Born in 1946 and brought up in Cupar, Fife, I was educated at the local school -
The Deputy Presiding Officer (John Scott): The final item of business today is a members’ business debate on motion S4M-01922, in the name of Kenneth Gibson, on the allotments regeneration initiative in North Ayrshire. The debate will be concluded without any question being put.
Motion debated,
That the Parliament acknowledges that there are more than 500 community, therapeutic and allotment gardens throughout Scotland involving more than 12,500 people every year; encourages the introduction of the Green Gym scheme, which has so far been established in various areas throughout Scotland, including Kilbirnie in North Ayrshire; understands that planning permission has been granted for more than 70 community vegetable plots and 72 individual allotment plots in Kilbirnie for the Garnock Valley Allotment Association; considers that the Allotments Regeneration Initiative indicates that allotments allow local people not only to grow their own fruit and vegetables in a sustainable way but keep active, meet new people and improve mental health, and understands from similar projects in South Ayrshire that allotment gardening can contribute in many different areas including healthy eating, sustainable food supply, healthy activity, educational purposes and fostering community links and green spaces.
17:02
... ... ...
17:33
The Minister for Environment and Climate Change (Stewart Stevenson):
I thank Kenneth Gibson and everyone who has contributed to this interesting debate. I am not entirely certain that it is a good idea to have a debate in which we talk about politicians digging holes; we tend to do that metaphorically rather than physically. The debate has been interesting from that point of view.
I was absolutely delighted to hear about the genuine local action and engagement that Kenneth Gibson described from councillors in his area. We forget that a large number of councillors get engaged with issues that matter to local people. The example to which Kenneth Gibson referred, which has led to the action in North Ayrshire, is to be commended.
John Finnie (Highlands and Islands) (SNP): An important function of local councillors is involvement with the local development plan. We have heard repeatedly about the identification of areas of land. I take it that the minister would encourage greater involvement by local authorities in the identification of land. To that end, could the Scottish Government assist by making any land that is within its control more readily available for the use of allotments?
Stewart Stevenson: Mr Finnie makes a good point. With regard to the Government’s land, we have already disposed of almost everything that it is possible to dispose of. We are bound by rules that require us to dispose of land at commercial rates. However, local authorities can dispose of land at lower rates for community purposes. In many ways, it is good and appropriate that local authorities take the lead on the issue. That works well when there is a commitment to do it.
I thank Brian Adam, in his absence, for filling in for me yesterday by opening the Cullen allotments. I had been looking forward to doing that but, because the Cabinet Secretary for Rural Affairs and the Environment is away all week, I had to take on one or two of the responsibilities that he would have discharged, so I had to come to Edinburgh sooner than I had previously planned.
Christine Grahame talked about 10-year waiting lists for allotments. When we took the Climate Change (Scotland) Bill through the Parliament, which was a big effort, one of the happiest days was when the bill team leader, who is an enthusiastic allotment person, received the news that she had reached the top of the list and now had an allotment near Inverleith Gardens. That was a happy day—she even took us out for a drink to celebrate, so excited was she. It was absolutely right that the bill team leader was engaged in that issue, given all the good aspects of that bill.
The small role that I play is that I dig the potatoes that someone else plants in our garden. I generally do it with my bare hands, which is a pleasant thing to do.
Christine Grahame talked about the proposed community empowerment and renewal bill. I am not sure how allotment issues will fit into that, but I will think about it.
In relation to Margaret McDougall’s comments, I am delighted that another member of the Parliament likes to use that delightful word “humongous”. She made a point about bee, wasp and butterfly beds. The official with whom I worked on this debate referred in some of the notes to bees, but he omitted wasps, because he does not like them. Of course, wasps are an important part of the pollination cycle, just as bees are, but we often forget that.
I was looking forward to hearing from Annabel Goldie, as I knew of her interest in the issue. I am beginning to wonder whether, in the modern climate, there is a gender issue, because it seems that it is all women who are getting engaged in plots and not the seedy old men with flat caps and a pipe, as might have been the traditional view. The important point is that the client base for allotments is changing and broadening, and more people are getting engaged, which we absolutely should welcome. I will watch the parliamentary roof with great interest.
Alison Johnstone talked about brownfield sites. There are successful allotments throughout Scotland on such sites. Boxes are available that can be put on brownfield sites to isolate growing vegetables—and, for that matter, flowers—from contamination that might be present in the soil. That brings into use brownfield sites that might be difficult to decontaminate because money is not available. In the meantime, with that technology, we can use areas for allotments even though the land is contaminated.
Margaret Burgess talked about therapeutic gardens. I have a particular interest in that, because many members of my family have been involved in mental health activities. My father-in-law was a psychiatric nurse and I briefly worked as one, as did other family members. Therefore, I am absolutely seized of the therapeutic advantages of allotments for people with a wide range of conditions, and in particular for people with mental ill health of one sort or another.
Kenny Gibson highlighted the marvellous work in his constituency. North Ayrshire Council’s allotment regeneration initiative is a good example that I hope many other councils will consider. We absolutely recognise the health benefits, the benefits of local growing and having vegetables on the doorstep and the benefits of just getting people outside and taking exercise. The North Ayrshire green gym is an excellent example of a project that encourages that.
A number of good examples have been mentioned in the debate. The Scottish Government is supporting the best practice event that is being held at Battleby, Scottish Natural Heritage’s headquarters, on 17 May. The event is being organised by SNH, and interested private and public individuals and organisations will be able to exchange knowledge to help our communities to be even more vibrant places. We are behind what is going on in allotments. The list of public bodies that are engaged in that is substantial and includes the Forestry Commission, SNH, the Federation of City Farms and Community Gardens, Trellis Scotland and NHS Lothian. We also have a grow-your-own stakeholder working group, which is delivering recommendations.
