Facebook Group. Friends of Ironmills Bridge

This is a new group who wish to find out why the Ironmills Steps and Footbridge are still closed. You can't blame them, it will be 10 years next year with brief re opening for Xmas in 2015. 

They will endeavour to have the route re opened and intend to write to the Council soon. 

The group came about after an event in Ironmills Park at the KIC dance studio. Ironmills Road is pretty busy and it's a shame there is no foot access into the Park these days. People attending the event must have found Ironmills Road a bit tricky. Foot access would have allowed folks to avoid the road. 

It's the same for myself. I attend KIC Studios on a Wednesday and always take the car. If the steps were still open it would be a 10 minute easy walk. 

Bottom line is the cost versus the return. The costs now are no longer about just re instating the existing steps. They would require to be DDA Compliant.

The dog leg corner of the steps where the land has dropped about 6 feet would require an engineering solution. Previously it was piled with sleepers. I think I counted 13 high during the land stabilisation works. Far too much weight on a steep river bank.

The previous land works were not extensive enough to stabilise the entire land slip. The larger area to the East was not soil nailed. It then torqued against the part that was soil nailed and the slip was much worse the second time around.

It's pretty well documented in this blog.

I wish the new group well and I'm happy to provide factual information. But being a Facebook Group there are some wild and wonderful ideas about what the Council ought to do. There's even a comment about it all happening after house RP9 was built. It is quite amusing at times. As if we would build on an unstable bank and as if our house caused landslip. The house is not affected but just to keep people amused, when they enquire after our safety, we often say we are looking forward to having a Musselburgh Post Code. 

This is the Facebook Group. If the link doesn't work then search on Friends of Ironmills Bridge. Please join and contribute to making sure all factual information is given to the group. 

https://www.facebook.com/groups/5782103788536807

RAMPS is LIVE

Strange title I hear you say. What on earth is RAMPS and what's it got to do with water tower wood?

RAMPS is a Community invention that was born out of the irritation of constantly checking for changes to planning applications on the Midlothian Planning Portal. 

Why am I interested?

Regular readers of this blog site in the past will have noticed that my personal involvement in Planning arose from applications made by self (and architect hubby), applications made by a neighbouring tennis club, and applications impacting the community in Midlothian. 

Experience from these various forays into Planning made me curious, and being a system controller at one time, made me look very closely at the system. 

So what happened?

There's nothing like experience, is there? I became very adept at querying the planning portal after an application by myself was refused and then approved by the DPEA. The shenanigans..... not by the DPEA per se, but by the community and the planners. Brown envelopes maybe, or a large development impacting the Countryside? Nope. A sitting out area in a Woodland. Brown envelopes? Only from a visitor to the appeal site who fancied passing on "something" to the Reporter. In a Brown Envelope. 

So I learned a lot from a single contentious planning application. Joined the Community Council and was appointed as their Planning Representative. Fascinating stuff. Learning so much about impactful planning issues, listening to community concerns, and also joining the Federation of Community Councils. 

Better than being Planning Rep though, I met Bill Kerr-Smith.😊

Now Bill and I were pretty dedicated to our local community council. No, we were very dedicated. 

Whilst battling with Community Council planning applications for Midlothian, the fastest growing local authority in the whole of Scotland, our neighbours the Dalkeith Lawn Tennis Club erected some screen mesh on their metal ball proof fencing without planning permission. It might not have been a problem except it became 3 layers thick. Overshadowing my precious garden and the window to our bedroom, we couldn't sit back and do nothing. Attempts at mediation in the manner of a High Hedge application (which I thought could be considered similar in planning terms) brought nothing. We raised a complaint and the club applied for retrospective planning permission.

Its pretty well documented on this blog site already. 

For anyone interested in the detail the blog posts are;

Diary of Planning Events  

Part 1 Nov 23rd 2015  

https://watertowerwood.blogspot.com/2015/11/

Part 2 Dec 13 2015  

https://watertowerwood.blogspot.com/2015/12/diary-of-planning-events-2014-to-2015_13.html

Part 3 Feb 11 2018. 

https://watertowerwood.blogspot.com/2018/02/

The Tennis Club Application. 

The application (17/00747) was one of those that when it goes wrong, it keeps going wrong. Firstly it didn't get published on the weekly list sent out to the Community Council. It was fortunate I was able to check that. This omission caused the application to be extended by a month. A lot can then happen in a month. I was checking the portal documents and scratching my head. Numbers of documents on the portal didn't tally with changes appearing. I wondered if documents were being deleted. Turns out documents can be deleted, and updated before being put back on the system. Think about that. Then there's backdating. A document that is back dated and later uploaded, is buried in the date order on the portal. If one is deleted and a new one comes on the portal back dated, you wouldn't know because the total number of documents would remain the same. 

