HM Insights

News updates for Renewable Energy & land related projects

We have gathered a number of articles and news items of interest to those involved in renewable energy and other land-related projects.

"Black hole" in the Telecoms Code

In this case the claimant, Arqiva, had been in occupation of a mast site owned by the respondent under a 20-year lease from 1997. When the lease expired in October 2016, Arqiva remained in occupation and continued to pay rent but did not formalise a new lease agreement.

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During the period of the lease Arqiva had rights under Schedule 2 to the Telecommunications Act 1984 (the old Code) but it only sought to agree a new Code agreement with the landowner in 2019, two years after Schedule 3A to the Communications Act 2003, known as the Electronic Communications Code, came into force.

The issues to be determined by the Tribunal were, in summary, whether Arqiva had ongoing Code rights and if not how, if at all, it can acquire them.

The Tribunal referred to the Court of Appeal’s narrow interpretation of the Code provisions in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp and the Tribunal’s subsequent decision in Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd which, taken together, mean that:
• an operator cannot use the procedure under paragraph 20 of the code to obtain a brand new Code agreement for a site where the operator itself is in occupation of it.
• the ability to renew a code agreement under paragraph 33 of the Code is only available where an operator had a subsisting agreement as at the date the Code came into force (28 December 2017).

In the circumstances of this case, Arqiva was occupying the site but with no formal agreement to do so; so it could not rely on the mechanisms in either paragraph 20 or 33 to obtain rights under the new Code for this site.

Arqiva was further prevented from securing temporary rights because, following Compton Beauchamp, such temporary rights can only be obtained in the limited scenario where the landowner is taking active steps to seek removal and the operator simply wants to maintain its network coverage until that process concludes. That was not the case here.

The Tribunal indicated that this position is unsatisfactory and that the Court of Appeal had erred in taking such a narrow view in Compton Beauchamp that excluded an operator from formalising its position in respect of a site that it was already occupying. Nevertheless, the Tribunal was bound by the Court of Appeal's interpretation and held that Arqiva did not have any recourse to obtain rights under the Code.

Permission to appeal the decision in Ashloch has already been granted and, in light of the comments in this decision about the Court of Appeal's stance, it is anticipated that there will be a review of this "black hole" by the Court of Appeal before long.

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Council's right of pre-emption in feu disposition from 1986 still enforceable

West Lothian Council has succeeded in establishing that a right of pre-emption contained in a feu disposition from 1986 has survived the abolition of feudal tenure in Scotland, persisting as a contractual obligation between the original contracting parties or their successors.

Background
A farm at West Calder was sold to George Clark by Lothian Regional Council in 1986. The feu disposition reserved a right of pre-emption in favour of Lothian Regional Council allowing them or their successors to buy back the land at agricultural land values in the event that Mr Clark wanted to sell. That right was transferred to West Lothian Council as Lothian Regional Council's successor under the Local Government (Scotland) Act 1994.

After the said George Clark died, his executors wrote to the Council in 2015 to give notice that they planned to sell the farm. The plan accompanying that letter did not clearly show the subjects that were to be sold and the Council requested clarification of the areas referred to. The Council did not confirm either way whether they wanted to exercise the right to purchase the land. No response was received from the executors.

The executors then went on to try to sell the farm on the open market. The Council argued that the executors were not entitled to do so because the letter (a) did not comply with the formal requirements of the contract, (b) could not be understood by a reasonable recipient of the letter, and (c) did not constitute a valid notice in terms of the contractual right of pre-emption. The Council sought an interdict preventing sale.

By this time, the Abolition of Feudal Tenure etc (Scotland) Act 2000 had abolished the feudal system in Scotland. West Lothian Council had never registered a statutory notice to convert the feudal right of pre-emption over the land into a personal right of pre-emption under section 18A of the Title Conditions (Scotland) Act 2003.

Decision
Firstly, on whether there was a contractual right of pre-emption created at the same time as the real burden in the feu-disposition, the Sheriff held that this is a question of law, not one that turns on the factual circumstances. The Sheriff made reference to Conveyancing by Professors Gretton and Reid in which it says: ‘As well as being an executory deed, conveying of the land (and the writs and rents), a disposition is also a contract imposing obligations, usually on the granter but sometimes on the grantee."

In the explanatory notes to section 17 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 it is stated:

"In a dispute between the original parties to a feudal relationship, a condition in a feu which is valid as a real burden will also be valid as a contractual term. Even after abolition, a feudal superior will be able to enforce the terms of a feudal deed against the original vassal in so far as such terms are contractual."

