hereinafter described as a pleasure or recreation ground, and I have the pleasure in making the underwritten perpetual grant or disposition of said subjects in favour of the Provost, Magistrates and Councillors of the said burgh of Langholm for the use, benefit and enjoyment of the inhabitants of the aid Burgh in all time to come…..”
“..which area or piece of ground is part of ALL and HAILL the lands of Langholm and others in the County of Dumfries particularly described in the Notarial Instrument in my favour recorded at length in the Division of the General Register of Sasines applicable to the County of Dumfries……the twenty second day of June, Nineteen hundred and fifteen.”
A Notarial Instrument is a declaration of facts drawn up by a Notary Public. The basis upon which the Duke of Buccleuch claimed to be the owner of the Kilngreen rested upon a 1915 re-statement of the Barony of Langholm charter granted to the Earl of Buccleuch in 1643 which includes
“the town and lands of Cannoby, the lands of Toddscluegh and Lambscleugh, the west side of the lands of Rowanburn, the lands of Newtown, Baitbank, the lands of Weitlieholm, lands of Archerlie, lands of Lochbushill……”
and so on for over 32 pages. With regard to Langholm, the deed narrates,
“..the lands of Langholm, with Fortalices, Manor Place, Milns, Fishings and Pendicles thereof called Holmhead, and Burgh of Barony of Langholm, with the weekly Market and free Fairs thereof, with customs, liberties, &c. thereof….”
So the Duke of Buccleuch was asserting that, in fact, he had owned the Kilngreen since 1643. How can this claim be reconciled with the court declaration of 1759? One clue is provided by a court case in 1816 – a significant year in the history of the Kilngreen and the common riding when the marches were inspected on horseback for the first time.
Local historian, the late David Beattie, recounted the case in the Eskdale and Liddlesdale Advertiser.
Court Battle Over Kilngreen – Year 1816
A lot of interest has been placed recently in the ownership of the Kilngreen and, as all Langholmites know, the battle for its ownership has been a long and prolonged one. We thought that the following story of a court case in 1816 would be of interest to locals.
In Dumfries Sheriff Court before Sir Thomas Kirkpatrick, William Beattie, George Graham, Archie Thomson, and David Hounam were charged with “mobbing and rioting on Friday night, the 15th day of December, 1816”. The libel set forth that the four defendants entered an enclosed piece of ground on The Kilngreen, belonging to Archibald Scott, writer, rooting up and carrying off a number of young trees. These trees were taken to one of the inns in Langholm by Beattie, who exhibited the trophies.
On the following day, the services were obtained of the “common drummer of the village of Langholm”, and a procession was organised, many of those who took part being armed with spades and long poles. “This irresponsible regiment” says the report “was led by William Beattie, who assumed command, and the second visit was paid to the garden enclosure, when the remaining young trees were pulled up, fastened to the ends of poles, and carried through the village in triumph”.
As can well be imagined, this sanguine battle for what was considered the town’s rights, now being fought out in this court at Dumfries, created considerable interest and lasted three days.
The prosecution claimed that the ground in question was the property of the Duke of Buccleuch who granted the present owner permission to enclose it in the year 1812. On the strength of this sanction, Mr. Scott carried out the enclosure and several trees were planted. Two years later he went further. Scott began cutting a trench for the foundation of a wall outside the line of trees which was assumed to be the new boundary. It was then that the turmoil began. Public feeling ran high. Such unwarranted action was regarded as a flagrant encroachment on the Commonty of the Kilngreen, consequently the wall was never built. Nevertheless, a good deal of indignation kept brewing until the storm broke which had its sequel in Dumfries Court of Law.
It was reckoned a glorious victory by the townfolk, who stuck to the letter of the Proclamation “The Kilngreen”, they said “is an ancient place where clay is got, An’ it belongs tae us by richt an’ lot”.
In their defence it was claimed that the inhabitants of Langholm had been in the practice of riding the marches of the different commonties once a year from time immemorial and contended that they were entitled in the exercise of this right to remove the trees planted by the pursuer.
After prolonged argument and debates, the Sheriff found the defendants liable for the damage done and the expenses of the action. The four men implicated were ordered to pay £20 each, which they did with the exception of David Hounam who indignantly refused to pay one penny. He was sent to Dumfries Jail where the refractory weaver paid the penalty (but not in hard cash) for his alleged misdeeds.
