Landed

Part I – Feudalism, Manorialism, and Succession.

Feudalism and manorialism are a good place to start when discussing land ownership in the United Kingdom. These are related but different concepts. In feudalism a vassal is granted a fief by a lord, that is, the right to governance of a piece of land. In return the vassal typically owed the promise of military service. A classic example is knight-duty during the crusades, where knights would perform military service in the context of campaigns to the Holy Land, in exchange for the lands they had been granted under fealty. There were other forms of payment too; clergymen would offer frankalmoign; prayers for their overlord in exchange for their tenure. 

The obligations went the other way too; grantors of fiefs owed the occupants of the land a measure of protection from outside forces. Great lands were granted to the highest ranking lords by the Monarch, who was regarded as being ordained by God. From the most powerful lords there was then a chain of infeudations right down to those who effectively subsisted through their labour upon small plots of land, typically in a manorial setting:

Manorialism refers to the self- sufficient social and spatial arrangement of an economy around a medieval manor. This is said to have originated in Roman Times and was driven by agricultural activity with the labourers (originally) paying the lord in-kind with their labour. As the economy became more complex, payment was made with money instead. Manorialism as the principal form of economic contract was gradually replaced by the market economy, where the grower of produce could sell to the highest bidder, be they their lord of the manor or somebody from somewhere else who offered a better price. The promise of military service slowly began to come with the option of socage; that is, a monetary payment in lieu of knight service. 

One thing that hastened the demise of feudal systems was a law passed in 1290 known as Quia Emptores. Before Quia Emptores subinfeudation was commonplace. If a nobleman had been granted a fief he could then take part of it and subinfeudate to another individual, who then became his vassal. It was common practice for the eldest son to subinfeudate out to his younger brothers. After Quia Emptores this was forbidden and instead the tenant could only install somebody else on the land by substitution. In substitution the bond between the land and the first owner are severed, and a new bond of fealty is created between the incoming tenant, the land and the lord who forms the next link up the chain. Indeed at the time of Quia Emptores the traditions of feudalism were already undergoing disruption; many were starting to alienate themselves from their feudal land rights in exchange for monetary compensation. 

There is considerable uncertainty about the development of feudal systems and what preceded them. There is some material recorded in the Venerable Bede’s 731 AD Historia Abbatum that suggests the oldest son may have been given preferential treatment in succession. There are legal stipulations from the Ninth Century that seem somewhat bizarre to us now: King Alfred of the Saxons r. AD 871-886 decreed that across the land neither an ‘abducted nun’ or any child she might bear were to receive any inheritance. The custom tending towards male-preference primogeniture recorded by the Venerable Bede may have been tightly localised. Indeed other sources such as Domesday (AD 1086) show that land could be passed from a father to his sons, the custom being perhaps to pass property over before death, this allowing for more flexible arrangements with less dispute than posthumous division. It is clear from Domesday that where there were no sons, land could also be divided, perhaps equally, among daughters. So Anglo-Saxon inheritance practices had a certain ‘elasticity’ to them¹. 

Around the same time that William the Conqueror conquered England primogeniture was gaining traction in Europe. It is difficult to find resources chronicling whether the practice was explicitly introduced by William among his newly installed lords but it is said that the main intentions were to prevent fragmentation of fiefs and keep a few powerful and loyal lords, rather than land ownership fracturing and the Monarch’s control becoming diluted. It is indeed difficult to unpick how the change to primogeniture took place. Henry Maine 1822-1888; comparative jurist and historian, on the topic of the origins of primogeniture: 

“There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem.”

Sir Matthew Hale 1609-1676, in his History of the Common Laws of England, sets out the law as he can figure it existed around the reigns of Henry I.  r. 1100-1135 . and Henry II. r. 1154-1189. His exposition is based mainly off an author Glanville d. 1190, who was Chief Justicar of England during the reign of Henry II.:

‘By this law it seems to appear;

1. The eldest Son, tho’ he had Jus primogeniture, the principal Fee of his Father’s Land yet he had not all the Land. 

2. That for want of Children, the Father or Mother inherited before the Brother or Sister. 

3. That for want of Children, and Father, Mother, Brother and Sister, the Land defended to the Uncles and Aunts to the fifth Generation. 

4. That in Successions Collateral, Proximity of Blood was preferred. 

5. That the Male was preferred before the Female, i.e. The Father’s Line was preferred before the Mother’s, unless the Land descended from the Mother, and then the Mother’s Line was preferred.’

Bastards could not inherit. Provisions are also made in case of leprosy, assessed appropriately by the church, property to be transferred from brother to sister. He goes on to express his entertainment: 

‘Secondly, There was another Curiosity in Law, and it was wonderful to see how much and how long it prevailed; for we find it in Use in Glanville, who wrote … Nemo potest esse Tenens & Dominus, & Homagium repellit Perquifitum: And therefore if there had been three Brothers, and the eldest Brother had enfeoffed the second, reserving Homage, and had received Homage, and then the second had died without Issue, the Land should have descended to the youngest Brother and not to the eldest Brother… as ’tis here said, for he could not pay Homage to himself’

That is, if there were three brothers, and the second paid homage to the first in a subinfeudation, then in the event the second son expired, his rights would pass to the third son and not back to the first, the reasoning being that the first son could not pay homage to himself, that is, he could not be the owner of title that required him to be his own vassal. The latin reads ‘No-one can at the same time be tenant and lord.’ 

Around half of what is written in Hale’s account mirrors the probate arrangements we have today. The protection for widows, who receive one third of the goods of the deceased (aka one third of the moveable estate) are just one example of how the 11th Century doctrine shares remarkable similarity to the modern day system. 

References:

1. Mumby J. Anglo-Saxon inheritance. https://earlyenglishlaws.ac.uk/reference/essays/anglo-saxon-inheritance/#:~:text=Customary%20rules%20are%20thought%20to,group%20of%20closely%2Drelated%20persons. Updated n.d.

Land Ownership – Part II – Ownership Design

Primogeniture is said to have started in Normandy, it then spread to England with the invasion of William the Conqueror. 

Feudalism grew organically out of manorialism, manorialism being a solution to the problem of providing food and security for subsistence farmers. The introduction of primogeniture in England may have been more deliberate however: we say that is was an ‘ownership design.’ Primogeniture  had certain advantages for those who ruled using the feudal system. It prevented the fragmentation of land holdings, therefore keeping a small number of lords who could be monitored and whose allegiance could be encouraged. There was also the opportunity to claim a kind of tax: feudal relief. When William had conquered England he started from the assumption that all the land was his, and he was free to grant fiefs to whoever he wished. When one of his barons died, their eldest son had to pay money to the crown as feudal relief to allow them to take on their father’s fief. In effect, by default lands reverted to William on the deaths of his barons. By the time William was finished with his changes, the subdivision of his new baronial system in terms of fiefs granted was actually very similar to the subdivision between the Earls that had previously existed in the Anglo-Saxon system. A key difference was that the noblemen William installed were mostly Normans, not Anglo-Saxons. William the Conqueror’s management of England is a significant example of design of an ownership form using ownership design control to the ruler’s advantage. 

In their book ‘Mine’ two lawyers Heller and Salzman introduce ideas of ownership design and give a variety of examples, many of the best come from American History. They explore how ownership in general is governed by a short list of possible narratives². 

One of the first narratives is attachment. By this we mean that an object is owned because it is attached to another object. A typical example is that the air above and depths below land could be owned by the owner of the land, although in practice this is rarely true. Indeed one of the reasons Iraq claimed for their invasion of Kuwait in 1990 and the start of the First Gulf War was that Kuwait was accused of ‘slant-drilling’ under Iraq’s Rumaila Oil Field, that is the Kuwaiti’s are said to have been drilling diagonally or even horizontally under the Iraqi border, stealing oil that belonged to Iraq by attachment. 

A second narrative is first come first served; that is, whoever got there first owns it. A good example of this is the Oklahoma Land Rush of 1889 , where at noon on 22. April 1889 settlers were allowed to cross into the ‘Unassigned Lands’ in a race to stake their claim to 160 acres under the Homestead Act of 1862. 

But they were not there first, the Indians had been there first, who were often forced to relocate. The key here is the idea of labour. Under the Homestead Act, he who wished to be given title of the land he claimed had to build a homestead and improve the plot through their labour for at least five years. America’s ownership form for the agricultural steading was thus designed based partly on the idea of productive labour, which the Indians’ activities did not satisfy. Ownership favouring the immigrant over the Indian was also backed up on basis of might is right, another narrative used consistently throughout history to provide a basis for ownership. 

The way in which the Indians were displaced need not be looked on as universally glib however. European settlers were subsistence farmers and the idea of a homestead surrounded by heartily worked agricultural land will have had a sanctity that an apartment dwelling millennial cannot imagine. As with the reign of monarchs during feudal time, the ownership design was ordained by God, after all; Genesis 9:7 :‘Be fruitful and multiply.’’ 

The idea that land can be claimed by labour upon it emerged under the premise that agricultural land that sat idle should be put to use to feed the populus. Under the principle of adverse possession, where A owns land and B uses it for a time without A’s re-occupation, then B shall become the owner of the said land. This law transformed over the centuries into its modern form, where the labour aspect is less noticeable, and factors like actual possession with exclusion and intention to possess as well as land registration status contribute to the outcome of cases. At the present time in English Law, the time limitation for which the claimant must occupy is ten years. Increasingly the conditions for adverse possession become more stringent, with land registration helping to block all but the most exceptional of claims. 

A key narrative which is an alternative to the attachment (or ‘under’ and ‘above’ argument) is that of capture. This doctrine most likely originates from the hunting of animals and gathering of foodstuffs, and is a kind of blend of first come first served and ownership through labour arguments. The historical application no doubt applied to animals hunted and captured on lands that lacked a clear owner, like those in the New World. We see its application more recently in oil, gas and groundwater. 

Mitchell, J in Westmoreland & Cambria Nat. Gas Co. v. De Witt [1889] 18 A. 724,130 Pa.St. 235: 

‘Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae [wild animals]. In common with animals, and unlike other minerals, they have the power and the tendency to escape, without the volition of the owner. Their “fugitive and wandering existence within the limits of a particular tract is uncertain”.… They belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another’s control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas, so that it comes into his well and under his control, it is no longer yours, but his.’

So because the substance is fugacious¹, in that its flow cannot be controlled and its distribution cannot (or could not) be determined, it belongs like a wild animal, to whoever can capture it through extraction². It is important to note that the capture has to occur on the land of he who extracts, so slant drilling, as discussed above in the case of the Rumaila Oil Field, is off the menu.

A related concept to the policy of capture is that found in the case Rylands v Fletcher (1868) LR 3 HL 330. Blackburn J:

“the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”

In this case a newly constructed reservoir above a series of coal shafts flooded a neighbouring mine upon first being filled, causing significant damage. So if A has something on his land that is bound to cause mischief, and allows it to escape onto B’s land, causing damage, then A is liable for that damage. 

The result of the law of capture in the Pennsylvania oil rush was a sea of ‘nodding donkeys’.² The problem was that when there are too many wells the oil pressure drops, and the approach of sinking as many wells as possible becomes counterproductive. There are similar problems in the present day in California’s Central Valley with water, where a ‘race to the bottom’ with ever deeper wells finding a law of diminishing returns and causing only further depletion of the water table. In some places in the Central Valley it is said that the land has sunk by as much as 28 feet due to the loss of water below. This sinking problem due to depletion of the water table is the same problem as was identified in Venice, Italy. Water is surely one of the great problems that will have to be tackled more inventively with coming climatic changes and increasing population pressure in so many parts of the world. Perhaps some form of ownership design will help to prevent excessive depletion in the years to come. 