For this tennis club application this was the key observation by myself that formed the basis of part of a planning complaint.

Changes on the portal to documents. The portal document previously described as “correspondence” was changed to “Supporting Statement” and dated Dec 22nd. Hence it was not reviewed as a supporting statement when we made our initial objection and it makes a substantial difference to the appreciation of what the application proposes.

This was the change that made a whole lot of difference to what the planning officer was able to implement post decision. The decision, which was for approval with conditions, protected our light by approval for a single layer of light green netting with it's removal out of playing season. Yet 3 layers of netting remained with the apparent agreement of the Council. Not good.  

We took our complaint all the way to the Ombudsman. Here is the decision report if you wish to read it. 

https://www.spso.org.uk/decision-reports/2021/february/decision-report-201809286-201809286

The Ombudsman upheld this complaint. The outcome was an apology from the Council (https://watertowerwood.blogspot.com/2020/) and a learning session required to be held at the Council. Fortunately good relations with the tennis club meant that the netting layering issue was resolved and the Council still have the option to re visit should that ever be necessary. 

At the heart of all of this however, was the change of status of that document. From "Correspondence" to "Support Statement"on the Portal.

Jeezo it was complicated. 

I often struggled to explain it in lay terms. 

I was explaining it to a neighbour, Grant Mackay, an IT expert. Oh joy of joys....... 😊

What an IT Expert Can Do

I explained my observations to Grant. He completely understood. Grant, Bill and myself were engaged with other local applications where we wondered if changes on the portal were helping developers or planners to gain an advantage over community concerns. 

There was no time wasted. Grant set up the means to electronically "scrape" the Midlothian Planning Portal every evening for changes to planning applications between days. A neat little email link took me to a report where each and every new application, and every application which had changes to it, were listed. If I had had this during 17/00747 my life would have been a whole lot easier.

And so RAMPS was born. Grant can give you exact dates and all that techno speak that I don't understand. I was more than happy to provide feedback and use the reports. Bill and I presented RAMPS at the Federation of Community Councils and also at a Community Event in Dalkeith Library. We gained some interested parties. 

I met Clare from Planning Democracy 😊, and others. Actually I had met Clare before. One time I remember in Penicuik, when I had to run out to put £s in the parking meter. Clare had been presenting issues arising with planning applications and I was sitting thinking about work and root cause analysis. I didn't want to lose my chance to say something before running off to the car park. I distinctly remember my RCA was something like "there is something going on in the background that is being hidden and when the time comes, the cards that are played disadvantage the community". Now this was well before our neighbours application and RAMPS. But that was my thought at the time.

Since RAMPS has been available I have had an opportunity to discuss an tree application with the Council. In chatting this over I mentioned that I had access to a tool that provided the daily changes on the portal. "Oh we know about that, Susan" was the reply. 

I think RAMPS has rattled the operators of the system. I never see documents that change status these days. Since Covid with all the extended time frames and wfh, I notice lots of objections to planning applications get uploaded on a Sunday. No other documents get uploaded on a Sunday. Tree applications sometimes disappear. Then they re appear. Works to Trees (WTTs) are a notification only and I sometimes wonder why LAs give themselves the grief of putting them on the Planning Portal at all. 

So when someone asks me why I got involved in RAMPS, well I kinda provided the reason to make it happen I suppose. Now I'm just plain nosey. But out there in the wide world of Planning, there must be so many people who could benefit from being able to track daily changes to a planning application in their area. 

What a web site Grant has created. It's phenomenal.

Enjoy.

https://planningramps.uk

 

Update to the Second Landslip

 

Prompted to update the blog site today which made me check the most recent photos I have from the landslip area. I took these in Jan 2021.

Plus a short video recording (above) recording the water on the slope. Thought to be ground water but testing didn't support that. It's permanently wet nowadays. Used to come and go but now its a rather nice pond supporting lots of bird life. I'm hopeful of tadpoles some day (and frogs of course). The fox cubs also use it. Simply a wildlife haven nowadays. It's lovely. 

Photo from Ironmills Park. Looking through the trees, the retaining walls are barely visible with the poor light. The section of retaining wall most easily picked out over on the right of the photo, is the intact wall section immediately below the old steps and our ground. This area was soil nailed. Whereas the area on the left of this photo was not soil nailed. It's what I call the "second slip" because this area slipped after the initial slip. 

Here is that area of retaining wall below the second slip. It has popped 2 out of 5 sleepers and the remaining 3 are twisted out of alignment. 

That matting that looks a bit like artificial ski slope material sits proud of the land underneath. Its akin to being on a trampoline in parts. Because the sands and gravels are washing off the bank here. Perhaps soil nailing would have stopped that. Who knows. 

