SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT STIRLING

 

 

B255/05

 

JUDGEMENT

 

in causa

 

SUMMARY APPLICATION under The Land Reform (Scotland) Act 2003, Part 2, Chapter 6, Section 61

 

By

 

HOLMEHILL LIMITED, a company incorporated under the Companies Acts and LIMITED BY GUARANTEE, having a place of business at Rannoch House, 20, Dargai Terrace, Dunblane, Stirlingshire FK15 0AU

PURSUERS

 

Against

 

THE SCOTTISH MINISTERS, Scottish Executive, Victoria Quay, Edinburgh EH6 6QQ

 

FIRST RESPONDENTS

 

STAKIS LIMITED, a subsidiary of Hilton Hotels plc, having a place of business at Maple Court, Central Park, Reid Crescent, Watford, Hertfordshire WD24 4QQ

 

SECOND RESPONDENTS

 

And

 

STIRLING COUNCIL, a local authority constituted under the Local Government etc. (Scotland) Act 1994, and having the seat of its administration at Council Headquarters, Viewforth, Stirling

 

THIRD RESPONDENTS

 

 

Act: Campbell Q.C.

 

Alt: Miss Poole, Advocate, for First Respondents

McIlvride, Advocate, for Second Respondents

 

 

 

STIRLING: 27th April 2006

 

The sheriff having resumed consideration of the cause

FINDS IN FACT

 

1.      The parties are as designed in the instance.

2.      This court has jurisdiction.

3.      The land at Holmehill, Dunblane, (the land) is owned by Stakis Limited, the Second Respondents.

4.      The land is shown in the Adopted Stirling Local Plan as a safeguarded area and is within a conservation area.

5.      Part of the land is subject to an Agreement under the Town and Country Planning (Scotland) Act 1972 s.50, now the Town and Country Planning (Scotland) Act 1997 s.75, whereby part of the land is reserved inter alia as open space.

6.      In August 2003, for land to be excluded from being registrable under the Act, the number of eligible persons in the community was raised from over 3000 to over 10000.

7.      The relevant population of Dunblane is 6,600.

8.      On 14th June 2004, The Land Reform (Scotland) Act 2003, (the Act), came into force.

9.      The land is registrable land in terms of s.33 of the Act.

10.  In mid December 2004, the Second Respondents exposed the land for sale.

11.  In mid to late December 2004, Mr Bennett, a local resident and officer of Dunblane Development Trust, first noticed that the land was exposed to sale.

12.  On 4 January 2005, the first public meeting was convened by Dunblane Development Trust.

13.  A public petition was instigated which attracted 1131 signatures of those eligible to vote.

14.  A further 244 signatories were discounted leaving 887 signatures.

15.  The percentage of support amounting to 13.62 % was calculated by comparing the 887 figure with the full electoral register figure of 6670.

16.  On 26th January 2005, Dunblane Development Trust submitted an application for registration of a community interest in the land.

17.  On 27th January 2005, the Scottish Ministers received this application.

18.  On 9th February 2005, the Scottish Ministers advised Dunblane Development Trust that, as its Memorandum and Articles of Association did not conform to the requirements of s.34 of the Act, re-application by a community body conform to the Act, would be necessary.

19.  On 14th February 2005, the company known as Holmehill Limited, the Pursuers, was incorporated.

20.  On 14th February 2005, Holmehill Limited made an application, in the prescribed form and accompanied by information of the prescribed kind in terms of s.37 of the Act, to register a community interest in the land.

21.  On 15th February 2005, the Scottish Ministers received this application and gave written confirmation to Holmehill Limited that they were satisfied that the main purpose of the body was consistent with furthering the achievement of sustainable development in terms of s. 34(4) of the Act.

22.  Accordingly, Holmehill Limited is a community body in terms of s.34 of the Act.

23.  Holmehill Limited is a body consisting of a significant number of members of a community in terms of s. 38(1) of the Act and has a substantial connection with the land.

24.  The Scottish Ministers requested and the pursuers agreed that the date of the application be changed to 18th February 2005.

25.  On 3rd March 2005, the application, Register No CB00016, was entered in the Register of Community Interests in Land by direction of the Scottish Ministers and a prohibition notice issued to the Second Respondents in terms of s.37 of the Act.

26.  On 23rd March 2005, the Scottish Ministers received representations from the Second Respondents.

27.  The application is a late application in terms of s.39 of the Act.

28.  The pursuers in the application gave seven reasons for the application being a late application. These were:

"1. For a number of years Dunblane Development Trust, Holmehill Limited's sister organisation, have been considering ways of improving access to Holme Hill for the community and of using parts of the land for community projects (see below). This was identified as a priority for the Trust in the Community Plan, following community consultation. The Trust relies solely on voluntary effort by residents and has to plan its work in stages. In the last few months the Trust has been occupied with work on flood-damaged areas of the town, close to Allan Water, and with improvements to the main entrances to the town. Due to the opportunity presented by the advertisement of Holme Hill, the Trust has brought forward its plans for this area.

