Abandoning Principles: The Right (and Wrong) of Abandonment of Land in Scots Law

On Friday 13 October 2017, I will be presenting a paper at the University of Aberdeen. Details of that seminar (and links to other events run by the School of Law) can be found here.

The extended abstract of this paper follows. If you have any questions or comments on it, please let me know and I will seek to address them as best I can (both in my presentation itself, and with a suitable reply in the comments below).

Abandoning Principles

Land is normally characterised and professionally valued as a desirable commodity. This means that many people will aspire to ownership of land or, for those who already own land, they will generally seek to retain ownership of it. If and when landowners wish to rearrange their affairs and no longer own a particular piece of land, the normal course of action would be to transfer that land to one of those aspiring owners (for a suitable price). In a buoyant market, this will often be an easy process, but this will not always be the case. For example, environmental regulation may operate to render land of negative value (that is to say, the capital value of the land is less than the costs of remediation, similar to a standard case of negative equity in homeownership, or the ongoing costs of preventing further damage make the land unviable as a going concern). Alternatively, there might be a land designation that renders certain land uses impossible. There might also be fiscal reasons continued ownership of land is unattractive, owing to (for example) rates associated with domestic or non-domestic land.

In such situations, a landowner who no longer wishes to own that land will find it hard to find a willing transferee, even when asking for a low or indeed no price. The very same reasons that have encouraged a landowner to extricate herself from the quicksand of ownership can discourage others from seeking ownership. To what extent, then, can a landowner escape such a quagmire by unilateral action?

The extent to which it is, or should be, possible for a landowner to abandon land in Scotland will be analysed in this seminar. This is something that has not been analysed closely in Scots law scholarship, although one recent case, which involved land that had been mined for coal, did consider the issue and ultimately ruled that a landowner could not simply walk away from land (and in turn costs associated with preventing pollution). With the wider ongoing land reform agenda in Scotland, close analysis of that case, together with consideration of three relatively recent and rather different statutes, will shine a light on whether the Scottish approach is the right one. Property law theory will also be considered to explain why some people may wish to abandon land, and in what circumstances a permissive regime for this is desirable.

The first piece of Scottish legislation is the Abolition of Feudal Tenure etc. (Scotland) Act 2000. This cut the feudal chain that previously existed in Scottish land law to leave only one level of landownership. This raises novel questions about abandonment by the outright owner who, since 28 November 2004, has had no feudal superior to answer to. The second is the Community Empowerment (Scotland) Act 2015. This introduced a right for communities to acquire wholly or mainly neglected or abandoned land. What “abandoned” means in that context could feasibly be aimed at the likes of derelict buildings, not unlike the way “abandoned” is used in common parlance. But in a property law sense, the meaning is different. For that statutory wording to be meaningful, the interplay between these different senses must be considered. Finally, the Land Registration etc. (Scotland) Act 2012 and the associated drive to complete the coverage of the Land Register to the whole of Scotland has the potential to bring this issue to a head. It might do so where land ownership is somehow unclear and any “owner” is not minded to assist the Keeper when it comes to providing information about the land. Will this provide an opportunity to abandon?

In addition to those questions, this paper will also consider whether the Court of Session’s suggested approach to abandoned land is fit for purpose. Where a potential new owner is available but for whatever reason does not want to or cannot simply transact with the current owner, is the existing system of positive prescription suitable? Under the Prescription and Limitation (Scotland) Act 1973, ownership can be acquired after the registration of a suitable deed and with ten years of associated possession. Might a shorter period of time be suitable here?

All of this will be analysed at a show-stopper* of a presentation on 13 October at 16:00 in Old Aberdeen. Bring your own popcorn.

*Show-stopper status not guaranteed. I do promise to stop the show at some point though.

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Some Scottish perspectives on land reform in South Africa

Aberdeenunilaw

This is a blog post by Malcolm Combe, reflecting on a recent research trip to South Africa. The role of the Schools of Law at the University of Aberdeen and the University of Stellenbosch together with the financial support of the Carnegie Trust for the Universities of Scotland played in making that trip possible is acknowledged and further explained below.

In blogging parlance, please note this is a “long read”.

Introduction – Scottish and Personal Perspectives on Land Reform

Towards the end of its first parliamentary term, the Scottish Parliament passed the Land Reform (Scotland) Act 2003. This statute sought to broaden access to land in Scotland in two ways: in the sense of liberalising the law relating to outdoor access; and in the sense of giving some communities the right to acquire land in certain circumstances.

