HC Deb 30 June 1965 vol 715 cc625-32

3.41 p.m.

Mr. Neil Carmichael (Glasgow, Woodside)

I beg to move, That leave be given to bring in a Bill to abolish certain restrictions in feudal and leasehold titles in Scotland. On 22nd June, my hon. Friend the Member for Rutherglen (Mr. Gregor Mackenzie) was given leave to bring in a Bill to abolish feu duties in Scotland. I agree with the purpose of my hon. Friend's Bill—indeed, I, too, was a sponsor of it—but it may take some time to work through the processes of the House, and I believe that something which can be done much more quickly and much more easily is necessary to abolish certain abuses of the feudal system in Scotland. These abuses concern the exploitation of the old restrictive clauses in feu charters which are being used, not to protect the amenities of an area, or the rights of any citizens, but simply to make money.

In brief, the Bill which I am seeking leave to introduce removes the power of the superior of a piece of feud ground to impose any restrictions on the development of it, or building thereon, if permission has already been given by the local planning authority for such a change of use or construction.

Last week, my hon. Friend the Member for Rutherglen explained something of the basis of feus in Scotland, and I am grateful to him for doing so, because it means that it is not necessary for me to go into a long explanation of the matter. Suffice it to say that the feudal system in Scotland has left most of the land in the hands of a few old families. The tittle to the land is extremely doubtful and has been described by a former Secretary of State for Scotland in words which are not quite Parliamentary.

These old titles are being bought out by private developers, insurance companies, and other commercial interests, and substantial areas in the centre of Glasgow are now owned by a large insurance company which is not really concerned about the amenities of the citizens in this part of the world. It is concerned only with the speculative value of the restrictions that are held under the old charter. The fact that this company is holding up progress, preventing the expansion of many worth-while enterprises, and putting additional unnecessary financial burdens on local authorities who want to redevelop, means little or nothing to it.

A few words in explanation of these restrictions may be of some help to the House. When these restrictions were originally imposed, they were frequently imposed for reasonable purposes, perhaps to protect the superior who was concerned in producing something himself because he was the manufacturer of, say, a dye, or the owner of a distillery, or it might have been that he was genuinely trying to give some protection to the amenities in the area.

I know of one feu in which it is illegal to keep a dung heap on the premises unless that dung has been produced by animals stabled on the premises. But it is not this kind of feu which the speculative companies are after. They are concerned with buying out feus which have restrictions on development or restrictions on any building that is to be erected on the site.

The lack of concern for amenities is evidenced by the fact that in many cases people are trying to get money as an inducement to remove restrictions. I have the example of a company which wished to develop a site in the centre of Glasgow for offices purposes. The old feu charter restricted the development to three storeys only. No one nowadays would think of buying property in the centre of a city, with the tremendous expense that that involves, if he could build only three storeys high.

This may have been reasonable 200 years ago, but, with modern building techniques, modern electric lifts, and modern materials, it is unnecessary, and the company in question wished to build to five or six storeys. The feu superior used his rights to restrict the building, but he quietly let it be known that for a consideration of 50 years' purchase he would be willing to waive his right to restrict the height of the building.

In another case, a small restaurateur wished to obtain a licence to sell alcohol, but he discovered that the sale of alcoholic beverages on the premises was restricted by an ancient feu. He found, however, that the feu superior was willing to allow alcoholic beverages to be sold provided that he was paid £1,500.

Sometimes, however, the developer is not given the chance of paying to have a restriction removed. It sometimes appears to the developer that that would be a good arrangement to make, but the feu superior holds out against any development and will not waive his rights under the charter. Feu superiors have been known to hold out sufficiently long to enable them to buy up the land and develop it for their own benefit under the terms set out by the original entrepreneurs.

Anyone who wishes to develop in Scotland has to go through a long process before he can do so. He must first obtain planning permission from the local planning authority, which is the representative of the elected body of people in the community. It has its own experts, all of whom are directly or indirectly responsible to the citizens in the area. After planning permission has been received, the developer in the burghs must go through a fairly elaborate process. He must supply exact and detailed drawings of his proposed development to the Dean of Guild Court. He must also supply, in the prescribed form, a statement from proprietors in the adjoining areas that they agree to the development taking place. It is only after these processes have been complied with that he can go ahead with his plans.

I believe that by the time he has done all that the developer has run a fairly severe course in trying to satisfy the elected representatives of the community that he is undertaking proper and reasonable development. Because of this, I believe that there should be no interference by some ancient feu in the recognised will of the people which would be for the benefit of the community as a whole. For those reasons, I hope that the House will give me leave to bring in the Bill, and will facilitate its passage.

3.49 p.m.

Mr. Forbes Hendry (Aberdeenshire, West)

The hon. Member for Glasgow, Woodside (Mr. Carmichael) has made a sincere and well-thought-out speech. On the face of it it looks as though he has a good case, but I hope that I shall be able to persuade him that his proposed Bill is misconceived and inappropriate at the present time.

At the start of what I have to say I would point out that steps are now in progress for the complete reformation of feudal conveyancing in Scotland, a Commission having been set up under the chairmanship of Lord Reid. He has reported that there should be a system of registration of land in Scotland on the English model, and a remit has been made to Professor Halliday, of Glasgow University, to work out the details. I suggest, with the greatest respect, that this is not the time to bring in far-reaching proposals for the reformation of feudal conveyancing and law in Scotland.

It may be of some interest if I give a brief description of feudal land tenure in Scotland. I do so not as a representative of the landed proprietors of Scotland, but as a country solicitor who has dealt with hundreds of cases of small feus being taken off by builders, to the great advantage of the builders themselves—individuals in many cases and not necessarily large building firms.

