This Is Our Country. Let’s Walk It.

Rights of access to the outdoors are a big deal. To deny access to the outdoors could exclude sections of society from natural heritage and open air recreation, together with all the (difficult to measure) benefits that flow from that. To allow unfettered access can lead to conflicts between an access taker and landowners, land managers or other access takers. Different legal systems approach this balancing act in different ways. This has been analysed, from a North American perspective, in a recent New York Times piece by Ken Ilgunas.

This Opinion – and a related book – is based on the author’s trek along the route of a proposed pipeline. That allowed Ilgunas to compare the various approaches in Canada and the USA, but Ken did not stop there. He sought guidance from other access regimes, particularly from Scandinavian and UK jurisdictions, to counterbalance the rules he encountered that might be characterised as unfriendly towards access takers.

As readers of this blog will know (see my posts on disputes between access takers, camping, charging for access to a park , a road closure by police after a fitba match, the implications access (and other) laws might have for the reintroduction of wolves, and an older post about a Scottish Government consultation to tweak the law) Scotland has a statutory framework for such access rights. Those rights to cross and to be on land for certain activities overlay long established public rights of way and loose traditions of customary access. I had a very interesting Skype conversation with Ken in the lead-up to his article to try my best to explain this and it is great to see Scotland being held out as something of an exemplar here. (This follows on from the work of Professor John Lovett of Loyola University, New Orleans, who was kind enough to direct Ken in my direction.) Naturally, Ken’s analysis is tailored for an American audience, but it is worth reading by those in the old country and beyond. Without further ado, I will curtail my own blog post and encourage you to read the article.

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The Environmental Implications of Redistributive Land Reform

This is first and foremost a signpost blog, to link to the open access version of an article I recently contributed to the Environmental Law Review. Here is the abstract, which sets out the coverage of my analysis.

Ownership of land is important for a number of reasons. One reason is the agenda setting role the landowner has in terms of its use, which in turn has an impact on the environment. Environmental law plays a role in regulating the use of land, as do other devices such as planning law and private law controls including the law of nuisance, but absent such regulation the decisions of the owner are crucial. Land reform, by which it is meant the process that is geared towards the reallocation of property rights, either: changes who is invested with that crucial decision-making power; or influences the decision making of an existing owner, who might act in a way to negate any policy argument for reallocation of ownership. Both of these reactions can impact on the environment. How well are those impacts understood, and to what extent do they feature in the law-making process or the application of land reform measures? This paper will use the contemporary Scottish scene, particularly its two land reform statutes of 2003 and 2016, to scrutinise where the environment sits in the land reform debate there, which in turn will provide an opportunity to assess the environmental impact of specific land reform measures and where the environment has featured in a specific land reform process.

First, a disclaimer. (Sorry: lawyer. It even says so in my bio.) I appreciate the Land Reform (Scotland) Act 2016 does not yet exist. It will only do so when the recently passed Bill receives Royal Assent. I am confident this will happen before my article is printed, hence my clairvoyant terminology.

A more general disclaimer relates to the world of open access publishing, which is increasingly a feature of academia. (You may have noticed my link above takes you to the  institutional repository of the University of Aberdeen.) I am in no way criticising open access: writers like to be read and open access plays a big part in that, and my blog itself has been open access for almost four years. My open access disclaimer is to explain there is still a chance to tweak this paper, which will come after I receive the proofs from the publisher. This means I can catch any errors or perhaps even take on board minor comments. Do get in touch with me if you spot anything or have any feedback. (You may also notice I have left some space to go back and add information if and when it becomes available to me, in case you are worried I have missed something.)

Enough signposting and disclaiming. I will now provide the back story to the article, which might be of general interest and perhaps specific interest for anyone wrestling with an article at the moment.


The article is tied to two of my previous outputs, one book review and one lecture. In full disclosure mode, this drew (legitimate) comment from one of the two anonymous reviewers. This reviewer gently chastised me for having a wordy introduction (me? wordy?) that was largely about the author rather than the topic. I hope I have addressed that, but the hook for the article was inescapably tied to those two outputs, so I felt the article had to be a bit more personal and chatty than might normally have been expected. In further full disclosure mode, the second reviewer noted that my “chatty” style was “distracting” but also “refreshing” – I hope my revised version tends towards “refreshing”.