This legislation has been important for many people in Scotland. I…

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Access to land – some lessons from around Scotland

Aberdeenunilaw

This post is by Malcolm Combe

The issue of people taking access to land for passage or other activities can be both a practical and an emotive issue.

From the perspective of landowners, land managers or any other occupiers, there might be a fear of irresponsible land access causing damage to their property or wildlife, not to mention the simple fact that access takers could get in the way of a chosen land use. There might also be issues that are more difficult to quantify, such as concerns relating to privacy or safety.

From another (non-owner) perspective, members of the public might grudge being denied access to large swathes of the outdoors for recreation or to learn about wildlife, or they might wish to get from A to B in a simple and non-intrusive way. Depending on the circumstances, they might baulk at being lumped together with anyone not taking…

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Plotting my next move (or “Yes, Peter, I would like a free square foot”)

Once upon a time, on a lovely Scottish summer’s day, I drove in a generally northern direction along the A828 road. Just south of the road signs that welcome you to Duror, I spotted a sign by the side of the road. For a variety of reasons, I decided it was worth breaking my journey to have a look at that which was signposted in a little more detail than a drive-by would allow.

A picture is worth a thousand words, so I will save time for both writer and reader by posting a photo.

“Highland Titles Nature Reserve”. (Yes, it was raining.)

Here is another quick selfie from the road-side.

“Glencoe Wood”.

My apologies for the general standard of my selfie game.

In surprisingly contemporaneous internet news, I was mentioned in a recent blog post by Peter Bevis (the gentleman behind Highland Titles), published on 5 July. More on that later, but it partly explains why this otherwise unexciting event has moved me to blogging.

Back to my visit though. I had a bit of time to kill (my only appointment for the rest of the day being with the evening ferry from Ullapool to Stornoway, if you’re interested in my holiday plans… what do you mean you aren’t?), so I wandered up the path to have a look at the Highland Titles Nature Reserve. You can find details and photos (taken on a nicer day than when I visited) on Highland Titles’ website here. (Incidentally, the URL there concludes with “visit-glencoe”, but I can confirm that the area is to the south of Duror, and indeed Glencoe.)

I took a couple of quick photos myself.

A notice board/shelter on site, with information, a white board, and a visitor book (bottom right). (Identifying marks on the board redacted by me.)

Responsible access is encouraged on the site and info is provided about wildlife. FWIW, I approve.

This all seems jolly nice. It is probably time to enlighten any new readers of this blog to my slightly strange and largely accidental relationship with Highland Titles, a company registered in the Channel Islands that sells “souvenir plots” of land (i.e. small portions of land, perhaps a square foot). That there is a relationship of sorts has been hinted at by linking to Peter Bevis’ blog above. It properly began over two years ago (as detailed on Storify and a related blog post) then spun out into an article (with Dr Jill Robbie of the University of Glasgow) in the Edinburgh Law Review (open access version and background available via this blog post). I then wrote a little bit more one year on, and received pretty much no reaction to that. Then Highland Titles served a DMCA notice (basically an intellectual property enforcement device) on the Storify website to take down my perfectly fair and valid collection of tweets from back in February 2015. I fought back, as detailed on this blog post. I am confident I could have counter-sued on the basis that the original notice was spurious, but I could not be bothered with the hassle of potential litigation overseas.

I am not going to comment at length on the various pros and cons of the practice of selling souvenir plots here (you can read some perspectives here), save to recognise that a quick glance at the white board and visitor book at the Highland Titles Nature Reserve let me see some of the places people visited from and it would be churlish of me not to recognise that these people could contribute to the local economy; albeit (as has been noted before) the whole Highland Titles model is predicated on focussing on a more remote community than an alternative (and less transient) local community of place. I also note in passing that Highland Titles sponsors a pipe band that is local to them, and as a veteran of local pipe bands I know how valuable such sponsorship can be.

As such, and despite my own backstory with Highland Titles, I acknowledge it is not all negative. Be that as it may, it is fair to say all of the kickback to the original Storify story (when my own reputation was called into question) and the subsequent incident with the DMCA notice have affected my views of Highland Titles somewhat. I refrained from commenting about this on the white board and visitor book on the site, although I did offer the following.