Now the reason for the prompt.

I placed one of the Decorated Bikes from last years community project at the top of the landslip area. Titivated it a bit, photographed it posted it on the local Facebook forum. I was really trying to attract attention for the possible replacement of the ugly fencing with something more pleasing. Or, maybe no fencing at all. There's not much of a drop and the ground is soft here. Fencing farther down the slope could stop public injury, at the site of the retaining wall perhaps. Just a thought. Its a nice view from the slope. 

view from the top

Tennisgate. The Apology.

WTTs

Works to Trees - a wee short story for a wintry February day

Well what a palaver in recent times about trees. 

Water Tower Wood hosts lots of trees which I actively manage, to the extent of passing a basic chain saw course to make sure I can safely manage some of the smaller trees myself.

The bigger trees are for the experts though.

Late 2019 and at the start of 2020 we had discussion with our neighbours the Dalkeith Lawn Tennis Club. DLTC. They alerted us to the problems with our larger trees encroaching into the fence line, and also the issue of pigeon poo on the courts from pigeons sitting in the branches of a large Beech tree. The pigeon poo might be a health hazard they thought and I suggested they seek the advice of Environmental Health. Didn’t hear anything back on that suggestion so I’m not sure if DLTC took up any enquiry.

In December 2019 DLTC, Gerry and I and 2 officers from Midlothian Council met on the tennis courts to discuss “works to trees” (WTTs), as they are called by the Council when they are registered on the Planning Portal. 

The Council officers offered advice on the legality of the process of seeking approval for WTTs. In effect, the approval comes from the owner of the tree, not the Council. For the large Beech tree, the advice offered was not to cut anything more than very small branches within the back line of the Courts. The officer suggested seeking the agreement between both parties via an independent arboriculturist who could ratify the works as best practice. 

On Jan 8^th 2020 a WTTs planning application was lodged on the MC Planning Portal with 3 documents. An application, a Validation check and 1 other (can’t remember). The application wasn’t complete because there was no detail on what actual tree works were planned. The application contained a number of errors as well. Such as – that works were being carried out on behalf of Gerry and I, that we had consented the works and that the works were to a TPOd tree/group of trees for TPO 4 of 1994.

Perhaps most concerning about the application, was a tick box stating the health and safety of the tree(s) were in question, but without the detail of what works were being applied for, what tree was considered a health and safety risk? If this tick box exercise was being levied at trees under our ownership then that’s not correct. I gave the club the benefit of the doubt and Gerry e mailed the President to seek some discussion.

By Jan 28^th the documents on the WTTs application had not changed, but we had a communication from the President providing info that Frontier Forestry documented for the proposed works. 

TREE WORKS AT DALKEITH LAWN TENNIS CLUB, CEMETERY ROAD, . DALKEITH, EH22 3DL 

A) DESCRIPTION OF WORKS 

Heading round clockwise 

1)  Neighbour’s Beech at SW corner by clubhouse – crown-lift to 5m over clubhouse with our pole pruners. 

2)  Neighbour’s Oak by clubhouse - crown lift to 5m with pole pruners. 

3)  Neighbour’s Beech at NW corner – crown-lift above fencing using ladders. 

4)  Neighbour’s 2 x Beech & Poplar – crown-lift above fencing using ladders. 

5)  Neighbour’s large Beech at NE corner – using rope access systems, reduce lateral spread of south crown from tennis courts to approx. the tennis court base line; so approx. 3m lateral reduction full height. 

6)  Your large Oak at east end of courts – remove major deadwood and check all primary branches and primary branch unions for splits, cracks and decay. 

7)  Council Hollies (approx. 7 distinct groups) on south boundary. For all Hollies within 4m of boundary fence we would reduce their height to approx. 3m to improve light levels. We would also sever the Ivy in the trees as this blocks the light too. We would chip all arisings with our tracked chipper on the Council walkway and spray the chip into the woodland. Any larger timber would be left in the woodland in habitat piles. 

The works then cover the trees under our ownership, trees under Midlothian Council ownership and a large Oak tree on the clubs grounds. 3 different owners. One tick box on the application form!

Without particular concern for the majority of the works, I e-mailed the President and cc’d to the Council, that the works planned for the large Beech tree were not being carried out on behalf of ourselves and more importantly had not been formally consented in writing. Certainly there was no health and safety risk.

Hi ******

I don’t think the planning portal will show the detail of the planned work to trees. What you sent on to Gerry isn’t on the system.

There are a number of errors in the application on the system which I have written to the officer about, after the application was registered on 8th Jan, and 2 weeks later there were no signs of any details being recorded. That is still the case today. I don’t think they like putting details on the planning portal about trees these days. It’s quite bizarre.