The earlier of those previous outputs was a book review of Andy Wightman, The Poor had no Lawyers: Who Owns Scotland (and how they got it). (The book is now in its fourth edition –  I hope my review remains of some use.) That review was in the Environmental Law Review, so in a way I felt it was the logical home for any output I developed in a similar area.

The review also gave me a hook for the later of my two outputs, which was a public lecture at the University of Edinburgh with Dr. Jayne Glass and Dr. Calum MacLeod. The hook was that my book review began with a declaration that I was not an environmental lawyer, so,… eh,… why was I putting a book review in the Environmental Law Review, and why was I asked to take part in a Brodies Lecture on Environmental Law?

Answer: because that legally abstract concept of land ownership can have environmental implications. Hence why my book review of a text about the ownership of land in Scotland found a home in the Environmental Law Review, hence the lecture, and hence this article.

Sure, that might be to state the obvious. Ownership of land has environmental implications, and changing the owner of land can have environmental implications too. How many words do you need to say that?

More than a few thousand words, actually. Those words can be read via the link above or in the next print issue of the Environmental Law Review. I hope they are a useful contribution to the ongoing land reform debate in Scotland.

Which leads to one final observation: my original title was going to be “The Environmental Implications of Redistributive Land Reform in Scotland”. At the revision stage, I changed the title by lopping off “in Scotland”. The article retains a tartan tinge, but I think there is enough there for readers in the rest of the UK and beyond to allow me to remove any perception that this is purely a local study from the title.

That strikes me as enough about the article. I would now encourage you to read the article itself.

For those who cannot face the article, here is the TL:DR version.

If current landowners are looking after the environment, there is no strong environmental case for redistributive land reform (that is to say, land reform that changes the owner). If current landowners are not looking after the environment, rights to acquire from them (which are held by some Scottish tenants and communities) might play a role in: a) encouraging them to look after the environment to try to avoid a land reform event; or b) as part of the equation for any reallocation of ownership to someone who can and will look after the environment.

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Land Reform 2016

As this term of the Scottish Parliament draws to a close before it breaks for the election, important and much anticipated land reform legislation has been passed. There will be a new Land Reform (Scotland) Act, as soon as Royal Assent is applied to the Bill passed by a clear majority of MSPs on Wednesday.

Here is the Bill as passed at Stage 3 (PDF) of the parliamentary process.

This picks up from the similarly named 2003 legislation. That older measure, with its rights of outdoor access and community rights to buy, has a somewhat narrower scope than this new measure. When Land Reform version 2016 and associated regulations are fully implemented, they will continue the 2003 theme by bringing in an additional right of acquisition for communities (to further sustainable development) and making some minor changes to access rights, but there will also be much more. Reforms to deer management, taxation of sporting estates, and agricultural tenancies are all in the pipeline, as are new provisions for community engagement, transparency of ownership, and a new Scottish Land Commission.

My tweeted reaction to Stage 3 can be found here. That gives you an idea of what Stage 3 brought in (e.g. a commitment to review small landholder legislation, and a tie-up of the community engagement guidance to be produced for a landowner’s new duty to consult with a community to the new community right to buy to further sustainable development) and what it did not bring in (community sale orders, taxation for derelict land, restrictions on non-EU entities owning land, and tweaks to the aforementioned right to buy for sustainable development that could have explicitly carved out land being used for agriculture from its scope).

Here are a selection of other reactions.

On agricultural holdings in particular, NFU Scotland is to set up a Short Life Working Group “of all of the interests within the tenanted sector” to think about implementation of the reforms.

Of course, the new titular land reform legislation is not the only important land reform measure. Also approved last week was a measure for the private rented sector, which will bring in a new form of residential tenancy. Scottish Land and Estates reacted to that too, as did Shelter Scotland.

Meanwhile, last week also brought new draft regulations about community asset transfers, under the Community Empowerment (Scotland) Act 2015.

