On Tuesday this week, the Court of Session published its opinion by Lord Tyre on a petition brought by East Renfrewshire Council (4.2Mb pdf) seeking authority to build a school on common good land in Cowan Park, Barrhead. Given past blogs on the topic of common good and, in particular, the controversy over the Portobello Park proposals, I felt it would be useful to provide a brief response and commentary on this latest decision by the Courts.

East Renfrewshire Council plans to build a new high school in Cowan Park, Barrhead. The park consists of three distinct parcels of land (see map below). The first – areas 13/4 and the northernmost E157/3 form the original Cowan Park. James Cowan bequeathed £10,000 in 1910 to provide a park and directed his trustees to purchase the land and convey it to the Town Council to be held in “perpetuity as a public park … for the use and enjoyment of the inhabitants of the Burgh of Barrhead in all time coming.” In 1969 part of this original park (the northernmost area E157/3) was conveyed to the County Council and is the site of the current Barrhead High School.

An additional two parcels of land were added to the park in acquisitions by the County Council in 1969 (E157/3 to the south outlined in blue) and the Town Council in 1969 (area 13/8 outlined in yellow).

Of these parcels, only area 13/4 is common good land. Furthermore, given the terms of the bequest, it is inalienable common good land. This means that, unlike alienable common good land (which the council can dispose of as its sees fit), any disposal of such land requires the consent of the courts. (1) It was with this intention that East Renfrewshire Council petitioned the Court of Session in April 2014.

At this point it is worth revisiting the Portobello decision very briefly. In that case, the City of Edinburgh Councils wished to appropriate (that is, to use common good land for another purpose but to retain ownership) land in Portobello Park to build a new school. An action was taken against the Council by Portobello Park Action Group and the Court of Session found (on appeal to the Inner House) that the Council had no powers to appropriate inalienable common good land. This was because the Local Government (Scotland) Act 1973 which governs such matters is silent on the question of appropriation in these circumstances and thus the common law prohibition on appropriation of inalienable common good land prevails. The City of Edinburgh Council resolved the matter by seeking specific authority under a private act of Parliament to appropriate the necessary land.

The Cowan Park case turned on the question of whether the proposals for building a school constituted a disposal or an alienation. If such an arrangement is regarded as a disposal, the Court has the power to decide whether to grant authority to proceed. However, if the arrangement is considered an appropriation, the Court has no locus since there is no provision in the 1973 Act for it to take a view.

The plan is to lease the land to a special purpose vehicle which, in turn will sub-lease the site back to the Council and construct the school. The Court in this case found that, since the Council would retain possession of the land as the sub-leaseholder, there was no disposal involved and that “the petitioner’s proposals are properly to be characterised as appropriation.” (2) Thus, “as there would be no disposal, the petition must be refused as unnecessary“.

So where does that leave East Renfrewshire Council?

Well, the Court cannot provide the consent that was requested and thus there are three options available.

The first would be to seek the same remedy as the City of Edinburgh Council in the Portobello case and petition the Scottish Parliament for a private Act of Parliament.

The second would be to build the school on the southern half of the park which is not common good land (though I understand other factors mean that this is not a suitable site).

The third would be to do what South Lanarkshire Council did and go ahead and build the school anyway. As outlined in a previous blog, the Council in this case, having petitioned the court and having been advised that the court had no locus (just as in the present case), nevertheless went ahead and built Holy Cross High School. No-one raised an action against the council. Had anyone done so, then, the court would most likely have found that the Council was acting beyond its powers. This is exactly what happened in the Portobello case because, whilst the courts have no locus to approve such an action at the outset, they do have the power to rule it unlawful should it be contemplated AND someone takes an action against the Council.

In conclusion, this latest case demonstrates why, in my view common good law is in need of modernisation. The Community Empowerment Bill proposes some modest reform on transparency but fails to address the underlying complexity and the need for the law to be updated to reflect modern needs.

NOTES

(1) – In my opinion Lord Tyre is wrong at [5] where he claims that “As a general rule, a local authority has no power to dispose of common good land or to appropriate it for other uses“. On the country, if the land is alienable it is free to dispose of it or appropriate it. See Ferguson, Common Good Law (Avizandum) at foot of page 88.

(2) Lord Tyre at [16]

Among the recommendations of the LRRG are that more effort should be made to complete the Land Register and that patterns of rural landownership should be mapped and better understood. In response to publication of the report, the Scottish Government announced that it had asked the Registers of Scotland to complete the coverage of privately-owned land in the Land Register within 10 years and public land within 5 years.

The Registers of Scotland has launched a consultation on how it might meet this aspiration using the existing statutory powers contained in the Land Registration (Scotland) Act 2012 which comes into force in December this year.

