FC – Fife Council MH – Mark Hood
Ownership of land at the Jubilee Park in Lochgelly
Advice and comments from Andrew Ferguson FC Lawyer
‘The land was sold for £1 in 1964 to Lochgelly Burgh Council. There’s no specific dedication in the title deeds to any particular purpose, but I do note that the property was held on the former Council’s housing account and the original feu grant (in 1948) seems to indicate it was a housing plot.
For that reason it’s not been treated as common good in our recent review of all titles. The locals will know better than me whether a house was ever built on the ground, and why, less than 20 years later, the Council was buying it for £1.
However, I have nothing to indicate it wasn’t acquired for statutory purposes under the Housing Acts.
I would also stress that, even if it were common good, that would not prevent the Council from building a path over it – unless it was interfering with a specific recreational purpose.’
Council Land Ownership – Map
Light Green Hatch – Community Services
Dark Green Hatch – Economic Development
Red Hatch – Housing Services
Grace Street is a Private Road Status
Advice and comments from Mark Barrett FC Transportation services
Section 151 “Interpretation” from the Roads (Scotland) Act 1984 gives the following definitions for “road”, “public road” and “private road”.
- “Road” – “any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;”
- “Public Road” – “a road which a roads authority* have a duty to maintain.”
- “Private Road” – “any road other than a public road.”
Basically, the only difference between a public road and a private road is the maintenance responsibility. In this case Grace Street is not on the Fife Council List of Public Roads and is therefore a private road, with the maintenance responsibility most likely being with the residents of the properties fronting the road and/or the land owner. However, the two street lighting columns on Grace Street are maintained by Fife Council – prior to 1984 local roads authorities were obliged to provide street lighting on private roads within built-up areas.
Any person, no matter where they come from, can walk, cycle or drive on Grace Street or park their vehicle, subject to it being road taxed, on Grace Street. The residents of Grace Street, or whoever is responsible for its maintenance, cannot impose restrictions on the use of Grace Street. This applies to all private roads.
The consent of the Grace Streets residents, or whoever is responsible for its maintenance, will be required to carry out any amendments to Grace Street.
Grace Street link to Geatons Rd will be made permanent in six months
Extract of back from FC to Lomond Homes
‘On behalf of and as authorised by The Fife Council, I hereby confirm that the requirement to close off and remove any footpath or desire line in terms of Clause 7.4 of the said Agreement (as varied) shall be waived in respect of the proposed temporary footpath on a route to be agreed between the Council and your clients, and that until such time as the Town Park Link referred to in clauses 7.1 to 7.3 inclusive is completed in terms of the Agreement.’
MH – Clauses 7.1 to 7.3 refer to the planned pathway from Geatons Rd to the public park. I have underlined the key wording from my perspective which clear states the permission is temporary. Full copy of the letter is attached in Appendix One
Lomond homes do not have permission to build the temporary pathway
MH – Appendix Two is a copy of the draft licence granted by FC to Lomond homes to allow. I’m waiting for a copy of the signed off version. There is very little change in the final version I believe.
This licence was signed by the council and the Lomond homes before the path was constructed. This document gave Lomond homes the permission to construct the path on council land.
The proposed link from Geatons Road to the public park is a right of way and Lomond Homes do not have the right fence of this link.
MH – development services hold a list of all rights of way in Fife. They have confirmed that there is no right of way from Geatons Road to the public park. I have asked for a list of all rights of way in Lochgelly and this is shown in Appendix Three. Given that there is no documented right of way, Lomond do have the right to fence of the route of the proposed permanent link at this time.
Temporary Path Specification
Advice from Tom Nesbit FC Asset Management
The agreed specification was as follows – “A temporary footpath from the end of the footpath on Geatons Road to the hammer head on Grace Street. This shall be approx 1.5m to 2m wide. It shall be 25mm of dust rolled on top of 150 mm compacted types 1 with a timber edge”.
Appendix One – Back Letter to Lomond
|Derek A Brady
Your Ref: DAB/PY
Our Ref: DEVS/0001051/SC
8 July 2010
Dear Mr Brady
New Farm Fields Lochgelly – Lomond Homes Ltd
I refer to your recent correspondence with my colleague Andrew Ferguson and our subsequent telephone conversations.