That flurry of activity might mark the end of the land reform story for this Parliament, but there is much more to come. This will definitely be in the form of regulations to build on the new framework; it could also materialise in the form of further primary legislation, depending on the political mix of the Scottish Parliament after the election.

Beinn Dorain

Beinn Dorain, snapped from the side of the A82 on my smartphone



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Access rights: can a landowner charge for a walk in the park?

This blog is an initial reaction to a story in The Herald, The Scotsman and the BBC about the Duke of Buccleuch’s plans to regulate access to Dalkeith Country Park.

The BBC story says nothing about Scotland’s modern access laws, whereas The Herald offers some analysis and quotes representatives of Midlothian Council and Ramblers Scotland giving their take on the legal position. Also quoted is the Estate Manager, who offers no view on the law. The law also gets a mention in The Scotsman. Here is my tuppence worth.

The Land Reform (Scotland) Act 2003 liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land without the owner of that land’s prior consent, subject to two important qualifications. First, the land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. Second, the access taken must be responsible, and some conduct can never be classed as responsible (such as being on land in a motorised vehicle). The second point is something I have written about before, but the issue at hand here is about the first point. It seems a charge is to be levied against walkers and joggers who are not otherwise acting irresponsibly, so everything will turn on whether an exclusion applies to Dalkeith Country Park.

Is the land excluded?

The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. That land might have a building on it, or it might be a sports field that is in use, or it might be a garden. (How big a “garden” is allowed was a point of dispute in the case of Gloag v Perth and Kinross Council (see my Edinburgh Law Review note from 2008 (£, at 463)).

The operative subsection here is section 6(f). Essentially, it allows for historic charging to continue notwithstanding the passage of the legislation in 2003. This would allow, for example, Blair Drummond Safari Park to continue its commercial operations and charge for access to it.

There are two strands to the subsection, as follows. Land is excluded if it is land to which:

(i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted.

Note the conjunctive “and” (my emphasis above). Both are needed.

Note also “each year” (my emphasis above).

In terms of strand 1, a landowner must have been charging for not fewer than 90 days in the year ending on 31st January 2001, i.e. historic fees in a benchmark year.

In terms of strand 2, my reading is there must have been a charge in each following year. The Explanatory Notes for the legislation do not offer anything more than to say a charge must continue to be levied for the same period [of 90 days] after that date. There has been no litigation on this subsection, so I cannot refer to an authoritative judicial pronouncement.

So does the exclusion apply? It will, if charging has been in place in both the benchmark year and thereafter, and if that is so that is the end of the matter.  One tweet disputes this. If this was to go to court, it would be a matter to be proved (on the balance of probabilities, which would need more than a tweet). I suspect the local authority might have little appetite for litigation and it seems (from The Herald report) that the council has accepted that historic charging during the summer has taken place.

As for me, I am writing this blog post at a desk in Aberdeen. I have no idea if charging was in place in the twelve months up to 31 January 2001 and has been in place through the years thereafter (but I did find this report from 2015). There are policy arguments to be made for and against charging for access (which I will offer no comment on here), but I will comment on the need for the current law to be applied properly. That law is a clear step towards liberalising access and that overall policy goal means exclusions should be carefully considered, to the extent that the rights of owners are not trampled and indeed rambled over.

In terms of what this means for Dalkeith Country Park, if anyone can fill in the blanks about the charging regime feel free to comment below.

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David Carey Miller: a tribute

I have a new blog post over at the School of Law’s WordPress site.

It goes without saying this was a tough one to write. I first met David Carey Miller’s work as an undergraduate student at the University of Strathclyde, referring to his book (with Anne Pope) Land Title in South Africa in my dissertation and learning from his knowledge of corporeal moveables in Scots law in my ordinary and honours level courses. I first met David Carey Miller the person at the University of Strathclyde, as noted in the AberdeenUniLaw blog post. Whilst being geekily star-struck, he quickly set me at ease and thus began an important friendship. I benefited greatly from his knowledge and his warmth at various stages of my life. I appreciate many people knew him for longer than I did, but I am still feeling pretty numb. And that is before I (and colleagues) begin to deal with the practical and emotional consequences of a sudden death, even if David did have a proverbial good innings beforehand. The Taylor Building will seem strangely empty without him.

