“Funding civil justice in Scotland: full cost recovery, at what cost to justice?”, an article for the Edinburgh Law Review

Another self-promotional blog post. I am not even sorry. This is because the post relates to a co-authored article I am pretty proud of. This is accordingly one of those sign post blog posts that I sometimes do. In this I will explain the paper very briefly, and also try to shed a bit of light on the background to it and the associated writing process.

The newest issue of the Edinburgh Law Review appeared online today. (Yes, I have been refreshing EUP’s web page for past few days to check up on this, thanks for asking.) It has an article by Ben Christman and yours truly, about the ongoing deployment of the “full cost recovery” policy in the Scottish courts system.

Full cost recovery – that is to say, the costs of civil justice being passed to the users of the service (subject to certain recognised exemptions) – is something I first wrote about back in 2018: see the postscript to this online Journal of the Law Society of Scotland article. I always felt there was more to be said on this topic than that postscript though, and Ben agreed. Ben and I both sit on the Access to Justice Committee of the Law Society of Scotland, and I think it would be fair to say that this blithe commoditisation of civil justice is something that rankled both of us. As such, in addition to signing up to the committee’s response to the Scottish Government’s most recent consultation on court fees (which fees, needless to say, were increased), we felt we might have a go at putting a paper together on the matter. This we duly did, and the co-authorship process worked pretty smoothly. (I just hope Ben agrees with that… One thing I will say with impunity though is a useful feature of co-authorship is that if you do not produce the goods, you are not just letting yourself down. This is a quite a motivator.) Before too long, we had a paper that we wanted to find a home for.

Owing to the Scottish lens we used for our analysis, and in part because of my own involvement with the Scottish journal the Juridical Review’s editorial team (i.e. to absolutely ensure this was arm’s length – sorry, Juridical Review colleagues), we thought we would try to get this paper published in the Edinburgh Law Review. We submitted it and happily the editor of that journal, Laura Macgregor, got in touch with us to confirm she was willing to accept our article, subject to some wee changes suggested in the peer review process (thanks to person(s) unknown for that input). The paper also benefited from comments provided by reviewers involved in the REF process (the academic research exercise that UK universities are involved with), in terms of the internal review that went on at both my former and current employers; I think this means I can actually be described as a satisfied REF customer on this occasion. Thanks to those persons unknown as well. In terms of the actual people I can publicly express my gratitude to, thanks of course to Laura, and also to my former colleagues Robert Taylor, Donna McKenzie Skene and Alisdair MacPherson for their insights at various stages in the paper’s development.

Here is the abstract of the paper:

In Scotland, there has been an increasing trend for the costs associated with the administration of civil justice to be met by the users of the court system. Such a policy can broadly be referred to as “full cost recovery”. A recent Scottish Government consultation on court fees uncritically continued with this overall approach, but various consultees nevertheless took the opportunity to critique full cost recovery in the context of that consultation and more generally. This article takes up that analysis, in a manner that should also be of interest to non-Scottish readers who may be contending with a similar challenge in another jurisdiction, by critiquing full cost recovery in principle and by offering potential routes by which its implementation might be challenged. It begins by explaining what full cost recovery actually is and investigating its origins, before interrogating some of the assumptions or acquiescence that seems to have developed around the issue and discussing the potential for litigation against court fees in Scotland.

For those unable to access the Edinburgh Law Review (for example via an academic institution), here is a link to an open access “pre-print” of the article hosted by the academic repository at the University of Aberdeen.

Regulating short-term lets in Scotland

Short-term letting of property is something that has been written about widely in recent years in a variety of jurisdictions. Scotland is no exception, with the two geographic pinch points of Edinburgh and the Isle of Skye featuring regularly in press coverage (see this report from The Times (£) for the former and this feature from Channel 4 News for the latter). Of course, the provision of short-term (holiday) lets is not a new phenomenon. UK landlord and tenant legislation down the years has specifically carved out holiday lets from the scope of private sector regulation: as just one example, see paragraph 8 of this schedule of exceptions to the Housing (Scotland) Act 1988. The spike of short-term letting though – as demonstrated in this Scottish Government commissioned research published in October 2019 – is such that it has brought the activity into sharp focus.

