Establishing Responsibility for the Maintenance of Open Spaces, Trees and Tree Shelter Belts in Springfield, Linlithgow
Each resident of the Springfield estate received a hand delivered letter from West Lothian Council dated 25 May 2021 which explained a current West Lothian Council study into the maintenance of trees and tree shelter belts in the Springfield estate, Linlithgow. Opinions with regard to this letter are given at the end of this article. A copy of the letter can be accessed through the following link.
Council letter Springfield trees
West Lothian Council are requesting comments and copies of any documents you may have relating to the maintenance of the Springfield trees. These should be sent to firstname.lastname@example.org before 30 June 2021.
It is the opinion of the Community Council that West Lothian Council is 100% responsible for the maintenance of all of the open space in all developments throughout Springfield excepting for the development constructed by Avonside Homes. This responsibility is proved through a variety of legal arrangements. What the residents of Springfield should be demanding, after years of neglect, is a clear plan for the maintenance of the trees and tree belts to a standard defined in agreed tree maintenance guidelines.
This article explains the background to the issues around the maintenance of open space generally and trees and tree shelter belts in particular. There are four parts to this article.
The stated West Lothian Council position.
Comments to consider in responding to West Lothian Council.
Concluding comments on the letter of 25 May 2021
The Stated Council Position
Four times a year our three West Lothian Council councillors meet with West Lothian Council officers to discuss matters specifically concerning Linlithgow Ward, at a meeting called the Local Area Committee. In common with all Community Councils in West Lothian our Community Council has recently been granted a seat at the table to ask questions of officers and to make comments.
On 10 March 2020 a paper was presented to the Linlithgow Local Area Committee by the head of operational services in which it was stated that following tree surgery in parts of the estate that the council had received further enquiries from residents seeking clarification on the future maintenance responsibilities for the tree belts and areas of public open space. The full report is available by clicking on the following link.
March 2020 Local Area Committee
At the Linlithgow Local Area Committee meeting of 2 March 2021 a further paper was presented by the head of operational services which concluded that a review of council records for Springfield, Linlithgow determined that the council is maintaining land and assets that it doesn’t have responsibility for. The full report is available by clicking on the following link.
March 2021 Local Area Committee
At the West Lothian Council Environment Policy Development and Scrutiny Panel meeting of 30 March 2021 a further report was presented by the head of operational services for comment by Councillors prior to a recommendation to the Council Executive. This widened the study significantly including an update on the areas across West Lothian that the council maintains but may not be owned by the council or where the maintenance responsibility has not been transferred or taken over by the council from the housing developer. In the report a distinction is made between the maintenance of grass, shrubs, hedges, weed spraying and the council responsibility for trees in open spaces and tree shelter belts. In making this distinction West Lothian Council has concluded that for the whole of the Springfield estate, regardless of the developer, there is no agreement in place for the maintenance of trees in open spaces and tree shelter belts and notwithstanding that the council currently maintains trees and shelter belts this is deemed to be the responsibility of feuars which is defined as “residents in common”. The full report is available by clicking on the following link.
March 2021 Environment PDSP
Different arrangements apply to different parts of the Springfield estate dependent upon the developer. Clear and substantiated documentation exists for those parts of the estate built by Wimpey and Beezer and the part of the estate built by Avonside Homes.
In the late 1980s Avonside Homes Ltd built 30 houses (2 to 60 Bailielands – even numbers only). In the title deeds for these properties open space is referred to as the common parts and amenity over which the residents have rights and responsibilities as described in the title deeds. This includes the woodland shelterbelt, planted when the houses were built, as a condition of the planning consent granted to Avonside Homes Ltd by West Lothian District Council.
The woodland shelter belt is currently being managed and maintained by the Springside Estate Association an organisation described in detail in the Burdens section of the title deeds and which has a duty and a legal right to collect an annual sum from each resident to defray the cost of maintaining the “amenity ground”. The title deeds give the owners of each house collective ownership of the amenity ground.