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Land Reform Bill – Stage 2

Stage 2 of the Land Reform (Scotland) Bill completed on 10 February 2016. The text of the Bill is available on the Scottish Parliament website (PDF here).

There is much that could be said about this, some of it quite technical (meet the “repairing tenancy”, for example, which is going to be introduced by way of a new section 5C in the Agricultural Holdings (Scotland) Act 2003) and some of it quite controversial (meet the provisions for assignation of secure 1991 Act tenancies when a tenant wishes to renounce a lease). Here are some selected thoughts.

DISCLAIMER: there is a lot of assumed knowledge in this blog. Indeed, you have already met the first bit of assumed knowledge, namely that you know what a secure 1991 Act tenancy is. (It is a type of agricultural lease where a tenant enjoys security of tenure – i.e. a right to stay on the land – provided the tenant farms that land properly and pays rent when due. To keep this blog of a manageable length, that’s the only explanation you’ll get. Sorry. (Not sorry.))

The Scottish Land Commission

As noted in a previous blog, there are some changes relating to the staffing of the proposed Scottish Land Commission. New factors to be considered in the new SLC’s appointment process include expertise or experience in: land management; community empowerment; and environmental issues. Separately, the Scottish Ministers “must take every reasonable step to ensure that one of the Commissioners is a speaker of the Gaelic language.” In legal terms, “every reasonable step” is at the stronger end of a spectrum of commitments that fall short of an actual obligation. The language here has more clout than “reasonable endeavours”, but falls short of an absolutely imperative and non-qualified “must”. (The strength of the language here is as a result of an amendment by Angus MacDonald MSP.)

What of the name of the body itself? There have been a few proposals in recent times, ranging from the Scottish Land and Property Commission, the Scottish Land Reform Commission, and the now preferred Scottish Land Commission. I am relaxed about the current formulation, subject to one observation: the forthcoming SLC shares a TLA* with two other organisations that operate in similar fields. Hopefully there will not be too much confusion between the Scottish Law Commission, the Scottish Land Commission and the Scottish Land Court.

Information about Control of Land

This has been a key area for land reform campaigners and the old clause 35 allowing for a request to be made to obtain information about a landowner has been replaced (thanks to an amendment by Graeme Dey MSP) with a scheme which amends the Land Registration etc. (Scotland) Act 2012. This will by demand further information of certain landowners. The scheme is aimed at ownership of land by non-humans, seeking to flush out the name and designation of a person in significant control of a landowning entity. (What is meant by “significant control” is to be defined by regulations in due course.)

Shootings, Deer Forests and Deer

Taxation of sporting estates was identified as an issue in the RACCE Committee Stage 1 Report. The Scottish Government pushed back pretty hard on this in its Response to the Committee. The Committee has accepted the Scottish Government’s position and the Stage 2 version of the Bill retains the framework for the re-imposition of rates to shootings and deer forests (in Part 6).

Deer management in general follows in Part 8 rather than Part 7. (Part 7 breaks the flow somewhat, dealing as it does with common good land, and for information no amendments have been made to that Part between Stage 1 and Stage 2.) Some concerns about the ordering and internal consistency of the Bill were raised by the academics at the School of Law at the University of Glasgow, but evidently the Government and now the RACCE Committee do not share that concern.

Looking at the actual substance of the law, there is a new clause 70A, entitled “Power to require return on number of deer planned to be killed”. The effect of this amendment, brought forward by Mike Russell MSP, means there will now be a power to require information about a landowner’s planned management activities, not just what has taken place. This would establish a need for prospective information over and above and the retrospective information requirement already contained in the Deer (Scotland) Act 1996.

Agricultural Holdings

Where do I begin? I suppose I will start by setting out some competing perspectives, the first from Lesley Riddoch and the second from Scottish Land and Estates (the representative body of Scottish landowners). (The Scottish Tenant Farmers Association said an earlier statement on a related issue from Scottish Land and Estates was hysterical scaremongering.) The Scottish Government press release is here.

Trying to set out all the background and indeed the law in this area would make this a very long blog indeed, so I will keep this brief. (I will say absolutely nothing about human rights law here.)