It goes without saying that there would not be such a spike if there was not a demand, and those who are supplying for that demand are doing so for a reason. Better economists than me might identify the benefits to the local economy the users of short-term lets bring. Standing that, it would also be fair to note that the increase in short-term letting has not been uniformly welcomed. A number of people have explored ways by which this trend might be curbed. Amongst this number was yours truly. I offered an analysis based on title conditions (that is to say, controls that often exist in the title deeds of a property). Andy Todd offered a slightly different approach: as detailed in this blog post, he highlighted the potential of a device from the Title Conditions (Scotland) Act 2003 in relation to new-builds, namely the development management scheme, and also pointed out those letting out properties that made use of shared features might face some kind of enforcement action from the co-owners of those common parts in certain circumstances. Taxation and planning matters might also be relevant. And in a recent twist, there was even a European case about whether Airbnb (a prominent facilitator of short-term lets) was an estate agent and as such subject to relevant regulation: CJEU ruled that is was not, as reported by the BBC here (see also the CJEU Press Release), meaning Airbnb did not fall into a comparable regulatory quagmire to Uber (the, eh, sorta taxi service).

That gives a bit of a flavour, but it is clear that none of those have provided a complete answer to address the upward trend. (I mean, it would have been lovely to have had my article cited approvingly in a test case about the enforceability of a real burden that (for example) stated a dwelling had to be used as a private home rather than a business, but that would have required an appropriate set of facts coupled with a determined and suitably flush litigant.) If the spike of short-term lets is an issue, maybe another proactive approach rather than reactive approach would be more appropriate. Which is where a recent announcement of the Scottish Government comes to the fore.

On 8 January 2020, it was announced that the Scottish Government would “provide local authorities with the ability to implement a licensing scheme for short-term lets from spring 2021“. Such measures would (and I quote):

include a new mandatory safety requirement that will cover every type of short-term let to ensure a safe, quality experience for visitors;

give councils the discretion to apply further conditions to address the concerns of local residents.

Further, there would be provision to “designate control areas to ensure that planning permission will always be required for the change of use of whole properties for short-term lets“. There is also a separate commitment to consider taxation, alongside the soon to be introduced Transient Visitor Levy Bill.

I will resist the urge to offer much comment on these commitments, save to note that the safety requirement seems more than sensible in an environment where the private rented sector is subject to similar controls and there have been disconcerting reports of, and indeed successful enforcement action relating to, people being offered “holiday let” documentation in a situation that was in actuality a private let.

Returning to the planned regime and its introduction, how will it work? It is still early days, but an existing piece of legislation has been earmarked as the prospective home of the licensing regime, namely the Civic Government (Scotland) Act 1982. (Control areas will be covered by a different regime, which was introduced by section 17 of the Planning (Scotland) Act 2019. The Scottish Government has also clarified that lodging or home sharing arrangements, that is to say a landlord providing a room in her own home or someone allowing others to stay in her home whilst on holiday, will not be affected by control areas.)

The Civic Government (Scotland) Act 1982 is an important statute when it comes to municipal licensing in Scotland. Anyone who wishes to operate a taxi service, a knife dealership, a scrap metal emporium, a window cleaning service, and/or a sexual entertainment venue (but probably not all at the same time) had better pay attention to its terms. Short-term letting rules will be inserted into this statute, which has already been much-amended to reflect the fluctuations of society.