Which brings me back to the law. Peter Bevis makes reference to it again in his recent blog post.

There, he refers to the note by Jill and me. I invite anyone interested to read our article in full rather than the edited extracts. He also makes reference to a legal opinion from an advocate. (I note the identity of the “eminent Scots QC” is not given and that the extract is selective. The latter point makes it difficult to engage with fully. The former point is less important but I am personally and professionally interested in who gave the opinion.)

Finally, he concludes with an offer.

I gratefully accept this offer of “a free square foot”. I intend to use the related paperwork as a teaching aid. (For reference, I have already referred to the Storify story whilst teaching land law and the DMCA Notice incident when teaching aspects of intellectual property law.)

I am not sure if the offer is meant to be an offer to each of us individually or for us to share, but I would accept it either way (and, if it is the latter, let me know and I will arrange this with Jill).

You can send the paperwork for the plot to:

School of Law
University of Aberdeen
Taylor Building
Old Aberdeen
AB24 3UB

Then the next time I am in the area, perhaps I can visit the allocated “free square foot”. I probably will not embrace the laird life wholeheartedly though: even though Lord Macdonald Combe has a certain ring to it, I suspect past chatter makes my attendance at the Highland Titles annual Gathering unlikely.

I look forward to hearing from you, Peter.

Some thoughts on legal blogging, with reference to raptor persecution, surveillance and access to land

As mentioned on this blog before, I have a role in relation to the School of Law at the University of Aberdeen’s blog. This has been a useful forum for colleagues and for me, with a number of spin-offs in other online fora (for example, this post by Dr Heather Green became a Democratic Audit piece) or in the media (the most surreal example of that being when I appeared on BBC Radio Scotland speaking about Nazis and how two Aberdeen students sat law exams as Prisoners of War).

The content on the Abdn blog is driven in a variety of ways, but the two most common ways are: a) colleagues approaching me with something they wish to air; or b) me approaching colleagues after they have done something (a conference paper, a news appearance, a publication etc.) and asking for a related post for the blog.

A recent post by my colleague Professor Peter Duff was an example of the latter. BBC News quoted him in relation to the (most recent) decision of the Crown Office and Procurator Fiscal Service (COPFS) not to bring proceedings in a case of apparent raptor persecution, so I hassled him for a post.

To outline the situation, in Scotland nature conservation laws exist to criminalise conduct designed to affect the population of birds of prey. That being the case, these laws operate within the overall criminal law scheme and crimes must be proven beyond reasonable doubt using evidence that can be put before a court (and possibly a jury) for consideration. The COPFS has a role in deciding what cases to bring before a court.

Pete’s blog post attracted a response from the Raptor Persecution Scotland blog and the readers of it. Pete is a pretty robust chap and has written authoratitatively about some controversial areas of law: for example, relating to criminal evidence reform in general and sexual offences and the system known as the “rape shield” (which prevents certain questioning of a victim of alleged sexual assault) more specifically. As such he probably does not need me to defend him. I did feel a certain smidgen of responsibility though, as the person who encouraged the blog post. I also take some responsibility in advocating a blog post that was accessible to all readers, so whilst some who knew the issue well might have felt Pete was somehow glib in his treatment, I was thinking about someone coming to the issue cold. I still think Pete’s post operates as a useful primer to the issue, despite critique.

Another person who felt a certain responsibility was my colleague Dr Phil Glover. He had suggested another slant for Pete to mention, which Pete duly did in a throwaway conclusion to his blog post. That conclusion, about investigatory powers and the applicability of rules that govern certain public authorities (including Police Scotland) was criticised by some as being clearly wrong, as the Royal Society for the Protection of Birds (RSPB) is not a relevant public authority in terms of the applicable section of the Regulation of Investigatory Powers (Scotland) Act 2000. Phil sought absolution by writing a comprehensive post of his own. As that post notes, it might not be as simple as saying the RSPB has a freer hand when acting in situations that might then spin into criminal proceedings. For my part, it is fair to say I was minded for Phil’s blog post to be as technical as it needed to be, so as to stave off any criticism for not considering the matter deeply enough.

This Scots private lawyer cannot meaningfully add to those contributions, save for one observation about access to land which cropped up in the comments on Raptor Persecution Scotland and in related social media discussion. Another insight relates to blogging in general in law blogging in particular, which I will turn to first.