Let us imagine a situation where a tenant in a secure 1991 Act tenancy is approaching retirement but does not have someone to hand that tenancy on to. Oversimplified, the new clause 89A allows such a tenant to exit a secure 1991 Act tenancy either by providing a mechanism for the landlord pay a sum to the tenant to buy it out or, where the landlord does not wish to buy it out, by assigning (transferring) it to “an individual who is a new entrant to, or who is progressing in, farming”.

This gives a retiring tenant without a proximate successor an exit route that is currently unavailable: under the present law such a tenancy could end on such a tenant’s retirement or death and the landlord would get vacant possession of the land (i.e. the holding not subject to a lease), but under the proposed scheme the tenant has two opportunities to cash-in the tenancy (via the landlord or via an incoming farmer) and only one of those would give the landowner vacant possession, and that opportunity has an associated fee.

There might be a related policy about trying to ensure no land currently under a secure 1991 Act tenancy is taken back into vacant possession. If this is the goal, it would be a valid policy position to run with (albeit I am not sure that has been explicitly articulated by Scottish Ministers), but it is important to note this policy goal might not be achieved with this cut of the legislation. (As an aside, Alex Fergusson MSP spoke up for the policy of letting 1991 Act tenancies “wither on the vine”. That too is a legitimate policy goal, albeit one that does not seem to have traction at Holyrood at the moment.)

An analogy with crofting law might be apposite here. In that (complicated) system, a crofting tenant and a crofting landlord cannot generally agree to wash the land of crofting tenure. Whereas with this proposed system, an agricultural tenant and an agricultural landlord can agree to wash the land of a secure 1991 Act tenancy. This land would then no longer be under a regime giving strong security of tenure and would be unlikely to ever return to it. Sure, buying out tenancies might cost landlords a bit in the short term, but I suspect the landlords who can afford it will do all they can to get vacant possession of their land.

It has been said before that crofting law was designed to protect the tenant, whilst agricultural holdings law was designed to protect the land. At one level, this amendment strikes me as not being about the land, nor even being about the tenant in the abstract, rather it is about this tenant. (This is not a criticism, more a statement of how I see the landlord’s buy-back opportunity.)

What does this amendment do for the future of the tenanted sector in Scotland? One answer to that question is absolutely nothing. Fresh 1991 Act tenancies are not exactly being offered by many landlords, so a reform that affects only those tenancies is not actually going to affect the current (non-) supply. Then again, landowners might view this change as the thin end of the wedge, and worry that any arrangement giving someone any kind of lease or indeed use of their land could lead to the conferral of rights on such an occupier in any further land reform. An assurance from Government that this would not happen would not help assuage such a fear, given the difficulties associated with a parliament binding itself.

All in all, this is a very tricky area. I suspect this will be a huge point of discussion at Stage 3.

Community Engagement

The new clause 37 on “engaging communities in decisions relating to land which may affect communities” is much longer than it was at Stage 1. The Bill provides for a duty on Scottish Ministers to prepare this guidance and, as drafted initially, this guidance was to focus on furthering the achievement of sustainable development. At Stage 2, this has been expanded to also include “relevant human rights”, equal opportunities and aspects of social justice. (Curiously, there is a statement that “‘relevant human rights’ means such human rights as the Scottish Ministers consider to be relevant to the preparation of the guidance.” I am automatically suspicious of any selective approach to human rights.)

There will now also be a duty on the Scottish Ministers to report on how things are going every three years. Presumably, if things are going well and communities are being engaged with by landowners in decisions that affect them, no legislation to enforce engagement will follow. If things are not going well, the soft model of regulation could be replaced by something stronger. Although not a huge change in terms of the burden on the Scottish Ministers, the reporting obligation will have an effect as it will keep the point about engagement in the public view.

Community Right to Buy

Amidst all the focus on transparency of ownership, rates reform and agricultural holdings, the Part 5 community right to buy to further sustainable development has been quietly moving towards enactment with no major changes. This Part of the Bill emerges with the focus still being on a community of place, conferring a right on the people in that place which is linked to furthering sustainable development. The exercise of that right remains tied to a number of rather onerous tests, the most noteworthy being a negatively framed requirement that not granting consent to the community in question “is likely to result in significant harm” to that community. That said, one test has been mitigated: the Stage 1 Bill provided that Scottish Ministers would only consent to a transfer when it was the “only practicable” way of achieving a significant benefit to the community; now the Bill allows for a lesser standard of “the most practicable”.