There is much more that I could say on the subject, but time is against us. I commend the work that is being done and assure all those who are present and all who read this that the Scottish Government is fully committed to the grow-your-own agenda and to community garden projects and initiatives. I thank all members for their contributions.
Meeting closed at 17:41.
25 April 2012
S4M-02682 Long Leases (Scotland) Bill: Stage 1 [Closing Speech]
The Deputy Presiding Officer (John Scott): The next item of business is a debate on motion S4M-02682, in the name of Stewart Stevenson, on the Long Leases (Scotland) Bill. As we have quite a bit of time in hand for the debate, interventions will be welcomed.
15:27
... ... ...
16:48
The Minister for Environment and Climate Change (Stewart Stevenson): The debate has been interesting if somewhat technical. It carried with it the danger of being that kind of political debate that is over not when everything has been said but only when everyone has said it. However, we managed to avoid falling into that trap. Right up to the very last moment, we were hearing about new aspects of the issues around the bill, which was very welcome.
Alex Fergusson referred to the word “cumulo” as an issue and to clouds in that respect. Perhaps I should draw to his attention the fact that one of the variants of cumulo clouds is, of course, cumulonimbus clouds, which are thunderclouds. Perhaps he might be on to something in dealing with the issue. I know that he just wanted me to make that particular point.
Claire Baker asked whether we would look at this bill and the Land Registration etc (Scotland) Bill, and I can say that we will.
The issue of grassum is complex. In legal terms, it is not a substitution for rent but a transfer of value.
I listened carefully to Alison Johnstone’s detailed comments on the bill that was taken through Westminster on behalf of the City of Edinburgh District Council and I will study carefully what she said. Mr Biagi has indicated that he would be happy for all three of us to sit down and discuss the issue, and I would be equally happy to do that. I ask the members to use my private office to make that happen.
Claire Baker talked about the three Glasgow common good sites that are among the nine common good sites that will be affected. Of the three Glasgow sites, it is interesting that one is Balloch country park. The bill will transfer ownership of that site from Glasgow City Council to West Dunbartonshire Council, which is the tenant. In principle, that should not greatly concern us. The other two sites are recreational areas in Pollok park and, because of how things work, their tenant will remain unchanged in practical terms.
We have talked about the site in Stonehaven—Nigel Don referred to that.
One site is a tiny bit of land at Stevenlaw’s Close in Edinburgh that provides long-established access to somebody’s house. In Ayr, a little bit of Rozelle house—an ancient house that is looked after by a public trust—is common good and would fall under the bill. Reference was made to the three pieces of land adjacent to Sanquhar that were subject to lease between 1800 and 1810. In practice, the effect of the bill on the nine leases that are known to be common good will not really be of great concern.
Claudia Beamish made a number of references to common good, as did many other members. It is worth saying that the Local Government (Scotland) Act 1973 provides that common good funds do not form part of general funds. That is a more recent provision. It is therefore naturally assumed that, if common good assets are sold, the proceeds cannot be transferred simply on a whim to the general fund. Without giving a definitive legal opinion—I would not want to appear to do that—I think that what we are discussing would remain in the public area.
Rob Gibson talked about registration, as did many other members. One provision in the bill covers one of the tricky issues, which is leases that may or may not be registered. We will look further at section 65 in relation to that.
Variable rent has been mentioned. There is uncertainty because the existence of some leases is uncertain or unknown and owners might be dead. We have to deal with much bigger issues in Scotland’s land tenure system.
We heard further comments about Blairgowrie leases as we went through the debate. They are essentially 99-year leases that can be perpetually renewed, but they are not necessarily written down—that is where much of the mischief has come from.
Marco Biagi made a reasonable point about the context in which the Waverley market lease was written—it was almost a gun-to-the-head job on the part of Edinburgh. On that basis, it differs from the overwhelming majority of leases that the bill will affect. I will certainly take forward with officials the complex legal issues that the existing legislation raises. I am certainly motivated to deliver the kind of outcome on which views are broadly shared across the Parliament.
Nigel Don raised the issue of ECHR. I assure him that we have looked at the issue very carefully.
I repeat that we will not take a view on whether or not Waverley market is common good. The lease was entered into in 1992. It was originally for 125 years. Through a complex process of sub-leasing and transfers of interest, the money associated with the asset that went to the City of Edinburgh Council was £6.25 million and other people received £23 million. The lease is a peppercorn rent. I do not believe that the penny is collected, for obvious reasons, as it would be rather difficult to justify the economics of doing so.
As members have said, sections 50 to 55 of the bill provide for reversionary payments. Ultimately, that can be a matter of agreement between the tenant and the landlord or it can be determined by a tribunal. In the case of Waverley market, the lease expires in 2188. On that basis, it would be open to the council to consider claiming an additional payment.
It is certainly likely that any assessment by a tribunal of the residual value that might be due on the return of the asset to the council in 2188 would take account of the grassum that was paid. My own back-of-an-envelope calculations suggest that a 7.5 per cent discount rate on £6.25 million takes us to £25 million today, which is probably there or thereabouts. It may well be that there is not much residual value.
I acknowledge the points made by the City of Edinburgh Council, Andy Wightman and Margo Biagi about Waverley market. The council briefly mentioned the City of Edinburgh District Council Order Confirmation Act 1991 when it gave evidence to the committee, but that act focuses on issues such as the height of Waverley market, which can be controlled by the planning system. We must look at the interaction between the bill that is before us, which I hope will become an act, and other acts. We will take that extremely seriously.
The whole debate around common good is one that is worthy of revisiting in another context at another time. We cannot legislate away some of the practical problems that may exist, but the debate has certainly thrown some of the issues into public view.
I have been grateful for the help that we have had from local authorities in providing information on common good land that might be affected by changes to ultra-long leases. That has been very helpful. We expected the number of such leases to be low, and it is, as we believe that the figure is nine.