But a solution was found in the case of the Pennsylvania oil wells. A new ownership design called unitization was introduced. The idea of unitization is that extraction operations straddle more than one land holding.³ The various owners of the land are then compensated under a system that assesses the contribution of their land holding to the output.

Some comparisons can be drawn with new ownership designs for fishing rights. If overfishing occurs due to a pure capture policy, then fishing communities are drawn into a law of diminishing returns. The knee jerk reaction of authorities to depletion in places like Alaska due to overfishing was to introduce straightforward catch limits where the season for any given species ended when a specified quantity had been caught. This resulted in a dangerous race for fishermen to catch as large a share of the catch limit before the season was abruptly brought to a close. It’s this race that inspired the well known TV show Deadliest Catch where Alaskan king crab fishermen race through all hours to place their crab pots, in tense competition with other fishermen trying to do the same. These kind of catch limits did help fish stocks but created an undesirable race, making the life of the fisherman only more dangerous and exhausting than it already had been. 

Iceland came up with an ownership design for fishing that replaced capture without the problems of catch limits: the Individual Fishing Quota, or IFQ,  otherwise known as a catch share. Fishermen were assigned quotas for different species of fish before the season even started. The quotas were initially based upon how much fish different boats had caught in previous years. There are many models for a marketplace for IFQs, sometimes they can be bought, sold, or leased, in other systems they cannot and return to the government if they are unused for re-auction. The obvious major advantage is the increased stocks providing security to the fishermen that they will catch their quota. The arrangement means that if the weather is dangerous the fishermen know that they can wait for a better day to catch their share. There are also business advantages: because the catch is so much more predictable, it is considerably easier to obtain finance with the future catch as collateral. The system was very successful in Alaska, with a significant increase in profits, and has been used in Australia, New Zealand, and other US states: A good case study of unlocking value through ownership design.

Cases: 

Mitchell, J in Westmoreland & Cambria Nat. Gas Co. v. De Witt [1889] 18 A. 724,130 Pa.St. 235 

Rylands v Fletcher (1868) LR 3 HL 330

Other References:

1. Low C. The rule of capture: Its current status and some issues to consider. file:///C:/Users/Len/Downloads/alr,+226-227-1-PB.pdf. Updated 2009.

2. Heller M, Salzman J. Mine: How the hidden rules of ownership control our lives . Doubleday. New York.; 2021.

3. Thomson Reuters Practical Law. Glossary: Unitisation (oil & gas) (UK). https://uk.practicallaw.thomsonreuters.com/w-018-5594?originationContext=knowHow&transitionType=KnowHowItem&contextData=(sc.Default)&firstPage=true. Updated 2022.

Part III – Exclusion, Psychology and Perpetual Trusts

In his book Alchemy: The Surprising Power of Ideas that Don’t Make Sense, Rory Sutherland puts forward the suggestion that what is going to revolutionise mankind this century is not data but psychology. He gives numerous examples of where approaches are logical, but the problems are psychological. Why do we have stripey toothpaste? Because it increases the complexity of the product, we therefore assign it a higher value. Why do we even brush our teeth? Partly because we don’t want to get cavities, but possibly moreso because we are terrified of halitosis.

The barriers that the ownership designs of unitization and catch shares that we have seen in Part II have to overcome are largely psychological. Unitization clearly leads to better economies of scale in oil extraction and therefore there is an obvious motivation for the economically minded landowner to ‘team up,’ not necessarily for the common good but to increase yield on capital. The psychological barrier to the individual fishing quotas established in Iceland is more difficult. The capture narrative must be overcome, there is certainly something (perhaps masochistically) attractive about setting out to trawl the ocean for the catch, whatever the elements, and unfettered by any QUANGO standing in the way. A yet more prevailing narrative to overcome is that of pure labour. There is an  instinct that says he who works harder and longer should receive a greater reward, that is, greater ownership; the introduction of quotas removes competition. So new ownership designs have to overcome already existing ownership narratives for successful adoption.  

A psychological concept that can be difficult to overcome is the endowment effect. This is the principle that once something becomes ours, it becomes worth more to us than it was directly before we owned it. There are several factors at play here, one of which is loss aversion, by which we mean the reason why a Wall Street trader won’t close out on his poor position, because when he does, his loss will crystallise. Another narrative to consider is that of ‘a bird in the hand is worth two in the bush,’ a new object we are offered as a replacement to the one we own may have some defect or disadvantage which is not revealed on initial inspection. Neither loss aversion or the risks of owning something new really get to the crux of what we are talking about. I put it that we form relationships with objects. Consider a friend has a twin, and you suddenly cease to see this friend, because you conclude the other twin is just as good as they are, and you spend time with the second twin instead. This circumstance causes immediate distaste. I put it that when an object becomes ours we form a loyalty to it, in the same way that we give acquaintances we have known for longer preference over those who we have most recently met. I see no reason why this approach shouldn’t be applied to land just as much as to one’s chattels. 

A good place to start when thinking about the psychology of human behaviour around land ownership is with the great thinkers of the Scottish Enlightenment; David Hume, Adam Smith. Henry Home (Lord Kames) illustrates the lack of good sense in the human condition with respect to property. From his Historical Law Tracts: 

‘I shall conclude this tract with a brief reflection upon the whole. While the world was rude and illiterate, the relation of property was faint and obscure. This relation was gradually unfolded, and in its growth toward maturity accompanied the growing sagacity of mankind, till it became vigorous and authoritative, as we find it at present. Men are fond of power, especially over what they call their own; and all men conspired to make the powers of property as extensive as possible. Many centuries have passed since property was carried to its utmost length. No moderate man can desire more than to have the free disposal of his goods during his life, and to name the persons who shall enjoy them after his death. Old Rome, as well as Greece, acknowledged these powers to be inherent in property; and these powers are sufficient for all the purposes to which goods of fortune can be subservient. They fully answer the purposes of commerce; and they fully answer the purposes of benevolence.’

This certainly serves as a useful word on property. He goes on: 

‘But the passions of men are not to be confined within the bounds of reason: We thirst after opulence; and are not satisfied with the full enjoyment of the goods of fortune, unless it be also in our power to give them a perpetual existence, and to preserve them for ever to ourselves and our families. This purpose, we are conscious cannot be fully accomplished; but we approach to it the nearest we can, by the aid of imagination. The man who has amassed great wealth, cannot think of quitting his hold; and yet, alas! he must die and leave the enjoyment to others. To colour a dismal prospect, he makes a deed, arresting fleeting property, securing his estate to himself, and to those who represent him in an endless succession: his estate and his heirs must forever bear his name; every thing to perpetuate his memory and his wealth. How unfit for the frail condition of mortals are such swoln conceptions? The feudal system unluckily suggested a hint for gratifying this irrational appetite. Entails in England, authorified by statute, spread every where with great rapidity, till becoming a public nuisance, they were checked and defeated by the authority of judges without a statute. It was a wonderful blindness in our legislature, to encourage entails by a statute, at a time when the public interest required a statute against those which had already been imposed upon us.’ 

Entails refer to a kind of deed that specifies conditions for inheritance. They were used typically to keep land together with the male line and a title, removing the discretion of the descendants to leave their property to whom they wished. It is difficult to find information on these instruments but they do have a similarity to modern day trusts, and no good analysis of land ownership lacks a comment on trust law. 

The idea is genius. A deed of trust is a document that sets out that A, the settlor, gives property to B, the trustee, with the condition that B looks after the property to the benefit of C, the beneficiary. So A gets what he wants from the assets held by B, without having to own them. He (or she) can effectively pause the tape on their needs and wants, and prevent any future claims from divorcing spouses. Classic junctures for a trust to commence include before marriage, and on death.  In some jurisdictions C could be A; you can create a trust with yourself as the beneficiary. 

A key bone of contention has been dynasty trusts , that is trusts which continue into the future indefinitely. These provide a key advantage for the settlor in that they can support future generations with income while protecting against unscrupulous spending of the capital; the threat to a fortune of bad company or gambling might be a consideration. 

The law against perpetuity of trusts; that is trusts which vest forever in to the future, has its roots in the case of the 6th Duke of Norfolk,  and in a complex set of arrangements: Henry, 15th Earl of Arundel, wanted to arrange the inheritance of his assets in a particular manner: 

1. Initially the majority of the assets were left to his eldest son, Thomas, who was mentally incapacitated and incapable of marriage. Thomas lived in an asylum in Padua, in the then Republic of Venice. 
2. A second, lesser portion of assets would be left to the second son, also Henry.
3. On Thomas’ death the assets of Thomas would pass to Henry, but the smaller second portion of assets Henry had initially inherited would pass to the fourth son, Charles.

This is termed a shifting executory interest. 

The problem was that once Thomas in Padua, by this time the 5th Duke of Norfolk, had died, his brother Henry, 6th Duke of Norfolk didn’t want to hand over the relevant assets to the fourth son Charles, his case being that an unreasonable period of time had elapsed since the shifting interest was created. And so it went to the highest court in the land, and the House of Lords held that such an entailment, or in modern terms; trust, could not remain valid for such an extended period of time. The thinking at the time was that allowing interests that vest too far into the future tied up assets for future generations in an unhealthy way that damaged the flow of money in an economic sense. Attempts to control property beyond the grave were unattractively termed ‘the dead hand’.¹ 

Inset picture of Henry, 6th Duke of Norfolk:

The Rule Against perpetuities was only later refined in the case Cadell v. Palmer (1833), 7 Bli. N.S. 202: 

“Every attempted disposition of land or goods is void, unless, at the time when the instrument creating it takes effect, one can say, that it must take effect [if it take effect at all] within a life or lives then in being and 21 years after the termination of such life or lives, with the possible addition of the period of gestation.”

A better formulation was put by the American legal Scholar John Chipman Gray: 

“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

This area of law is legendary for its complexity, but the basic idea is that the rule allows enough time for unborn grandchildren to attain the age of majority before assets in trust are vested in them: A creates a trust with the intention of leaving assets to his daughter B’s children should she have any. If B gives birth and dies that same day, then the 21 years provides the time for the child C to reach age of majority and have the assets vested in them. 

The rule has undergone a long series of alterations since its original inception, mainly through the Perpetuities and Accumulations Act 1964 and more recently the Perpetuities and Accumulations Act 2009, which set the perpetuity period at a flat 125 years.² 

In America many states now no longer follow the Rule Against Perpetuities and allow perpetual trusts or dynasty trusts. The pattern started with then Governor of South Dakota William ‘Wild Bill’ Janklow. 

Inset picture of ‘Wild Bill’:

Janklow had initial success removing restrictions on credit card interest rates, thus persuading credit card companies to relocate their operations to South Dakota. His next operation was to write a law allowing the creation of perpetual trusts.³ Initially South Dakota emerged as a global tax haven. Other states soon followed in a race to the bottom and in recent time the count of States that allowed dynasty trusts stood at 21 in total.⁴ South Dakotan trust companies now hold hundreds of billions of dollars in assets.⁵  Questions were however soon asked about which parties benefited other than the financial and legal professionals who encouraged the creation of these trusts.

But on the other hand perhaps the 21 states legalising dynasty trusts have it right; that the ‘dead hand’ of trusts which reached too far in to the future was not enough of an affront to future commerce and dignity to merit their prohibition. Perhaps the ‘dead hand’ need not be so dead after all. Times may have changed.

However, returning to Lord Kames’ analysis: 

‘[We] are not satisfied with the full enjoyment of the goods of fortune, unless it be also in our power to give them a perpetual existence, and to preserve them for ever to ourselves and our families.’

Is it not this thirst for the absolute that we feel so strongly. Absolute guarantee of our dynasty, and absolute power over what happens on the land we own. Land ownership comes with rights, but it increasingly comes with restrictions and responsibilities.