Will this licensing regime work? Licensing as a whole is, I confess, not squarely within my field of expertise (albeit I have looked at the matter from a property law perspective, particularly in relation to rural matters). At this point I will draw on the views of Stephen McGowan, a licensing expert and (I declare an interest) former colleague (in our previous lives at Tods Murray LLP). Writing on the website of his law firm, Stephen has noted – quite rightly – that the introduction of such a scheme will be something of a heavy lift. Admittedly there will be some practices from the world of private landlord registration that might be easy enough to transpose, but there will still need to be some careful consideration of any differences or nuances that the short-term letting regime will have. Stephen also notes the lack of a “grandfathering” scheme, such that no-one who wishes to offer short-term accommodation in the future will be able to rely on historic (pre-licensing) activity. (The policy argument against allowing “grandfather rights” seems relatively clear to me, in terms of uniformity across the sector, ensuring safety, and also avoiding any kind of rush to let properties before the regime is enabled, but the point about the administrative burden stands nevertheless.)

On the assumption that these teething problems can be safely survived, what next? Stephen keeps his powder dry on that point, which is fair enough as we will have to wait and see. It might be that Scotland can learn from other jurisdictions in tailoring its own regime, as Scotland is not the first to grapple with such issues. One thing is for sure though: given how widespread short-term letting is and how strong feelings are in this area, there will be plenty of people watching for developments in this area very carefully indeed.

Further reading

I will offer two further resources about the recent announcement, from different standpoints for balance.

• This post by Gordon Maloney from Living Rent, hosted by Bella Caledonia, offers some analysis from the perspective of “Scotland’s tenants’ union” which “wants homes for people, not for profit“.
• I have not seen any official announcement from Airbnb, but a few words are offered at the end of this BBC article.

“From the Field: Some Notes on the ‘Clinics and SQE – what next?’ Conference about the New Route to Qualifying as a Solicitor in England and Wales”, a piece for the IJCLE

This blog post does not have the snappiest title I have ever crafted, I grant you, but I am being wordy for a reason. My reason is this is one of my sign posts, that is to say this is short post that does little more than direct you to something I have written elsewhere, and I have tracked the title of that other bit of work.

The new edition of the International Journal of Clinical Legal Education has just been published. I have a “From the Field” contribution. With due respect to anyone else who has written such a contribution (and there have been some good ones – do check back in the archives), I think it is fair to say that the “From the Field” section is forum for a style of writing that is a bit south of full-length, peer-reviewed articles. That is alright though, as no-one is pretending that “From the Field” notes should be of that nature. “From the Field” is designed for punchy updates about current practice in clinical legal education. For my contribution, I have provided an update about law clinics in the UK – more particularly England and Wales – in the face of planned reform of the pathway to being a solicitor.

Avid fans of this blog might note that this IJCLE note is actually a more polished version of a blog post from the summer of 2019, where I reported on a trip to a conference in Coventry. It’s always nice to be able to convert my blogged ramblings into something a bit more erudite.

Thanks to Professor Elaine Hall and the team at the IJCLE for their work on this. I hope you enjoy the note.

A screen capture of the IJCLE website. (This isn’t a live link, btw, so don’t try to click on this.)

My 2019 in review

Another year, yet another reflective blog post.

There is a wise saying out there, that goes along the lines of “it is better to have something to say, than have to say something.”

Eschewing that advice, this post errs towards the latter, in that I do not approach the keyboard thinking “THE INTERNET MUST HEAR WHAT I HAVE IN MY INNERMOST THOUGHTS“. Rather, I approach this post thinking “oh, I have posted annual blog posts since I started blogging, I’d better keep it up“.

Right, so, well… 2019, eh? More Brexit machinations, a snap UK election, other stuff… and I moved jobs. I won’t write about any of that though, but for those interested in my flit I point you to this blog post and this wee feature put together for new colleagues at Strathclyde. Instead, my usual crunching of the statistics on my blog will provide an overview of my successful posts, and I will mention some other stuff that I should maybe have blogged about but didn’t.