I’m not precious about any of this, the system is not fit for purpose, and it’s a Notification system anyway to allow time for the Council to “Make/Not Make a TPO”. 

Given the works proposed there’s not going to be a TPO sought.

What’s important is that we consent the works, and especially the works to the large Beech next to our home.

That would be best in writing, with a clear picture of the works to be carried out.

A photograph works well, with a dotted line around the proposed area of cutting.

Just for information, what’s wrong on the planning portal is the application states the works are required by ourselves and the club is carrying them out on behalf of us. That’s not right.

The document states that we have permitted the works, well that’s not strictly true, because we haven’t permitted anything in writing with the detail of the proposed works.

The portal ticks the box for health and safety of the trees which is a poor tick box system because of course, the trees are all perfectly healthy. Perhaps it covers safety risks arising from the tree branches that overhang, although I can’t see that myself. Is there really any health and safety risk?

The title quotes TPO 1994 but that TPO died with the large sycamore so that’s wrong as well.

The address has cemetry rather than cemetery. Hardly worth a hanging!

Could we get a signed agreement please for the large Beech tree and let the rest of the works progress as planned. 

Best

Susan

Dear ****** (MC Officer)

Re WTTs 20/00006 for trees at Cemetery Road, Dalkeith. Would it be acceptable to register this e mail correspondence and that below, on the application site please. Suitably redacted as required.

It covers the inaccuracies in the application form as submitted which may never be documented through the planning portal unless this correspondence forms part of the application history.

My concern is that works are assumed to be agreed to the large beech tree on our ground next to our home, which are not as clear as they could be. I am personally hopeless with measurements of branches from a line on the courts, and that is what we discussed on site in December and is recorded in an e mail to ourselves from the DLTC only yesterday, but this information is not and may never be, on the portal. I am asking DLTC for a photograph showing the extent of the cuts to the over hanging branches of the large Beech, to be absolutely sure that this tree is not cut to expose an area that could later become infected. The failure of this Beech tree puts our lives at risk after all. The original thoughts of DLTC were to cut much more of this tree to eliminate pigeon poo from the birds sitting on overhanging branches, but you pointed out on site that this extent of cut would not be acceptable.

I believe that customers of the WTTs application think that whatever is consented by this process is all that matters. What’s not evident to me is the clarity of the proposed works and the agreement of the owner of the trees. The latter is not the responsibility of the Council, whilst the application on the portal states that agreement has been given, it has not been given in writing and any verbal discussion in December is nothing more than that.

Many thanks

Susan

Reply from Council;

Good Morning Susan,

Thanks for the emails below.

As you correctly point out decision for a Work to Tree application in the Conservation Area only indicates whether or not the Council intend to make a Tree Preservation Order, and it does not override the applicant’s/ agents need to ensure that he or she has the approval of the tree owner.

As the allocated case officer I check through files uploaded by the administration team before making them public to ensure that the information does not contain any private information that should not be in the public domain. Owing to workload I have only just this week been able to check through the documents submitted for this  application.

I have made the existing documents public but there are not currently any photos on file. If any further information is received from the applicant or agent it will be uploaded to the file and made public once it has been checked as above.

And a further correspondence from MC on Jan 31^st.

Hello Susan,

Thanks for your email on the 29^th.

Just to let you know we are arranging to get the application form the above application corrected (ownership section).

I am out of the office next week so I am hoping the administration team will be able to help with this whilst I am away.

Best wishes

I considered making a Neutral comment on the Planning Portal for the WTTs application, and record the issues there. Ha. No longer can anyone put a comment on a WTTs application.

That’s probably quite the right thing to do. Because WTTs are a Notification and permission is neither given nor denied. Advice is given and the officer seeks to preserve the community value of trees. The officer has the remit to decide whether or not to make a TPO on any tree where an application is made for pruning or felling. Interestingly, East Lothian Council keep a register that the public may view on requests but do not upload WTTs in their planning portal.

The final decision was "not to make a TPO” which effectively consents the works by the Council. The report from the officer denied the request for spreading bark chip and wildlife piling on the Council owned land. 

Permission for the tree work was also framed within the need for a bat survey. Another hurdle along the way for DLTC. But also, the owner of the trees is responsible too. This one is still rumbling on but as the owner of the trees with this caveat on the works, I had to decline to consent DLTC since I don’t fancy being liable for works progressed without a bat survey, and I’m not invested in getting one carried out. Seems easier just to not consent and shift the onus of responsibility. This might change depending on what DTLC decide to do. 

Now you might wonder why I go to all the bother to write this up for a blog site. But then, when an FOI in 2019 revealed this, maybe you will see why.