One right that comes with residential property, and traditionally with agricultural land, is the right of exclusion. There are some who choose to build the whole construct of ownership based on concepts of exclusion and use.⁶ It was one of the first instincts of European settlers under the Homestead Act of 1862 to exclude cowboys and their migrating herds of cattle from their land. This desire for exclusion was expressed as a desire for enclosure, and with the invention of barbed wire by John Warne Gates this became possible. Gates described his invention of barbed wire as “lighter than air, stronger than whiskey, cheaper than dust” and it transformed America within a matter of years from a land of herding cowboys to a nation of homesteads and agricultural partitions. 

In America exclusion is advertised at its most extreme by the castle doctrine, which is followed by the majority of US states. Under the castle doctrine the threat of an intruder to life or limb on home property may be met with defence up to and including deadly force. The usual duty to retreat when threatened rather than ‘standing your ground’ is dispensed with – the concept is similar to that of justifiable homicide but the bar for what motivates a ‘defensive attack’ significantly lower. 

A tragic example of the consequences is that of Yoshihiro Hattori, a Japanese exchange student visiting Baton Rouge, Louisiana in 1992. He and another student, Webb Haymaker set out to join a Halloween party but got the wrong house. The resident Rodney Paiers had an encounter with the two students in which he was armed with a handgun. He told the pair to ‘freeze’, but in the confusion and with limited knowledge of Englsih Hattori continued to approach Paiers, perhaps believing the situation to be a Halloween prank.It is possible Hattori’s camera was mistaken for a weapon. Paires shot Hattori, who died soon afterwards. Initially the Baton Rouge Police Department refused to charge Paires for any crime on the basis he was ‘within his rights in shooting the trespasser.’ The incident did eventually make its way to trial where Rodney Paires was acquitted of manslaughter, to the applause of the courtroom. 

There are numerous cases of gun deaths in this residential setting and they typically follow the same pattern: confrontation, misunderstanding or overreaction, firearm easily accessible, fatal shooting. They illustrate the level of protectiveness people have over their home. 

This alertness to intrusion is also illustrated by the proportion of people who feel compelled to move to a different property following a break in or ‘home invasion.’  According to home insurer Policy Expert, 12% of burglary victims moved homes as a result of the intrusion. It’s as if the property becomes ‘soiled’ in the mind of the victim and they can’t square with remaining there. 

The land which is our home clearly forms a deep part of our emotional makeup. The highly influential Swiss psychoanalyst Carl Gustav Jung believed that when a house appeared in a dream, the house was a metaphor for the psyche. He himself had a dream he associated with this finding: 

“I was in a house I did not know, which had two storeys. It was “my house”. I found myself in the upper storey, where there was a kind of salon furnished with fine old pieces in Rococo style. On the walls hung a number of precious old paintings. I wondered that this should be my house and thought “not bad”. But then it occurred to me that I did not know what the lower floor looked like. Descending the stairs, I reached the ground floor. There everything was much older. I realised that this part of the house must date from about the fifteenth or sixteenth century. The furnishings were mediaeval, the floors were of red brick. Everywhere it was rather dark. I went from one room to another thinking “now I really must explore the whole house.” I came upon a heavy door and opened it. Beyond it, I discovered a stone stairway that led down into a cellar. Descending again, I found myself in a beautifully vaulted room which looked exceedingly ancient. Examining the walls, I discovered layers of brick among the ordinary stone blocks, and chips of brick in the mortar. As soon as I saw this, I knew that the walls dated from Roman times. My interest by now was intense. I looked more closely at the floor. It was of stone slabs and in one of these I discovered a ring. When I pulled it, the stone slab lifted and again I saw a stairway of narrow stone steps leading down to the depths. These, too, I descended and entered a low cave cut into rock. Thick dust lay on the floor and in the dust were scattered bones and broken pottery, like remains of a primitive culture. I discovered two human skulls, obviously very old, and half disintegrated. Then I awoke.”

Jung interpreted the house in the dream as representing his psyche, with the upper levels representing his normal consciousness, ranging down to the lower primitive levels which represent his instincts and collective unconscious; that is; the collection of knowledge and imagery shared by all through ancestral experience. 

So a home forms a key part of our psyche and may be an expression of our self on the deepest level. How far this extends to wider (perhaps agricultural) lands remains unclear, but some things are for sure: humans have a strong desire to preserve and perpetuate their wealth, sometimes desiring that it benefit their descendants indefinitely. Added to this we have a strong instinct to exclude others from the spaces we have actual ownership of, and can easily find ourselves using lethal force to ‘stand our ground’ as we interpret a stranger is ‘in the wrong place;’ according to our deepest instincts about our territory.

All this together makes for a somewhat tyrannical evaluation of the human condition with relation to land ownership.

Statute: 

Perpetuities and Accumulations Act 1964

Perpetuities and Accumulations Act 2009

Case Law: 

The Duke of Norfolk’s Case

Cadell v. Palmer (1833), 7 Bli. N.S. 202: 

References:

1. Law Articles. Rule against perpetuity and its exceptions: A sine qua non of property transfer. https://www.legalservicesindia.com/law/article/1030/8/Rule-against-perpetuity-and-its-exceptions-A-sine-qua-non-of-Property-transfer. Updated 2018.

2. Law Commission. Perpetuities and accumulations: Current project status. https://www.lawcom.gov.uk/project/perpetuities-and-accumulations/. Updated n.d.

3. Heller M, Salzman J. Mine: How the hidden rules of ownership control our

Introduction

There are currently plans in the making to ban the use of lead shot in the UK^{1, 2}. Indeed a de-facto ban may occur as meat suppliers refuse to take game that have been shot with lead ammunition. There are claims that lead shot kills hundreds of thousands of wildfowl annually. While these claims about danger to wildlife have been described as inflated, lead is an extremely damaging substance to human health when in sufficient quantities, with the potential to cause neurological damage, and even defects in DNA³. Indeed lead’s effects, in particular on the mind, were observed by the Greek Nikander of Colophon in the 2nd century BC, when white lead was used to sweeten wine. Over the last half-century sources of lead in the first world have been all but removed from gasoline, paint and water piping. 

Abstract/Conclusion 

The following mathematical work is quite involved, we therefore advise the reader who does not have the time or want to expend the effort to understand the following calculations to simply read the following abstract or conclusion for a potted outline of our findings:

The conclusion is a fairly balanced one. On the one hand, game or clay pigeon shooting has the potential to distribute very significant quantities of lead (sometimes >1 tonne/ha). Additionally, according to an exponential model, this lead saturates the environment at a very significant rate, reaching an equilibrium/saturation in under one year when the relevant land has been shot upon periodically going back 20 years or more. The environment does clearly become toxified.

How to break down the issue of lead exposure for adults engaged in game or clay shooting in the field is difficult and complex. There is exposure from handling weapons and ammunition, particulate in the air, and exposure to the environment itself. 

The exponential model from a linear ordinary differential equation indicates that due to the low mass of birds, and the tendency for shot to get stuck in the gizzard, it is quite likely that a bird ingesting some pellets would experience lead poisoning. These conclusions were obviously also reached by the US Fish and Wildlife Service⁴ when they started designating steel-shot-only hunting zones for waterfowl as early as 1976⁵. Perhaps we should look to the USA. 

On the final issue of harm arising from human lead ingestion the conclusion is that due to the absence of a gizzard, and the relatively swift digestion and elimination that occurs in a human, it is very unlikely an adult would suffer lead poisoning from the ingestion of a reasonable number of lead pellets. Small children (with their small size and volume) who ingest slightly larger quantities of lead and may well experience toxicity however, particularly if the lead bodies become stuck in the digestive tract. 

The Setting

The interest in the transfer of lead in lead pipes provides us with a linear ordinary differential equation for the diffusion of lead from water pipes⁶. We will attempt to adapt this model to lead shot in a variety of environments. We will tackle three problems. 

1. Does regular use of lead shot on an area used to shoot driven game cause the ground to become toxic by scientific standards? 
2. If a bird ingests a number of lead shotgun pellets could its blood lead concentration reach toxic levels could it suffer harm or die?
3. If a human is to ingest a number of pellets, possibly on a regular basis, is it conceivable that the individual would suffer from some degree of lead poisoning? 

The Differential Equation

Transfer of lead from a solid pipe in to stationary water within the pipe can be modelled by the ordinary linear differential equation⁷: 

V dc/dt = MA (1 – c/E)       (1)

Where V is the volume of water in the pipe in m3, c is the lead concentration of this water in micrograms/litre. A is the internal area of the pipe in m3. E is the equilibrium concentration, beyond which lead ceases to be transferred from the pipe into the liquid. M is the initial mass transfer rate in micrograms per m2 per second. 

Many thanks to Vita Stembrera for providing the more intuitive form of this relationship.

The equation (1) does make some sense; the rate of change of concentration over the whole volume V is proportional to the area of the pipe and the rate of mass transfer, and decreases as the concentration approaches the equilibrium concentration or point of saturation. 

This is known as an exponential model. And indeed when it is solved it gives us the exponential equation⁶:

c= E –  (E – c₀) . exp( -AMT/VE )      (2)

For lead, from the work by Van der Leer et. al.⁶ we have that for a scenario with moderate plumbosolvency: 

M = 0.10 micrograms/m2/sec

E = 150 micrograms/litre

Part 1: Lead shot falling on one Hectare

We will adapt the scenario with a pipe to an instance where we have one hectare of land, and we consider the top 5 cm of soil. We will liken the soil to water in its properties – in the UK there is significant moisture in the topsoil in almost all seasons. 

So we have a volume: 

100m*100m*0.05m = 500m3 = 500,000 litres

From wikipedia a #6 12-bore 28g (1 oz) cartridge contains 270 pellets. The average diameter for this standard pellet is 2.59mm. Therefore the surface area of a pellet using the formula for the surface of a sphere is 2.11 e-5 m2 in scientific notation. 

The weights of pellets in grammes provided by wikipedia are not satisfactory. Clearly a #6 pellet cannot weigh 1.62g as this would mean a 28g load would only comprise around 17 pellets rather than the required 270. We therefore calculate the weight of a single pellet using the density of lead  p = 0.0113 . A #6 pellet of diameter 2.59mm has a radius of 1.295mm and therefore a volume of 9.09mm3. The resulting mass is 0.103g per pellet, and indeed, if we multiply 0.103g * 270 = 27.7g, vaguely in line with 28g load we started our calculations with. So the mass of a single pellet is 0.103g. 

On a typical pheasant drive it is reasonable to assume 8 guns take a total of twenty shots each, bearing in mind how common a miss with the second barrel is. Therefore the total number of shots that occur during the drive is 8 * 20 = 160 shots. The total number of pellets from one drive is therefore 160 * 270 = 43,200 pellets, weighing a total of 4.48 kg. 

Assuming the pheasant drive has been shot ten times per year for twenty years the total number of pellets in the topsoil is 43,200 *10 * 20 = 8.64 million, with a total weight of 896kg. The total surface area of these pellets is the area per pellet multiplied by the number of pellets:  8.64 e6 * 2.12 e-5 = 183m2. 

Going back to our differential equation, it is important to remember the result will be in micrograms of lead. 

c= E – (E – c₀) . exp( AMT/VE ) 

 We have from Van der Leer et. al.⁶  E = 150, M = 0.10, c₀ = 0,  A = 183, V =500,000 .  

Using the free online graphing tool Desmos we obtain the following plot:

What this tells us is that the equilibrium concentration comes near to being reached within around 200 days. Lead therefore diffuses and saturates the environment relatively rapidly.

Is lead at the equilibrium concentration dangerous?

Over the years the standards for lead concentration in drinking water has been gradually decreased. Starting at a maximum of 50 micrograms/l they were then reduced to 25 micrograms/litre. In 2013 the limit was reduced to 10 micrograms/l⁸. In fact, there are various substances added to drinking water in order to minimise lead concentrations⁹. 