Dealing with other stuff before stats, in addition to pieces that I mentioned on this blog (such as this piece with John Lovett) I had an article in the Journal of Environmental Law on the use of a Scots law property law device to impose an ongoing liability for environmental harm (with Colin Mackie) and a Juridical Review note on the emerging jurisprudence about private residential eviction cases in Scotland (with Pete Robson – Pete and I also published the fourth edition of Residential Tenancies earlier in the year, as explained here). I was also involved in a BBC online feature on land reform, attended events on the reform of legal education and law clinics (at Coventry, blog post here) and the Land Settlement (Scotland) Act 1919 (in Lewis and Harris, thread here), and was part of a team led by Scotland’s Rural College that did some work for the Scottish Land Commission on community land ownership (the related report should hopefully be online soon, in the meantime proceedings from an event at the James Hutton Institute can be found online here). There’s been some other bits and bobs going on too – most notably a win for Aberdeen Gaelic Choir at the Royal National Mòd in October (yay!) – but I’ll leave the random updates at that.

STAT ATTACK

My top five base drones of 2019 (excluding the blog’s churning home page and any posts from earlier years) were as follows:

In 1st place, my aforementioned post about flitting to Strathclyde. I’ll arbitrarily skip over that though (my blog, my rules) and award 1st to this highest ranking substantive post, on the usage of Scottish Gaelic in Scottish courts.

In 2nd place, a post about an access dispute in the Highlands, Lord Lovat’s Land Access Lament.

In 3rd place, a post on rural housing burdens and their potential to assist housing stock issues in Scotland.

In 4th place, a post about some topical access to land issues (considering flying machines and canines).

In 5th place, a post relating to public rights of way in Scotland, linking to a Juridical Review piece I co-authored with Douglas Cusine.

Honourable mentions might also go to my 6th, 7th and 8th ranking posts, namely: a rambling scrawl about Brexit and Scotland; an update about the Scottish University Land Unit initiative; and this post about tenements mixed together with a bit of reminiscing about a previous life as an undergraduate LLB tutor.

What next?

My main task in 2020 will be getting myself a bit more settled at the University of Strathclyde and in the city of Glasgow. If anyone reading this has any plans related to that, or just wants to meet for a coffee, get in touch.

Thanks for reading. All the best for 2020.

Scottish Gaelic in Scottish Courts

I’m going to do that thing where I write in English about Gaelic. Three reasons might be offered for this transgression, such as it is, in no particular order.

1. Gaelic coverage of the issue I am discussing is available elsewhere, notably on the BBC website here and here, on the radio programme Aithris na Maidne (for another 28 days), and (until 19.15 tonight!) on the BBC iPlayer for the BBC Alba programme An Là;
2. For maximum reach, as there is no denying more people in the world understand English than Gaelic;
3. For laziness, as my own written (and legal) English is much better than my Gaelic.

Moving to the substance of the blog post, as adverted to in the title and as those who clicked the BBC Naidheachdan link will have gleaned, this post is about usage of the Gaelic language in Scottish courts. The post follows on from a recent criminal court case (on Thursday 31 October), where someone tried to use Gaelic orally at a Justice of the Peace Court in Edinburgh and was bounced in his attempt to do so.

(For clarity, this case was not directly about Gaelic, but rather it came into play simply as a result of someone involved in the case wishing to speak in the language. As regards the case itself, I will let the person involved speak to that, by linking to his tweet.)

Scottish Gaelic and its place in the Scottish legal system is something I have blogged about before (for example, see this post from 2015). This engaged a slightly new issue though: can a Scottish court force a participant to use English rather than Gaelic?

In short: yes, it can.

For this particular case, an interpreter was, it seems, lined up at one stage but for whatever reason was not available on the day. Given there are not many Gaelic speakers in contemporary Scotland who are not also fluent in English (a demographic that is basically only pre-school age children and elderly people who have reverted to their first language), a Scottish court can normally be clear that a Gaelic speaker will understand English, and in this case the court was able to press on notwithstanding the lack of an interpreter (something that would surely have not been possible where a Polish or Lithuanian interpreter had not shown up).

