The second comment on the plannning application, received on 8 March 2019, also raised three concerns,
The residents’ concerns about the impact on parking, together with the formal comment from Transport Scotland that the parking provision was undersized for the proposed development, all required further consideration and delayed the decision process.
The concerns were addressed by arguing that the facility would mainly be used by locals within walking distance of the venue.
Planning agreed to give approval subject to the following conditions.
Prior to the change of use hereby approved taking effect, a detailed scheme of signing and road lining for the car parking area shall be submitted to and approved in writing by the Planning Authority. Such details shall:
GCF were happy to comply with these conditions. They aligned with the roads department’s request for a delineated turning head with appropriate signage for the use of large vehicles such as the Council Refuse vehicle, and they addressed the concerns about residents parking that were raised in the village survey and again in the planning application comments.
The concern about the location of the septic tank was not addressed at this time, but it re-surfaced at the building warrant stage and was dealt with then.
With regard to the matter of land ownership, Highland Planning were quick to point out that “matters of land ownership are generally not a material planning consideration”, and so planning consent 18/05007/FUL was granted on 18 March 2019.
Nonetheless the question of land ownership did need to be addressed.
The landowner’s concern was subsequently expanded and clarified in an email received on 12 June 2019.
“We have been advised by our solicitor that the land from the South West gable end of the fish farm building belongs to us. He recommends that Glenfinnan Community Facilities SCIO follows the advice given by the principal planning officer Susan Macmillan to initiate a land register search in the absence of conclusive extant map documentation of the lease boundaries.”
In fact, GCF had already conducted a land registry search in the process of preparing the planning application so were able to quickly compile the documentary evidence to prove that the ground to the south west of the building had been sold to the Secretary of State for Scotland on 2 October 1958 for the erection of “a new pier Glenfinnan for use in connection with the Loch Shiel steamer services” together with “ground for the pier buildings and a car park, the solum of the present access road and a strip of ground in continuation thereof to the said pier over which a new public road is to be constructed”.
On 16 July 2019, GCF informed the landowner that his claim of ownership of the land up to the South West gable end of the fish farm building was not supported by the documents discovered. The area extending at least 6.85 metres (later more accurately calculated to be 7.54 m) from the said gable end is legitimately included in the title as shown in the plan submitted as part of the planning application. Furthermore, this land includes the whole of the septic tank that services the building.
Nothing more was said.
Turing back to 11 April 2019; Marine Harvest’s lawyer reviewed the planning application and raised a number of points pertinent to the lease. Most were simply confirming the details of the proposed lease, but he also, for the first time, attached the plan from the original lease agreement between Highlands and Islands Enterprise and Marine Harvest.
The plan showed the two areas of land that Marine Harvest lease from Loch Shiel Jetties Trust. He observed that “this is the only land that we can sub-lease to you so you will need to arrange for the remaining ground that is part of your planning permission to be leased from the landowner.”
The plan provided by Marine Harvest was not new to GCF, it had been discovered in the land registry search. The plan was copied from the 1992 disposition from HIE to Les and Aileen McFarlane of 173m2 of land needed to complete an extension to their property. Its re-use as the basis for the lease agreement strongly suggested that the parking area was not included.
But at this point (April 2019) we did not know who owned the parking area.
By June 2019 we had determined that the solum of U1191 Pier Road including the parking area adjacent to the Shorebase building had been part of the title sold to the Secretary of State for Scotland, and hence to Highlands and Highlands Development, from which it was transferred to Highlands and Islands Enterprise, who later transferred it to Loch Shiel Jetties Trust. The potential complication was that in 1959, Pier Road was adopted by Highland Council as U1191. We had not determined how much of the parking area was adopted road and therefore how much might be privately owned and hence possibly implicitly included in the lease agreement.
After lengthy research and dialogue with Highland Council roads department it was eventually determined that their adoption of Pier Road did not cover the whole parking area. They would only accept responsibility for a 5.5m wide median strip, essentially a projection of the Pier Road across the car park to the top of the jetty, and sufficient of the remaining area to form a turning hammer-head for service vehicles. The remainder of the car park, in particular the end-on parking bays to the north and south sides are not part of the adopted road, they remain the property of Loch Shiel Jetties Trust.
