The Title Conditions (Scotland) Act 2003 was passed during the first Scottish Parliament. It codifies the kinds of restrictions or burdens that can be included in titles to land and property. Among them is something called a conservation burden that can be used to protect aspects of the natural and cultural heritage. One of the bodies allowed to impose such burdens is the National Trust for Scotland (NTS).
Helen Finan owns a croft in the village of Inveralligin in Wester Ross. She inherited the croft from her mother, Donaldina Maclean Finan who passed away in 2011. The croft has been in her family since before the 1886 crofting act. Her great-grandfather’s family was a victim of the Highland Clearances. Helen moved to the croft in 2009 to nurse her mother in the last two years of her life.
In 2006, Donaldina had decrofted (removed from crofting tenure) the house and garden. Later, in 2009 she exercised her legal right to acquire the whole croft and, in so doing became an owner-occupier crofter.
Under the crofting acts, if the croft land is sold to anyone who is not a member of the crofters’ family within 10 years of being bought, the landlord is entitled to clawback 50% of the difference between the open-market value and the price paid to acquire it. This condition relates only to the croft land and not to the dwelling house. Helen is content with this statutory condition.
This blog is not about the croft-land. It is about the house and garden which Helen now owns outright. The house and garden are shown bounded in blue in the title plan above. The croft-land is the remaining land bounded by the red line.
At the time of the sale of the croft, NTS, who bought the estate in 1967, insisted that a conservation burden was imposed on the croft house, garden and croft-land. (1)
The burden requires the consent of NTS for the following.
– the sub-division of the house or its permanent occupation by more than one family
– the development of the building for anything other than a single dwelling house
– any internal or external alterations.
The burdens require that,
– the owner shall paint the house at least ever five years with a colour approved by NTS
– the garden be kept in a neat and tidy condition.
Helen and her late mother have done a very good job abiding by these conditions.
The most significant of the conservation burden conditions, however, has nothing to do with appearance or amenity but insists that the house and garden,
“shall be used as a private dwelling house only and as the main residence of the Proprietor, and for no other purpose, including a holiday home or let for holiday purposes.”
Helen is not in a position to reside permanently in Inveralligin and thus she wishes to sell the whole croft. But she faces a problem because the potential buyer has been advised that the burden will make it difficult to re-sell the property in future. The croft house is now difficult to sell and leaves Helen in a tricky position. She cannot live and work there as there is no work. She cannot let the house because that contravenes the conservation burden and it looks like she may not be able to sell it. Her future is in the hands of the NTS.
I understand that others are in a similar situation.
Now it may or may not be desirable that the owners of such properties be compelled to live in the house they own. Indeed Section 33(2) of the Crofting Reform (Scotland) Act 2010 insists that crofters should live within 20 miles of their croft (though this do not apply to the croft house if it is sold independently from the croft). The issue here is not the desirability or otherwise of such conditions but whether it is appropriate or even lawful for the NTS or any other private body to impose and police them.
Helen has therefore applied to the NTS to waive the conservation burden. The application was considered by the NTS’s “Conservation Agreement Scrutiny Panel”. It decided that it was willing to grant the waiver in respect of the residency condition but that all other conditions (the colour of the house etc) remain in place. But the panel placed a condition on the granting of the waiver viz.
“the Panel recognised that the condition diminishes the market value of the property. In recognition of this the Panel requests that a payment be made to the trust equivalent to 50% of the uplift in the value of the Property arising from the granting of the waiver. The payment shall be applied to the trust’s charitable purposes which include the care and protection of the wider Torridon Estate for the benefit of the public.”
This is a quite breathtaking statement. The only reason the croft house is devalued is because of the conservation burden which NTS imposed and in exchange for waiving the burden, NTS wants to be paid a substantial sum of money!
The problem with the approach of the NTS is that it is not clear that the conservation burden is lawful in the first place. In 2002, the NTS argued for such burdens in written and oral evidence to the Scottish Parliament and made no mention of any wish to become involved in social engineering of any kind.
Section 38 of the Title Conditions (Scotland) Act 2003 reads as follows
38 Conservation burdens
(1) On and after the day on which this section comes into force it shall, subject to subsection (2) below, be competent to create a real burden in favour of a conservation body, or of the Scottish Ministers, for the purpose of preserving, or protecting, for the benefit of the public—
(a) the architectural or historical characteristics of any land; or
(b) any other special characteristics of any land (including, without prejudice to the generality of this paragraph, a special characteristic derived from the flora, fauna or general appearance of the land);
and any such burden shall be known as a “conservation burden
What architectural, historic of other (flora, fauna etc.) characteristic of the land is preserved or protected for the benefit of the public by insisting that the owner of the house shall use it as their main residence and for no other purpose?
Answer – none.
Whether someone lives in a house or not bears no relation to any characteristics of the land.
In this instance an absentee conservation landlord is seeking to impose its values and will on another property owner who stands to be disadvantaged as a consequence. Is this right?
It would be interesting to see what the Land Court or Lands Tribunal for Scotland would make of of this question if it were to be presented to them given both the question over the legitimacy of the conservation burden and the more general conflict arising between the rights of crofting tenants under the law and the aims of the NTS.
(1) Of course the conditions of sale were accepted by Helen’s late mother. Had she not accepted them, she may have had to go to the Land Court to contest them. She was ill and in the last two years of her life. On a reasonable interpretation of the circumstances she appeared not to have had a great deal of choice in the matter.