This was described by Wilson MacLeod on Twitter as “Tàmailteach“, which might be translated as “a disaster”. I’ll be a bit more guarded here and note that this is all somewhat suboptimal.

Sure, we know that the person involved could have participated in English, but when language rights are involved that is at best an ancillary point. I also of course appreciate that court delays in a busy court system should be avoided wherever possible. The thing is, Gaelic is not exactly in rare health at the moment. Official opportunities to use the language should be provided. It’s all very nice to allow Gaelic to be used in sheriff court proceedings every once in a while, as happened in 2005 before Sheriff Sutherland in Stornoway, but I can’t help but feeling this episode has highlighted that language rights in Scotland are somewhat wanting when compared to somewhere else in the UK, namely Wales. It took Scotland a while to get legislation about Gaelic on the statute books (see for example this Hansard exchange about a proposed bill in the 1980s), but what we have now – the Gaelic Language (Scotland) Act 2005 – does not enshrine the right to use Gaelic in legal proceedings. That can be contrasted with the right to use Welsh in legal proceedings in Wales (in terms of the Welsh Language Act 1993, and before that the Welsh Language Act 1967).

As Ruairidh Maciver (I declare an interest – he’s a first cousin) noted in his BBC Report, attempts were made to use Gaelic in court proceedings in the 1980s, in connection with the Ceartas campaign. (Anyone wishing to read up on this with access to a law library can find a discussion in this legal comment piece: A C Evans “Use of Gaelic in Court Proceedings” 1982 SLT (News) 286.) It was bounced then as well. Have we moved forward? Are we simply paying lip service to Gaelic?
It is right and proper the Scottish Courts and Tribunal Service has a plan in place for British Sign Language, but should it do more in relation to Scots Gaelic? Based on this particular episode, there seems a strong argument it should.

I’ll leave it at that, but in the meantime I should say a quick “tapadh leat” to Marcas Mac an Tuairneir for bringing this to the fore. I’ll be watching carefully to see what happens next. I confess I am not getting my hopes up.

P.S. As this post “went to press”, I was tagged in a tweet which linked to the relevant Act of Sederunt on the usage of Gaelic. It seems sensible to link to this here.

P.P.S. An earlier version of this post erroneously stated this case was in Edinburgh Sheriff Court rather than a Justice of the Peace Court.

Moving on

I have used this blog to break news in the past. In the main my blog has been a forum for academic lawyering and related pontificating, but I have also dabbled in politics and other areas of interest, and even used the blog to share life-changing news and the related ongoing health challenges then the new normal that followed on from that. The blog has, in varying degrees, become a bit of an extension of my personality. As such, and despite a relative lull in my blogging output of late, it still felt kind of fitting to break some news over a basedrones post. So here goes.

After over eight years at the School of Law at the University of Aberdeen, I have accepted a post at the University of Strathclyde in Glasgow. I start there in a month’s time.

Okay, where do I start with this news? Naturally, I am excited about the move to my alma mater and the city of Glasgow, but I will start with the Aberdeen-side of things. First and foremost, this flit should not be taken as a sign that I am running away from a terrible institution or anything like that. Aberdeen has been good to me, and by “Aberdeen” I suppose I mean the University, the city, and – yes – sometimes even the football team. I have family connections in the north east too. Several people from my dad’s side of the family live in and around Aberdeen. Without hyperbole, it will be a wrench to leave.

On the academic side of things, had I not got the job at Strathclyde I could have merrily continued at the University of Aberdeen and I don’t think anyone would have noticed me being in a wantaway mindset or anything like that. I will always be grateful to those who took a punt on me by offering me my first academic job, and to the colleagues in the School of Law* (see below) and the rest of the University of Aberdeen who offered friendship and support since I came on board in March 2011.