Currently 26% of land in Scotland is registered in the Land Register (see map below) with the remainder being still registered in the older Register of Sasines. (1) Currently as land changes ownership, it moves onto the Land Register. The Land Registration (Scotland) Act 2012 introduces new triggers and the LRRG recommended that there be further ones.

This  blog examines the wisdom and desirability of the ten-year target and whether alternative means might be more useful in fulfilling the recommendations of the LRRG and the aspirations of Scottish Ministers.

The Registers

It is important to understand the difference between the Register of Sasines and the Land Register.

The Register of Sasines is a register of deeds – bits of paper that record legal agreements to sell land, to raise a standard security over land, to lease land etc. It was established in 1617. The Keeper’s responsibilities are to record such deeds so as to provide a means by which the interests they represent can be legally enforced and defended.

Being a register of deeds means that in order to find out who owns a parcel of land, these deeds have to be read and interpreted. This can be a laborious process. There are usually no plans associated with the deeds. If there are, they can often be a black & white copy of a plan showing the “lands delineated in pink”.

In 1979, this register was replaced  by the Land Register which provides a state-guaranteed title together with a definitive map. The Keeper undertakes a once-and-for-all search to determine the title to land. She then issues a land certificate containing details of ownership and a detailed plan based on Ordnance Survey mapping (see example here of Stirling Castle – title & plan). She also provides a state guarantee of the title and is liable to indemnify the owner if any mistakes subsequently come to light. A Land Certificate is is the gold-standard in defining and defending property rights. Given the choice, everyone would want one.

But Scotland’s landownership history is complicated and to generate a Land Certificate involves a painstaking check over all the prior deeds to establish what land exactly is contained within the title, what was sold in the past, what rights might be held by others over the land (such as servitudes for access to other land) and the precise boundaries of the land. This is often straightforward in property developed in the recent past but for land the forms part of very old estates or larger holdings that have a complex history of land transactions, it is time-consuming work. This is why, in many cases it can take years to generate a title.

The other fact to appreciate is that the Registers of Scotland is an Executive Agency of the Scottish Government and is self-funding. It receives no public funds from Parliament and, instead, finances its operations entirely from the fees paid to record deeds and titles and, to a lesser extend from search fees and consultancy work.

Is ten years realistic?

So would it be possible to complete the Land Register within 10 years?

My initial reaction to the Scottish Government’s aspiration was skepticism. Land registration is a complex and time-consuming business. Some titles take up to 5 years to be generated (although it can be expedited when, for example, PetroChina wanted to invest in the Grangemouth oil refinery). The Keeper has to check through the history of a property and make sense of sometimes ambiguous information. She has the discretion to withhold indemnity over all or part of a title and, where this happens, the owner must wait for ten years until their ownership is free from challenge.

Over the years I have seen titles that are incorrect. One of the most blatant involved an owner of several hundred hectares of land whose title included a house and garden owned by the parents of one of my childhood friends. This took much time and effort to sort out. Moreover, land registration has been used to claim land that is not owned by the vendor. I myself have advised that a small access strip be incorporated in a title hoping that the Keeper would not notice. She didn’t.

The biggest challenge to a rapid (and ten years is rapid) completion of the Land Register is financial. For over 30 years, the Registers of Scotland has been self-financing. If it were to complete the register within ten years, resources would have to be found. The consultation document is not very transparent about the workload and financial consequences.

Until recently, I was doubtful about the wisdom and practicalities of this target but had an open mind. Reading the consultation document does not convince me that this task is possible. But it was hearing of changes to how the Keeper intends to handle future applications for land registration that has not only confirmed my doubts but convinced me that we are about to embark on a reckless and dangerous path and that the target poses huge risks.

The Keeper’s Memo

In a memo issued to staff in early July, the Keeper announced that;

1) The Keeper will no longer check prescriptive title and will rely instead upon the certification on the registration form that the deed is valid. There will therefore be no search in the Sasine Register and the Keeper will not require sight of links in title to support an application. By certifying the deed is valid the solicitor is assumed to have carried out the relevant checks

2) The Keeper will not check for outstanding securities.

3) Only the deeds lodged with the application will be used and the Keeper will not examine any other deeds.

4) The Keeper will not use her own records to determine whether a deed should be included in the application or not.

