National film studio grounded by small landholding rules

Plans for Scotland's national film studio have been thrown into doubt by a decision of the Scottish Land Court issued today.

The court refused to authorise the resumption – ending the lease – of two smallholdings at Pentland Mains, Midlothian, which were to have been the site of the studio, a project described by the Scottish Government in 2017 as being “of national importance”.

Part of the Pentland Estate, the holdings, which together extend to 56.30 acres, are still actively farmed by the only people living on the estate, James Telfer and his family, the respondents in the case. The family have possessed the holdings almost continuously since their creation in 1915.

Apart from the film studio project, a major driver of the resumption application from the point of view of the present owners was that it offered the prospect of solving a major problem afflicting part of the estate known as Clippens Yards, which is the subject of enforcement notices from Midlothian Council for the removal of tens of thousands of tons of material amassed there by a tenant who was running a waste disposal operation but abandoned the site, leaving the owners to face the consequences, and has since died. The deal struck by the owners with the developers makes provision for the restoration of this part of the estate.

However the resumption case foundered on a provision of the Crofters (Scotland) Act 1886, which also applies to smallholdings. Section 2 of the Act provides that the Land Court, which has to authorise resumption, can only give consent in as respects smallholdings where the purpose of the resumption has “relation to the good of the holding or of the estate”. Extinguishing the holdings would not be something “having relation to the good of the holding”, so the question was whether the resumption related to the good of the estate. A "public interest" criterion introduced by the Crofters (Scotland) Act 1955 applied only to crofts, not smallholdings.

The court held that, despite its potential to cure the problems of one part of the estate and relieve the owners of very onerous responsibilities under the enforcement notices, as a matter of law the purpose of resumption had to benefit more than the owners of the estate, present or future, and, in particular, had to benefit residents on the estate, however indirectly, incidentally or, even, minimally. Since, far from benefiting the only residents on the estate, resumption would lead to their removal (compensated but against their will), it could not be said that the purpose of resumption had relation to the good of the estate.

The court acknowledged the serious implications of its decision, but noted that the site was not the only one in Scotland where a national film studio could be located. It also recognised the difficult position in which its decision left the estate owners, whilst observing that “it is not apparent that the removal of a tenant on a secure tenancy from his holdings is a reasonable answer to that difficulty”.

Click here to view the court's decision.