Perceptions of Bloggers

I was struck by the reaction from some quarters (but not, I stress, the Raptor Persecution Scotland blog itself) that Pete could have been holding a torch in relation to the wider issue of raptor persectution.

Anyone writing on the internet or indeed expressing an opinion anywhere knows to beware the ad hominen riposte: play the man, not the ball, and all that. Be that as it may, it is an attack new kids on any block seem to be susceptible to. Those already on the block might, with justifiable scepticism, wonder who any Johnny-come-lately telling them what to think is. That scepticism is fine, up to a point, but dismissing these people outright could be the wrong approach.

Like a terrible social scientist, I will back this up with a data set of one anecdote.

I found myself in a similar blogging quagmire with associated kickback from some quarters in relation to another very different Scottish matter, namely when I wrote about souvenir plots to land. Eventually, this settled down when it became clear I was mainly setting out the law and policy relating to souvenir plotting and did not actually have any particular vested interests. (Well, no vested interests beyond: 1) healthy scepticism; and 2) me kicking back in turn against those who besmirched my reputation in the initial kickback.) I do wonder if this is something law bloggers need to be mindful of though. Sure, we might know the law in the round, but we won’t necessarily know the law as it has actually applied to real people affected by that legal regime. Not that that changes anything, a valid point is a valid point irrespective of who makes it. It just means law bloggers might need to be more braced than others, if that makes sense.

Access to Land

One legal issue I can comment on relates to the analogy Pete drew between video surveillance on an estate and someone setting up a camera to record activity in a domestic garden.

Pete was correct to point out that workers carrying out their day job and landowners do have certain rights to privacy. Those privacy rights, however, are not in the same magnitude as someone might expect when at home or in her garden. (In fact, this point was stressed by George Monbiot recently when he was pushing for more access to the English countryside – privacy should not, he argued, extend to “hundreds of hectares”.)

One way Scots law caters for the expectation of and right to privacy is to exclude the operation of the right of responsible access (in terms of the Land Reform (Scotland) Act 2003) to domestic gardens, per section 6(1)(b)(iv) of that legislation. This provision has been the subject of much litigation and writing, but it basically means that you cannot rely on the right of responsible access to go rambling over or stop for a picnic on a domestic occupier’s lawn whilst in peering distance of her window.

Clearly, setting up a camera in such a setting would also be problematic, but the fact that this exclusion to the right of responsible access does not apply in other areas does not mean that the right of responsible access would allow recording elsewhere in all circumstances.

A first point relates to the legislation itself, and whether it allows recording. Photography and the like might be allowed as a recreational activity or for educational purposes (and perhaps even commercial purposes, this being something Douglas Cusine considers in a recent Scots Law Times (News) article), but that does not extend to a right to leave a camera on someone else’s land. The right of responsible access is for people, not for inanimate objects. *See also the point below about using access rights to investigate and detect crime.

Finally, and most importantly in the context of the present discussion, privacy concerns (and related human rights) do not stop when land is not excluded under the 2003 Act. Just because something is recorded on non-excluded land does not mean it will be admissible evidence in a criminal trial, for reasons people like Pete and Phil can explain better than me.

Conclusion

There is a wider debate as to whether the current Scots law system is correctly positioned to allow for enforcement of conservation laws, specifically in the context of birds of prey. I welcome that debate. Irrespective of what happens with that debate, I also welcome justified analysis of decisions that the COPFS takes within the existing system.

Unsurprisingly, I also welcome the contributions of Pete and Phil to the overall debate, and I hope others better versed in the issue than me (and indeed Pete and Phil) welcome their contributions too. Finally, I hope this post is welcome, in terms of its brief contribution on one legal point and also in terms of some wider thoughts about blogging. It certainly helped me sort out some of my own thoughts.

*UPDATE 22 JUNE AT 19:09

In the context of the Land Reform (Scotland) Act 2003, for completeness it is worth recalling what the COPFS said in its recent letter (PDF) to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament, namely the following:

The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. The purpose of investigating and detecting crime is not one of those purposes. It follows that someone who is on land for such a purpose is not there pursuant to the rights granted under the Act.

In any event, the Scottish Outdoor Access Code states that where people exercising access rights wish to undertake surveys of natural or cultural heritage which require the installation of any equipment or instruments they should “seek the permission of the relevant land managers”: para. 3.64.