Leaving the city of Aberdeen will also involve physical and mental upheaval. The extended uni community has been good to me, ranging from people in the local bookshop, barber, eateries, and indeed hostelries. Aberdeen Gaelic Choir has been a big part of my life for the past few years, and the unfortunate timing of my leaving the choir when it is in such good shape and indeed just after our first major prize in sixty years is really quite something. (Oh, by the way, we won the Puirt competition at the Mòd in Glasgow this month: yay!) The extended Aberdeen music scene (some members of which I know from actual folk music/piping circles, others I know from just hanging around the Blue Lamp too much) has been great to me too. Then there are a whole bunch of people I would really have preferred not to meet, although having met them I am happy to have them in my life. This sounds a bit opaque, but this refers to the medical team and extended support network I met after my cancer diagnosis in 2013: I wouldn’t exactly recommend cancer, but the cancer community (a strange form of words, I know) has been a strange bonus. As an example, I bumped into someone I now know from ARI at the Aberdeen Beach parkrun the other weekend (yet another bit of Aberdeen life that I will be moving on from). He was timekeeping and I was (sort of) running, and he shouted friendly encouragement as I neared the end. After the event I told him about my planned move and (without wishing to put words in anyone’s mouth) this person who I only got to know through one of my lowest ebbs seemed genuinely sorry to hear I will be leaving. In turn, I will be genuinely sorry to leave.

That being the case, I will indeed be leaving. Why? As noted already, Strathclyde is my alma mater. This is not just a nostalgic move though. I think it is one that can work personally and professionally. As regards the personal, my immediate family stay in Renfrewshire, so it will – mainly – be good to be nearer them. On the job front, I will be lecturing in Scots private law, and with Strathclyde’s established Diploma in Professional Legal Practice team this could involve me stepping back a bit from that side of professional legal education as compared to my current role at Aberdeen. That being said, Strathclyde do host the CLT team, offering CPD to lawyers, so I might be able to get involved with that side of professional education.

Also of particular interest, and admittedly with a spattering of nostalgia, this move to Strathclyde will give me a chance to get involved with a student law clinic that I was a founder member of. Of course, the University of Strathclyde Law Clinic has been doing fine without me and (like the DPLP set-up) is suitably well-established, but this move will, I hope, revitalise my own involvement with pro bono; assuming they’ll have me. Working with students at Strathclyde could also double as an opportunity to drive forward with some of the property law things I have been doing (perhaps through the Scottish University Land Unit, or by deploying some of my landlord and tenant know-how, which, incidentally, was honed alongside Strathclyde’s Peter Robson).

What of where I am moving to? Yes, I am pretty excited to be moving back to Glasgow. As I said above, I reckon I could have continued at Aberdeen on a steady ship, and settling into a new routine in a new(ish) place will take some readjustment. They say a change is as good as a rest though, so I am hoping I can revitalise myself and my scholarship a bit, and whilst I am not wholeheartedly looking forward to the literal and metaphorical decluttering that a move necessitates I am optimistic I will be fresher for it in due course.

So there it is. I could go on (and if anyone feels the need for further explanation feel free to comment below and I’ll try my best to explain myself), but I will leave it at that for now. What I will note in conclusion is I can’t imagine I will be a stranger to Aberdeen. My academic tenure at the School of Law and my own Diploma in Legal Practice year a wee while ago, not to mention my various family visits over the years, mean I have spent the best part of a decade in Aberdeen, so I have plenty connections in Grampian and it would be a shame to lose touch completely. Meanwhile, Aberdonian visitors in Glasgow will be very welcome: bring butteries. Finally, for any Glaswegians or Kilbarchan Habbies who thought I had escaped, it turns out I’ll be back. I’ll let you be the judge of whether that is a good thing from your perspective.

 

* Except for Professor Roddy Paisley** – I look forward to continuing my grudge against him from the Central Belt.

