Committee
Justice 1 Committee, 10 Dec 2002
10 Dec 2002 · S1 · Justice 1 Committee
Item of business
Title Conditions (Scotland) Bill: Stage 2
Mr Wallace:
Watch on SPTV
With regard to the point that Lord James made about the ECHR, I would say that, given that section 8(1) states that "A real burden is enforceable by any person who has both title and interest to enforce it",it might not be possible to prove that every owner on an estate comprising 600 houses, for example, had an interest to enforce. The question is one of standing up not for Scotland's rights, but for the rights of individuals who could well have an interest and a right to enforce, even though they are not within the 4m area stipulated by Lord James in his amendment 17. The example that I gave was of someone living well inside an estate, who would have an interest in maintaining the appearance of the entrance to the estate. If the entrance to the estate became run down in breach of a condition, it could have a material impact on the value of the house. I believe that the owner who lives well inside the estate would have an interest and that, therefore, the matter of ECHR compliance that Lord James mentioned is not some notional matter, but one that could be meaningful for people.It is our view that the right to enforce a real burden is a possession under article 1 of the ECHR, which guarantees the right to property. The loss of a right to enforce a real burden would be an interference in the rights of property and falls to be considered as a control on the use of property under article 1 of the ECHR. To comply with article 1, such a control on use must be lawful, in the general interest and proportionate. Obviously, balances must be struck, but we believe that to withdraw that right without the availability of compensation could involve a material loss that would be incompatible with the ECHR.A point was made on enforcement. Concerns have been expressed on a number of occasions about the great numbers of people to whom things would need to be intimated. The specific concern that was raised in evidence to the committee related to a situation in which the proprietor has breached a burden in the past, by building a garage, for example, and seeks to remedy the position in the context of the sale of property. It is important to look at other provisions of the bill and to see two significant changes that materially alter the situation and, I believe, improve it. The first is the reduction in the period of negative prescription from 20 years to five years in section 17, which we have just approved. That means that if the garage was built more than five years ago, there would only rarely be a difficulty, and the purchaser's solicitor could be expected to accept the position without any difficulty at all.The second is the clarification that section 16 provides on the extinction of real burdens by acquiescence. If the garage had been built within the past five years, but not within the past few months, it is thought that the burdened proprietor should, in almost all cases, be able to rely on section 16 to extinguish the restriction, at least in so far as the restriction prevented the building of the garage.The building of a garage is an overt act. It is clearly reasonable to suppose that a benefited proprietor living nearby would know, or should know, that a garage had been built. The benefited proprietor does not also have to know that the building of the garage breached the terms of the real burden, or that he had been entitled to enforce the burden. The presumption set out in section 16(2) is that benefited proprietors are to be taken as being in a position of knowledge, and that they did not object.Those matters have a material bearing on some of the concerns that have been expressed. With regard to my amendment 111 and Maureen Macmillan's amendment 110, I have tried to explain that amendment 110 only relates to a limited number of properties—in contrast to amendment 111—and that there is no policy reason why that provision should be restricted just to right-to-buy estates.On amendment 11 and the provisions relating to section 52, I have sought to indicate that what is being addressed is not some provision that extends enforcement rights, but rather one that gives protection to certain rights, which could well be lost if section 52 is not in place. I give the example of a tenement where, if the conditions had been established by a non-feudal charter, there could be no one to enforce the burden, which means that there would be no burden, and therefore something simple like an agreement to maintain a common roof would have no one to enforce the burden and it would disappear. I do not believe that that is what the committee wants to happen. I hope that I have explained that that is the purpose of section 52, and that it is not a section that tries to extend the range of people who can compel enforcement, as has been suggested.
In the same item of business
The Convener:
SNP
I will rattle on, because we have an awful lot to get through. Item 3 on the agenda is consideration of the Title Conditions (Scotland) Bill. I welcome the M...
Section 1—The expression "real burden"
The Convener:
SNP
Amendment 87 is grouped with amendments 106, 107, 108, 233, 235, 208, 64, 67, 69, 70, 71, 72, 238, 239 and 75.
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
Amendment 87 will introduce into the bill economic development burdens as one of the exceptions to the general rule that burdens must benefit other land.Amen...
Lord James Douglas-Hamilton:
Con
Does amendment 106 provide for clawback for the public sector? I assume that in certain circumstances economic burdens might relate to clawback.
Mr Wallace:
I confirm that the amendment provides for clawback.
Lord James Douglas-Hamilton:
Con
I declare an interest as an unpaid trustee. Does the minister believe that there are no circumstances in which the provision should apply to the private sector?
Mr Wallace:
Yes. In the stage 1 debate, we discussed whether the provision should be available to private bodies and individuals, rather than restricted to local authori...
Lord James Douglas-Hamilton:
Con
Is the minister's view that the public interest should be paramount in circumstances of the kind that we are discussing?
Mr Wallace:
That is the motivation for amendment 106. The amendment accords with the evidence that COSLA gave to the committee at stage 1.
Amendment 87 agreed to.
The Convener:
SNP
Amendment 222 is grouped with amendments 223 to 226.
Maureen Macmillan:
Lab
Amendment 223 is the main amendment in the group. The bill proposes a special status for conservation bodies. In the same way, we believe that there should b...
Lord James Douglas-Hamilton:
Con
Does the minister accept that Maureen Macmillan has a valid point? In certain parts of the Highlands, local people have difficulty in obtaining low-cost home...
Mr Wallace:
As Maureen Macmillan indicated, amendment 223 seeks to ensure that, where bodies sell land at affordable prices for local social community housing purposes, ...
Maureen Macmillan:
Lab
I am pleased to hear the minister say that he realises that the issue is important in rural areas. I would be happy to withdraw amendment 222, on the basis t...
Amendment 222, by agreement, withdrawn.
Section 1, as amended, agreed to.
Section 2 agreed to.
Section 3—Other characteristics
The Convener:
SNP
Amendment 88 is grouped with amendment 73.
Mr Wallace:
Amendment 88, together with amendment 73, will resolve a technical problem that might have allowed people who do not have any right to enforce a condition to...
Amendment 88 agreed to.
Section 3, as amended, agreed to.
Section 4—Creation
The Convener:
SNP
Amendment 89 is grouped with amendments 169, 170 and 182.
Mr Wallace:
Section 4 is about the creation of real burdens after the appointed day. As the committee will see, paragraph (c) of subsection (2) is about the identificati...
Amendment 89 agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.