When the Justice Committee considered the previous bill, James Kelly asked Andy Wightman,
“Do you therefore accept the view that the number of ultra-long leases of common good property is limited?”—[Official Report, Justice Committee, 18 January 2011; c 4036.]
He responded, “Yes." There is a shared recognition that we expected the figure to be low and it is.
To date, we have not received from the City of Edinburgh Council a terribly convincing argument that helps us to see how we can deal with Waverley market differently. However, the work that we are now doing picks up some important issues.
Paragraph 135 of the committee’s report
“welcomes the Scottish Government’s intention to write to local authorities recommending that the proceeds of any compensation should be directed to its common good fund.”
Albeit that it will not be very much money, I will write to the authorities again if Parliament passes the bill.
On the land register, we will certainly see how best to achieve what needs to be done. We believe the current proposals to be proportionate and we will work with the Registers of Scotland. Ultra-long leases are concentrated in particular areas of the country, so we will target those areas.
I am delighted to have the privilege of bringing forward this law reform measure. The principles of the bill have been widely accepted and I urge members to agree to the motion at decision time.
17:00
15:27
... ... ...
16:48
The Minister for Environment and Climate Change (Stewart Stevenson): The debate has been interesting if somewhat technical. It carried with it the danger of being that kind of political debate that is over not when everything has been said but only when everyone has said it. However, we managed to avoid falling into that trap. Right up to the very last moment, we were hearing about new aspects of the issues around the bill, which was very welcome.
Alex Fergusson referred to the word “cumulo” as an issue and to clouds in that respect. Perhaps I should draw to his attention the fact that one of the variants of cumulo clouds is, of course, cumulonimbus clouds, which are thunderclouds. Perhaps he might be on to something in dealing with the issue. I know that he just wanted me to make that particular point.
Claire Baker asked whether we would look at this bill and the Land Registration etc (Scotland) Bill, and I can say that we will.
The issue of grassum is complex. In legal terms, it is not a substitution for rent but a transfer of value.
I listened carefully to Alison Johnstone’s detailed comments on the bill that was taken through Westminster on behalf of the City of Edinburgh District Council and I will study carefully what she said. Mr Biagi has indicated that he would be happy for all three of us to sit down and discuss the issue, and I would be equally happy to do that. I ask the members to use my private office to make that happen.
Claire Baker talked about the three Glasgow common good sites that are among the nine common good sites that will be affected. Of the three Glasgow sites, it is interesting that one is Balloch country park. The bill will transfer ownership of that site from Glasgow City Council to West Dunbartonshire Council, which is the tenant. In principle, that should not greatly concern us. The other two sites are recreational areas in Pollok park and, because of how things work, their tenant will remain unchanged in practical terms.
We have talked about the site in Stonehaven—Nigel Don referred to that.
One site is a tiny bit of land at Stevenlaw’s Close in Edinburgh that provides long-established access to somebody’s house. In Ayr, a little bit of Rozelle house—an ancient house that is looked after by a public trust—is common good and would fall under the bill. Reference was made to the three pieces of land adjacent to Sanquhar that were subject to lease between 1800 and 1810. In practice, the effect of the bill on the nine leases that are known to be common good will not really be of great concern.
Claudia Beamish made a number of references to common good, as did many other members. It is worth saying that the Local Government (Scotland) Act 1973 provides that common good funds do not form part of general funds. That is a more recent provision. It is therefore naturally assumed that, if common good assets are sold, the proceeds cannot be transferred simply on a whim to the general fund. Without giving a definitive legal opinion—I would not want to appear to do that—I think that what we are discussing would remain in the public area.
Rob Gibson talked about registration, as did many other members. One provision in the bill covers one of the tricky issues, which is leases that may or may not be registered. We will look further at section 65 in relation to that.
Variable rent has been mentioned. There is uncertainty because the existence of some leases is uncertain or unknown and owners might be dead. We have to deal with much bigger issues in Scotland’s land tenure system.
We heard further comments about Blairgowrie leases as we went through the debate. They are essentially 99-year leases that can be perpetually renewed, but they are not necessarily written down—that is where much of the mischief has come from.
Marco Biagi made a reasonable point about the context in which the Waverley market lease was written—it was almost a gun-to-the-head job on the part of Edinburgh. On that basis, it differs from the overwhelming majority of leases that the bill will affect. I will certainly take forward with officials the complex legal issues that the existing legislation raises. I am certainly motivated to deliver the kind of outcome on which views are broadly shared across the Parliament.
Nigel Don raised the issue of ECHR. I assure him that we have looked at the issue very carefully.
I repeat that we will not take a view on whether or not Waverley market is common good. The lease was entered into in 1992. It was originally for 125 years. Through a complex process of sub-leasing and transfers of interest, the money associated with the asset that went to the City of Edinburgh Council was £6.25 million and other people received £23 million. The lease is a peppercorn rent. I do not believe that the penny is collected, for obvious reasons, as it would be rather difficult to justify the economics of doing so.
As members have said, sections 50 to 55 of the bill provide for reversionary payments. Ultimately, that can be a matter of agreement between the tenant and the landlord or it can be determined by a tribunal. In the case of Waverley market, the lease expires in 2188. On that basis, it would be open to the council to consider claiming an additional payment.
It is certainly likely that any assessment by a tribunal of the residual value that might be due on the return of the asset to the council in 2188 would take account of the grassum that was paid. My own back-of-an-envelope calculations suggest that a 7.5 per cent discount rate on £6.25 million takes us to £25 million today, which is probably there or thereabouts. It may well be that there is not much residual value.
I acknowledge the points made by the City of Edinburgh Council, Andy Wightman and Margo Biagi about Waverley market. The council briefly mentioned the City of Edinburgh District Council Order Confirmation Act 1991 when it gave evidence to the committee, but that act focuses on issues such as the height of Waverley market, which can be controlled by the planning system. We must look at the interaction between the bill that is before us, which I hope will become an act, and other acts. We will take that extremely seriously.