But our above model dealt not with drinking water but instead the environment in general, and it is notoriously difficult to model how a human will interact with the natural environment. In addition there is contact with lead through the handling of lead shotgun shells, and possibly much more significantly, through the inhalation of particulate during shooting itself. All these questions are impossible to answer, so we will move on to questions two and three which investigate whether ingestion of lead shot presents a health hazard to living creatures. 

Lead Poisoning in Birds

The proposed plumbosolvency of E = 150 micrograms/litre that was used by Van der Leer et. al.⁶ does not reflect the digestive action of a human or animal. Nonetheless we will apply our exponential model to the problem of ingesting lead shot, modelling an organism as a body of water that absorbs lead from the metal pellets. 

Let us assume that five pellets are ingested. We start with a duck; a fairly typical kind of wildfowl. Assume that a duck weighs 1kg. Then as the duck is composed mainly of water it has a volume of 1 litre. Model the duck as a volume of water with a total of five pellets providing a mass transfer of lead. 

Again we use the solution to the diffusion equation: 

c= E – (E – c₀) . exp( AMT/VE ) 

And with moderate plumbosolvency E = 150, c₀=0, V=1, M=0.1 . 

The area of five pellets is 5 * 2.11 e-5 = 1.06 e-4 m2. 

We get the following plot: 

It takes longer (400-600 days) to achieve a steady state than in the previous graph showing diffusion over a hectare. However, the plumbosolvency level of 150 micrograms/litre is significantly over what is considered to be injurious to human health. Indeed the model reaches the 50 micrograms/litre level within only fifty or so days. It is therefore easy to imagine that shot stuck in the gizzard of a bird would cause significant poisoning and kill the bird well within its lifetime, and our model does not even account for any extra lead dispersal within the organism caused by the digestive process and chemicals. 

Question 3: Lead Shot Digested by a Human

Assume that a person ingests five lead pellets and assume a human has a weight of 100kg and therefore, being mostly of water, a volume of 100 litres. The only variable we need to change from the above model for a bird is therefore volume. We get the following result: 

But a human doesn’t have a crop or a gizzard. We do admittedly have an appendix but when something becomes stuck in the appendix this is considered an unlucky occurrence, not to be expected. From our graph lead levels do not reach significance for hundreds of days, based on this model, and with the human digestive system fully processing intake within a typical 24 hour time frame, it seems inconceivable that a human would suffer lead poisoning from ingestion of a reasonable number of lead pellets. However, there is the issue of the action of the digestive system to take in to account. Lead does react (albeit slowly) with hydrochloric and sulphuric acid, which are found in the human stomach. Nonetheless, checking pubmed.gov for case reports of adult lead poisoning from pellets or rounds returns no results. 

Exceptions to the above might include when small children¹⁰ ingest larger lead bodies or a great number of pellets; children have a much smaller body weight and volume than  an adult. Another compounding issue is if a lead body was to get stuck in the digestive system¹¹.

Conclusion 

The conclusion is a fairly balanced one. On the one hand, game or clay pigeon shooting has the potential to distribute very significant quantities of lead (sometimes >1 tonne/ha). Additionally, this lead saturates the environment at a very significant rate, reaching an equilibrium/saturation in under one year when the relevant land has been shot upon periodically going back 20 years or more. The environment does clearly become toxified.

How to break down the issue of lead exposure for adults engaged in game or clay shooting in the field is difficult and complex. There is exposure from handling weapons and ammunition, particulate in the air, and exposure to the environment itself. 

The exponential model from a linear ordinary differential equation indicates that due to the low mass of birds, and the tendency for shot to get stuck in the gizzard, it is extremely likely that a bird ingesting some pellets would experience lead poisoning. These conclusions were obviously also reached by the US Fish and Wildlife Service⁴ when they started designating steel-shot-only hunting zones for waterfowl as early as 1976⁵. Perhaps we should look to the USA. 

On the final issue of harm arising from human lead ingestion the conclusion is that due to the absence of a gizzard, and the relatively swift digestion and elimination that occurs in a human, it is very unlikely an adult would suffer lead poisoning from the ingestion of a reasonable number of lead pellets. Small children (with their small size and volume) who ingest slightly larger quantities of lead may well experience toxicity however, particularly if the lead bodies become stuck in the digestive tract. 

References:

1. Colley T. ‘No excuses’: 2024 phase out of lead shot possible with regulatory intervention, says report. Available at: https://www.endsreport.com/article/1799479/no-excuses-2024-phase-lead-shot-possible-regulatory-intervention-says-report.

2. Wildlife and Countryside Link. Report for parliamentary group concludes that ban on lead shot can be achieved by 2024. Available at: https://www.wcl.org.uk/ban-on-lead-shot-can-be-achieved-by-2024.asp#:~:text=The%20consultation%20proposals%20include%20a,in%20force%20by%20late%202024.

3. Johnson FM. The genetic effects of environmental lead. Available at: https://www.sciencedirect.com/science/article/abs/pii/S138357429700032X?via%3Dihub.

4. U.S. Fish & Wildlife Service. U.S. Fish & Wildlife Service. Available at: https://www.fws.gov/.

5. Middleton H. THE AMERICAN HUNTER STILL BALKS AT SWITCHING FROM LEAD TO STEEL SHOT. Available at: https://vault.si.com/vault/1984/11/05/the-american-hunter-still-balks-at-switching-from-lead-to-steel-shot.

6. Van Der Leer D, Weatherill NP, Sharp RJ, Hayes CR. Modelling the diffusion of lead into drinking water. Appl Math Model. 2002;26:681-699.

7. Vita Stembrera. Mass transfer differential equation. 

8. Cardew PT. Plumbosolvency Control in Soft Waters. Available at: https://www.deepdyve.com/lp/wiley/plumbosolvency-control-in-soft-waters-F7hbmVD8R4.

9. Hayes CR, Croft TN. Optimisation of plumbosolvency control using
computational modelling techniques: a demonstration
project for the Government of Alberta, working with the
City of Calgary and EPCOR (Edmonton). Available at: https://open.alberta.ca/dataset/c249d0ea-e494-4218-9b4a-300cb666afb5/resource/31bdfcc0-9a90-406b-8d22-2b0cf5bbbc7b/download/2014-optimisationplumbosolvency-feb2014a.pdf.

10. Treble G, Thompson T. Elevated blood lead levels resulting from the ingestion of air rifle pellets. Available at: https://pubmed.ncbi.nlm.nih.gov/12220020/.

11. Rozier B, Liebelt E. Lead Pellet Ingestion in 3 Children: Another Source for Lead Toxicity. . 2019.

Land Reform in Scotland – Past, Present and Future

Following the independence referendum of 1997, the Scotland Act 1998 created the Scottish Parliament and on the 1st of July 1999 certain devolved powers were transferred from Westminster to the Scottish Parliament. The new Scottish Parliament building became operational in September 2004, and the Scottish National Party formed their first majority government in 2007. 

A history of Scottish Land Reform can be pieced together online; Wikipedia has a  relatively comprehensive appraisal of historic and contemporary legislation. Below in the references we include a list of statutes in date order which can be used as a roadmap when investigating Scottish land reform. Instead of simply re-writing what is already available, we will attempt to draw upon the different sources available to assess what the intentions of the current Scottish Government are, and what the realistic scope of upcoming legislation is. To begin with: the main land reforms that have occurred in Scotland since 1999 are:

• Abolition of feudal tenure 
• Creation of land access rights for the general public
• A crofting community right to buy
• Agricultural tenants under 1991 Act tenancies were given right of first refusal
• Creation of a community right of first refusal 

Two of these four areas were then advanced further: 

• 1991 Act tenants had their interest in buying their farms automatically registered, so they no longer had to actively register their interest to buy a farm in the event of sale. 
• The maximum number of residents who could perform a community buyout (10,000) was removed in favour of no upper limit on the number of community members who could perform a buyout. 

In addition:  

• A Land Rights and Responsibilities Statement (LRRS) has been introduced. At present compliance with the LRRS is voluntary.

Below at the end of this article there is a comprehensive list of the legislation relating to the above changes in the law in Scotland. 

A note on the European Convention on Human Rights

The UK is party to the European Convention on Human Rights (ECHR)¹, this convention of the Council of Europe was ratified by the UK in 1953 and was incorporated in to UK law and the UK Court System in the Human Rights Act 1998.

The European Convention on Human Rights; Article 1 of Protocol 1 states: 

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

In Salvesen v Riddell [2013] the UK Supreme Court ruled that the Scottish Parliament was ultra vires (beyond its powers) in its retrospective legislation with respect to the Agricultural  Holdings (Scotland) Bill 2003. The 2003 Act originally provided that if a certain common farm business structure was terminated before 4 February 2003, the farm would revert to the landowner, later than this, and the person working the land would become a tenant with advantageous terms. In light of a rush of landowners’ terminations, the Scottish Parliament legislated to move the goalposts, that is, moved the period that would be covered by the new legislation to include terminations from 16 September 2002 onwards, instead of the original date 4 February 2003. The move was retrospective.

Salvesen had terminated his partnership within the first window but not within the second. He sued and the case climbed its way to the UK Supreme Court, which ruled that on balance, the relevant section 72 of the 2003 Act was incompatible with the ECHR Protocol 1 Article 1 Paragraph 1 on the Right to Property. The reaction of the UKSC was to suspend the relevant paragraphs until they were amended as the legislation was beyond the competence bestowed on the Scottish Parliament by the Scotland Act 1998. That the legislation was suspended, rather than simply being declared invalid, may prove of interest to the reader interested in law. ² There were cases that followed Salvesen, and demands for monetary compensation. ³ The passing of such legislation perhaps illustrates a lack of understanding and wishful thinking on the part of the congregation of the Scottish Parliament.

Salvesen v Riddell demonstrates one way that land reform efforts can run up against Article 1 Protocol 1 of the ECHR. Looking back to the text of Article 1 above there is a trade-off between private property rights and the general (perhaps public) interest, and the right to collect taxes and suchlike. But Salvesen arises specifically in the context of retrospective legislation and therefore doesn’t demarcate what kind of ownership designs relating to land ownership and tenancies would contravene Article 1. Salvesen doesn’t tell us what kind of broad changes to the rights and responsibilities of landowners, or changes to the design of ownership models, would or would not be found to violate Article 1. 

Research on Interventions to Manage Land Markets and Limit the Concentration of Land Ownership Elsewhere in the World

One way we can investigate how radical land reform stands up to the ECHR is to look at reforms that other countries party to the ECHR have successfully implemented without successful legal challenge. 

Research on Interventions to Manage Land Markets and Limit the Concentration of Land Ownership Elsewhere in the World ⁴ was a report published by the Scottish Land Commission in 2016. The Scottish Land Commission is an organisation that was founded by the Scottish Government in the Land Reform (Scotland) Act 2016 to address issues relating to agricultural landlords and tenants, land concentration, land taxation and land use for the common good. 

One of the first points the document makes is about the disadvantages of land fragmentation: 

‘A prominent concern in these [post Soviet] countries is land fragmentation, rather than concentration. Fragmentation has negative impacts on the land market by increasing negotiation and information costs, in turn reducing farm performance (Loughrey et al., 2018).’

The Treaty of Rome, otherwise known as the Treaty on the Functioning of the European Union or the Treaty Establishing the European Community, prohibits obstruction to the flow of capital between member states ⁵. On the face of it this encompasses the purchase of land by EU nationals, however, there are a great number of exceptions ⁶. From the Scottish Land Commission Report:

‘Policy objectives associated with such restrictions generally include: preventing foreign- based speculation in land; controlling the amount and direction of direct foreign investment; ensuring local control over food production; and indirectly controlling immigration.’

Among the many exceptions made to the Treaty of Rome were for Eastern European countries that joined the Union in 2004 and 2007. These countries were allowed to introduce temporary restrictions on land purchases by foreigners from other EU states. These restrictions were in light of the significant differences in land values between East- and Western Europe; and anticipated speculative purchases by West-European entities. 