2. The Trust has only recently become aware of the new legislation allowing communities to register an interest in purchasing land.

3. In association with Dunblane Development Trust, in the past three months a group of local people has formed to create community allotments, has discovered that there is considerable interest in having more land available for similar activities, and is now looking for more land.

4. The community was under the (mistaken) impression that the land was held in trust for the people of Dunblane by the owners of the Hilton Hotel. This was the view of many older residents consulted during the Community Planning process. In the event, this only applies to a small area of land not the subject of this application.

5. The community thought that whilst land was in the ownership of the Hotel, then it would be safeguarded. The sale advertisement and potential separation of the ownership of the Hilton Hotel and the land created a threat to community access to the land.

6. The land had suffered from serious neglect for approximately two years, during which time members of the community have requested the local authority and SEPA to take action against dumping and erosion by heavy vehicles. As no action was being taken to protect the ecology of land, it has now become clear that the only way to maintain and enhance it was to take it into community ownership.

7. The community thought that the existence of a minute of agreement between former owners Stakis and Stirling Council protected the land in its wild state. It has only now become apparent that this agreement is only enforceable by the two parties to it but no one else."

29.  On 5th April 2005, the Scottish Ministers issued a letter to which a formal Notice in terms of s.37(17) of the Act was attached giving notice that having considered the pursuers' application, they had decided that the community interest should not be registered.

30.  The Scottish Ministers gave seven reasons in response to those of the pursuers (abbreviated and underlined) that the requirements of s.39(3)(a) of the Act (Good Reasons) had not been met. These were (in italics):

1.      In the last few months, the Trust has been occupied with work on flood-damaged areas of the town. "While the Scottish Ministers appreciate the importance of this work, this is not an appropriate reason for the application being late as a timeous application could have been submitted between implementation of the legislation in June 2004 and the last few months."

2.      The community has only recently become aware of the new legislation. "While this may be the case, the legislation was commenced in June 2004, following 5 years of public consultation. The Scottish Ministers believe that this is no longer an appropriate reason for the application being late as other community bodies have submitted timeous applications."

3.      A group of local people has formed in the last 3 months to create community allotments and more land is required. "The Scottish Ministers consider that this does not address why the application was not submitted timeously."

4.      The community was under the (mistaken) impression that the land was held in trust for the people of Dunblane by the owners of the Hilton Hotel. This was the view of many of the older residents.... "The community body appears to have relied on the views of some of the older residents within the community, and there is no evidence that the community body had investigated these claims or sought professional advice. Had this point been pursued seriously at an earlier stage, Scottish Ministers therefore conclude that the community body's mistaken views do not demonstrate good reason for the application being late."

5.      The community thought that whilst the land was in the ownership of the Hilton Hotel, it would be safeguarded. "The reason for securing a timeous application is to secure a right to buy if the land is to be sold at any time in the future. A timeous application would have secured this right."

6.      The land has suffered from serious neglect for approximately 2 years ...it has now become clear that the only way to maintain and enhance it was to take it into community ownership. "As the community body has been aware of the alleged neglect of the land over the past two years, this seems to support more the need for an early application rather than late."

7.      The community thought that the existing minute of agreement between the owner and Stirling council protected the land in its wild state. It has only become apparent that the agreement is only enforceable by the two parties to it but no one else. "As with paragraph 4 above, there is no evidence that the community body investigated these claims or sought professional advice. Had this point been pursued seriously at an earlier stage, a timeous application could have been submitted. There is no explanation why these issues had not been pursued earlier. The fact that the community misunderstood the terms of the agreement does not address the reason why the application was not timeous."

31.  The Scottish Ministers also gave as a reason for refusal that the requirements of section 39(3)(c) of the Act (Public Interest) had not been met. The reason given was:

"The factors considered in relation to the public interest in that section do not demonstrate that it is strongly indicative that it is in the public interest to enter the community interest in the Register. While the aspirations of the community body, if successful, would appear to contribute positively to the local community, the Scottish Ministers have noted a number of references within the application directly relating to preventing future development on the land to be registered. There is evidence to suggest therefore that in this case the Community Right To Buy process could be used to thwart the planning process. Consequently, the Scottish Ministers have concluded that, as these issues are finely balanced, the public interest factors are not strongly indicative that it is in the public interest to approve the application."

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FINDS IN FACT AND LAW

That the First Respondents, having acted lawfully and reasonably in making their decision

THEREFORE

Sustains the second and third plea