So, in September 2018, someone wrote to the Council representing the DLTC, pointing out that I had yet another tree application registered for tree felling in the ancient woodland next to the tennis club. The author of the e mail goes on to supply a list of said trees for felling by “Goldwyre” and then states “ the above does not include trees felled without obtaining permission”. Interesting. That old chestnut. 

So let’s check the list provided. 17 trees, of which 8 are sycamores it says on the e mail. Let’s have a look at the details on the decision notices from the Council. 

2011 11/00266         The spindly ash tree damaged by deer or squirrels and a Gean leaning on adjacent trees that is top heavy, both will other trees to develop to their full potential, owners already carried significant new tree planting on the bank.  So 2 trees to be felled, neither were sycamore.

2012 12/00057         Following the woodland management plan and inspection by arboriculturist consultant, permission granted to fell 2 decayed and potentially dangerous sycamores which are self-seeded and sitting above the walkway from Cemetery Rd to the Glenesk Viaduct. So 2 Sycamores, at the back of the woodland, behind the tennis club house, above the public walkway, identified by a professional as dangerous. Had they fallen and injured the public, we would have been liable. But hey, lets list them in an FOI stating that we have felled 8 sycamores  between 2011 and 2018 and intimating something is awry with our woodland management. 

2012 12/00298         Well this is an odd one because the officers report is identical to the report for 12/00057. But in fact the application was for a sycamore, self seeded and growing on the land slip area. Felling recommended to preserve the steep bank here, leaving the tree roots though. Shame the officers report isn’t correct. Anyway, yep another sycamore. Dearie me…..

2013 13/00427         Felling the two Elm trees (1 + 2) will allow the large amount of young under- storey planting and natural regeneration room to develop fully. The Beech tree (4) is growing lopsided over the valley and is to have the two lowest limbs removed and the remainder branches overhanging the valley reduced by 50% in order to rebalance the tree and allow the adjacent Beech tree growing lower down the slope room to develop. The Ash trees (3) are poor specimens, self- seeded trees which are growing very close together and are heavily lopsided over the valley. Felling these two trees will allow the adjacent Yew tree room to develop. The Horse chestnut is suffering from rot at the base of the tree and the tree is to be crown thinned by 25% in order to prolong the lifespan of the tree. No replacement planting is deemed necessary as the owners have already carried out significant tree planting on the steep wooded slope including Ash and Rowan trees and this planting is now starting to get established. 

So no sycamore here. But lots of other work. Elm would die anyway, Beech being pruned for its own longevity, Ash poor specimens removed to allow a Yew to develop and some long term protection of a Horse Chestnut. Pretty good woodland management really. 

2015 15/00288         Ahhh this is the TPOd sycamore that was poisoned. Shame. Been reported at length in this blog site. Take a look and see what you think killed this tree. Oh and btw, this is the TPOd tree TPO 4 of 1994.

2016 16/00294         The three mature beech trees (1, 2 + 3) are to have the lower branches overhanging to steep river bank pruned back in order to rebalance the trees. The semi-mature beech tree (4) is lopsided over the steep river bank and is to be crown reduced by 30% to reduce the weight of the crown and to rebalance the crown. 

The two semi-mature sycamore trees (5 + 6) are self-seeded trees growing in competition with surrounding trees, one of the sycamore trees has died (5) and the other sycamore (6) is in serious decline. The two trees are to be felled in the interest of safety. 

The two mature sycamore trees (7 + 8) growing in the northern part of the site is to be crown reduced by up to 20% to reduce the wind sail effect on the trees when the mature sycamore tree growing opposite on Council owned land is being felled due to this tree being undermined by a landslip. 

Due to the dense tree canopy where the two trees are being felled no replacement planting is deemed necessary. 

I’m losing the will now but at last copy/paste is saving me having to type too much. 2 sycamores though. One is dead and the other in serious decline, felled in the interests of safety. Some crown reduction on sycamores that were impacted by works carried out by the Council on their adjacent land. The landslip area at Ironmills Steps.

2017 17/00062         T1: The felling of this early mature tree has been previously approved through WTT Application 16/00732/WTT so is not covered under this application. 

T2: Sycamore: This semi-mature sycamore is growing close to the boundary fence and in close proximity to the adjacent Poplar tree (T1) and also adjacent beech trees. The applicant would like to fell this tree in order to allow the two adjacent beech trees to flourish. Whilst semi mature and generally of good form and health, this tree is suppressed by neighbouring trees. Due to its location its contribution to visual amenity is limited to views from within Dalkeith Lawn Tennis Club and within the site itself. 

