The attempts by South Cowal Community Development Company (SCCDC) to acquire Castle Toward in Argyll have attracted widespread media attention. See reports here and here as examples.

Last week I was sent an email by one of those behind the acquisition. It was entitled HELP!!! and sought my assistance in trying to resolve the current impasse between the community and Argyll and Bute Council. Alas, I have no magic wand and replied to say that, while I had been following the story, I did not know enough of the detail to provide any advice or assistance. Matters might not have proceeded any further but something was niggling at the back of my mind. I decided to find out the factual details behind the case.

Background

SCCDC first applied to register an interest in Castle Toward under Part 2 of the Land Reform (Scotland) Act 2003 (the community right to buy) in January 2011.(1) This application was rejected by Scottish Ministers because it was “late”. In other words, steps were already being taken to market the land and, as stated in the letter, “Ministers have previously stated that being reactive to a proposed sale of land for specific purposes is not a “good” reason for submitting a “late” application (letter here pdf).

In November 2013, SCCDC applied once more to register an interest in Castle Toward. Scottish Ministers approved this application and it was registered on 23 January 2014 (see letter here 1.1Mb pdf). The effect of registration is that the landowner (Argyll & Bute Council in this case) cannot sell the land without the registered community body being notified, expressing its wish to exercise the right to buy (or not) and having that wish granted by Scottish Ministers.

Argyll and Bute Council notified Scottish Ministers that it proposed to sell the property, SCCDC were then informed and indicated that it wished to exercise its right to buy. Scottish Ministers gave their approval on 22 October 2014 (see letter here pdf). Under the Land Reform Act, the community has six months (from the date on which it indicated it wished to exercise the right to buy) within which to complete the acquisition. This period expired on 31 January 2015.

Case Exposes Flaw

At this point I realised that there was more to this story than just the behaviour and actions of Argyll and Bute Council and that it exposed a significant weakness in the legislation. The act is currently being amended in Parliament as part of the Community Empowerment (Scotland) Bill. Due to lack of time, I took a decision not to follow the Bill through Parliament but I now wish that I had taken more interest.

The flaw in the legislation is that, whilst the community body has six months within which to complete the sale, the landowner can withdraw the land from sale at any time and can refuse to sell the land to the community body. In other words, an owner’s intimation that they plan to sell (which triggers the right to buy process) is not an obligation to sell even if the community wants to exercise its right-to-buy and has the money. It’s rather like offering a child a sweetie if they jump through certain hoops then at the end saying “sorry you cant have the sweetie”.

[Update – note Neil King’s comments below. In this case, the valuation placed on the property under the Land Reform Act is £1.75m. SCCDC are not offering that and thus, in law, the Council are entitled not to conclude a sale].

Of course, the owner cannot sell to anyone else so long as there is a registered interest so the scene is set in certain circumstances for a stalemate such as we have at Castle Toward. This is not the first time that this problem has surfaced. From memory, it has occurred on at least one other occasion.

I had presumed that this (and other weaknesses in the legislation) would have been dealt with during the passage of the Community Empowerment Bill. But I’ve had a quick look at it and it seems the only reform is to make the owner liable for the costs of the valuation should the sale not proceed (Section 44). I have contacted others who have taken a close interest in the legislative process and, although this issue has, apparently, been raised, it has not been dealt with.

Thus I suggest that at Stage 2 of the Bill, an amendment is introduced to the following effect .

Where an owner of land, over which there is a registered interest, decides to sell the land and, as a consequence, triggers the community right to buy, the owner shall be obliged to transfer the land within the six-month period on the terms specified in the legislation. Failure to do so shall allow Scottish Ministers to acquire the land using powers of compulsory purchase.

Is that a) feasible and b) politically acceptable?

NOTES

(1) See the Register of Community Interests in Land for details of registered interests.

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)

Yesterday, gamekeeper George Mutch was sentenced to four months imprisonment after being found guilty of four charges including the illegal killing of a trapped goshawk, which he clubbed to death, and the taking of two other birds, a goshawk and a buzzard. See Raptor Persecution website reports here and here and BBC report here. Mr Mutch was employed on Kildrummy Estate in Aberdeenshire.

Under Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011, an employer can be also be guilty of a wildlife offence under the doctrine of vicarious liability. Where an offence has been committed by an employee, the owner or agent is also guilty of the offence and liable to be proceeded against unless they can show that they did not know the offence was being committed by the employee AND that they took all reasonable steps and exercised due diligence to prevent the offence being committed. Mr Mutch was asked whether he had received any training from his employer and he said that he had not. Whether he did or not of course cannot be ascertained from such an admission. But the possibility exists that the Crown will proceed against the owner on the basis of their possible vicarious liability. If proceedings were to be brought against the owner, who is that person?

The owner of Kildrummy Estate is Kildrummy (Jersey) Ltd. The point of this blog is to try to find out who exactly is the human being or beings behind Kildrummy (Jersey) Ltd. who might end up being charged with an offence.

Kildrummy (Jersey) Ltd. is a company registered at 23-25 Broad Street, St Helier, Jersey.

It is owned by;

Magnus Nominees Ltd.,
Fidelis Nominees Ltd. &
Rostand Nominees Ltd.

which are all registered at the same address – 23-25 Broad Street, St Helier, Jersey.

So who owns Magnus, Fidelis and Rostand?

Magnus Nominees Ltd. is owned by;

Coutts & Co. Trustees (Jersey) Ltd. &
Citron 2004 Ltd.

again all at 23-25 Broad Street.

Fidelis Nominees Ltd. is also owned by

Coutts & Co. Trustees (Jersey) Ltd. &
Citron 2004 Ltd.

again at 23-25 Broad Street.

Rostand Nominees Ltd. is ALSO owned by

Coutts & Co trustees (Jersey) Ltd. &
Citron 2004 Ltd.

at 23-25 Broad Street.

So…..

Kildrummy (Jersey) Ltd is owned by Coutts and Citron through their ownership of Magnus, Fidelis and Rostand.

So who owns Coutts and Citron?

Coutts is owned by Royal Bank of Scotland International (Holdings) Ltd. registered at 71 Bath Street, St Helier.

Citron is owned by

Coutts & Co Trustees (Jersey) Ltd.,
Magnus Nominees Ltd. &
Fidelis Nominees Ltd.

So who owns Coutts, Magnus and Fidelis?

Coutts is owned by Royal Bank of Scotland International (Holdings) Ltd. (see above). Magnus and Fidelis are both owned by Coutts and Citron (see above). And Citron (which is owned by Coutts, Magnus and Fidelis) owns (together with Coutts) Magnus, Fidelis and Rostand.

Magnus, Fidelis and Rostand of course own Kildrummy (Jersey) Ltd.

So, after spending £24 on Annual Returns of the above companies who does own Kildrummy (Jersey) Ltd.?

Go back up to the top and start again.

Best of luck to the Crown Office.

Big thanks to Simon Brooke for coming up with a flow-chart which attempts to illustrate the relationships.

UPDATE

These arrangements led to a court case – Kildrummy (Jersey) Ltd v. Inland Revenue Commissioners 1991 SC 1, 1992 SLT 787, 1991 SCLR 498 – in 1990 over the liability to stamp duty. The decision outlines the deal that was entered into with Kildrummy (Jersey) Ltd. and the case is now the foundation for the proposition that one cannot contract with oneself and retain control over the outcome.