Many countries inside and outside the EU have restrictions on purchase of both residential property as well as agricultural land. Some other categories of land targeted include forestry land, land in national parks and sales of a certain size. Common patterns include a minimum number of years resident before real property can be purchased, restriction on the number of properties that can be purchased, restrictions on holiday home ownership, requirement for prior approval by a designated public body for purchase, and land ceilings for foreign acquisitions. Motivations for these policies include ensuring purchases are for the public benefit, controlling spiralling property and land values, and combatting shortages of housing and agricultural land. 

See next: Land Reforms Abroad: Deep Dive: Polish Land Reform

Groups and Organisations:

Government Guidance:

Statute: 

Conventions, Covenants and Treaties:

Cases: 

References:

1. Council of Europe. European convention on human rights. . 2010.

2. Mark Elliott. The legal status of unlawful legislation: Salvesen v riddell [2013] UKSC 22. https://publiclawforeveryone.com/2013/04/25/the-legal-status-of-unlawful-legislation-salvesen-v-riddell-2013-uksc-22/. Updated 2013.

3. Adèle Nicol. Salvesen fallout: The latest round. https://www.lawscot.org.uk/members/journal/issues/vol-62-issue-06/salvesen-fallout-the-latest-round/. Updated 2017.

4. Scottish Land Commission. Research on interventions to
manage land markets and limit
the concentration of land
ownership elsewhere in the world. https://www.landcommission.gov.scot/downloads/5dd6c67b34c9e_Land-ownership-restrictions-FINAL-March-2018.pdf. Updated 2018.

5. European Parliament. Free movement of capital. https://www.europarl.europa.eu/RegData/etudes/fiches_techniques/2013/030106/04A_FT(2013)030106_EN.pdf. Updated 2022.

6. Publications Office of the European Union. Purchasing property in other EU countries. https://eur-lex.europa.eu/legal-content/EN/LSU/?uri=CELEX:12016E063. Updated 2017.

Land Reforms Abroad: Polish Land Reform

Land ceilings: the Food and Agriculture Organisation of the United Nations (FAO) states: ‘States may consider land ceilings as a policy option in the context of implementing redistributive reforms.’ Although rare, land ceilings are considered as a potential policy option. There is an Urban Land Ceiling Act in India that was passed in 1976, although most Indian states have now repealed the Act. 

Denmark did have a system where any person who purchased more than 30 ha of agricultural land had to be over 18 years of age, reside on the property for at least six months, and have suitable agricultural qualifications. ¹ They could purchase up to 400 ha of land in total, but the properties had to be such that the land all fell within a 10km straight line and ownership of no more than four agricultural properties was permitted. This legislation was scaled back in 2010 amid demands to allow the advantages of economies of scale in agriculture, and to improve land value. 

Deep Dive: Polish Land Reform 

Poland’s 2016 Land Act ² includes an agricultural land ceiling of 300ha for new purchases, there is also a ban on the sale of state owned land, which was extended by another five years in 2021, and a requirement that the buyer actually farms the land for ten years following their purchase, is a ‘qualified farmer’, and has lived in the local commune for at least five years. The current arrangement is that the majority of state owned land is leased to farmers.³ These regulations were mainly in reaction to Western-European companies land-grabbing large areas of Polish land, taking advantage of the low land prices as they moved east. It is even claimed that fake buyers were used to obtain access to the limited tender system.⁴ The average Polish farm is only 8 hectares on average, with many farms non-commercial. This is all against the backdrop of restitution and the expiry of the special conditions protecting agricultural land that Eastern European countries were permitted to enforce following their accession to the EU.^5,6 

The following section is derived from a chapter Buying Land in Poland from Marcin Kręglewski of the Polish law firm Dudkowiak Kopec & Putyra⁷: 

Polish law places restrictions on transactions involving agricultural land lots of more that 0.3 ha. A key concept is that of the individual farmer. Only individual farmers can buy a significant area of agricultural land; an individual farmer being a living human being who is the owner, perpetual usufructuary, leaseholder, or autonomous possessor, of not more than 300 ha of agricultural land, with farming qualifications, living in the municipality of one the land lots making up his farm for at least five years, and running the farm within that period. 

A perpetual usufructuary refers to the holder of a long lease, that is treated in a similar way to ownership for the purpose of the legislation in question. Leases of this kind are typically between 50 and 99 years. Autonomous possessor refers to an occupier who treats the land as his own even though he may not (yet) be the legal owner; e.g. in the case of adverse possession. 

Usually only an individual farmer can buy significant land holdings. The National Support Center for Agriculture (KOWR) (Krajowy Ośrodek Wsparcia Rolnictwa) may give consent for a person who is not an individual farmer to purchase agricultural land in certain circumstances. Permission may be given where, for example, the seller cannot find an individual farmer to buy the land (insufficient interest) or where an entrant to agriculture wishes to set up or expand a family farm.

A buyer who is not and individual farmer may buy land without the permission of KOWR where the land moves between close family members, where there is a division of assets through death or divorce, bankruptcy or a merger of companies and partnerships. 

These restrictions also apply to the acquisition of a long lease (otherwise known as perpetual usufructuary) as well as freehold interest. 

In addition to these stipulations on the sale of land, there is also the opportunity for compulsory purchase by KOWR in the case of gifts, lifetime leases, distribution on termination of co-ownership following death, termination of co-ownership by a court, division, conversion or merger of companies and partnerships and auction following enforcement proceedings.

The right of compulsory purchase is ideally intended to be exercised after an intended transferee has already made an offer. The price paid by KOWR in a compulsory purchase is the price the intended transferee intended to pay. If this price is not clear then an independent valuation at market value takes place. 

Some notable circumstances where KOWR does not have the right of compulsory purchase include where the land is acquired to expand a family farm of up to 300 ha, where the transfer already has KOWRs consent, where the transferee is someone close to the transferor or is an individual farmer who inherits, or where the buyer is an agricultural cooperative or member of such a cooperative. :

In Poland there is also a statutory right of pre-emption in the case of sale of agricultural land. This right is enjoyed in the first instance by a leaseholder and then failing this secondly by KOWR. The leaseholder only holds the right of pre-emption if the land is part of the leaseholder’s family run farm and the lease has been performed for at least three years. 

The right of pre-emption does not apply where the buyer is, broadly speaking, a close family member of the seller, an individual farmer who obtained consent from KOWR to buy the land, part of local government or the state, an agricultural cooperative, or where the land is being transferred within a religious organisation.

Share transactions concerning companies which are owners or perpetual usufructuaries, where the company owns at least 5 ha of land, are also subject to restrictions such as pre-emption and compulsory purchase. 

In a similar way to compulsory purchase, the preemption process involves a conditional sale agreement between the seller and an ordinary buyer. Within a month of this conditional agreement the party with the right of pre-emption can purchase the land at the price agreed in the conditional sale agreement. The right of pre-emption is held firstly by the leaseholder, and failing their interest, by KOWR. If the pre-emptive rights are unused, then a transfer agreement is signed and the land is transferred to the ordinary buyer. 

This is distinguished from Scottish legislation in the form of the Agricultural Holdings (Scotland) Act 2003. In Scotland the pre-emptive rights work on the basis of the owner and the tenant exercising the right of pre-emption agreeing upon a price as the initial step, or, failing this approach, an independent valuation providing the figure for sale. 

In review: Polish land law includes a land ceiling of 300ha, however, this is not a restriction on the size of existing land holdings, rather it defines, mainly, individual farmers as the only legal persons who can buy significant amounts of land, typically restricting their purchases up to a total landholding of 300 ha. There are also powers of compulsory purchase and pre-emption in the cases of transfer and sale respectively, with a number of exceptions to account for transfers between close family, or situations where KOWR has already given explicit permission for the transfer or sale to go through. 

It is important to consider that the above are restrictions. They restrict the sale and transfer of land, arguably they could be said not to primarily affect the ownership of land. The restrictions prevent purchases which lead to an ownership of more than 300 ha, they do not in any way cut up holdings that already comprise more than 300 ha unless they are sold. Reforms which redistribute land in a more direct manner would be met with legal challenge as they would overtly interfere with the right to enjoyment of property protected by the ECHR. 

Some minor amendments were made to the above Polish legislation in 2019.⁸ In particular the area parameters on which the restrictions are directed were changed slightly, and the restrictions were lifted or softened in areas close to cities. 

See next: Scottish Land Reform in 2022 – Consultation Paper: Land Reform in a Net Zero Nation – The Latest in Scottish Land Reform

Statute: 

Organisations: 

The Polish National Support Center for Agriculture (KOWR) (Krajowy Ośrodek Wsparcia Rolnictwa) 

References:

1. Unknown. Property formation in the nordic countries. https://gst.dk/media/6608/propertyformationinthenordiccountries.pdf. Updated n.d.

2. Ministerie van Landbouw, Natuur en Voedselkwaliteit. Changes legislation regarding purchase of agricultural land in poland. https://www.agroberichtenbuitenland.nl/landeninformatie/polen/achtergrond/landbouwgrond/changes-regarding-lease-of-agricultural-land-in-poland. Updated n.d.

3. REDAKCJA1. Extension of the ban on the sale of state-owned agricultural land. https://www.gospodarz.pl/aktualnosci/przedluzenie-zakazu-sprzedazy-panstwowej-ziemi-rolnej.html. Updated 2021.

4. Lopata J. Land issues and land struggles in poland. https://www.tni.org/files/download/13._poland.pdf. Updated n.d.

5. European Commission. Frequently asked questions: Extension of transitional periods for the acquisition of agricultural land. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_11_244. Updated 2011.

6. European Parliament. Free movement of capital. https://www.europarl.europa.eu/RegData/etudes/fiches_techniques/2013/030106/04A_FT(2013)030106_EN.pdf. Updated 2022.

7. Kręglewski M. Buying land in poland. https://www.dudkowiak.com/property-purchase-in-poland/buying-agricultural-land/. Updated n.d.

8. Pietuszko M, Szymański P. Fewer restrictions on the acquisition of agricultural land. https://www.dlapiper.com/en/us/insights/publications/2019/07/real-estate-gazette-35/fewer-restrictions-on-the-acquisition-of-agricultural-land/. Updated 2019.

9. Gierałtowicz J. Act on shaping the agricultural system in poland. https://www.repozytorium.uni.wroc.pl/dlibra/publication/131350/edition/123612/content. Updated 2020.

Bibliography: 

Kocur-Bera, K. 2016, , Determinants of agricultural land price in Poland – a case study covering a part of the Euroregion Baltic. Available: https://www.cahiersagricultures.fr/articles/cagri/full_html/2016/02/cagri160021/cagri160021.html.

van Calster, G. 2022, , AVC Law – Geert van Calster . Available: https://gavclaw.com/mini-me-short-bio-and-recent-practice-instructions/.

Wyższa Szkoła Kształcenia Zawodowego 2022, , Zasady zakupu ziemi rolnej – czy każdy może ją nabyć?. Available: https://studia-online.pl/aktualnosci/zasady-zakupu-ziemi-rolnej-czy-kazdy-moze-ja-nabyc/.

Consultation Paper: Land Reform in a Net Zero Nation

Land Reform in a Net Zero Nation: Consultation Paper ¹ : is the most recent and relevant in determining the intentions of the current Scottish Government vis-à-vis land reform. It consists of proposals, justification for those proposals, and questions; where readers have the opportunity to contribute their ideas and opinions to the legislation forming process. The questions are well thought out, and provide ample scope for both criticism of proposals and the introduction of new ideas to the legislative process. 