West Lothian District Council agreed to adopt the grassed area between numbers 12 and 34, a planted area between 28 and 30, a planted area by number 60, and the grass verge running from number 2 round the back of those houses and alongside Springfield Road ‘in perpetuity’ on receipt of a payment of £4012.46. This payment was made by the Springfield Estate Association.
An extract from the title deeds for those properties built by Avonside Homes can be viewed by clicking on the following link.
Extract from Deeds Avonside Homes
Although the title deeds make reference to “feuars” the feudal system of land ownership was abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000 which came into force on 28th November 2004. The Title Conditions (Scotland) Act 2003 also has a bearing. The Registers of Scotland states that the Keeper’s policy under the Land Registration (Scotland) Act 1979 was to include any rights to shared or common areas in the title sheets of the primary properties which is the case with Avonside Homes. The Land Registration etc (Scotland) Act 2012 introduces new concepts, one of these being shared plots. Section 17 provides a scheme to define shared plots, introducing separate title sheets for common areas. The shared plot scheme in the 2012 Act represents a departure from 1979 Act practice. A shared plot is a plot of land owned in common by proprietors of two or more other plots of land. For example, with an area of amenity ground within a housing development, it is ownership of the house which then leads to ownership of amenity ground.
Those parts of Springfield built by George Wimpey and Co. Ltd/Wimpey Homes Holdings Ltd do not share a similar legal arrangement. There is no reference to “feuars”. The residual ground not enclosed by private properties and excluding roads and paths are described simply as open space. Condition 7 of the Note of Conditions states “The proprietors of each plot shall be bound jointly to uphold and maintain in a neat and tidy condition such open spaces of any description in so far as these are not taken over by the Local Authority”. A letter dated 18 June 1991 received by one resident from David Jamieson, Assistant Regional Development Co-ordinator of Wimpey Homes Holdings Ltd, Edinburgh confirms that the open space within the Springfield Development remains in the ownership of Wimpey but is taken over and maintained by West Lothian District Council. Recent correspondence with Cheryl McCann, Adoptions Co-ordinator, Taylor Wimpey East Scotland, Dunfermline, confirms that the open space remains in the ownership of the company. A recent email exchange with Cheryl McCann can be viewed by clicking on the following link.
Email exchange Taylor Wimpey
The title deeds for those parts of Springfield built by Wimpey do not include any provision for residents to own jointly or individually, any part of the open space. Indeed reference to the example deeds shows that there are no burdens whatsoever.
An example of the title deeds for the Wimpey – Blackness number 2 estate Linlithgow can be viewed by clicking on the following link.
Example Deeds Wimpey – Blackness No.2 Estate Linlithgow
Those parts of Springfield (Sheriffs Park) built by Beezer Homes (Scotland) Ltd (now Persimmon) have a similar condition expressed as a burden which states that the Feuars shall be bound jointly to uphold and maintain those open spaces insofar as they are not taken over by the Local authority. An extract of the Burdens from the deeds of a Sheriffs Park resident can be viewed by accessing the following link
Sheriffs Park extract of Burdens from Deeds
Beezer Homes (Scotland) Ltd reached an agreement with West Lothian District Council for the maintenance of open space, trees and tree shelter belts in perpetuity. Copies of the agreement for both phases of Sheriffs Park can be viewed by accessing the following link
WLDC Beazer Homes Sheriffs Park
WLDC Beazer Homes Sheriffs Park 2
No resident from those parts of Springfield (parts of Bailielands) built by Wilcon Homes Scotland Ltd (possibly now Taylor Wimpey) has contacted the Community Council.
Comments for West Lothian Council
West Lothian Council are embarked on a programme of cost cutting, and all services are currently being examined to determine whether West Lothian Council has a legal obligation to provide particular services. The days of providing a service to the community because it has always been provided are unfortunately over.
During the 1980’s developers were required to plant tree belts at the perimeter of their housing development. These had little to do with reducing wind speed and more to do with camouflaging the housing estate from afar and providing an opportunity for biodiversity to flourish. The choice of forestry species was often inappropriate bearing in mind the closeness of planting and proximity to housing.