The whole debate around common good is one that is worthy of revisiting in another context at another time. We cannot legislate away some of the practical problems that may exist, but the debate has certainly thrown some of the issues into public view.
I have been grateful for the help that we have had from local authorities in providing information on common good land that might be affected by changes to ultra-long leases. That has been very helpful. We expected the number of such leases to be low, and it is, as we believe that the figure is nine.
When the Justice Committee considered the previous bill, James Kelly asked Andy Wightman,
“Do you therefore accept the view that the number of ultra-long leases of common good property is limited?”—[Official Report, Justice Committee, 18 January 2011; c 4036.]
He responded, “Yes." There is a shared recognition that we expected the figure to be low and it is.
To date, we have not received from the City of Edinburgh Council a terribly convincing argument that helps us to see how we can deal with Waverley market differently. However, the work that we are now doing picks up some important issues.
Paragraph 135 of the committee’s report
“welcomes the Scottish Government’s intention to write to local authorities recommending that the proceeds of any compensation should be directed to its common good fund.”
Albeit that it will not be very much money, I will write to the authorities again if Parliament passes the bill.
On the land register, we will certainly see how best to achieve what needs to be done. We believe the current proposals to be proportionate and we will work with the Registers of Scotland. Ultra-long leases are concentrated in particular areas of the country, so we will target those areas.
I am delighted to have the privilege of bringing forward this law reform measure. The principles of the bill have been widely accepted and I urge members to agree to the motion at decision time.
17:00
S4M-02682 Long Leases (Scotland) Bill: Stage 1 [Opening Speech]
The Deputy Presiding Officer (John Scott): The next item of business is a debate on motion S4M-02682, in the name of Stewart Stevenson, on the Long Leases (Scotland) Bill. As we have quite a bit of time in hand for the debate, interventions will be welcomed.
15:27
The Minister for Environment and Climate Change (Stewart Stevenson): I look forward with eager anticipation to the thoughtful and helpful interventions that members from around the chamber will make.
The bill that I bring to Parliament today will convert ultra-long leases—that is, leases of more than 175 years that have more than 100 years left to run—to ownership. It will implement the final report in a series of reports by the Scottish Law Commission on modernising property law in Scotland. Previous work included the abolition of feudal tenure.
In its report on the conversion of long leases, the commission outlines why the legislation is necessary. In paragraph 1.1, it says that the report
“seeks to apply to certain types of long lease the principle of conversion already applied to feus by the Abolition of Feudal Tenure etc. (Scotland) Act 2000.”
In paragraph 2.4, when discussing the conversion of ultra-long leases, it says that
“A pseudo-feu should be treated in the same way as the real thing”,
and, in paragraph 2.5, it says that
“In fact the difficulties with leases extend beyond those with feus. Because ultra-long leases are relatively rare, and concentrated within small geographical areas, they are unfamiliar to many legal practitioners. The result is often an increase in transaction costs when the property comes to be sold.”
In its first session, Parliament passed the Abolition of Feudal Tenure etc (Scotland) Act 2000. That landmark legislation affected property throughout Scotland. By comparison, we estimate that the bill will cover about 9,000 ultra-long leases. However, the Scottish Law Commission has said that the difficulties with ultra-long leases are even more significant than those with feus. Parliament has the opportunity to deal with leases that can, in individual cases, give rise to more problems than feus would have done.
I have mentioned a number of the key points in the bill. There are also provisions on compensatory and additional payments to landlords for the loss of rights. It will be possible for some leasehold conditions to become real burdens in the title deeds. Landlords will be able to take steps to preserve sporting rights in relation to game and fishing, and tenants will be able to opt out of converting to ownership, if that is their wish. The bill also deals with long-standing issues around what are known as Blairgowrie leases, which are a perfect example of the particular and localised complexities that arise in this area of our land ownership law.
Annabelle Ewing (Mid Scotland and Fife) (SNP): Will the minister clarify what a Blairgowrie lease is, for the benefit of those of us who do not know what such leases involve?
Stewart Stevenson: The Blairgowrie lease is a local form that has a high degree of informality but is nonetheless capable of being implemented in law. Some people have said that such leases have been used for many years as a mechanism for people in Blairgowrie to play mischief with people from elsewhere who make purchases. There is broad consensus that action is needed, and the constituency member, who spoke to me about the matter recently, is anxious for it to be resolved by the passage of the bill.
I turn to the history of the proposed legislation. This is the second time that such a bill has been considered by Parliament. The Justice Committee in the previous session of Parliament published a stage 1 report on the previous bill, but that bill fell when Parliament was dissolved for the Scottish elections in May last year. We have made amendments to reflect that committee’s report. In particular, we added an exemption for harbours, clarified the exemption for pipes and cables—the issue of wayleave—and exempted leases in which the annual rent is in excess of £100. We have also dealt with the issue of variable rental so that we will not catch leases whose value is, in effect, more than £100 a year but in which the rent is paid in a pattern that does not necessarily make that clear.
I am grateful to the Rural Affairs, Climate Change and Environment Committee, as the lead committee, and to the Subordinate Legislation Committee and the Finance Committee, for the scrutiny that they carried out. Paragraph 54 of the lead committee’s report, on leases in which the landlord retains a significant interest, notes that evidence was taken in relation to variable rental. In the light of that evidence, the Government intends to lodge an amendment at stage 2 to deal with certain cases in which the rent has been varied.
Paragraph 84 of the report notes that witnesses made points about updating the land register.
Alex Fergusson (Galloway and West Dumfries) (Con): The minister mentioned that a bill was introduced in the previous session of Parliament. The question of registration was addressed in that bill. Why has there been a change of heart in the current bill?
