Common land legally stolen

The battle has been raging in Scotland for hundreds of years and once was fought with clubs, staves and other weapons.

Now it appears a war of words in a court of law will be required to settle a dispute that is one of the most enduring in this country’s history – ownership of the land.

The Hill of Alyth is an unlikely battleground but the tangled history of land ownership in this part of Perthshire between Kirriemuir and Blairgowrie serves to demonstrate how, despite land reform, this remains a controversial and convoluted matter, possibly involving the use of a seven-figure sum of public money.

Andy Wightman, the leading land reform campaigner, has uncovered documentary evidence to show that Scottish ministers paid nearly £3 million of public money to buy land at the Hill of Alyth – despite half of the land never belonging to the sellers.

It is common land, which the community had tried to defend for generations, on one occasion in the 18th century with “clubs and staves and other weapons”. In 1949 more than 500 turned out to take direct action. They cut down fences that had been put up on land they believed had been theirs for 600 years.

In his new book, The Poor Had No Lawyers, being serialised by The Herald and Sunday Herald, Mr Wightman traces how in the 1920s one of Scotland’s oldest aristocratic families assumed it could include parts of this land with its neighbouring properties, near the village of Alyth.

The author reveals that in 1977, when the Earl of Airlie’s trustees came to sell two parcels of this common land, they admitted in the deed of sale they had never claimed the disputed area they were selling on the Hill of Alyth was part of their property. They simply claimed it could be “construed” to be.

They also conceded in the deed “we or our predecessors in title have at various times disponed [made over or conveyed legally] parts of the subjects known as The Hill of Alyth to which we or they may have had a right but granted no warrandice [legal guarantees, including that the seller can validly transfer ownership]”.

So, despite not being able to prove they owned it, they sold it to another landowner who then sold it to the Scottish Government, whose lawyers approved the purchase.

In 1998 leading estate agents FPD Savills marketed another part of the common land on the Hill of Alyth as part of a farm for sale and were completely frank that the sellers could not prove they owned it.

According to the particulars, they had acquired title “from previous heritable proprietors to the Hill of Alyth without warrandice. The purchaser will be given title to the hill on the same terms.”

Mr Wightman believes the Hill of Alyth is one of a multitude of cases where common land was taken by private landowners, but without anyone acting illegally; their actions having been legitimised by laws from the 17th century.

He claims that for the past 900 years, common land has been “legally stolen” in this way, with property law serving the interests of the powerful. He believes the Hill of Alyth is the perfect modern example of this: “The whole point is that it is legal, but it clearly shouldn’t be.”

According to Mr Wightman, there were repeated attempts to divide the land on the Hill of Alyth by landlords who wanted to acquire it: “But the process stalled and, by 1843, the hill was noted as still being a commonty [a piece of land in which two or more people have a common right] in the New Statistical Account of Scotland. Since then, no further actions have been raised to divide the commonty and it therefore remains a commonty to this day.”

However neighbouring landlords had never accepted this, and went about their annexations and sales. These now have the imprimatur of SNP Scottish Ministers, albeit a process set in train by the previous Labour-Liberal Democrat Scottish Executive.

The land was bought for the Forestry Commission Scotland (FCS) but there is no evidence that body knew the history of the hill.

A spokesman for FCS said of the Hill of Alyth: “We are always open and willing to consider any new documentation that might support a claim of commonty. We are always open to discussing options with anyone who can demonstrate that they have legitimate rights to carry out specific activities on the national forest estate.

“While FCS titles are, on a purely historical basis, subject to any commonty rights and rights of grazing which can be substantiated, the existence of such a burden on the face of the title does not necessarily imply that such rights exist or are enforceable. The onus of proof in respect of such rights rests with any claimant.”

He said FCS had previously requested further evidence that would support this claim of commonty, but so far had not been provided with any. But he concluded: “It is likely that this issue will only be resolved once a legal decision has been taken.” 

‘There are more than 9.4 million acres of land held by a mere 969 landowners’

In his 1996 book Who Owns Scotland, Andy Wightman identified the ownership of some 65% of Scotland and examined the complex story of the power that accompanied the ownership of land. His new book, from which the following is an extract, continues the story.

What is revealing is the persistent pattern of very concentrated private ownership of land, which has remained virtually static since 1970.

The number of owners of 60% of private rural land in Scotland has decreased since 1970, from 1180 to 969 in 2010. The reason for this decrease is probably the steady amalgamation of farms and the acquisition of multiple holdings.

Were the analysis to continue to 70% of private rural land, it is almost certain the same increasing concentration would be observed, though a close analysis of the data would be required. Today there are more than 9.4 million acres of land held by a mere 969 landowners, and over 10 million acres of land are held by a mere 1550 private landowners in estates of 1000 acres and larger.

Just as the pattern of private ownership is largely unchanged, so the ownership itself has changed little. Of the 251 estates of 10,000 acres and larger in 2010, only 14 (5.5%) have changed hands since 1995, 3.5% of the acreage. Of these, two have been by inheritance and 12 by sale. Remarkably, in the top 100 landowners of 2010, Hugh MacLeod, who inherited Dunvegan Estates from his father, is the only newcomer.

The most significant change since 1995 is the marked increase in the extent of land owned by community organisations and, to a lesser extent, by conservation bodies. Community ownership has more than doubled and conservation bodies such as the RSPB have increased their holdings by 44% since 1995. The bulk of expansion in landholdings of these two types of owner has been in the north and west Highlands and Islands.

Ownership of land by overseas interests remains controversial and poses challenges to Her Majesty’s Revenue and Customs. Around 80 estates covering around 905,000 acres are held by overseas individuals and offshore trusts. Periodic calls for tighter regulation or abolition of overseas ownership (particularly land owned in offshore tax havens) have failed to lead to reform.

Many of the institutional owners, such as Eagle Star and Prudential, have sold their land in Scotland and the extent of such ownership is much reduced from what it was in the 1970s. Pension funds still include land as part of their investment portfolio but now seem to prefer urban to rural. Forestry investment by pension funds is still prevalent and institutional or industrial ownership of forests by the timber industry has been growing steadily.

Scottish Ministers, the legal name for the Scottish Government, is the largest landowner in Scotland, owning 1,901,607 acres of land (9.8%) of Scotland’s land area. Land held by Scottish Ministers consists of two main holdings – the national forest estate managed by the Forestry Commission and the agricultural estates managed by the Scottish Government Rural Payments and Inspections Directorate.

The agricultural estate is dominated by large estates principally in the Western Isles, Skye and Sutherland, acquired early in the 20th century to create smallholdings and crofts. An additional 8895 acres of land on Barra was acquired in 2003 when MacNeil of Barra gifted it to the government.