I also refer to the Minute of Agreement under Section 75 of the Town and Country Planning (Scotland) Act 1997, between the Council and your clients, dated 22 October 2008 and registered in the Land Register for Scotland under Title Number FFE30878; as varied by Minute of Variation dated 20 and 25 August 2009 and registered under the same Title Number.
On behalf of and as authorised by The Fife Council, I hereby confirm that the requirement to close off and remove any footpath or desire line in terms of Clause 7.4 of the said Agreement (as varied) shall be waived in respect of the proposed temporary footpath on a route to be agreed between the Council and your clients, and that until such time as the Town Park Link referred to in clauses 7.1 to 7.3 inclusive is completed in terms of the Agreement.
Planning & Environment
Appendix Two – Draft Licence Granted by FC to Lomond Homes ( the final version had minimal changes)
For the attention of Alan Seath
08451 555555 Ext 440268
Our Ref: grace/mm
05 August 2010
PROPOSED TEMPORARY FOOTPATH AT GRACE STREET, LOCHGELLY
On behalf of Fife Council (hereinafter referred to as “the Landlords”) I hereby offer to grant a licence to you, Lomond Homes, having your registered office at Unit 1, Lomond Business Park, Baltimore Road, Glenrothes (hereinafter referred to as “the Tenants”) ALL and WHOLE the area of land at Grace Street, Lochgelly being subjects delineated and hatched in red on the plan annexed and signed as relative hereto (which subjects are hereinafter referred to as the “subjects of let”) and that on the following main terms and conditions, namely:
1. The licence period shall be from 1 July 2010 to 31 December 2010 and shall thereafter run on a week to week basis subject to termination hereof upon either party serving on the other a weeks prior written notification.
2. The Tenants shall occupy and use the subjects of let for the purposes of constructing a temporary footpath to link Grace Street and the New Farm development and for no other use whatsoever.
3. The licence is granted on condition that all necessary statutory consents have been obtained in respect of the Tenants proposed use of the subjects of let.
4. No rental will be payable in respect of the licence but there will be a one-off administration charge of £250, payable by the Tenants upon conclusion of this licence.
5. The Tenants shall be responsible for the safety of contractors and members of the public during the period of occupation and shall erect any necessary safety barriers around the subjects of let during the construction and reinstatement of the footpath.
6. The Tenants shall ensure that no nuisance, annoyance or injury to the amenity or to the adjoining tenants, owners or occupiers is caused by their construction and reinstatement of the footpath and the Landlords will be the sole judge of what constitutes a nuisance, annoyance or injury to the amenity.
7. The Tenants shall be subject to all existing servitudes and rights of wayleave whether or not formally constituted including those for the laying and maintaining of sewers, drains, pipes, cables, telegraph and telephone poles, wires and stays and the Tenants shall indemnify the Landlords against all claims and liabilities of whatever nature arising out of the use and occupancy of the same by the Tenants or their Agents.
8. The Tenants shall be subject to the burdens and conditions contained in the Landlord’s title to the subjects of let and others and shall indemnify the Landlords against all claims and liabilities of whatever nature arising out of the use and occupancy of the same by the Tenants or their Agents.
9. The Tenants shall be responsible for the payment of any rates and other property taxes levied on the subjects of let during the period of occupation.
10. The Tenants shall waive absolutely and unconditionally all claims in respect of loss, damage or injury of whatever nature which would not have arisen had this licence not been granted and howsoever such loss, damage or injury is occasioned.
11. The Tenants shall not assign this licence, let or sub-let the subjects of let or any part thereof without the prior written consent of the Landlords, which consent will not unreasonably be withheld or delayed.
12. The Tenants shall not erect or exhibit or allow to be erected or exhibited on or about the subjects of let any hoarding or advertisement without the prior written consent of the Landlords.
13. The Tenants shall ensure that all reasonable precautions are taken to protect any existing services located within the vicinity of the subjects of let, which if damaged in any way during the period of occupation shall be the sole responsibility of the Tenants to repair or to replace, all to the satisfaction of the Landlords.
14. The Tenants shall undertake to reinstate the subjects of let to the entire satisfaction of the Landlords within 1 month of the termination of this licence. This shall include the removal of any materials and temporary site accommodation as well as reinstating the site in accordance with the enclosed specification.