T3: This tree is a Lime which has been previously coppiced and shows re-growth rods. Several of the taller rods are crossing over and rubbing on each other creating a bark wound. This tree should be coppiced on rotation as per good forestry practice to allow re-growth from the base. 

T4: This Sweet Chestnut is showing unbalanced growth. The applicant would like to remove one limb which stretches towards the adjacent tennis club to create a better form, allowing the growth of the secondary branch to take over. 

Remember this one, especially the works to accommodate the sweet chestnut which was sending a major branch towards the tennis club fence. T1 was a Poplar tree that was on our ground that the tennis club applied to fell and that would have been possible. But then they just didn’t fell it. I re assessed and looking at the area around the Poplar, decided the Poplar was a one-off then requested to fell the next along the line at the fence, the Sycamore, instead of the Poplar, although both could so easily have been removed. Sycamore is considered a weed and it’s actually not native. But yeah, another sycamore. Help ma bob. The woodland must be devastated! It’s an acre and a half by the way. 

2017 17/00821         The young Cherry tree has been planted on top of a steep slope as part of a line of native hedge planting and has now outgrown its space. The semi-mature Lawson cypress is an ornamental shrub which has now outgrown its space and is furthermore being outcompeted by the adjacent Beech trees. 

Due to the dense tree canopy and the high number of young trees where the two trees are being felled, no replacement tree planting is deemed necessary. The owner has proposed to continue the hedge planting at the top of the slope and under-storey planting where the Cypress tree is to be removed. 

Nothing here now, let’s move along

2018 18/00710         Permission is sought to prune one tree and fell one tree as detailed in the accompanying arboricultural consultant’s report from Donald Rodger dated 20 August 2018, and shown in the uploaded photographs, growing within the woodlands of the above property. The approximate location of the two trees is marked on the uploaded Annotated site plan. 

I really have lost the will now. Woodland management isn’t easy but it really has paid dividends in our woodland. When the Council land landslip happened it was pointed out to me that a mature Elm had died on that ground some time back, that the tree would have died from the roots up, that the loss of tree roots would have impacted the steep bank and that no replacement planting had taken place. No woodland management at all. It’s the Council after all, they really don’t have the resource. Perhaps one good reason to sell off woodlands to those who can manage them. 

Someone asked me at the time of the land slip “how come your land didnae slip?”. Well I have no idea really. But then the Council land slip was all our fault according to some. Go figure.

Deja Vu

Recent events here at water tower wood are a sense of deja vu, or a sense of "been there before".

Having at last found out how to link a previous post, here is a link to a post on Nov 2010 when the community were being asked by the council, what to do to save money.
Midlothian Cuts and More Hamlet!


If you can't be bothered clicking the link and reading the whole post, this is the most relevant section.....as far as recent matters at water tower wood are concerned.


At community council on Monday 22nd I requested time to put forward my case from the public side of the meeting. It went like this.

"Having heard the passionate pleas from a very stressed Head of Midlothian for budget cuts, I want this community to be aware of the possible waste of money in dealing with petty issues regarding our house build this last year". I went on to explain the possible costs as above. I then cited a number of examples -


1. Checking the legality of a perceived Right of Way - twice in 1998 and again in 2009.  This had a cost. Quite a bit of paperwork was generated on this issue - not to mention the character assassination that followed when we were accused of closing the public footpath down to Ironmills. 


Then there is an earlier post in Oct 2010 that records some useful information I think the events of a couple of days ago may be related to.  Proof That Land Was Advertised For Sale worth a read if you think that somehow we came to acquire the land around 2 sides of the tennis court "illegally" or without any advertisement by the council. 


In 2010 it was clear that a so called community group which called itself the Eskbank Amenity Society, with a constitution that documented their desire to foster good community relations, felt the need to become legal-eagles with regards to water tower wood, and lobbied the council for infringement of no build burdens by myself. I'm sure that at the time the community group were exploring some degree of corruption on my part because they seemed very keen to find some legal impropriety. They didn't find any, because there was none to find. 

Below is an extract from an article from the internet, on land burdens. A no build burden is anything from a Wendy House to a power station. They cannot be unreasonably enforced. There are many papers documenting Scottish Land Burdens and you will need a law degree to be able to appreciate the scope and litigation surrounding burdens. 

I have read them because they are quite fascinating to someone with a scientific mind. 

The council should have read them. 

If you are interested I can send you more links to legal process around land burdens, it is a fascinating subject; maritime burdens are interesting, then there are burdens that precent people keeping hens and pigs, there may even be some that prevent folks putting out a washing line.

E mail me on susangoldwyre@gmail.com if you want to know any more. 

Scotland - Real burdens

The concept of restrictive covenants does not exist in this sense within the Scottish legal system. The Scottish equivalent is a real burden, which is a type of title condition. 

