Land Matters

We know about problems with the planning system and we know about the problems of land availability. For those folk who don’t want to rent from a housing association but want to buy a piece of land on which to build their own house these problems are real enough. But just when you think they’ve been solved, along comes another spanner in the works.

The village of Laggan in Inverness-shire has a reputation for getting things done and housing has been high on their agenda. However, things are not always simple and even when you think everything is going right, you get walloped by the unexpected. This is a story of the unexpected.

Campbell and Sheena Slimon own Breakachy Farm. Campbell is well-known in farming circles and Sheena has been a stalwart in local community activities for years. She is now the Highland Councillor for the Badenoch west ward. They bought Breakachy Farm in 1987 from the MacPherson’s of Glentruim Estate. In recent years, a local couple were in search of a plot of land and the Slimons agreed to sell a 3877 square metre plot for 20,000 GBP (considerably less than they could have achieved on the open market). It took 2 years to obtain planning permission and the sale was imminent. Then the unexpected happened.

Breakachy Farm was sold to the Slimons by Feu Disposition. In other words, the owners of Glentruim Estate, although they’d sold the farm, remained the Slimon’s Feudal Superiors. As Superiors, they had, among other rights, a right of pre-emption which is to say that if the Slimons were ever to sell any part or all of Breakachy Farm, the owners of Glentruim would have the right to purchase the land at a price equal to that being offered by the purchaser. In 1997, Glentruim Estate and the rights associated with the estate (including those of Feudal Superior) were sold by the MacPhersons to Roeland Hendrik Jan Groenendyk for 405,000 GBP. The Estate by now consisted of a mere 22 ha including Glentruim House.

Thus when Roland Groenendyk was notified of the sale of the housing plot, he exercised his right of pre-emption and bought the land for 20,000 GBP. Obviously this caused huge upset and the Laggan Community Association wrote to Mr Groenendyk to express their concern. In reply, he wrote,

“We were also looking for a building plot for a couple of years now, for
a young family with 2 children, who wants to settle here in this area.
So we are very pleased to get the opportunity to help another young
family and therefore will proceed with the purchase.”

However, the real motives are now apparent. Mr Groenendyk has put the plot of land up for sale at offers over 125,000 GBP. The land is being advertised for sale.

What appeared to be an alternative gesture of goodwill towards a family in housing need turned out to be no more than an exercise in profiteering.

What can be done? Well, on 28 November 2004, the Feudal system of land tenure in Scotland will finally be abolished. The Abolition of Feudal Tenure etc. (Scotland) Act does allow for the retention of certain types of title conditions including rights of pre-emption. We do not know whether Mr Groenendyk had taken steps to preserve this right or whether, had the Slimons waited a couple of months, the right of pre-emption would have been extinguished. What is clear is that many existing rights of pre-emption will disappear on 28 November BUT EQUALLY many will remain. When land is sold by ordinary dispostion (rather than by a feudal disposition) the abolition of feudalism has no impact.

So, celebrate the end of feudalism on 28 November, but still be prepared for the unexpected.

This morning’s post contained 2 items of particular interest. The first was a citation to attend the High Court for jury service on 1 December.

The second was a glossy set of sales particulars for the Glencanisp and Drumrunie Estates in Sutherland. This is the 44,400 acre estate being put up for sale by the Vestey family. What’s particularly interesting about this turn of events is that the sale had been put on hold at the beginning of September following an application to register an interest in the land by a community body, the Assynt Foundation. Accompanying the sales particulars was a note from CKD Galbraith saying that the Application to register interest had been withdrawn and that the sellers were therefore free to re-commence marketing.

What’s going on? Well the whole story cannot be told just yet but here’s the essence. The original application to register an interest was drawn to the attention of the owners, the Vestey Trust. Despite making conciliatory noises, the Vesteys took exception to this and lodged objections. Interestingly, despite the views of other landowners in other cases being published on the Register of Community Interests in Land, the Vestey letter was not made public. However, I understand that it challenged the application on a number of technical grounds. The Vesteys also appeared to challenge the role of the Scottish Executive, who, despite not being supposed to offer advice to any interested party on any specific application, generated the appearance of doing just this through the Community Land Unit of Highlands and Islands Enterprise. It became clear that, were Ministers to accept the application, the Vesteys would mount a legal challenge. Fearing the outcome of such a challenge and recognising deficiencies in the original application, the Assynt Foundation appears to have concluded that their best interests are served by withdrawing the original application and submitting a new one. The estate, upon hearing of the withdrawal, promptly began their marketing campaign once more though it is understood that this will again be stalled pending the outcome of this second application.

This is clearly a messy situation. Important lessons become evident, however.

Firstly, communities wishing to register interests in land need to understand the complexities of the legislation and ensure that their application is robust enough to withstand determined scrutiny by landowner’s lawyers who appear, from other applications, to be keen to point out any shortcomings.

Second, communities need sound and independent advice. The Community Land Unit is placed in an awkward situation here since it is part of the Civil Service with civil service lines of communication to Edinburgh (and thus not independent), cannot on its own account provide legal advice, and faces potential conflicts of interest since staff in the Unit also administer the Scottish Land Fund, advise communities on making applications to the Fund, and draw up recommendations to the Committee that makes the decisions on such applications (I declare an interest here as a member of that Committee).

Third, communities face real problems in obtaining information on landownership. Without detailed maps, any application can be challenged by the owner. Communities need to ensure they obtain the best quality information available and present it in a way which demonstrates that they have taken all reasonable efforts to ensure its accuracy.

Fourth, landowners will, if they feel so inclined do everything in their powers to frustrate a successful registration.

In due course, I hope to be in a position to report more fully on this case. at present, some of the details need to be withheld in order not to prejudice the existing process.

The Scotsman newspaper ran two stories which appear to have sprung directly from parties connected to the estate. The first was an opinion piece, Thorny Issues in a Boggy Land opinion piece by Katie Grant on the 25 October and the second was a newspiece, First Land Buyout descends into Chaos which appeared today and flagged up the possible legal challenge.

Both pieces contain perfectly reasonable concerns but demonstrate that landowners are perfectly willing and able both to seek to weaken an already weak piece of legislation and to garner publicity undermining the cause of land reform.