Excluding those properties built by Avonside Homes Ltd ownership of public open space in Springfield remains with the developer, Wimpey Homes (now Taylor Wimpey), Wilcon Homes Scotland Ltd (possibly now Taylor Wimpey), Beazer Homes (now Persimmon). Apart from those parts of Springfield built by Avonside Homes there appears to be no legal framework in place for the transference of ownership, or legal responsibility for the maintenance of open space of all description taken over by West Lothian District Council.
West Lothian District Council acted as quasi-owner during its stewardship of the Springfield estate which ended in 1997 engaging in landscaping activities; maintaining and planting trees and shrubs on land it did not own without consultation. The quality of landscape maintenance was generally high; a factor not replicated in recent years.
West Lothian District Council tended the hawthorn hedgerows which were preserved during the building of the estate. These hedgerows have subsequently become wild with seeded down trees and high hedges.
There are a number of tree belts within and around the Springfield estate which have received no maintenance for a number of years. These have become severely neglected with many seeded down trees and saplings and also dead and dying standing timber, particularly ash.
Many of the trees originally planted and those subsequently planted by West Lothian District Council are non-native forest species of Horse Chestnut, Ash, Sycamore, Oak, etc which are unsuited to a Scottish housing estate.
Several residents mention contacting West Lothian Council voicing concern over the dominance of trees adjacent to their property and the obvious lack of maintenance. Generally, these respondents are dissatisfied with the response thus far.
West Lothian Council have ground maintenance service standards which make no reference to trees which is unhelpful. Other Scottish local authorities are much clearer in their description of the service that their residents should expect.
Grounds maintenance service standards of West Lothian Council can be obtained by clicking on the following link.
Tree maintenance guidelines from another Scottish local authority can be obtained by clicking on the following link.
Tree Maintenance Guidelines
The following statement encapsulates the feelings of several residents “As a family with involvement in Burgh Beautiful we see first-hand the positive impact direct community involvement can have on our environment , however maintenance of trees is obviously a specialist activity and we would be greatly concerned if the council felt this could simply be passed to local communities across West Lothian to oversee”.
Concluding comments on the letter of 25 May 2021
1. The phrase “residents in common” is used in the letter in a quasi-legal manner. It would be interesting to have a legal definition.
2. Paragraph 2 states – “as each separate development was progressed and completed, the developer sought to reach an agreement with West Lothian District Council for the council to maintain areas of land held in common/shared ownership”. This is incorrect on two counts firstly there is an implication that the developers were not successful in reaching agreement with West Lothian District Council which they clearly were. Agreements were reached and money was exchanged. Secondly, all Springfield estate land excepting the individual house plots owned by residents and the Avonside Homes development in its entirety, is still owned by the developer as can be proved by an examination of the Sasines.
3. Paragraph 3 states – “the council has been carrying out the maintenance operations in the open space areas including the maintenance of trees and also the maintenance of tree shelter belts in accordance with council service standards”. A search of the West Lothian Council website indicates that there are no service standards for the maintenance of tree shelter belts or indeed trees in general which is disturbing.
4. Paragraph 5 states – “it was deemed that the shelter belts were the property of “residents in common”. Therefore, the council did not own the trees or shelter belts and it was deemed that residents had the common responsibility to manage the trees and shelter belts”. It would be useful to know under what authority an officer of the council “deemed” that the shelter belts were someone’s property and deemed that residents had the common responsibility to manage the trees and shelter belts. General understanding is unless it is enshrined in legislation; for example some legislative regulations have “deemed to satisfy” clauses, that only the courts have the power to deem something to be true.
5. Paragraphs 7 onwards imply that West Lothian Council cannot find relevant documents relating to planning conditions and agreements with developers. It appears very unlikely that residents would have this information. This is certainly the view on Facebook “If the Council, a bureaucratic office, cannot find the legal agreements and relevant documents, how are we residents expected to do it?”. Further, some of the attached information was obtained by making a Freedom of Information request to – you guessed it – West Lothian Council.