15. The Tenants shall indemnify the Landlords against all claims, demands, costs or proceedings for personal injuries, including death, and all loss or damage of any kind whatsoever which may arise as a result of any operation or activities carried out by the Tenants or their sub-contractors on the subjects of let and against all claims, demands, costs or proceedings in relation to or arising from any other cause arising from the Tenants or their sub-contractor’s occupation, use or otherwise of the subjects of let. To this end the Tenants shall effect employees and public liability insurance cover for a minimum level of indemnity of £2,500,000 (TWO MILLION, FIVE HUNDRED THOUSAND POUNDS) in respect of any individual claims made against them and keep such policy in force by paying the premium when due. It shall be an essential condition of this Contract that the aforesaid Insurance Policy be exhibited to the writer prior to Entry and that same shall be exhibited at anytime thereafter on demand.
16. In the event of the Tenants failing to comply with any of the conditions and obligations contained within this licence the Landlords reserve the right to immediately terminate the licence. In the event that the licence is terminated the Tenants shall be bound to remove from and reinstate the subjects of let in accordance with Condition 14 above. In the event of the Tenants failing to leave the subjects of let in a satisfactory condition either under this or Condition 14 above, the Landlords may at their discretion appropriate remedial works and recover the costs from the Tenants.
17. No warranty is given as to the stability of the subjects of let or as to the suitability of said subjects of let for the Tenants proposed use thereof.
18. Any difference or dispute between the parties hereto as to the interpretation of this licence or as to the fulfilment or otherwise by either party of their respective obligations hereunder or as to any matter connected therewith will, failing agreement, on the application of either party, be referred to and determined by a single arbiter to be nominated, failing agreement, by the President of the Law Society of Scotland for the time being subject to and in accordance with the provisions of the Arbitration (Scotland) Act 1894 and any statutory modification or re-enactment thereof for the time being in force.
I Alan Seath on behalf of Lomond Homes hereby accept your offer of licence dated 28 June 2010 to lease the Subjects of Let on the terms and conditions contained therein.
|SPECIFICATION FOR TURFING|
|1.||Cut turf to an even depth of 50mm, lay on protective covering to avoid further damage to existing grassed areas.|
|2.||Remove top soil to the required depth and store separately.|
|3.||Remove subsoil to required depth and store separately.|
|4.||Upon installation of cable replace subsoil and compact to top soil level, spread and grade top soil.|
|5.||Before turfing and before final cultivation supply and apply, at the manufacturers recommended rates, a Longlife Preseeder N.P.K. 8:12:8Mg, or an agreed equivalent.|
|6.||a)||After fertilising carry out further cultivation to reduce top 25mm to a fine tilth.|
|b)||Rake to a true, even lightly firmed surface, removing all stoners more than 50mm in any dimension.|
|7.||Provide suitable turf to BS3969 to match existing from local supplier to be agreed by Fife Council.|
|8.||Turf to be laid to the following specification:|
|a)||Lay turf with broken joints, well butted up, working from planks laid on previously laid turves.|
|b)||Use whole turves at edges, trim to true line.|
|c)||Adjust levels by raking out or infilling with fine soil under turves.|
|d)||Consolidate by lightly and evenly firming with wooden beaters as the laying proceeds. DO NOT USE ROLLERS.|
|e)||Dress turf with lightly sifted top soil/peat/sand and brush well to completely fill joints.|
|f)||Thoroughly water the completed turf within 24 hours if there is no rain.|
|g)||Allowances must be made for settlement to ensure final levels match surrounding levels.|
|h)||All work to be carried out by an approved contractor.|
|9.||Upon completion of the reinstatement works a standard 12 month liability period will apply including paragraph 2 & 3 on the attached schedule.|
|1.||The contractor must carry out the work when soil and weather conditions are suitable for the relevant operations, i.e. do not lay turves when persistent cold or drying winds are likely to occur or soil is frost bound, waterlogged or excessively dry.|
|11.||The contractor will be responsible for the newly turfed area until successful establishment. This will include protection, irrigation and cutting allowing no growth higher than 50mm and no less than 25mm.|
|12.||The contractor will be responsible for bare areas of dead grass which become apparent. Any such areas will be regarded as defects due to materials or workmanship and must be made good by re-cultivation and returfing.|
|13.||Use only machinery and tools suitable for the site conditions and the work to be carried out.|
|14.||The contractor will be responsible for reinstating any damage to surrounding area subsequent upon the works.|
|15.||The contractor shall ensure that all cut turf is to be replaced within a 3 day working period.|
|The following British Standards are to be observed:|
Top Soil – B.S.3882
Appendix Three – Lochgelly Rights of Way