Fine to park here? Private parking schemes in Scotland

A blog signpost, linking to a piece I have contributed to the Journal of the Law Society of Scotland. This piece considers the law surrounding parking your car on someone else’s land, and what that landowner (or an appointed agent) can do in response to (or in anticipation of) such parking.

I will let the piece speak for itself and not say much more about it here. What I will do is address a slightly different point, being a point that one correspondent with the Journal’s editor noted, as did a correspondent on Twitter when I shared the article

This is the point that someone trying to enforce a contract for car parking services will still have to identify the driver, because not being able to do that leaves no-one to pursue in court. In some cases this might not be an issue: it certainly was not a problem in relation to the defender in the Dundee Sheriff Court case that I cover in the article. It might well be more of an issue when there are not so many repeat occurences of uninvited parking. I acknowledge that this could present a hurdle in some circumstances, but that was not really what my note was about. My article covered (I hope) the contractual and land law aspects. If someone else wants to take up the enforcement side of matters, by all means do. Meanwhile, for anyone who would prefer a quick overview of the law and an idea of whether a notice might be successfully challenged, there are online resources available.

UPDATE 17 JULY 2017: Here is the letter in the July edition of the Journal.

A call to trespass, or harmonising access to land in England & Wales with Scotland

A few days ago, a lively debate cropped up about access to land in England and Wales, primarily as a result of this tweet and related tweets by the campaigning journalist and author George Monbiot.

Monbiot clarified his remarks later, in a way that suddenly thrust the right of responsible access that exists in Scotland (as a result of Part 1 of the Land Reform (Scotland) Act 2003) into the foreground. This then led to BBC Radio 4 getting in touch with me, thanks to a referral from fellow legal academic Antonia Layard. (With her knowledge of access law she absolutely could have done the gig herself, but I am grateful for the referral nonetheless.)

The team at Farming Today were the budding comparative lawyers. They asked for a bit of an explainer about the differences between the law in Scotland, England & Wales, Northern Ireland and indeed in other countries, so I tried my best to explain that. They also asked me to comment on how practical or likely a change to the law in England & Wales might be.

I have analysed the difference between Scotland and England & Wales in this blog post. That focussed on augmented reality gaming, but most of the principles apply to this topic. The majority of England & Wales is not covered by the rights of access conferred by the Countryside and Rights of Way Act 2000 (which applies to mapped open access land, including mountains, moor, heath and down, and registered commons, covering just over 850,000 acres) or the Marine and Coastal Access Act 2009. This means those seeking access to areas not covered by the legislation either need to stay on the path (assuming that is a public right of way) or rely on a landowner’s permission for access. Monbiot started a debate about whether this state of affairs is appropriate in the modern era.

You can listen to the short programme here (for the next four weeks). Monbiot is interviewed towards the end, and I am interviewed after him.

As always, you listen back to these things and ponder if you could have expressed yourself a bit better. I am pretty happy with what I said and the way it was edited (thanks to the BBC team for that).

The two things that maybe did not quite come across as I intended (owing to radio excitement and/or editing) were as follows:

1. When I spoke about the fact England & Wales has about 850,000 acres accessible via the CROW Act, I then mentioned that Scotland has approximately 20,000,000 acres. What I was trying to lead on to say was the Scottish regime chips away at that total (i.e. it excludes where access can be taken), whereas in England & Wales the starting position is that you can only statutory access rights when statute provides for it. In other words, in Scotland you can access, unless [X], whereas in England & Wales you cannot access, unless [Y].
2. When I was asked how big a change it would be for England & Wales, I noted that in legal terms it would be quite a big leap, but I also stressed it was not for me as a Scotsman to comment on whether or not it would be a big cultural shift for those south of the Anglo-Scottish border. Alas, that caveat got lost on the cutting room floor.

Finally, I explained a little bit about access in Northern Ireland (pretty strict when you are not on public rights of way, and they don’t have the CROW Act to help), the situation in continental Europe (where effectively nationalised hunting can allow access without permission), and the Nordic countries. The Nordic countries are an especially fine example when it comes to access law, owing to the “open air life” (Norway) and “every man’s right” (Sweden). (I wrote a bit about this in a 2014 article in the Juridical Review.) This further comparative law was also edited out from the programme, but so it goes.

For purely academic reasons, I will be listening to the ongoing debate in England & Wales with great interest.