Billy Young, in his 2004 book “A Spot Supremely Blest” treats these events as a bit of a joke. But this is 1816. Here were some young men whose fathers no doubt had been alive when Langholm’s common lands were affirmed by the highest court in the land in 1759. One of the defendants was none other than Archie Thomson – the first person to ride the marches of Langholm’s commons that year. As the landlord of the Commercial Inn he would probably have been someone of standing in the community. Seeing evidence of appropriation of the Kilngreen, Thomson and his colleagues did their duty in defending the town’s land from encroachmant.
The so-called ‘’mobbing and rioting’’ is known about in Langholm but is given a rather low profile. The direct action of these Langholm men who marched up the High Street to the Kilngreen carrying spades, with the Town Drummer to the fore to prevent the attempted enclosure, then uprooting the young trees and tying them to the end of long poles and returning down the street were engaged in as militant a demonstration of public feelings as one can imagine. Indeed it is out of this event that the Common Riding as an event took shape, starting with militant direct action and still containing much of that spirit.
Aside from the horses, he main component of the Common Riding is the flute band and its drum (descendents of the role played by the Town Drummer) together with the foot procession. The Common Riding emblems ( the spade, the thistle, the barley bannock/saut herring, the floral crown) are brandished triumphantly on poles.
Langholm Common Riding Emblems – the spade, the barley-bannock, the crown & the thistle 1957. Source: Langholm Archive George Irving collection.
In 1792, Thomas Muir had established the Friends of the People Society and four years later John Baird and Thomas Hardie led the Radical War of 1820. This was a time of revolutionary fervour. A Tree of Liberty had been planted in Langholm’s Market Place in the 1790’s. The reaction of Thomson and his friends to the encroachment and the subsequent attitude of the Sheriff of Dumfries, Sir Thomas Kirkpatrick can plausibly be viewed in this light.
The Duke of Buccleuch remember continued to appoint the magistrates of the burgh until 1892 and they no doubt would have felt obliged to pursue a prosecution. The consequence of their failure to defend the interests of their townspeople was that their successors (Provost Cairns and Councillor Armstrong) fell over themselves a little over 100 years later in 1922 to prostrate themselves before “His Grace’s” generosity and kindness in gifting them land they already owned.
Langholm Common Riding. Crossing the Ewe from the Kilngreen to the Castleholm. Image: Tom Hutton
It is unclear what motivated the Duke to gift the land in 1922. It is evident that he wanted some solution to the issue of travelling people. It is also probable that he and perhaps the Town Council realised that, although the Kilngreen was owned by the town, there was in fact no recorded title in the Register of Sasines. Quite why this was apparently never done between 1759 and the 1816 incident remains unclear but as feudal superior, Buccleuch was the obvious person to rectify the omission…….which brings us to back to the sale of the tourist office.
In the 1922 deed of gift, the Duke of Buccleuch stipulated that the Kilngreen was “for the use, benefit and enjoyment of the inhabitants of the aid Burgh in all time to come”. He also imposed a condition that the land could not be sold without his consent. (2)
In 1999 Dumfries and Galloway Tourist Board vacated the tourist office and it lay vacant for a decade before the Council’s Resources Committe met in April 2009 to conclude plans for its disposal. The Council wanted to sell the building as it was surplus to their requirements (though note that the beneficial owners are the people of Langholm the decision was never considered by any common good fund committee). Due to the restriction on sale, Council officials had approached Buccleuch Estates Ltd. for a Minute of Waiver – a legal agreement to waive the condition. Buccleuch refused on the grounds that a sale on the open market “would not be consistent with the intentions of the Buccleuch family when they gifted Kilngreen to the inhabitants of the Burgh iof Langholm”.
Buccleuch did indicate, however, that it would be interested in “buying this property back from the council with the intention of putting it to some form of community use, thus being consistent with the family’s original intention”. The proposal was to lease the building to the Langholm Initiative as a Moorland Education Centre.
The Council agreed to this. The purchase price remained the “open market value” but by now the “market” had been reduced to one party – Buccleuch Estates Ltd. – and a price of £500 was agreed. The sale went through in September 2009 (Land Certificate and Plan).
