Admin Note: JUMP TO COMMENTS

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

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.

Land Register Map

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
Brady Legal

DX560727

GLENROTHES

LEGAL SERVICES

Stuart Crosbie
08451 555555 ext. 442215
Stuart.Crosbie@fife.gov.uk

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.

Yours sincerely

Stuart Crosbie

Managing Solicitor
Planning & Environment

Appendix Two – Draft Licence Granted by FC to Lomond Homes ( the final version had minimal changes)

Lomond Homes

Unit 1
Lomond Business Park
Baltimore Road
GLENROTHES
Fife
KY6 2PJ

For the attention of Alan Seath

Michael McArdle

08451 555555 Ext 440268
Michael.mcardle@fife.gov.uk

  Your Ref: 

  Our Ref:    grace/mm

  05 August 2010

Dear Sirs

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.

Yours faithfully

Michael McArdle

Lead Professional

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.

Signed   Date  
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.
   

 

CONDITIONS (TURFING)
 
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

Turf: B.S.3969

Appendix Three – Lochgelly Rights of Way

Lochgelly - Rights of Way

Load More Related Articles
Load More By Mark Hood
Load More In Community

23 Comments

  1. Lochgelly

    August 7, 2010 at 1:42 am

    Thanks for sharing your article and information

    Reply

  2. Crabbit

    August 8, 2010 at 12:07 pm

    Thank you for the time and effort put inhto posting this. I’m still confused. As a home owner in NFV who has never been in favour of this path and strongly wishes it was not there I am reading between the lines. Is the Grace street path here to stay then? Sorry for being a bit thick!

    Reply

  3. Mark Hood

    August 9, 2010 at 7:30 am

    No the Grace Street path closes once the planned pathway is constructed between Geatons Rd and the Public park.

    Reply

  4. Mark Hood

    August 9, 2010 at 7:32 am

    that is unless someone makes a formal request to have the pathway made permanent. That woould have to be a planning application.

    Reply

  5. Crabbit

    August 10, 2010 at 10:21 am

    Thank you for the clarification Mark, Very relieved to hear that!

    Reply

  6. tiptoes

    August 14, 2010 at 10:49 pm

    the path will be permanent as lomond homes want a road through to the public park further down from the proposed path as they have been promised the bottom part of the public park and red ash park for housing.there is a strip of land left between the back of houses for this purpose

    Reply

  7. Crabbit

    August 14, 2010 at 11:19 pm

    Hi tiptoes, I kind of had that feeling when I read it. There’s a lot of smoke and mirrors going on here.
    I thought the land Lomond had an option on was further east than this. Time for some honesty from the council I feel.
    Time will tell.

    Reply

  8. Terry

    August 15, 2010 at 12:29 am

    for request – http://www.whatdotheyknow.com/request/new_farm_vale_pathway. the results are interesting but i reckon was only partially answered. i asked fro all the documents about the pathway and was given some email conversations. the last 1 was dated 29/6/10

    during July there was no recorded discussions about the pathway. i find that hard to believe. you might just be right about smoke and mirrors.

    Reply

  9. Mark Hood

    August 15, 2010 at 8:46 pm

    – Tiptoes, can I ask if you have any evidence to support anything that you have said? If not, and please don’t take this the wrong way, I can’t waste time looking into it.

    Reply

  10. Mark Hood

    August 15, 2010 at 8:52 pm

    Terry – there was recorded issues related to the path after 29/6. Most of them were in relation to the meeting I was having with the residents and my preparation for that meeting. The other was the written correspondence between lawyers acting for Lomand Homes and Fife council’s CEO complaining about comments I had made in the press about the pathway and the way Lomand had conducted themselves.