Stewart Stevenson: I have a little more to say about that; I will, perhaps, expand on it in the light of Alex Fergusson’s question.
As the report notes, Registers of Scotland has decided not to carry out a bespoke exercise to update the land register as a result of the bill as it now stands, because updating the land register is not required for the bill to work. Section 4 provides that, on the appointed day, a qualifying lease will convert to ownership. That will happen independently of any action that is taken by Registers of Scotland.
It was mentioned in evidence to the lead committee that there should be a mechanism whereby the register is corrected on application, for a fee. In fact, it will be possible for those who have an interest in a lease that converts to ownership under the bill to make an application for the register to be updated, and that application can be made at any time. It is worth saying that Registers of Scotland, too, will undertake work on a related piece of legislation that touches on this issue and to which I will return in a minute or two. It is therefore easier, more practical and of lower cost to deal with the issue in this way.
A number of events may lead to information in the land register being updated. In particular, information will be updated in the land register when a property transaction takes place. That would include a sale, but it could also include the granting or discharging of a standard security over the property. If the property is recorded in the register of sasines, the former tenant could apply for voluntary first registration in the land register and pay a registration fee at the outset.
The Government and Registers of Scotland recognise the value to Scotland and the Scottish economy of keeping the land register up to date. That brings me to the Land Registration etc (Scotland) Bill, which will implement another Scottish Law Commission report and which is designed to improve the system of land registration in Scotland. If Parliament agrees to the general principles of the Long Leases (Scotland) Bill, my officials will work closely with Registers of Scotland on implementing it and will take every opportunity to ensure that the land register is as up to date as possible. The two bills will, to an extent, work in tandem. In dealing with the issue in that way, we will avoid having to make a particular provision in the Long Leases (Scotland) Bill and we will reduce effort on the land register without creating any concomitant difficulties. If Mr Fergusson has further questions, I will be happy to address them later.
Paragraph 85 of the committee report notes that amendments may be needed to ensure that the Land Registration etc (Scotland) Bill and the Long Leases (Scotland) Bill work together. We intend to lodge amendments, which may be made directly to the Land Registration etc (Scotland) Bill where that is the appropriate drafting solution. We have further work to do to ensure that we get that right.
The committee report makes a number of comments on common good land and buildings, following evidence that the committee received. I am told that the issue of common good stems from well back, in an act of James VI, so we are going back a considerable time. Many members will receive representations generally about common good land. There are such issues in my constituency; I discussed them at the weekend.
We will continue to work closely with local authorities on information that they have on ultra-long leases and common good. However, ultimately, common good land and funds are the responsibility of local authorities, which must manage them in accordance with their statutory and other responsibilities. Common good asset registers are a matter for individual authorities. Audit Scotland monitors and will continue to monitor progress on the completion of registers, as part of its audit process.
On a possible exemption from the bill for common good, we have not received clear evidence that converting leases of common good land would have an adverse effect on that land. In addition, an exemption for common good land might increase discussions about whether land is held in the common good or not, which could lead to increased litigation and costs for local authorities. That simply would not be in the taxpayers’ interest. In any event, there are nine parcels of land involved and in almost every case it is about a transfer from one public form of ownership to another, with only a few exceptions. Therefore, to try to legislate on common good in this context would be a formidable challenge.
In the debate on common good, the committee received considerable evidence about Waverley market in Edinburgh. The Government is not reaching any view as to whether the Waverley market is held in the common good or otherwise. However, the committee noted that the case for exempting the Waverley market site from the bill has still to be made. I advise Parliament, however, that since I gave oral evidence to the committee on 7 March we have had an initial look at other legislation that may touch on that or other leases. Both Waverley market and some common good land in Stonehaven are governed by private parliamentary acts. In view of possible issues arising from provisions in those acts from converting leases to ownership, I have asked my officials to undertake further work on the matter, particularly on whether it would be appropriate to amend the legislation that covers the two areas that the leases apply to, or to take other appropriate action. We continue to engage on the issue, because it is of substantial concern to a wide range of people.
The bill is quite lengthy and rather technical, but its aim is straightforward—it will simplify Scots property law by converting ultra-long leases, which are essentially akin to ownership, to actual ownership. The consultations by the Scottish Law Commission and the Government showed that there is widespread support for the bill’s general principles. The committee also recommended that the Scottish Parliament support the bill’s general principles at stage 1. I therefore invite Parliament to support the motion at decision time. I take pleasure in moving the motion that stands in my name.
I move,
That the Parliament agrees to the general principles of the Long Leases (Scotland) Bill.
15:40
15:27
The Minister for Environment and Climate Change (Stewart Stevenson): I look forward with eager anticipation to the thoughtful and helpful interventions that members from around the chamber will make.
The bill that I bring to Parliament today will convert ultra-long leases—that is, leases of more than 175 years that have more than 100 years left to run—to ownership. It will implement the final report in a series of reports by the Scottish Law Commission on modernising property law in Scotland. Previous work included the abolition of feudal tenure.
In its report on the conversion of long leases, the commission outlines why the legislation is necessary. In paragraph 1.1, it says that the report
“seeks to apply to certain types of long lease the principle of conversion already applied to feus by the Abolition of Feudal Tenure etc. (Scotland) Act 2000.”
In paragraph 2.4, when discussing the conversion of ultra-long leases, it says that
“A pseudo-feu should be treated in the same way as the real thing”,
and, in paragraph 2.5, it says that
“In fact the difficulties with leases extend beyond those with feus. Because ultra-long leases are relatively rare, and concentrated within small geographical areas, they are unfamiliar to many legal practitioners. The result is often an increase in transaction costs when the property comes to be sold.”