Definition of a large-scale landholding

The proposals are intended to catch only landholdings that are large-scale. The proposed definition of a large-scale landholding is one which fulfils any one the following criteria:

1. Exceeds 3000 ha
2. Area exceeds more than a fixed percentage of a data zone, adjacent data zone or local authority ward and is designated as an Accessible Rural Area or Remote Rural Area according to the Scottish Urban/rural Classification Scheme. 
3. Area accounts for more than a set proportion of the landmass of a permanently inhabited island. 

The most impactful of these measures is probably the data-zone test. On average a council ward has around 15,500 occupants ² but a data zone has only 784 inhabitants ³; data zones are  relatively small divisions of rural land. There are 6976 data zones in total, Scotland has a land mass of 8,023,947 ha, so a typical size of a data zone is only 1150 ha. With the ring-fenced nature of many landholdings this data zone requirement is likely to catch many holdings considerably less than 3000 ha in size. 

A public interest test

A public interest test is to be applied in the case of sale of large-scale landholdings. 

It is intended that the public interest test be applied to both the buyer and the seller. How the test is applied to the buyer is clear enough; the transaction is flagged if the new acquisition puts the buyer in a position of excessive power not in the public interest. 

On how the test should also be applied to the seller however, the author of the paper seems somewhat addled. It makes sense that if the seller was selling a piece of land large enough to put the buyer in a position of power that is not in the public interest, then this would be flagged by a test applied to the buyer. 

What really must be meant by the test on the seller is that before there is even a prospective buyer, if the holding being sold is large enough to constitute a threat to the public interest all by itself, then it should be either split in to lots for sale, and/or be offered to community bodies in the area. 

It is suggested that any breaches of the Land Rights and Responsibilities Statement, as well as an examination of any previous efforts of the seller to diversify ownership, use a land management plan, and engage with the local community, should be taken into account when carrying out the public interest test. 

There is talk of the public interest test placing specific conditions upon the buyer; for example, peatland restoration. As these requests upon landowners inevitably become more onerous, it may complicate the execution of transactions significantly, and make the acquisition of land far less attractive. It must be remembered that many landholdings in Scotland, particularly in the Highlands, are not financially viable enterprises by themselves, and already require considerable investment of time and outside money to maintain and run. 

And who is to enforce the public interest test; with the potential for such subjectivity. 

It is important to note that in determining what makes a landholding large-scale, and which transactions are sufficiently against the public interest, the devil will be in the detail. This detail will determine how the new legislation squares off against the ECHR. If legislators and those who interpret the public interest test are too ambitious this could result in a great number of distinct and varied cases in court. 

Compulsory land management plans and the LRRS

Part 5 of the consultation paper proposes that compliance with the Land Rights and Responsibilities Statement (LRRS)⁴, as well as a set of protocols set out by the Scottish Land Commission ⁵  should become compulsory for large-scale landowners. Compliance with relevant codes of practice ⁶ issued by the Scottish Land Commission would also become mandatory for these landowners. 

Land management plans would become compulsory for large-scale landowners. The aim is that these land management plans improve transparency about land holdings and the intentions of landowners. The land management plans are intended to follow a template⁷, the current version appears quite manageable or perhaps under-developed. 

Certain consequences are proposed for large-scale landowners who do not comply with the documentation. These include non-compliance having an impact on the outcome of public interest tests relating to the sale or acquisition of land involving the relevant landowner. 

In addition there is the intention to develop ideas relating to the withdrawal of public funding, including land-based subsidy, for those who do not comply with the LRRS and create compulsory land management plans. This is mentioned alongside the intention to require recipients of Scottish Government land-based subsidies to be registered and liable to pay tax in the UK or EU. An additional requirement suggested for the receipt of land-based public funds is that landholdings be registered in the Land Register for Scotland.

Community Right to Buy 

At the moment qualifying community bodies which register their interest in a piece of land must be notified when the land comes up for sale. This is known as the Part 2 pre-emptive right to buy, as it is included in Part 2 of the Land Reform (Scotland) Act 2003.  

The new proposal on community body pre-emption is that in the case of sale the landowner should notify any qualifying community bodies whether they have registered their interest or not. This would require a register of such community bodies to be drawn up. 

It should be anticipated that the value of large estates is so great (a typical farm costs in excess of £1m) that communities in dilutely populated areas are unlikely to be able to buy out large tracts of land. What is instead a more realistic, and much more advantageous consequence of community right of pre-emption is that communities could buy small plots of land, perhaps on the fringes of towns and villages, that the open land market or off-market sales would not otherwise allow them access to. Such smaller plots could be used for amenity in a wide variety of ways. 

Legislators should however remain guarded against circumstances where a quorum acquire land for the community and use it for development that is quite typical and financially lucrative. A field day for developers could be a consequence of the demand for housing and the land fragmentation that may result from the right of communities to nibble at large land sales.

Land Use Tenancy

Part 9 of the Consultation Paper proposes a new type of agricultural tenancy; the Land use Tenancy. 

What the consultation paper does not propose: 

The proposed law does not attempt to dispossess existing landowners of their landholdings, although the aspects of the legislation that force landholdings to be split into lots could make landholdings less attractive to potential buyers, and negatively impact the overall value land is sold at. Changes to the market brought about by reforming legislation could decrease the attractiveness and value of land in general. It is important to note we are talking about transactions not transfers in the wider sense, that is, the reform only acts on the sale of land, there is no mention of a public interest test being made in the case of a transfer such as inheritance or the gifting of land. 

References: 

1. Minister for Environment and Land Reform. Land reform in a net zero nation: Consultation paper. https://www.gov.scot/publications/land-reform-net-zero-nation-consultation-paper/documents/. Updated 2022.

2. Office for National Statistics. Detailed information on the administrative structure within scotland. https://www.ons.gov.uk/methodology/geography/ukgeographies/administrativegeography/scotland. Updated n.d.

3. National Records of Scotland. Mid-2020 small area
population estimates, scotland. https://www.nrscotland.gov.uk/files/statistics/population-estimates/sape-20/sape-20-publication.pdf. Updated 2021.

4. Scottish Government. Scottish land rights and responsibilities statement. https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2017/09/scottish-land-rights-responsibilities-statement/documents/00525166-pdf/00525166-pdf/govscot%3Adocument/00525166.pdf. Updated 2016.

5. Scottish Land Commission. Land rights and responsibilities protocols. https://www.landcommission.gov.scot/our-work/good-practice/land-rights-and-responsibilities-protocols. Updated 2022.

6. Scottish Land Commission. Codes of practice. https://www.landcommission.gov.scot/our-work/tenant-farming/codes-of-practice. Updated 2022.

7. Scottish Land Commission. Good practice guidance: Providing information on who owns land in scotland . https://www.landcommission.gov.scot/downloads/5e99a6262f615_TEMPLATES%20Land%20Use%20and%20Management30.03.20.pdf.

Bibliography:

Newman, C. 2017, , Foreign Buyers Are Snapping Up Scotland’s Estates. Available: https://www.nationalgeographic.co.uk/environment-and-conservation/2017/11/foreign-buyers-are-snapping-up-scotlands-estates.

Fetherston-Dilke, E. 2019, , Practical thoughts on pre-emption rights. Available: https://www.farrer.co.uk/news-and-insights/practical-thoughts-on-pre-emption-rights/.

At the present time all areas of the worldwide economy are being incentivised and forced to innovate towards decreasing net carbon emissions. Net zero is the target and this means cutting carbon emissions to a level where remaining emissions are absorbed by trees and oceans. It’s suggested that for the planet to remain liveable, emissions must decrease by 45% by 2030, and be net-zero by 2050. And yet emissions continue to rise.¹ 

In 2007 the British entrepreneur Richard Branson announced the Virgin Earth Challenge Prize, a prize for the inventor of a technology to remove carbon from the atmosphere, with the stipulation that the technology will be expected to remove one billion metric tonnes of carbon per year for a total of ten years. The cash prize was $25m. Since then Branson has endorsed and invested in a variety of bids at sequestration, most recently backing Direct Air Capture technology in the UK.² Aviation is perhaps the most difficult sector to crack however, and Branson still continues to own a 51% stake in his flagship airline Virgin Atlantic.³ A carbon credit is defined as a piece of paper that allows a buyer to emit one tonne of CO2, and the price of a carbon credit in the EU Emissions Trading System (ETS) is taking steps towards €100 per tonne.⁴. 

We turn our minds now to the Amazon, and to a great civilization lost to the sands of time. When European settlers found Amazonia in the 1600s it was much to the misfortune of the then inhabitants who quickly died of disease, became nomadic or were enslaved. Although some tribes remained undiscovered even until the modern day ⁵ , almost all of their (agrarian) culture was lost. It is difficult to find information about exactly when, but at some point it was observed that in some areas of the Amazon there were dark soils with an exceptionally deep humus layer and brilliant horticultural value. The Portuguese named it terra preta meaning ‘black soil.’ 

The soil has been found in impressive plot sizes averaging 20 hectares right up to 360 hectares, covering a total of 0.1 to 0.3% of the Amazon Basin. This equates to 18,900 square kilometres or 1,890,000 hectares of land that was cultivated; illustrating the extent of original Amazonian civilization. 

It became apparent that terra preta was the result of application of charcoal to the soil. The fertility of terra preta stands in contrast to the more common Amazonian soil, which is remarkably low in fertility. The addition of charcoal should be distinguished from the slash and burn agriculture that is common in the basin. 

Normally when we burn wood we combust it in the presence of oxygen. The carbon leaves the process as carbon dioxide gas and the product that remains is ash. In contrast, charcoal manufacture pyrolyses the wood (through pyrolysis), in an oxygen free environment. The carbon is left as charcoal, which varies between 50% and 95% in carbon content.⁶ 

Charcoal was traditionally made by charcoal makers who used piles of wood covered carefully with earth to exclude oxygen. Kilns were also used and are still used today in some places, where the door of the kiln is closed up with stones or bricks to minimise oxygen ingress. Today very large industrial kilns are used however the amount of charcoal still made using old style kilns in third world countries may be surprising. 

Through archaeological work we know terra preta was made using a mixture of charcoal, bone, pottery and animal faeces. Biochar can be applied by hand but there are also methods to apply it at scale including broadcasting using a muck spreader. Biochar can also be ground to the desired granularity and applied mixed with water as a slurry. What quantity to apply is still  up for discussion and the mass of biochar can be misleading due to significant variation in water content. Application rates of 5-50 tonnes per hectare are suggested ⁷ but some research has shown that application of very large amounts of biochar may offer little additional benefit. 

Biochar consists mainly of organic (carbon containing) compounds; it is therefore surprising that its application has a considerable positive effect on the available nitrogen levels in soil. What’s even more conclusive is that it increases nitrates available in the soil after the application of manufactured nitrogen fertiliser by 50-95% ⁸. So our dependence upon nitrogen fertiliser needn’t stand in the way of biochar use. 

Soil depletion is a major problem with current agricultural practices.⁹ It is claimed that generating three centimetres of topsoil can take as long as 1000 years. Terra preta is reported to regenerate at a rate of 1cm per year. So if applied effectively biochar could be of serious use in fighting soil depletion. While unproven it is claimed that the microstructure of the biochar provides a habitat for types of fungi that are helpful for soil health and this may go some way in explaining its effectiveness. 