So the Sheriff held that there was a subsisting personal contractual right capable of enforcement, notwithstanding that the feudal right of pre-emption had not been formally converted into a personal right under section 18A of the Title Conditions (Scotland) Act 2003.

On the validity of the 2015 executors' letter as a formal notice complying with the contractual right of pre-emption, the Sheriff noted that the Council needed to know precisely what land was being offered back to them before they could decide whether or not to purchase it. As the area of land being offered was not clear, the purported notice given by the executors was not a valid notice at all.

The Sheriff granted an interdict preventing the sale of the land and issued declarator that the defenders were bound by the pre-emption right.

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Land Court and Lands Tribunal merger

The Scottish Government has launched a consultation on the proposal to incorporate the Lands Tribunal for Scotland into an expanded Scottish Land Court.

The integration of the Lands Tribunal and the Scottish Land Court is considered desirable on grounds of structural coherence, efficiency, and the delivery of a better service to litigants in meeting the challenges of future developments but there is a counter-argument that they deal with distinct business and are both operating well as they are.

Deadline for responses: 19 October 2020

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Interim report on the establishment of Regional Land Use Partnerships

An interim report by the Scottish Land Commission sets out its provisional thoughts on the key issues for establishing Regional Land Use Partnerships.

The proposal to establish Regional Land Use Partnerships is seen as a significant opportunity to deliver a step change in the way land use decisions are made with the potential to:

  • Empower more regional and local engagement, decision making and action
  • Enable the collaboration and dynamism needed to meet Scotland’s ambitions for climate, natural capital, and inclusive growth
  • Integrate the planning and delivery of multiple objectives for greater efficiency and impact
  • Improve the openness, transparency, and accountability of land use management and change.

Land use partnerships were trialled in successful pilot schemes in Aberdeenshire and Scottish Borders in 2015 and will be introduced across Scotland in 2021.

The SLC's final report and recommendations will follow in September 2020.

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The role of land in enabling new housing supply in rural Scotland

The Scottish Land Commission has published a report on the role of land in enabling new housing supply in rural Scotland.

Research suggests that there is a clear gap in the provision of new build “mid market” housing options (both for sale and for rent) for locals in rural and remote rural areas of Scotland. Without enough high quality new homes being built, these communities will become increasingly fragile.

The findings of this SLC study show that greater facilitation and support, better approaches to rural planning and community engagement, improved private and public sector engagement together with support for new models and approaches would help support the delivery of more homes and better places across rural Scotland.

Recent reports from the housing market suggest an increase in demand for housing in rural areas as people consider relocating due to the success of working from home for many jobs during the pandemic. This trend is very new so its impact on the rural economy and housing market has yet to be seen.

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Agricultural Transformation Programme

An additional £1m is now available to farmers and crofters through the new Agricultural Transformation Programme which is helping to create more farm woodlands. The money comes as part of a key Scottish Government commitment to support the agriculture sector in helping Scotland meet its greenhouse gas emissions targets. The funding allows support to be provided for smaller blocks, riparian woodland and shelterbelts on farms that can have a higher cost.

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Harvesting and Processing Grant

Over £2 million is available to tree nurseries, small forestry businesses and farmers to help them create more woodland across Scotland. The support is part of Scottish Forestry’s Harvesting and Processing Grant which will help farmers and foresters to buy specialist forestry equipment.

The grant supports three main areas:

1. New specialised equipment which will increase the local small-scale harvesting and processing capacity with the aim of:

  • bringing woodlands into management
  • promoting the economic and sustainable production of timber and timber products through processing
  • adding value to local economies on a non-industrial scale
  • providing support to facilitate and enable farmers and forestry businesses to diversify, and to assist with the creation of new small enterprises and related employment

2. New specialised equipment for forest tree nurseries, including tree seed supply businesses and equipment for afforestation ground preparation projects, including forestry fencing projects, with the aim of:

  • promoting economic development in rural areas in Scotland by supporting new and existing forestry businesses
  • scaling up and expanding the capacity within the forest tree nursery and seed sector and the forestry contractor resource to help delivery of the Scottish Government's ambitious woodland creation target
  • helping forest nurseries to adapt, become more resilient and recover from Covid-19

3. Support for mobile equipment to help forestry businesses or enterprises to adapt and recover from Covid-19, with the aim of:

  • promoting economic development in rural areas in Scotland by supporting new and existing forestry businesses

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