** I don’t actually have a grudge against Roddy, by the way. He’s lovely. For some reason I thought setting up a mock academic rivalry would be funny though.

Rural housing burdens over rural land (but what is rural land?)

Who wants to read a blog post about rural housing burdens and a slight hiccup in the legislation relating to them? You do? Well, you’ve come to the right place.

The rural housing burden is a legal device that has existed in Scots law for over a decade, which is designed to stop dedicated housing being lost in fragile rural areas. The device works by presenting an obstacle to any sale of a home to anyone who would not in turn be using it as a home, and as such preventing domestic housing stock from being converted into (say) a second home, a short-term letting base, or something else entirely.

How do they work? That involves a bit of background. To use an obscure and dated reference, imagine a perfectly coiffured Jennifer Aniston has just announced, “here comes the science bit; concentrate.”

Title conditions > real burdens > personal real burdens > rural housing burdens

In Scottish land law it is possible to encounter something known as a “title condition”. Once created, a title condition will thereafter regulate the land it relates to, and anyone who comes to own that land (i.e. not just the owner who happens to be in place at any one time, but also successor owners). Such title conditions “run with the land”, in the language of land lawyers, normally to the effect that the owner of one parcel of ground is bound to do (or not do) something, and a near neighbour with enforcement rights will be able to enforce that stipulation. Title conditions will subsist unless they are discharged or extinguished by some means (perhaps the person with enforcement rights will agree to a discharge (often for a fee), or an application to the Lands Tribunal for Scotland can be made in certain circumstances).

“Title conditions” is an umbrella term for a category that includes “servitudes” (also known as “easements” or “wayleaves” in some jurisdictions – basically a right to use someone else’s land, normally for access or services) and “real burdens” (sometimes called “real conditions” or “restrictive covenants”, often to stop an owner doing something, perhaps building over a certain height or using the property for anything other than a domestic dwelling, or putting them under a duty to maintain something and meet any payments related to that).

This post is about that second example of title conditions, real burdens, and in turn a subset of them, namely “personal real burdens”, and in turn a subset of that subset, “rural housing burdens”.

In passing, I will note that “personal real burdens” might sound a bit like a contradiction in terms, and for property law students shunting “personal” and “real” into such proximity can seem confusing. That is something for a more theoretical analysis though. For now, it can be noted that what makes a personal real burden “personal” is the fact that they are enforced not by a neighbouring land owner, but rather by a public or quasi-public body who need not own any adjacent land to the land affected. This could allow, for example, a local authority or other relevant body to take an active role in relation to matters pertaining to conservation, healthcare, economic development, the marine environment, or climate change.

The rules relating to these personal real burdens can be found in an important statute called the Title Conditions (Scotland) Act 2003. Over and above those personal real burdens, and also in the Title Conditions (Scotland) Act 2003, there is the rural housing burden.

A rural housing burden affords a right of pre-emption to a recognised rural housing body on suitably identifed rural land. This is a pre-emption which runs with the land to the effect that a degree of control can be maintained by such bodies. Anyone owning affected land cannot sell it on a purely open market basis. The land must first be offered to the relevant rural housing body, which has a right of “first refusal” before any sale can take place.

The very existence of such a burden will affect the marketability of the affected property, and also a rural housing body will be able to act in circumstances it deems appropriate to maintain local housing stock. This is an important power, and also an important role. As such, not just anyone can be a rural housing body, you have to be designated as one by law. The Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Order 2004 is the relevant bit of law that does such designating. It is available online in its unamended form, but it has been amended in 2006, 2007 (twice), 2008, 2013, 2014, 2017 (twice) and most recently in 2019, with the addition of the Arran Development Trust to the list of appropriate bodies. This addition is important in the context of that Trust’s plans for the Isle of Arran, recently reported in The Herald.