    Reply

  11. tiptoes

    August 17, 2010 at 4:50 pm

    well then cllr hood,what about lomond homes section 75 for new farm vale,the most developer friendly section 75 ever handed out in scotland.are you going to look into that and get the person responsible at fife council sacked and prosecuted

    Reply

  12. Mark Hood

    August 17, 2010 at 7:24 pm

    Tiptoes – I’m happy to raise any issues you have if you can provide evidence to support what your saying and it is not just your opinion.
    PS – I have asked officers to prepare a report on the planning conditions and the current status re new farm vale.
    PSS – If you have any evidence of criminal wrong doing re sec75 you should go straight to the police.

    Reply

  13. tiptoes

    August 17, 2010 at 9:36 pm

    i wouldnt waste your time,the plug is going to be pulled on lomond homes very shortly before they have to pay anything re sec 75,they have even formed a new company to develop the field up the avenue.if you cant see that coming you are stevie wonder

    Reply

  14. Terry

    August 17, 2010 at 10:15 pm


    Mark Hood:

    Terry – there was recorded issues related to the path after 29/6. Most of them were in relation to the meeting I was having with the residents and my preparation for that meeting. The other was the written correspondence between lawyers acting for Lomand Homes and Fife council’s CEO complaining about comments I had made in the press about the pathway and the way Lomand had conducted themselves.

    thanks for providing the extra info,. i still feel i wasn’t given a full answer by teh council, but between the request, and the info you shared i can get a better picture of whats going on. thank you.

    Reply

  15. James

    August 24, 2010 at 12:30 am

    Did anyone see the letter in the times from Lomond Freedom Fighter? What a load of ****, I personally do not see why this is getting turned into a NFV vs Grace St.

    IMO a pathway was definitely needed. I have no opinion as to where it should be located. I personally believe people should be focussing on that all decisions that were made was transparent and accountable by FC and Lomond Homes.

    Bickering between the residents isn’t going to solve anything and will just breed contempt between the 2 areas.

    Reply

  16. tiptoes

    August 25, 2010 at 7:35 am

    the crux of the matter is lomond homes should never have got away with what they have,they have friends in high places at fife council and cllr hood knows he can do nothing about it

    Reply

  17. Lochgelly

    August 26, 2010 at 4:45 pm

    FOI information request has been updated after an internal review* and contains more information: http://www.whatdotheyknow.com/request/new_farm_vale_pathway#incoming-110671

    We haven’t had a chance to look through all of it yet, so we do not know what relevency the extra data has but we will update accordingly.

    *No internal review was requested, our mistake, Fife Council decided to make an update to the FOI request

    Reply

  18. Anon Helper

    August 26, 2010 at 8:49 pm

    all the links to the fife council site are displaying an error apart from the one for searching for the original application for the housing development

    Reply

  19. Mark Hood

    August 29, 2010 at 8:35 pm

    Here is an interesting article in the Sunday Herald today……

    http://www.heraldscotland.com:80/news/transport-environment/revealed-the-evil-scheming-of-leading-property-developer-1.1051201

    Is this really the way a developer should treat a community.

    Reply

  20. James

    August 30, 2010 at 10:35 am

    thanks for sharing the article. This just shows further proof that Lomond should not be trusted and imo further highlights my concern that the Lomond Group should be brought to task over the way they manipulate planning rules and regulations for their own benefit and profit with disregard tothe local communities they operate in.

    Reply

  21. anon

    August 30, 2010 at 11:27 am

  22. Lochgelly

    August 30, 2010 at 11:34 am

    @anon: thanks for adding the link, I also found another blog created by a local that captured photographs of what Lomond Homes did – http://fashionsfromthepast.blogspot.com/2010/04/wall-came-down.html

    @Anon Helper: Thanks for the updates on the links being broken on the FOI request. One of the volunteers are searching the site the now to get the correct links.

    Reply

  23. Donna Kranendonk

    October 23, 2010 at 10:02 pm

    I really like what you write on here. I try and come back to it every day so keep up the good work!

    Reply

Leave a Reply

All fields are optional. You do not have to use your real name, pseudonyms are accepted.

Check Also

The New Lochgelly Centre – Pictures

Please find attached some pictures of how the new  Lochgelly Centre is to look. I’m …