A real burden is an obligation on an owner of land (the owner of the 'burdened property') either to do something or to avoid doing something, for example not to build an extension. It will be enforceable by the owners of 'benefited properties' and the presence of a real burden can sometimes, but not always, be found by an examination of one's title deeds. The law here is very complex and legal advice should be sought when determining whether a real burden exists. 

Real burdens come in a variety of types, but are most commonly found in cases of plot subdivision or as 'community real burdens' where a developer has bought a large plot of land, built an estate on it, and then sold off the individual plots. Real burdens can be extinguished in a number of ways, including 

• By agreement 
• By the Lands Tribunal of Scotland 
• By breach – if a) the owners of any benefited properties acquiesce by not objecting, or b) no-one has an interest to enforce the burden, or c) a number of years pass – this is called 'prescription'. 

Real burdens can be difficult to enforce. The main problem is that, while they are required to be registered on the title of the property which is burdened, there is no requirement for them to be registered on the title of the property benefiting. This means that a person can hold enforcement rights without realising it, and so will not take the necessary steps if the burdens come to be breached. There is a notification procedure if one wishes to get the agreement of one's neighbours to breach a community real burden. This involves notifying all the owners of properties within a given area of one's intentions.

Right of Way

Bit of a challenge at water tower wood today with a guy claiming a right of way along the top of the river bank, past our home. It wasn't a friendly intervention, not claimed in any spirit of wanting to walk it for interests sake, which I am always open to for anyone who might like to see the woodland and the views across the park. The train crossing the viaduct is also a sight to behold, I'm always willing to let people in to see this.

Re the right of way, I remember the conclusion written up by the Scottish Government reporter when our appeal was upheld in 2010. There is no right of way on our land and never has been.

There used to be a public short cut path, but it was never more than that.

Before we built our lovely home on the ground, the council had formally blocked access to this short cut path. I remember one time when our neighbours son cycled along the path and fell down the embankment. The fire service were called to rescue him.

So when someone comes onto your land, is that trespass in Scotland?
I found this useful article.

https://www.thompsons-scotland.co.uk/blog/33-main/2527-are-there-really-no-trespassing-laws-in-scotland
______________________________________________________

It is an oft-repeated myth that there are no trespassing laws in Scotland.  This is simply not true.  Trespass is a civil wrong, called a delict in Scots legal terminology.

The origins of civil trespassing laws in Scotland go back centuries.  A court decision from 1791 in the case of Livingstone v Earl of Breadalbane states that “…every man is the proprietor of his grounds, and entitled to the exclusive possession of them… No man can claim a road or passage through another man’s property… without a servitude… for amusement of any kind, however necessary for health…”

You may think that this ancient case does not bear much relevance to modern living, but a person’s right to the full exercise of their property is protected by Protocol 1, Article 1 of the European Convention on Human Rights.  Although the court decision from 1791 is old, it accurately states the law.   

However, the waters were muddied by the introduction of what is commonly known as “the right to roam.”  Public access rights were created by the Land Reform (Scotland) Act 2003.  This Act provides the public the right to be on and cross most land and inland water in Scotland in a responsible manner.  However, public access rights do not apply to the following places: 

• Houses, gardens and non-residential buildings and associated land
• Land in which crops are growing
• Land next to a school and used by the school
• Sports or playing fields (where exercising access rights would interfere with their use)
• Airfields, railways, quarries, construction sites and military bases
• Visitor attractions or other places which charge for entry

For a more extensive list of places where public access rights do and do not apply, see the Scottish Outdoor Access Code.

Where a member of the public accesses land which is not covered by public access rights, they are trespassing.  A court can therefore make an order to prevent trespassers from entering the land.  Breach of such a court order could become a criminal offence.  

However, land owners also have responsibilities.  If a member of the public is injured while exercising their public access rights, the land manager or owner could be liable for injuries sustained if they did not take adequate precautions to protect those on their land.

If you have concerns about trespassing, we recommend reading the Scottish Outdoor Access Code which provides guidance to landowners and members of the public. __________________________________________________________

Here is the evidence from the Scottish Government Reporter.

Extracted from this planning application 10/00694/DPP.

Decision by M J Culshaw, a Reporter appointed by the Scottish Ministers

• Planning appeal reference: PPA-290-2014
• Site address: RP9 The Water Tower, Cemetery Road, Dalkeith, EH22 3DL
• The development proposed: Erection of timber decking with storage beneath, erection of boundary fence incorporating a bin store, works to stabilise banking, alterations to path, formation of woodland access steps and erection of associated guard rails

J - APPEAL DECISION NOTICE (REPORTER'S FINDINGS)

Section 15.