In policy and land use terms, the rural housing burden can be an important tool in the toolbox of those who seek to maintain or design a certain character of any given locale. I made a point of mentioning them in a bit of work I was involved in for the Scottish Land Commission (on interventions in land markets, see page 11 of the Report here and background to that here). A useful resource about them can be found here, at Rural Housing Scotland’s website.

Enough background. Now it is time to point out a problem that I recently noticed in the legislation.

The problem – what is “rural land”?

As noted above, a rural housing burden can only be created over “rural land” (section 43(1) of the 2003 Act). What is rural land? Section 43(9) provides the following detail:

In this section, “rural land” means land other than excluded land (“excluded land” having the same meaning as in Part 2 of the Land Reform (Scotland) Act 2003 (asp 2)).

Here we encounter the problem. Part 2 of that other 2003 Act has been amended by subsequent legislation. As first enacted, the community right to buy introduced by the Land Reform (Scotland) Act 2003 (something I have written about separately, but I will gloss over here) only applied to rural areas, hence the importance of rurality to that regime. “Rural land” was defined (in a statutory instrument) as a locale with a population of less than 10,000 people. Whether or not that threshold is a sensible marker in relation to rural housing burdens is a standalone question, but for present purposes it is useful to note there was a definite threshold.

This changed as a result of the Community Empowerment (Scotland) Act 2015, which reformed the community right to buy to open it up to urban as well as rural communities (something Professor John Lovett and I recently documented here). “Excluded land” was no longer an urban/rural thing. This meant section 33 of the Land Reform (Scotland) Act 2003 was amended, such that it now refers to excluded land as being land that has somehow been hived off from the target area a community wants to acquire.

This is perhaps not the clearest drafting, albeit it might make (some) sense in the new Scotland-wide community right to buy. The thing is, it makes no sense whatsoever in relation to rural housing burdens.

Section 43 no longer works in its attempt to delimit what “rural land” is.

To expand what section 43(9) actually seems to say now, “rural land” means “land other than land consisting of a separate tenement which is owned separately from the land in respect of which it is exigible (subject to subsection (2A) [subsection 2A relates to salmon fishings and mineral rights])”.

Understood? No, me neither.

(There is a perhaps a wider lesson here in making sure amendments to statutes are “stepped down” to other statutes that refer to them. I have no idea if there is a central database of such cross references, but if there is not I would humbly suggest this would be a good idea, albeit beyond my technical expertise.)

Anyway. Does this mean rural housing burdens can readily be imposed across the whole of Scotland? Well, not quite: as already noted, you need designation to be a rural housing body, and any further expansion of the list would require legislation. That aside, does this mean the law needs amended to clear things up? The answer to that is a resounding “yes”.

The rural housing burden is an important legal device, and in turn it is important that the regime relating to them is clear and effective. This needs to be revisited.

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Postscript

The rural housing burden is perhaps not as well-known as it could be outwith specialist circles. By way of anecdote, I recently attended a conference in Lewis and Harris (Twitter mega-thread here) and as part of the activities we visited land owned by the community landowner the West Harris Trust. We called at Luskantyre, and were told by a Trust representative of the usage of rural housing burdens locally (and – yes – West Harris Trust is a rural housing body, owing to the Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment Order 2013). It is fair to say not everyone on the trip had heard of rural housing burdens, and for once in my life I was able to deploy my knowledge of section 43 of the Title Conditions (Scotland) Act 2003 and be amazingly on point. From conversations with Lesley Riddoch after the trip, I know she was interested in the potential of rural housing burdens, and she was kind enough to flag The Herald article I linked to above about Arran to me.

Whilst this blog post is mainly about a problem with the legislation, I hope the increased awareness of rural housing burdens is a happy by-product of it.

A photo of Luskantyre, part of the West Harris Trust. (I have no idea if any house pictured here is subject to a rural housing burden, I simply took the photo when I was visiting. I hope the inhabitants don’t mind the photo and there should be no identifying markers in these images, but do get in touch if you have any issue with this image being used on my blog.)