In its first session, Parliament passed the Abolition of Feudal Tenure etc (Scotland) Act 2000. That landmark legislation affected property throughout Scotland. By comparison, we estimate that the bill will cover about 9,000 ultra-long leases. However, the Scottish Law Commission has said that the difficulties with ultra-long leases are even more significant than those with feus. Parliament has the opportunity to deal with leases that can, in individual cases, give rise to more problems than feus would have done.
I have mentioned a number of the key points in the bill. There are also provisions on compensatory and additional payments to landlords for the loss of rights. It will be possible for some leasehold conditions to become real burdens in the title deeds. Landlords will be able to take steps to preserve sporting rights in relation to game and fishing, and tenants will be able to opt out of converting to ownership, if that is their wish. The bill also deals with long-standing issues around what are known as Blairgowrie leases, which are a perfect example of the particular and localised complexities that arise in this area of our land ownership law.
Annabelle Ewing (Mid Scotland and Fife) (SNP): Will the minister clarify what a Blairgowrie lease is, for the benefit of those of us who do not know what such leases involve?
Stewart Stevenson: The Blairgowrie lease is a local form that has a high degree of informality but is nonetheless capable of being implemented in law. Some people have said that such leases have been used for many years as a mechanism for people in Blairgowrie to play mischief with people from elsewhere who make purchases. There is broad consensus that action is needed, and the constituency member, who spoke to me about the matter recently, is anxious for it to be resolved by the passage of the bill.
I turn to the history of the proposed legislation. This is the second time that such a bill has been considered by Parliament. The Justice Committee in the previous session of Parliament published a stage 1 report on the previous bill, but that bill fell when Parliament was dissolved for the Scottish elections in May last year. We have made amendments to reflect that committee’s report. In particular, we added an exemption for harbours, clarified the exemption for pipes and cables—the issue of wayleave—and exempted leases in which the annual rent is in excess of £100. We have also dealt with the issue of variable rental so that we will not catch leases whose value is, in effect, more than £100 a year but in which the rent is paid in a pattern that does not necessarily make that clear.
I am grateful to the Rural Affairs, Climate Change and Environment Committee, as the lead committee, and to the Subordinate Legislation Committee and the Finance Committee, for the scrutiny that they carried out. Paragraph 54 of the lead committee’s report, on leases in which the landlord retains a significant interest, notes that evidence was taken in relation to variable rental. In the light of that evidence, the Government intends to lodge an amendment at stage 2 to deal with certain cases in which the rent has been varied.
Paragraph 84 of the report notes that witnesses made points about updating the land register.
Alex Fergusson (Galloway and West Dumfries) (Con): The minister mentioned that a bill was introduced in the previous session of Parliament. The question of registration was addressed in that bill. Why has there been a change of heart in the current bill?
Stewart Stevenson: I have a little more to say about that; I will, perhaps, expand on it in the light of Alex Fergusson’s question.
As the report notes, Registers of Scotland has decided not to carry out a bespoke exercise to update the land register as a result of the bill as it now stands, because updating the land register is not required for the bill to work. Section 4 provides that, on the appointed day, a qualifying lease will convert to ownership. That will happen independently of any action that is taken by Registers of Scotland.
It was mentioned in evidence to the lead committee that there should be a mechanism whereby the register is corrected on application, for a fee. In fact, it will be possible for those who have an interest in a lease that converts to ownership under the bill to make an application for the register to be updated, and that application can be made at any time. It is worth saying that Registers of Scotland, too, will undertake work on a related piece of legislation that touches on this issue and to which I will return in a minute or two. It is therefore easier, more practical and of lower cost to deal with the issue in this way.
A number of events may lead to information in the land register being updated. In particular, information will be updated in the land register when a property transaction takes place. That would include a sale, but it could also include the granting or discharging of a standard security over the property. If the property is recorded in the register of sasines, the former tenant could apply for voluntary first registration in the land register and pay a registration fee at the outset.
The Government and Registers of Scotland recognise the value to Scotland and the Scottish economy of keeping the land register up to date. That brings me to the Land Registration etc (Scotland) Bill, which will implement another Scottish Law Commission report and which is designed to improve the system of land registration in Scotland. If Parliament agrees to the general principles of the Long Leases (Scotland) Bill, my officials will work closely with Registers of Scotland on implementing it and will take every opportunity to ensure that the land register is as up to date as possible. The two bills will, to an extent, work in tandem. In dealing with the issue in that way, we will avoid having to make a particular provision in the Long Leases (Scotland) Bill and we will reduce effort on the land register without creating any concomitant difficulties. If Mr Fergusson has further questions, I will be happy to address them later.
Paragraph 85 of the committee report notes that amendments may be needed to ensure that the Land Registration etc (Scotland) Bill and the Long Leases (Scotland) Bill work together. We intend to lodge amendments, which may be made directly to the Land Registration etc (Scotland) Bill where that is the appropriate drafting solution. We have further work to do to ensure that we get that right.
The committee report makes a number of comments on common good land and buildings, following evidence that the committee received. I am told that the issue of common good stems from well back, in an act of James VI, so we are going back a considerable time. Many members will receive representations generally about common good land. There are such issues in my constituency; I discussed them at the weekend.
We will continue to work closely with local authorities on information that they have on ultra-long leases and common good. However, ultimately, common good land and funds are the responsibility of local authorities, which must manage them in accordance with their statutory and other responsibilities. Common good asset registers are a matter for individual authorities. Audit Scotland monitors and will continue to monitor progress on the completion of registers, as part of its audit process.
On a possible exemption from the bill for common good, we have not received clear evidence that converting leases of common good land would have an adverse effect on that land. In addition, an exemption for common good land might increase discussions about whether land is held in the common good or not, which could lead to increased litigation and costs for local authorities. That simply would not be in the taxpayers’ interest. In any event, there are nine parcels of land involved and in almost every case it is about a transfer from one public form of ownership to another, with only a few exceptions. Therefore, to try to legislate on common good in this context would be a formidable challenge.