The roads department have a long-standing convention that they do not adopt end-on parking. This convention was originally established to resolve disputes concerning the maintenance of parking on land owned by the council and originally associated with council housing constructed thereon, that was subsequently “orphaned” when the council housing (but not the parking) was sold into private ownership. That situation does not apply in this case (the south side parking was never owned by the council or the residents of Slatach 1-4), but the convention still applies. Fundamentally it's all to do with what can be justified within the constraints of the Roads (Scotland) Act 1984.
On 12 June 2019 GCF engaged the services of a lawyer to advise on the proposed lease and, on their advice, requested a copy of the original lease to make sure there was sufficient time remaining on the lease, and to help with boundaries, and exactly what the lease covered.
GCF knew that the whole parking area was owned by Loch Shiel Jetties Trust, and that the lease certainly included the shorebase building and two adjacent rectangles of land, but it was still not entirely clear whether the lease covered the parking area or not.
GCF received a copy of the lease on the same day.
The plan in the lease was clear about the extend of the lease, but the wording was possibly open to interpretation, in that it required Marine Harvest to upgrade the "parking areas" and granted access rights over the road (indirectly confirming that LSJT are the owners of the road). However it was concluded that “parking areas” was a reference to the area labelled as “tarmac parking” within the boundary of the lease plan, so Marine Harvest’s earlier assertion that none of the car parking area was included was not entirely true, the parking on the north side is included, but the south side is not.
Discovering this minor misrepresentation of the original lease content prompted a transcription and close reading of the entire document. This surfaced a much more significant issue.
The terms of the original lease are written very explicitly around the purpose of “administration and servicing and operation of the Tenants' fish farming business”.
In particular, the original lease,
All these conditions could, in principle, be varied, subject to the Landlords’ written consent, but the lease as it stood would not permit the proposed sub-letting. On reflection, it is surprising that this was not picked up by Marine Harvest’s lawyers.
The need to extend the leasing arrangement to cover the whole car parking area, and now this issue with the terms of the original lease called into question the viability of the entire sub-lease proposal and GCF’s concerns were raised with MOWI (Marine Harvest was re-branded as MOWI around this time).
Following email exchanges with MOWI’s lawyers it was suggested that an appropriate solution would be for Glenfinnan Community Facilities SCIO to request that Loch Shiel Jetties Trust provide a letter of consent to MOWI.
The proposed letter of consent would permit a variation of the terms of the current lease agreement between Loch Shiel Jetties Trust and MOWI, which would allow MOWI to sub-lease shorebase to GCF.
Also, since GCF were required by a condition of the planning consent to make good, line and sign the entire parking area, but only part of the parking area is included in the definition of the leased premises. We would also seek the permission of Loch Shiel Jetties Trust to make good, line and sign that part of the parking area that is adjacent to the leased premises.
Preliminary discussions with Loch Shiel Jetties Trust were supportive in principle but they requested that Glenfinnan Community Facilities SCIO provide a detailed update on the progress and intent of the project so that Loch Shiel Jetties Trust could make a fully informed decision whether, or not, they would be willing to issue such a letter of consent.
On 12 Dec 2019, GCF emailed a document to Loch Shiel Jetties Trust (LSJT), specifically to Hughie Donaldson and Allan Henderson. This document explained in detail the history of our interest in the Shorebase facility, our proposal for its refurbishment and conversion to a community facility, and in particular the legal issues regarding land ownership and the problematic clauses in the current lease between LSJT and MOWI.
The document concluded by requesting a letter of consent from LSJT to MOWI to waive certain clauses in the lease so that MOWI could legally sub-lease the Shorebase building to GCF. Draft text of a proposed letter was included as an appendix.
The letter of consent to MOWI Ltd was proposed to explicitly permit,
It was also to grant permission to make good, line and sign the parking area adjacent to the premises, as required by the planning application.