As the Resources Committee report makes clear, one of the reasons that the Council wanted to dispose of the building was that it was in a dilapidated state of repair and represented an ongoing liability. But that summer a TV company arrived in Langholm and renovated the building!
The renovated former tourist office sold to Buccleuch Estates Ltd. for £500.
So, at the end of this long tale, the Buccleuch family gifted land that was never theirs to gift in the first place, imposed conditions that tied the hands of the Burgh and which, almost a century later, the Buccleuch family exploited to refuse a waiver that depressed the price that allowed them to buy it back (having been given a makeover by TV money and local voluntary effort) at a fraction of its market value thus depriving the common good fund of a much needed capital receipt. All the while, the people of Langholm have been let down by a lack of transparency as to the land’s true ownership and by a Council that, when I asked them in 2009, reported that there were no common good assets in Langholm.
All of which is made the more galling when there were alternative courses of action available to the council.
Under Section 20 of the Title Conditions (Scotland) Act 2003, an owner of land over which there is a title condition or restriction may, after 100 years has elapsed since the burden was imposed, register a notice of termination of the burden. Thus Dumfries and Galloway Council could have called Buccleuch’s bluff and threatened to wait until 22 November 2022 and be shot of all the conditions that curtailed its freedom of action unless the waiver was granted. Until then it could have either demolished the building ot leased the site directly to the Langholm Initiative on a full repairing lease. Such a lease, of course, would require the consent of Buccleuch Estates but since they presumably consented to the Tourist Board’s occupation of the building, could not reasonably refuse a new lease. Had they done so, the Council should have gone straight to the Lands Tribunal to apply for an order to permit the lease to go ahead.
The irony of all of this is that for £500 the residents of Langholm could easily have bought back their own common good land, though they would have been quite rightly indignant at having to do so given that a little over 250 years ago the Court of Session ruled that it already belonged to them.
For that 250 years, the residents of Langholm have for a variety of reasons, been ill-served by feudal patronage, corrupt and undemocratic governance, and the inability to take decisions by themselves in their own interests over land that belongs to them. That this state of affairs has persisted this long and over a decade since the advent of devolution is a powerful reminder of how little attention has been paid to land and governance matters within Scotland.
When, in March last year I sat in the bar of the Crown Hotel, I knew nothing of its former landlord, Frank Beatty and the mobbing a rioting of which he had been found guilty in defence of the town’s land rights. On the wall of the hotel lobby is a poster narrating the history of the common riding. Those who take an interest in such matters know this history well. Over the river, in the new Langholm, is a town built on Buccluech land where “His Grace’s” interests still hold sway. Feudal hegemony is alive and well in Langholm.
Perhaps it is time for some more mobbing and rioting.
SOURCES & NOTES
Much of the history of the KIlngreen is covered by John and Robert Hyslop’s classic book Langholm As It Was published in 1912 by Hills and Company, Sunderland.
(1) The move across the water to land owned by the Duke of Buccleuch (Castleholm) is reflected in the rest of the Fair Proclamation as cited on Tom Hutton’s blog here that the Fair is to be held upon “hus Grace the Duke of Buccleuch’s Merk Lands.”
This is to give notice that there is a muckle Fair to be hadden in the muckle Toun o’ the Langholm on the 15th day of July, auld style, upon his Grace the Duke of Buccleuch’s Merk Lands, for the space of eight days and upwards; and a’ land-loupers, and dub-scoupers, and gae-by-the-gate swingers, that come to breed hurdums or durdums, huliments or buliments, hagglements or bragglements, or to molest this public Fair,they shall be ta’en by order of the Bailey and Toun Cooncil, and their lugs be nailed to the tron wi’ a twalpenny nail, and they shall sit doun on their bare knees and pray seven times for the King and thrice for the Muckle Laird o’ Ralton, and pay a groat tae me, Jamie Ferguson, Baillie o’ the aforesaid Manor, and I’ll away hame and hae a Bannock and a saut herring tae ma denner by way o’ auld style.
(2) The deed also states that “ nor shall my said disponees be entitled to erect buildings on the said subjects without the written consent of me or my successors, or to sell, dispone, or otherwise alienate, or to grant leases other than for pasturage of the said subjects, or any part thereof, or to do any other act by which the inhabitants of Langholm might be deprived of the use or enjoyment of said subjects.”