In other words, the basic principles of Land Registration under the 1979 and 2012 Act are to be tossed aside and titles will be issued based on the information provided by solicitors. I have seen too many instances of land-grabbing and shady deals by solicitors to have any confidence whatsoever, that the Register will have any integrity if these reforms are implemented. There is nothing now to stop rogue solicitors and their clients abusing the system. Even well-intentioned and honest applications will now be compromised. Even now, many applications contain errors made in good faith. (2)

If there are no independent checks made on applications by the Keeper by looking behind the scenes then there is a significant possibility that anyone, whether a practicing solicitor or not, will be able to concoct a fraudulent application that is never checked. Once the title is registered it will appear to be as valid as any other. This may confer additional rights the applicant never should have had (which may or may not be the detriment of another land owner) and may sit as a ticking time bomb for some future land owner.

The changes appear to be in response to the Scottish Government’s request to meet the ten year target.

One of the biggest threats this poses is to owners of land that border that which is the subject of an application. The process of land registration has always favoured those titles are recorded first. Under the existing regime, owners of neighbouring properties are not consulted about the boundaries claimed by applicants. It is not hard to envisage those with most to gain (large-scale landowners and owners of the most valuable land) taking advantage of the new arrangements to appropriate useful bits of land from homeowners, local authorities, common good funds and others landowners. They will be completely in the dark about such claims and may very well find themselves many years from now having had their interests compromised.

My understanding is that senior staff in the Registers of Scotland have doubts as to whether these changes are consistent with the 2012 Act

Conclusion

It is my view a fundamental and highly dubious change is now in train which should not be made solely to secure a political goal of completing the Land Register within ten years. Indeed it should not be made at all.

I have proposals that would maintain the integrity of the Land Register, assist with the process of land registration AND ensure free public access to good quality information about who owns Scotland. This will be the subject of another blog in the near future.

Meanwhile, it looks like Murdo Fraser’s Economy, Energy and tourism Committee might be well advised to investigate this matter.

NOTES

(1) This equates to 58% of all property titles. The extent of land is less because most titles are small urban sites rather than large rural estates.

(2) See paras 160 onward from the Stage One Report of the Economy, Energy and Tourism Committee.

 

Guest Blog by Ruth Cape

Ruth works for Community Land Scotland although she writes here in a personal capacity. During the summer of 2009, she spent six weeks volunteering at the Tent of Nations farm in the West Bank, Palestine.

“We refuse to be enemies” is the sentiment upon which the Tent of Nations project in Palestine is built. Painted on a stone which greets every visitor to the Nassar family farm, where the project is based, the phrase encaptures the deep sense of humanity, resolution and faith which emanates from the 100 acres of land and the family who own it.

At 8am on Monday 19th May 2014, Israeli Defense Force (IDF) bulldozers arrived unannounced – presumably rolling past the Nassar’s defiant welcoming statement – and proceeded to destroy between 1,500 and 2,000 mature, fruit-bearing apricot trees, apple trees and grape vines in the lower valley of the farm.

Resting on a hill six miles southwest of Bethlehem in the Occupied Territories of Palestine (the West Bank), the Nassar family hold registration papers for this land dating back to the Ottoman Empire. For over 20 years now, the family have been fighting a legal battle to prove their ownership of the land. For over 20 years they have been challenged by knock-backs, obstacles and violent provocations. The attack at the beginning of last week comes while their latest case for proving ownership has been in the Israeli Military/Civil Courts since February 2013.

Image: The valley before and after the bulldozers arrived.

In 2001 the Nassars set up the Tent of Nations peace project on their farm; a project committed to building intercultural cooperation and understanding; to promoting dialogue and non-violence and to highlighting the connection between people and land. As a volunteer in 2009 (planting and harvesting many of the trees now destroyed), I was struck by the family’s steadfast resolve to remain on their farm despite the pressure to have it evacuated and claimed as Israeli State Land. I noted in a blog during my time there the “shuwe, shuwe” (“slowly, slowly”) attitude to the Nassar’s work; commenting that it “sums up their calm, thoughtful and sustained approach to dealing with an intense and emotional situation.” Such an approach couldn’t be more necessary now as they cope with this latest act of oppression; as ever – they are rising to the occasion with dignity and hope.

In addition to the destruction of the trees, the terraced land on which the trees were planted was also destroyed and left in a state of rubble which cannot currently be re-planted. Having generated income from the fruit of the mature trees, the family are faced with an attack on their livelihood as well as their property. As advised by their lawyer, the Nassars are now appealing for compensation; critically, they are also appealing to have the demolition orders which remain on the tents, compost toilets & other structures on the farm removed. They have asked for international awareness to be raised and for the international community to support their case and to understand that the injustices they face are representative of the oppression faced by the wider Palestinian population.

If you’d like to take action to support the Nassar family and hold the Israeli Military and Government to account for its actions, please write to your MP using this standard letter – doc and rtf.

See the Tent of Nations website Facebook and twitter for more information and updates.