In Gabe Brown’s book Dirt to Soil: One Family’s Journey Into Regenerative Agriculture, he talks about how the soil he managed to regenerate took on the colour and consistency of chocolate cake; just like terra preta.¹⁰ Gabe Brown claims that using methods like mob grazing he managed to achieve several inches of topsoil improvement within as little as 20 years. Perhaps the ultimate solution is to combine mob grazing with biochar application. It is in fact possible to feed cattle biochar, although whether this constitutes a valid mode of application is unclear.¹¹ 

A key question is the effectiveness of carbon sequestration through applying biochar. A transatlantic flight emits somewhere in the range of 1 tonne of CO2. CO2 consists of two oxygen atoms and one carbon atoms. Oxygen and carbon atoms have atomic masses 16 and 12 respectively. Therefore CO2 is composed of 12/44 = 27% carbon by mass. A reasonable estimate for biochar is 70% carbon content. Therefore 1*0.27/0.70 = 0.39 tonnes = 390kg of biochar application is required to offset one tonne of CO2. In addition it may be the case that over time biochar causes increases in soil carbon content beyond that of the biochar itself.¹² 

A question is what the scale of the impact of biochar application could be. If we go beyond the absolute maximum and consider what would happen if all of the earth’s lumber was applied as biochar? Yearly world timber consumption is around 2000 million m3 

¹³. At a density of 0.5 tonnes per m3 this is 1000 million tonnes of wood. 1000/0.39 = 2564 million tonnes of CO2, or 2.5 billion tonnes.  Global CO2 emissions in 2021 were 33 billion tonnes. So even in the impossible circumstance we used world timber production in biochar application, we wouldn’t get near offsetting world carbon emissions. Alas biochar is no panacea. But it could be part of the solution. 

There are also some disadvantages of biochar. While biochar is claimed to have remediation properties for contaminated soils there is also the risk of biochar contamination with phytotoxic, cytotoxic, and neurotoxic substances; particularly if it is produced in the wrong way.¹⁴ Depending upon equipment and procedure there can be significant losses on application. If not combined with the soil correctly there can be wind loss in dry windy conditions. The substrate also has a liming effect, increasing the soil pH, so it may not be suitable for soils that are already alkaline. Another concern is fire safety, biochar is purported to have a flashpoint of 40C which, particularly with rising summer temperatures in the UK, is cause for moderate concern. 

There is uncertainty around whether biochar would be effective in non-tropical soils, as its traditional use has been in tropical areas. There is a paucity of information online regarding whether biochar has been used in the UK in a full agricultural setting. It would be a reasonable guess to assume someone has tried it somewhere. In the retail sector; as a product for people’s gardens it seems to have reached a considerable audience, with at least three companies selling biochar as a product for people’s gardens. 

And then there’s the cost. An estimate of the cost of biochar including application is £148 – £389 per tonne including delivery and application. At 20 tonnes per hectare and £300 per tonne this equates to £6000 per hectare. For a typical 200 hectare farm the cost is prohibitive at £1,200,000. There is another side to the coin however. With carbon credits valued at €80 (£68) per tonne ⁴, this takes the cost of biochar down to £232 per tonne. Carbon credit prices may continue to climb further. It’s also important to remember that biochar persists in the soil for hundreds or thousands of years, contrasting with periodic application of the usual pesticides and fertilisers. Indeed the Royal Horticultural Society advise gardeners that biochar need only be applied once.¹⁵ 

Applying one dressing of nitrogen fertiliser at £1000 per tonne and 0.1 t per hectare gives a rough cost of £100 per hectare. If nitrogen content in the soil is increased by 50% through biochar application it could be argued that this increase in nitrogen content is worth £50 per hectare each time nitrogen fertiliser is applied. Applying artificial fertiliser once per year gives us: £6000/50 = 120 years to pay the investment off. It’s still not looking any good. 

It is not entirely surprising that the cost of biochar is so high. The main feedstock for biochar is wood, a solid substance that takes many years to produce and is difficult to transport. In addition the manufacturing process for biochar is a batch process with a solid, irregular input. This stands in contrast to the continuous processes with liquid or gaseous feedstocks and intermediaries that characterise usual agri-chemical production. 

There is a byproduct of biochar production that may be of use, perhaps particularly in the fruit growing and forestry sectors. Pyroligneous acid, known as wood vinegar or liquid smoke, is the liquid condensed from the smoke of the charring process. The smoke leaves the furnace where the charcoal is made and travels up a diagonal pipe where it condenses due to the temperature gradient, the liquid then flows back down the diagonal pipe and is collected from an outlet around half the way down the pipe. When applied to the soil it is claimed to increase soil quality and soil growth. More advanced claims include that it changes the clustering properties of water molecules and therefore the physical and ionic properties of water in its uptake by plants. The insecticidal properties of pyroligneous acid stand out as being potentially the most useful and quantifiable. 

Given that the carbon sequestration effects are relatively modest in light of the available feedstocks and overall scale of CO2 emissions, we propose biochar principally as a solution to the problem of diminishing soil quality, rather than as a solve-all in the fight against global warming. Its widespread use becomes significantly more likely with more efficient industrial processes for its manufacture, as well as with possible production as a by-product of other large industrial processes, which could significantly decrease the cost of purchase. Recent development in the biofuel sector may provide opportunities for the production of large quantities of biochar which could then be used for agricultural purposes. A company called West Biofuels have developed a wood gasification process which produces biochar as a secondary product.¹⁶ A line of inquiry is whether furnaces like those used in glass production could use a gasification system like West Biofuels’ for heat, instead of oil or natural gas fired furnaces. 

References: 

1. UN. For a livable climate:
Net-zero commitments must be backed by credible action. https://www.un.org/en/climatechange/net-zero-coalition. Updated 2022.

2. Virgin. Virgin earth challenge. https://www.virgin.com/about-virgin/virgin-group/news/virgin-earth-challenge. Updated 2022.

3. BBC News. Branson’s virgin atlantic considers stock market listing. https://www.bbc.co.uk/news/business-58119588. Updated 2021.

4. Böhm S. There’s a massive bubble in the price of carbon – and yet it won’t bring down emissions any faster. https://theconversation.com/theres-a-massive-bubble-in-the-price-of-carbon-and-yet-it-wont-bring-down-emissions-any-faster-174821. Updated 2022.

5. Thomson H. John hemming: Encounter in the amazon. https://www.thewhiterock.co.uk/?page_id=2775. Updated n.d.

6. Ukranian Biofuel Suppliers. Chemical properties of charcoal. http://ukrfuel.com/news-chemical-properties-of-charcoal-23.html. Updated 2015.

7. Major J. Guidelines on practical aspects of
biochar application to field soil in
various soil management systems . https://www.biochar-international.org/wp-content/uploads/2018/04/IBI%20Biochar%20Application%20Guidelines_web.pdf. Updated 2010.

8. Zhang M, Liu Y, Wei Q, Gou J. Biochar enhances the retention capacity of nitrogen fertilizer and affects the diversity of nitrifying functional microbial communities in karst soil of southwest china. https://www.sciencedirect.com/science/article/pii/S0147651321009313#:~:text=Past%20research%20has%20figured%20out,restricting%20ammonia%20oxidation%20and%20nitrification. Updated 2021.

9. Arsenault C. Only 60 years of farming left if soil degradation continues. https://www.scientificamerican.com/article/only-60-years-of-farming-left-if-soil-degradation-continues/. Updated 2014.

10. Brown G. Dirt to soil: One family’s journey into regenerative agriculture. Chelsea Green Publishing; 2018:44.

11. Bettle J. Benefits of feeding cattle biochar. https://www.dorsetcharcoal.co.uk/post/benefits-of-feeding-cattle-biochar. Updated 2021.

12. Blanco-Canqui H, Laird DA, Heaton EA, Rathke S, Acharya BS. Soil carbon increased by twice the amount of biochar carbon applied after 6 years: Field evidence of negative priming. GCB Bioenergy. 2020;12(4):240-251. https://onlinelibrary.wiley.com/doi/abs/10.1111/gcbb.12665. Accessed Jul 25, 2022. doi: 10.1111/gcbb.12665.

13. Gresham House. Global timber outlook . https://greshamhouse.com/wp-content/uploads/2020/07/GHGTO2020FINAL.pdf. Updated 2020.

14. Han H, Buss W, Zheng Y, et al. Contaminants in biochar and suggested mitigation measures – a review. Chemical Engineering Journal. 2022;429:132287. https://www.sciencedirect.com/science/article/pii/S1385894721038663. Accessed Jul 25, 2022. doi: 10.1016/j.cej.2021.132287.

15. Royal Horticultural Society. Biochar. https://www.rhs.org.uk/soil-composts-mulches/biochar. Updated 2022.

16. West Biofuels. Bio-char & rotary gasifier. http://www.westbiofuels.com/biochar. Updated n.d.

One kWh will power one 100W bulb for ten hours. A kettle typically has a power rating of between 2 and 3kW. The Tesla Powerwall is a top of the market example of home battery technology; with a capacity of 13.5kWh and a maximum discharge is 7kW. The battery has dimensions 115cm*75cm*14.7cm, a total volume of 0.127m3 and weighs 114kg (Tesla, 2022c). So the energy density by volume of the Powerwall battery is 13.5/0.127 = 106.3kWh/m3. The battery charges at a rate of 3.68kW, so around half its maximum discharge rate. 

A tree of radius 15cm and height 20m has a volume of 1.413m3. Assume the tree takes 40 years to grow to this size. The mean annual increment is therefore 0.0353m2/year. The energy density of air seasoned wood in general is approximately 1500kWh/m3 (Forest Research, 2022b). Therefore our fully grown tree stores 1500*1.413= 2120kWh of energy and it ‘charges’ at a rate of 0.0353*1500 = 52.95kWh/year, therefore at a ‘wattage’ of 52.95/(365*24) = 0.00604kW or 6W.

If we then take one 30cm*10cm*10cm log we have a 0.003m3 volume of wood and an energy content of 4.5kWh, this energy can be released by combustion, conservatively, in half an hour, therefore the power output of the log as it burns is 4.5kWh/0.5 hours = 9kW. The wood has an energy density of 4.5kWh/0.003m3 = 1500kWh/m3. 

So wood has a much higher energy density than the latest lithium battery, and even just one log has a greater power rating than the Tesla Powerwall, wood can also usually be stored in very large quantities, particularly in rural areas. Wood is used once, although a new tree can grow to replace it, whereas a battery is used many times. A tree charges at around one thousandth the rate of a Powerwall and takes up considerably more space. 

The energy consumption from gas for the average uk home in 2014 was 12,400kWh (thegreenage, 2015). This would include heating and hot water applications and averages at 34kWh per day (bearing in mind heating consumption is likely to be significantly higher during the winter months.) So the Tesla Powerwall with a capacity of only 13.5kWh cannot replace the gas boiler. But we know that wood can provide energy needs for heating and hot water and there are a variety of stoves and boilers on the market that will provide these functionalities. 

And if we look at the costs involved, installation of a wood burning boiler stove that provides hot water and central heating might cost in the region of £2000 including installation (stovesareus.co.uk, 2022), not that dissimilar to a new gas boiler installation (GreenMatch, 2022). In terms of the yearly fuel consumption, 12,400kWh at a current British Gas Tariff of 7.37p/kWh equates to £914 per year. Wood logs are quoted mostly between 7.6p/kWh and 10p/kWh (Lekto Wood Fuels, 2022, arbtalk, 2022). 

The answer is perhaps not so much that energy sources other than gas are too expensive, but moreso that gas is still too cheap when compared with, for example, an electricity tariff of 28.34p/kWh. Gas can also provide near instant heat on demand. Indeed these characteristics probably go a long way to explaining the overwhelming preference for gas when it comes to unpredictable heat demands for central heating and hot water. 

A question is whether the price of gas will continue to rise, and then, if so, then will the price of biomass fuels increase in line with that of gas? Of course if you have your own forested land and wood is available on your doorstep, then all you have to pay for is the labour of harvesting. If a forester cuts half a cord of wood in an hour for £10 (1 cord = 3.6m3) then this is 1.8m3 of wood with an energy content of 1.8m3 *1500kWh = 2700kWh. Then £10/2700kWh gives a cost per kWh of 3.70p, less than half the current price of gas. 

References:

arbtalk 2022, , New energy price cap and fire wood prices. Available: https://arbtalk.co.uk/forums/topic/128619-new-energy-price-cap-and-fire-wood-prices/.