In the debate on common good, the committee received considerable evidence about Waverley market in Edinburgh. The Government is not reaching any view as to whether the Waverley market is held in the common good or otherwise. However, the committee noted that the case for exempting the Waverley market site from the bill has still to be made. I advise Parliament, however, that since I gave oral evidence to the committee on 7 March we have had an initial look at other legislation that may touch on that or other leases. Both Waverley market and some common good land in Stonehaven are governed by private parliamentary acts. In view of possible issues arising from provisions in those acts from converting leases to ownership, I have asked my officials to undertake further work on the matter, particularly on whether it would be appropriate to amend the legislation that covers the two areas that the leases apply to, or to take other appropriate action. We continue to engage on the issue, because it is of substantial concern to a wide range of people.
The bill is quite lengthy and rather technical, but its aim is straightforward—it will simplify Scots property law by converting ultra-long leases, which are essentially akin to ownership, to actual ownership. The consultations by the Scottish Law Commission and the Government showed that there is widespread support for the bill’s general principles. The committee also recommended that the Scottish Parliament support the bill’s general principles at stage 1. I therefore invite Parliament to support the motion at decision time. I take pleasure in moving the motion that stands in my name.
I move,
That the Parliament agrees to the general principles of the Long Leases (Scotland) Bill.
15:40
18 April 2012
S4M-02419 Crown Estate (Devolution)
The Deputy Presiding Officer (Elaine Smith): The final item of business is a members’ business debate on motion S4M-02419, in the name of David Stewart, on devolution of the Crown estate. The debate will be concluded without any question being put.
Motion debated,
That the Parliament welcomes the publication of the Scottish Affairs Committee report, The Crown Estate in Scotland, and endorses the committee’s conclusion to recommend ending the Crown Estate Commissioner’s responsibilities for the administration and revenues of the ancient crown property, rights and interests in Scotland; supports the Scottish Affairs Committee view that marine and coastal assets in Scotland should be removed from the Crown Estate Commissioner’s responsibility and devolved down to the level of local communities, and notes the extent of marine and coastal assets throughout the Highlands and Islands and the potential to maximise the benefits to local communities through devolution.
18:06
... ... ...
18:48
The Minister for Environment and Climate Change (Stewart Stevenson): I value all the contributions that we have heard tonight. Seldom on an issue that is widely held to be controversial have I heard such broad unanimity that something needs to be done and that responsibility needs to be delivered to this place, and from this place to communities elsewhere. That is the direction in which I wish us to travel.
The Crown Estate in Scotland is largely, if not exclusively, concerned with our coastline, which is different from the situation in the rest of the UK, where it is very much concerned with urban investments. Scotland’s seas are an important part of our natural and economic assets and are important to our economy, particularly with regard to the world of renewable energy. We need control over our sea bed to enable us to manage it properly and exploit our country’s important marine assets. The message from the debate is that the status quo is not defensible. I, too, commend the House of Commons report for its clarity of purpose and articulation of the issue.
There have been many contributions, and I will try to cover as many points as time will permit. David Stewart talked about the harbours of Highland, Shetland and Comhairle nan Eilean Siar; Tavish Scott also referred to harbours. The board at Peterhead harbour has made the same point: it builds a new breakwater and finds that its contribution rises significantly as a result of its investment. That seems as unreasonable to the board as it does to many of us.
Mary Scanlon referred to udal law; I am not sure that that touches on the issue under discussion.
I have talked to Peter Peacock, late of this place, on issues that Community Land Scotland pursues. We listen carefully to what is said there. Of course, Community Land Scotland is all about returning power to local communities and I very much look forward to working with Peter Peacock, and Community Land Scotland more generally, to continue the reformation of our land laws. We need to get assets devolved to local communities—the phrase that David Stewart used.
Jim Eadie talked about a forensic analysis of the Crown Estate and the key conclusion that it is not fit for purpose. He highlighted the lack of hard information. That is a fair point. I return to some of the points that Tavish Scott—not unreasonably—targeted at me.
One of the things that we do not know is the individual rentals that comparable fish farms and harbours pay. We know, from various sources, that they vary. The Crown Estate is a commercial operator and will get from a developer what it can in the way of resource. We need to understand exactly what the breakdown is.
I will make a wee comment about one small area in the report from the Scottish Affairs Committee. The report largely talks about devolving to the Scottish Government. However, devolving to the Scottish Government probably means administrative devolution—in other words giving ministers powers to do things—whereas I think the consensus of the debate and the intention of the Government would be that we need legislative devolution to the Scottish Parliament so that we can legislate for the appropriate frameworks for devolution on to local communities.
I will not pursue the points on Her Majesty’s interests—I would just get bogged down if I were to do that. However, I was not previously aware of the relevant act and will read it with interest.
Chic Brodie talked about land belonging to the people and referred to Lloyd George. As members would expect, I will make a personal claim. My father was Lloyd George’s last election agent, when he stood for the rectorship of the University of Edinburgh in 1942, so my father knew Lloyd George.
Tavish Scott said that there is an opportunity to make the case for further devolution. I think that the case has been made, and we are debating it tonight. What I hope is that the Secretary of State for Scotland and the UK Government will look at the content of the debate and the contributions from all the political flavours in the Parliament and tak tent of the serious intent that is clearly shared throughout the chamber.
Tavish Scott: I absolutely agree with the point that the minister just made but, given that he cannot—I understand this—set out the detail of how he would achieve devolution to a local level, will he set out even a timescale? Has the Government given any thought to how long that might take so that we can give some comfort to the coastal communities?
Stewart Stevenson: In fairness, what could be done early is making sure that communities have access to the money. We can do that relatively straightforwardly. We need to look further at getting a legislative or administrative framework that gives people access to the levers of power.