15. The council have referred to the requirement of Policy RP9 that development within the river valley protection areas of the North Esk, South Esk and Tyne rivers should have a specific locational need. Since all these works are associated with a dwelling permitted by the council within the protected area it is difficult to see how the need for them could be more locationally specific. They clearly could not be carried out anywhere else. The policy further requires that locationally necessary development should not adversely impact on the landscape or conservation value of the valleys and I have concluded that it does not. It also requires that it should not impede potential public access opportunities, but since no public right of way is claimed and this is a dwelling curtilage where rights of access under the Land Reform Act 2003 do not apply no such opportunities exist, whatever may have been the case before the dwelling was built.

Couldn't do a blog post without some before and after photos. Took a wee while to find these but we start with Year 2000 when there was a garden gazebo on the site, then the sitooterie in 2010, followed by the latest change, the potting shed in 2018. 
We demolished the sitooterie and created a better path along the very steep edge of the gorge woodland. It looks much better now IMHO.

This is the path that the guy walked along yesterday. I love my path, I had to dig away a fair bit of the slope to help create it. That slope was an easy dig, the soil is akin to dust having been impacted by the blaise run off from years gone by from the tennis courts behind. Have taken the time to mulch and add planting to try to encourage root growth to aid stability.

In digging it out I exposed a pile of old bricks built as a chamber, probably an old cesspit/sewage tank in its day. 

No longer in use though. 



The brick structure was sitting directly above the historic landslip on this ground. I did blog about this previously in 2012. I can never work out how to do a link to a previous post so here is a copy/paste.

Planting season is here and once again I am hindered by something solid under the ground preventing access for new planting. This time I unearth an old field drain. It appears at the tennis club fence and then tracks underground a short way. It was full of soil but not carrying any water. Bone dry.

Interesting to see where this is. Above the area where the path was broadened a few years ago because the path at this corner was very narrow. Below the path is the section of the bank where there has clearly been land slip in the past. I suspect this old field drain may be part of the reason for the slip. Who knows.

Right now though the soil is dry and very easy to dig. Lots of crushed stone (blaise) in the soil which seems to aid drainage and I am told will be OK to support growth. Planting is Holly, Blackberry, Blackcurrant, Redcurrant, Horseradish, White strawberry (because the birds will not eat them!), Rhubarb and then some edge planting of ivy and fern to maintain the woodland feel. Its an area of the slope that has been bereft of plants other than self seeded grasses, weeds and a few wild flowers. The odd daffodil as well. This planting is to establish some edible woodland plants. Fingers crossed, the light levels are reasonable but it is North West facing.

The old drain pipe is now removed.

Susan Goldwyre
12th November 2012.


Update from my other half - "it can't be a field drain". There's no area to drain unless the tennis courts were cambered to that point or there was a herring bone drain system in place and there's no sign of that. More likely is that this was the septic pipe so maybe this is the pipe that served the septic tank that people tell us became blocked and took away a section of the hillside? Anyone got any more info?????


Water Tower Wood Land
Our water tower woodland ground of course was bought from the council, no doubt keen to offload the liability given they had attempted to block the short cut path, signed as "no access". But the signage and wire netting were often vandalised by those wishing to still walk here. 

Not dis-similar to the situation faced by the council again now. Since Ironmills Steps were blocked 5 years ago (opening for a short period before further landslip took place). The signage and fencing keeps being added to, in an attempt to stop people walking this ground. I still go there at times, accessing from my own ground and just to make sure the landslip isn't impacting on our ground. So far, so good. All looks well. 

At Ironmills Steps, there is still a water source to identify and the land is so damaged no weight bearing structures should be built onto it. A light weight set of steps may be possible I guess but that's up to the council. At the last Participation Group meeting the council agreed to add information boards to the site to let the public know what has happened and what is likely to happen next (if anything). 
I may start putting up information myself if we wait too much longer, I do get a tad fed up of people asking me what's happening to the steps and whether for not I worry about our house (I usually reply we are keen for a Musselburgh Post Code).

There are much worse things in life than bit of steep river bank landslip.

Causes of Landslip?

The historic landslip on our ground which still moves, albeit very very slowly, sits below the site of historic drainage infrastructure. 

The Lugton Road landslip was found to be partly caused by an enormous blocked drainage culvert. 

The Ironmills Steps sit directly below some very shoddy leaking drainage works exposed in recent years when the landslip here started. 

Landslip ; steep river banks - climate change - wet summers? Yes to all of these, but add drainage infrastructure or ignore at your peril.


Happy Xmas when it comes around, couple of days away. Hoping to catch up with all my lovely neighbours over New Year, despite the guy who walked the path saying all my neighbours hated me and I had been involved in Major, then maybe Minor, Corruption. 

Cheers
Susan