What’s not in the Bill?

There is nothing in the Stage 2 version of the Bill about Compulsory Sale Orders, but there are indications these will follow in the next Parliament. (Albeit the strength of those indications depends on the outcome of the Holyrood elections in May.) There is also nothing in the Stage 2 version of the Bill restricting ownership of land by non-EU entities.

What next?

Next up is Stage 3 of the legislative process, to be played out in the Chamber at Holyrood. I offer no particular predictions here as to what will happen at that Stage, but I suspect the parliamentary maths at Holyrood are such that there will not be any huge change from Stage 2 to the final draft.

*TLA= three letter acronym

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10 February 2015 was an unexpectedly busy Tuesday for some Scots land lawyers. It all started when social media oddity @loveandgarbage (since retired) replied to a promoted tweet from @Highland_Titles. I interjected with a bit of chat. I don’t think anyone really expect much else to happen. Before anyone could say “souvenir plot”, a wholly unexpected Twitterstorm had broken (as digested here).

We are now one year on from that first Highland Titles Day. Anniversaries are a time for reflection, so I duly reflected in a contribution to the open-access forum The Conversation. That gives a bit more background than I will provide in this blog. It also links to two fairly recent developments in the souvenir plot world, including:

  • an Adverstising Standards Authority ruling from this year relating to an August 2015 advert, which shows the practice of selling souvenir plots with accompanying sales-speak about acquiring ownership continued long after the Twitter-spat; and
  • the representations of Highland Titles Limited to the Scottish Government asking for the law to be changed to allow for the registration of souvenir plots in Scotland.

Although not mentioned in my article in The Conversation, another bizarre recent development was reported in The Telegraph on 18 January 2016, relating to the online abuse and indeed business sabotage the Earl of Bradford has been subjected to for his involvement in the website. That website just so happens to question the practice of “companies like Highland Titles”.

Meanwhile, a website called Highland Titles Scam seems to have implicated me in a “nasty smear campaign”. (Things were also said about me immediately after the initial Twitterstorm.) Hmm.

Those last two paragraphs are offered without comment.

With Twitter being Twitter, a few of us have had a bit of fun with the new hashtag #HighlandTitlesDay today. I even tweeted a picture featuring Dr. Douglas Bain and me: Douglas knows a bit about souvenir plots anyway, but his real usefulness here was his impeccable taste in music (the relevance of his Manfred Mann’s Earth Band LP is further explained in The Conversation).

MMC and DB

Douglas is the cool dude on the left. I am in a Highland Titles T-shirt on the right. I repeat: I am in a Highland Titles T-shirt. Yes, someone really has had fun with this, and sent me a T-shirt to mark #HighlandTitlesDay.


Okay, this is fun, and maybe I have laboured this whole thing a bit, but there is still a serious point here. The first point is about people potentially being gulled into buying something, as journalist Euan McColm tweeted on the original Highland Titles Day. There are also sound policy arguments to be made against souvenir plotting, as discussed by me in The Conversation. (More detail on the policy and indeed the law can be found in an Edinburgh Law Review article co-authored by Dr. Jill Robbie and me.)

So what now? As per my blog in the aftermath of the original furore, someone may try to test this with litigation, but I think this is unlikely. (To an extent, that is borne out by the lack of litigation in the past year.) Alternatively, the Scottish Parliament may change the law, but that is not going to happen in this Holyrood term.

What seems most likely to happen, at least in the short term, is absolutely nothing. Souvenir plot hawkers will continue to hawk, albeit their terms and conditions will need to be meticulously worded to avoid referrals to bodies like the ASA. I am sure they won’t mind if people like me are watching carefully to ensure compliance with the law. Others might be watching carefully to ensure any claims of nature conservancy or the like are actually being fulfilled.

I wish you all a happy Highland Titles Day.

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