Tavish Scott asked about the rates for salmon farms. We should not automatically assume that they would be much lower, because many of the interests in exploiting our offshore resources, such as salmon farms, are foreign owned, and it is quite reasonable that we should extract a price from those foreign interests while ensuring that the revenue is made accessible to local communities.
I am running out of time. I will have to read the Official Report very carefully because Jamie McGrigor’s delineation of how capital works was not entirely clear to me. I will read it later.
The message that should go out to the secretary of state from tonight’s debate is that he should act on the evidence that has been produced by the Westminster committee’s report. We have written to the secretary of state seeking a meeting on the back of that report and, on the back of that, we will continue to press for devolution of the Crown estate.
This has been a useful debate. I have not been able to respond to everything that has been said, so if anyone feels that they have a pressing need to have more information, I will be happy to supply it if they contact me.
Meeting closed at 18:56.
Motion debated,
That the Parliament welcomes the publication of the Scottish Affairs Committee report, The Crown Estate in Scotland, and endorses the committee’s conclusion to recommend ending the Crown Estate Commissioner’s responsibilities for the administration and revenues of the ancient crown property, rights and interests in Scotland; supports the Scottish Affairs Committee view that marine and coastal assets in Scotland should be removed from the Crown Estate Commissioner’s responsibility and devolved down to the level of local communities, and notes the extent of marine and coastal assets throughout the Highlands and Islands and the potential to maximise the benefits to local communities through devolution.
18:06
... ... ...
18:48
The Minister for Environment and Climate Change (Stewart Stevenson): I value all the contributions that we have heard tonight. Seldom on an issue that is widely held to be controversial have I heard such broad unanimity that something needs to be done and that responsibility needs to be delivered to this place, and from this place to communities elsewhere. That is the direction in which I wish us to travel.
The Crown Estate in Scotland is largely, if not exclusively, concerned with our coastline, which is different from the situation in the rest of the UK, where it is very much concerned with urban investments. Scotland’s seas are an important part of our natural and economic assets and are important to our economy, particularly with regard to the world of renewable energy. We need control over our sea bed to enable us to manage it properly and exploit our country’s important marine assets. The message from the debate is that the status quo is not defensible. I, too, commend the House of Commons report for its clarity of purpose and articulation of the issue.
There have been many contributions, and I will try to cover as many points as time will permit. David Stewart talked about the harbours of Highland, Shetland and Comhairle nan Eilean Siar; Tavish Scott also referred to harbours. The board at Peterhead harbour has made the same point: it builds a new breakwater and finds that its contribution rises significantly as a result of its investment. That seems as unreasonable to the board as it does to many of us.
Mary Scanlon referred to udal law; I am not sure that that touches on the issue under discussion.
I have talked to Peter Peacock, late of this place, on issues that Community Land Scotland pursues. We listen carefully to what is said there. Of course, Community Land Scotland is all about returning power to local communities and I very much look forward to working with Peter Peacock, and Community Land Scotland more generally, to continue the reformation of our land laws. We need to get assets devolved to local communities—the phrase that David Stewart used.
Jim Eadie talked about a forensic analysis of the Crown Estate and the key conclusion that it is not fit for purpose. He highlighted the lack of hard information. That is a fair point. I return to some of the points that Tavish Scott—not unreasonably—targeted at me.
One of the things that we do not know is the individual rentals that comparable fish farms and harbours pay. We know, from various sources, that they vary. The Crown Estate is a commercial operator and will get from a developer what it can in the way of resource. We need to understand exactly what the breakdown is.
I will make a wee comment about one small area in the report from the Scottish Affairs Committee. The report largely talks about devolving to the Scottish Government. However, devolving to the Scottish Government probably means administrative devolution—in other words giving ministers powers to do things—whereas I think the consensus of the debate and the intention of the Government would be that we need legislative devolution to the Scottish Parliament so that we can legislate for the appropriate frameworks for devolution on to local communities.
I will not pursue the points on Her Majesty’s interests—I would just get bogged down if I were to do that. However, I was not previously aware of the relevant act and will read it with interest.
Chic Brodie talked about land belonging to the people and referred to Lloyd George. As members would expect, I will make a personal claim. My father was Lloyd George’s last election agent, when he stood for the rectorship of the University of Edinburgh in 1942, so my father knew Lloyd George.
Tavish Scott said that there is an opportunity to make the case for further devolution. I think that the case has been made, and we are debating it tonight. What I hope is that the Secretary of State for Scotland and the UK Government will look at the content of the debate and the contributions from all the political flavours in the Parliament and tak tent of the serious intent that is clearly shared throughout the chamber.
Tavish Scott: I absolutely agree with the point that the minister just made but, given that he cannot—I understand this—set out the detail of how he would achieve devolution to a local level, will he set out even a timescale? Has the Government given any thought to how long that might take so that we can give some comfort to the coastal communities?
Stewart Stevenson: In fairness, what could be done early is making sure that communities have access to the money. We can do that relatively straightforwardly. We need to look further at getting a legislative or administrative framework that gives people access to the levers of power.
Tavish Scott asked about the rates for salmon farms. We should not automatically assume that they would be much lower, because many of the interests in exploiting our offshore resources, such as salmon farms, are foreign owned, and it is quite reasonable that we should extract a price from those foreign interests while ensuring that the revenue is made accessible to local communities.
I am running out of time. I will have to read the Official Report very carefully because Jamie McGrigor’s delineation of how capital works was not entirely clear to me. I will read it later.
The message that should go out to the secretary of state from tonight’s debate is that he should act on the evidence that has been produced by the Westminster committee’s report. We have written to the secretary of state seeking a meeting on the back of that report and, on the back of that, we will continue to press for devolution of the Crown estate.
This has been a useful debate. I have not been able to respond to everything that has been said, so if anyone feels that they have a pressing need to have more information, I will be happy to supply it if they contact me.
Meeting closed at 18:56.
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