Part of the trouble arises from the unfortunate terminology which exists. We talk about feudal conveyancing, the feudal system, superiors, and vassals. Some of us in Scotland have rather a liking for these old terms. There is an historical foundation for them. We have to go back 1,000 years to the institution of the feudal system, when the King divided the land in Scotland for administrative purposes, among his great nobles, who subfeud it to their lesser vassals. Gradually, over the years, the land has been feud into little pieces, to the great advantage of everybody. What started as a feudal system has become, by the British genius for compromise, an extremely workable system, to the great convenience of the people of Scotland—not so much the landowners, but the common people.

In the course of time it became the custom for a man who wanted to build a house to go to the local landowner and ask for a site. During the last 200 or 300 years Scottish landlords have generally been very far-seeing men, and have mostly developed their estates according to a plan. The result is to be seen in cities like Edinburgh and Glasgow—in the great planned squares and terraces which make these cities so beautiful. This has been done by the landowners being able to operate a systematic plan when they granted feus.

Two great advantages flowed from this. One was that the landowner acted as the planning authority when there was no planning authority in existence, and the other was that the developer—the builder—got the advantage of developing the site without having to bear the capital cost. That was a very important thing, because during the past century many humble people have built houses, often stretching their resources to do it. They might not have been able to do it if they had had to bear their share of capital charges arising from the development of roads, drains, and that sort of thing, which are necessary in the construction of a housing estate.

What happened was that the estate normally built the roads and put in the drains, if not the sewers, acting in exactly the same way as local planning authorities now act. In addition, it did a lot of other useful things, such as arranging for the building of walls and fences, for the convenience of the feuers themselves. All that could be done very much better if it was planned centrally. Normally, the expenses were pooled. The capital cost was derived from an annual feu duty, part of which was apportioned on each building site.

That system has worked very well in the past, and most Scottish houses are burdened only with a very small feu duty, representing part of the capital cost and the annual expenditure incurred a long time ago. As time has passed this system has become even more important. The hon. Member may not find this easy to understand, because he referred to local planning authorities and to the Dean of Guild Court. To a large extent these have taken the place of the old landowners, but there are still many instances where this old system remains of value in connection with the developing of estates. Most bungalows and privately-owned houses are built on estates which are held in common.

The first and most important requirement in the development of an estate is for the building of roads. A local authority does not normally build the roads in the case of private development. It requires the developers to build the roads, and when they have been built to its satisfaction it takes them over and maintains them thereafter. But the roads have to be built, and there has to be a system for paying for this service. It has been of great advantage, in the case of the building of bungalows and modest semi-detached houses, to make an annual charge, because a feu duty representing a capital cost of perhaps £200 or £300 might be very difficult to find from the resources of the people concerned, who may be very hard up at that time of their lives and who probably had to obtain a loan in order to help them.

That is the necessity for these restrictions. I now turn to the question of the people who are enforcing these restrictions. One it apt to think of the landowners—the feudal superiors—in this connection, but feus of this sort have become less and less attractive to private landowners, principally because of the cost of collection. My professional experience, derived not from my dealings with landowners but from my dealings with individual feuers, is that the landowners are only too anxious to get rid of the old feu duties.

I know of several instances where my clients have feus on estates and where the feudal superior has approached them and asked them to be good enough to redeem their feu duties. This has been done on reasonable terms. The owners of one estate that I know of have written to hundreds of my clients asking them to redeem their feu duties at the rate of 16 years' purchase, which is very reasonable. I think that the hon. Member will agree with that.

In certain other cases the landowners have gone to some sort of financial institution and sold their feu duties, because an annual income of this sort is a very attractive investment for life insurance companies looking for a long-term investment—

Mr. Norman Buchan (Renfrew, West)

On a point of order. As I understand it, Mr. Speaker, the Bill which my hon. Friend is asking leave to introduce is concerned with certain restrictions. So far we have had an analysis of the purpose of the feu, and mention of Robert the Bruce, together with a description of existing forms of feu duties, but we have not had one word about restrictions. I submit that the hon. Member is out of order.

Mr. Speaker

I have heard nothing which is out of order. I gather that the argument is that such is the value of the system as it exists—together with the fact that it is under examination at present—that there is no need to introduce the Bill now. That is the relevance of the hon. Member's speech.

Mr. Hendry

I am very much obliged to you, Mr. Speaker.

I have mentioned the types of person who hold these feu duties, and who are enforcing the restrictions. In many cases they are large institutions. The Church of Scotland is the largest holder of feu duties in Scotland, and it has a consistently good record in dealing reasonably with its feuers. It may be that certain other institutions have dealt unreasonably with feuers, but I ask the hon. Member to consider whether, if buildings were being put up 100 years ago, with an annual feu duty of £5 for the site of one house, it is reasonable that the same piece of land should still be burdened with an annual feu duty of £5 if the buildings which are erected on it are worth perhaps millions of pounds. That is a matter of opinion.

Generally speaking, the builders themselves—private individuals—relish the system of feu duties, and it is to the great advantage of everybody, especially in large owner-occupied estates which are now under construction. I ask the hon. Member, in view of my explanation and in view of the fact that the law is at present being very carefully reconsidered, to consider carefully whether this is a suitable time to ask leave to introduce a Bill of this sort. I do not propose to ask the House to divide against granting leave to bring in the Bill, because the hon. Gentleman could introduce his Bill in any case, but I ask him to give consideration to the points which I have raised.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of Public Business), and agreed to.

Bill ordered to be brought in by Mr. Carmichael, Mr. Gregor Mackenzie, Mr. Hugh D. Brown, Mr. James Hamilton, Mr. John Robertson, Mr. William Hamilton, Mr. Buchan, Mr. Bence, and Mr. Emrys Hughes.