GreenMatch 2022, , How Much Does a New Boiler Cost in 2022?. Available: https://www.greenmatch.co.uk/blog/2018/08/new-boiler-cost.

Lekto Wood Fuels 2022, , UK Energy: How Much Does a kWh of Wood Fuel Heat Cost?. Available: https://www.lektowoodfuels.co.uk/blogs/news/uk-wood-fuel-costs-2022.

stovesareus.co.uk 2022, , Boiler and Central Heating Stoves. Available: https://www.stovesareus.co.uk/stoves/wood-burning-stoves/boiler-stoves.html.thegreenage 2015, , How Much Energy Does My Home Use?. Available: https://www.thegreenage.co.uk/how-much-energy-does-my-home-use/.

Part 1

Most discussions of liability start with the famed case of the snail in the bottle; Donoghue v Stevenson [1932]. In this case a Mrs Donoghue drank a bottle of ginger beer that contained a decomposed snail, became ill, and sued the manufacturer of the beverage successfully. In reaching its conclusion, the court successfully introduced the concept of duty of care to English Law. Lord Atkin: 

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” 

Arguably the next major development in this area of the law came in Anns v Merton [1977]. This time a council had ‘neglected’ to ensure that the foundations of a building were sufficient and a two stage test was proposed, where after reasonable proximity of the parties is established, and it is reasonable that damage to the damaged could be expected to occur, a default or ‘prima facie’ duty of care arises, which can then be negatived by other factors. Indeed the Lord Wilberforce test: 

“First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”

The Anns test lived as long as until Murphy v Brentwood [1991] where it was completely overturned. 

Meanwhile the next and very lasting development in liability was the three stage test set out in Caparo v Dickman [1990], a test of foreseeability, proximity and reasonableness. Caparo concerned financial accounts which incorrectly stated the profits of a public limited company. An investor relied upon the accounts to their detriment and subsequently sued the accountant Dickman. It was ruled that as the accounts were not produced with the specific audience of any particular investor in mind there was a lack of sufficient proximity to make Dickman liable.

Indeed one of the key components of the judgement in Caparo was to protect against, in the words of the U.S. Supreme Court Judge Benjamin N. Cardozo ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ That would be simply too much; a flood of fatuous claims. 

The Caparo stage 1) test of foreseeability is fairly clean cut. The effect of actions on the plaintiff is either foreseeable, or not. Stage 3), of reasonableness allows for the taking into account of special circumstances of the case which cannot be ignored. Stage 2), proximity, is of most interest, and is the subject of part II of this series, regarding what is referred to as the chain of causation, and the attribution of liability that arises. 

References: 

1. Donoghue v Stevenson [1932] UKHL 100
2. Anns v Merton London Borough Council [1978] AC 728
3. Murphy v Brentwood District Council [1991] 1 AC 398
4. Caparo Industries PLC v Dickman [1990] UKHL 2
5. Ultramares Corporation v. Touche, 174 N.E. 441

Part II

Key developments in the law of liability in the 20th century came in the cases Donoghue v Stevenson [1932] , Anns v Merton LBC [1978], Murphy v Brentwood [1991]  and Caparo v Dickman [1990]. In Caparo v Dickman a three stage test of foreseeableness, proximity, and reasonableness and fairness was set out in determining whether a duty of care arises. 

Whether the damage caused was foreseeable is fairly straightforward to ascertain. The test of reasonableness and fairness exists to take into account any factors which may make it clearly unjust to impose a duty of care upon the defendant, or where ruling in favour of a duty of care would open the door to a myriad of fatuous cases. 

The issue of proximity is usually of most importance, again returning to Lord Atkin in Donoghue v Stevenson [1932]: 

“Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” 

And indeed, the courts do still use Donoghue as their fundamental point of reference in dealing with duty of care. 

Two cases in the 21st century that have dealt with the question of proximity are Baxall v Sheard [2002] and Pearson v Charter [2007]. Both concern the culpability of architects in the underdesign of guttering systems. 

In Baxall v Sheard [2002] there was a large warehouse with, effectively, two roofs with a valley gutter running down the length of the warehouse. The architects, Sheard, were commissioned and did the work around 1990 for a firm called Berisford. Baxall took a lease of the property in 1994.

There was no contract between Baxall and the architect, and therefore when the roof leaked on two separate occasions damaging their stock of electrical goods, Baxall sued Sheard in tort for negligence. 

Baxall had employees and surveyors inspect the roof on several occasions, it had been suggested that debris was blocking the siphonic drainage system – even that seagulls nesting in the roof were the principal cause. It was not until after the second flood in 1995 that two contributing factors were identified: the siphonic drainage system had been underdesigned; that is, the bore of the pipes was too small for adequate drainage, and, crucially, there were not enough overflow outlets in the valley gutter. This lack of overflows meant that in the event the siphonic drainage did not drain all the water away, it would simply build up in the gutter, until it overflowed into the warehouse below. 

Going back to first principles, one of the key features of Donoghue was that the snail was concealed, that is, it was not possible for the consumer to identify its presence: indeed Lord Atkin: 

 “I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be “used immediately” and “used at once before a reasonable opportunity of inspection.” This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed.”

Out of this arises the concept of the chain of causation. The question is whether intermediate opportunity to discover the defect breaks the chain of causation and negatives the duty of care owed to the claimant. Steel J in Baxall [2002]: 

“Actual knowledge of the defect, or alternatively a reasonable opportunity for inspection that would unearth the defect, will usually negative the duty of care or at least break the chain of causation unless(as is not suggested in the present case) it is reasonable for the claimant not to remove the danger posed by the defect and to run the risk of injury:…”

In law, a defect is patent if it can be reasonably found on inspection, and latent if not so. “The concept of a latent defect is not a difficult one. It means a concealed flaw,” again in the words of Steel J in Baxall [2002].

In the first case in Baxall v Sheard [2000] the facts were that in the first flood the siphonic drainage system had been partially blocked, but in the second flood it was fully operational. Bowsher J Q.C. ruled that therefore the cause of the first flood was the lack of overflows, a patent defect, and that the cause of the second flood was the siphonic drainage, a latent defect. This would have had the consequence that the chain of causation was broken for the first flood, but remained intact, making the architects liable for the damage of the second flood. 

Then, on appeal in Baxall [2002] the Court of Appeal agreed unanimously with Steel J in his conclusion that the lack of overflows were instead responsible for both floods. His argument turns mainly upon the idea that the overflows were intended to drain excess water not only in the case of rainfall exceeding the intended capacity of the siphonic drainage, but also in the case of impairment such as blockage: 

“Put another way, the overflows were supplementary to the design capacity of the system. Their purpose was to provide relief both in the event that the gutter became blocked and in the event that the rainfall exceeded the design capacity. There were no less than two occasions when the absence of overflows ought to have been appreciated: first at the time of the pre-purchase survey and second in the aftermath of the first flood. If the deficiency had been realised, the remedial measures would have been taken, none of which involved re-design save in the sense of installing additional drainage capacity. Thus, in my judgment, the sole effective cause of both floods was the absence of overflows.”

Thus as both floods were caused by the patent defect of missing overflows, with sufficient opportunity to identify this defect, in Baxall [2002] the chain of causation was broken and the architect was liable for neither of the two floods. 

Pearson v Charter [2007] shared almost exactly the same setting as in Baxall. A warehouse with a valley gutter was flooded, this time entirely due to an underdesigned siphonic drainage system. Damages of £2.1 were sought by the plaintiff. The claimant was one in a long line of companies that had been assigned the lease of the building, and therefore, like in Baxall, no contract existed between them and the architect, as a result, they sought a result under the tort of negligence under Donoghue v Stevenson principles, and relying upon the chain of causation remaining intact. 

What brought the claim at all into question was that a company that had preceded Pearson Education as tenants had already experienced a serious flood. They were insured, and their insurers had instructed their loss adjusters to identify the cause of the flood, and the consequence was a finding that the capacity of the drainage system was too low. Crucially, this was never communicated to the tenant. The question that arose is whether the untold discovery of the flaw by a third party broke the chain of causation and absolved the architect of lability. 

In the High Court His Honour Judge Thornton found that the architects were liable to Pearson, and that the finding of the flaw by a third party did not break the chain of causation. He took a rather methodical view, identifying a list of ten conditions that had to be fulfilled in order for liability to arise. One of these conditions was inevitably whether a duty of care arose, and it was found that in the law, the silent finding of a defect by one of a class of potential claimants does not necessarily negative the duty of care owed by the manufacturer to other members of that class. Consequently HHJ Thornton held that the chain of causation remained intact and a duty of care was owed by the architects to the claimants. . 

The case then made its way to the Court of Appeal where the court unanimously agreed with the judgment of Lord Phillips of Worth Matravers, CJ; that the architects were indeed liable, and that the untold discovery of a latent defect need not remove its latency. Lord Phillips:

“We can see no basis of principle or authority why the fact that a third party becomes aware of a latent defect should be deemed to make the defect patent to others who neither know, nor ought to know, of the discovery.”

Lord Phillips also makes reference to a variety of comments suggesting the relevance of contributory negligence to cases of this kind, in particular McIlveen v Charlesworth Developments [1982] and Nitrigin Eireann v Inco Alloys Ltd [1992]. Thus he raises the question of whether, within the framework of a ‘chain’ system for liability, a party who is responsible for inspecting a product should simply become contributorily negligent if they fail to expose a flaw that they should have exposed. 

Lord Phillips comments that he ‘had some difficulty in understanding’ some of the reasoning in Baxall. He finishes with the suggestion that the law in Baxall that defects being patent extinguish the liability of the maker may be too soft on manufacturers. Under Young v Bristol [1944] the Court of Appeal cannot overturn its own decision in Baxall except in special circumstances*, and so Lord Phillips closes the section by commenting that the decision in Baxall may, with the correct case, be overturned by the House of Lords. He overturns the appeal in Pearson v Charter  to hold that the architects’ duty of care to Pearson was not negatived: 

“It may be that, in an appropriate case, Baxall will receive consideration by the House of Lords. For the reasons that we have given, on the facts of the present case it affords [Charter] no defence to [Pearson’s] claim and we reject the grounds of appeal that have given rise to the first issue.”

The limitation issues of this case were also resolved to find Charter wholly liable. 

The comments of Lord Phillips on adopting a contributory negligence stance instead of a causative approach, to dish out liability when there is a chain of parties who could be held responsible, are no doubt an attempt to modernise an area of law that still has Donoghue v Stevenson [1932] as its basis. In the next part of this series we will examine the recent case Begum v Maran [2021], where a claimed duty of care owed by the privileged to the very unfortunate brings long standing norms of corporate responsibility into question. 

* Under Young v Bristol Aeroplane Co Ltd [1944] the Court of Appeal (CA) must follow precedents that have been set before it previously except in certain circumstances. Indeed Lord Cozens-Hardy M.R. in Velasquez, Ld. v. Inland Revenue Commissioners [1914]:

 “If it is contended that the decision is wrong, then the proper course is to go to the ultimate tribunal, the House of Lords, who have power to settle the law and hold that the decision which is binding upon us is not good law.”

Lord Greene M.R. in Young v Bristol sets out the rights of the Court of Appeal (CA) in deviating from previous decisions:

“(1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. 

(2.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.

 (3.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.” 

per incuriam meaning that some crucial piece of law was overlooked or not brought before the court when the previous decision was made. There are some additional circumstances where deviation from previous decisions is deemed appropriate that have come about since Young v Bristol [1944]; but we do not concern ourselves with them here. 

Cases: 

1. Donoghue v Stevenson [1932] UKHL 100
2. Murphy v Brentwood District Council [1991] UKHL 2, [1991] 1 AC 398
3. Anns v Merton London Borough Council [1977] UKHL 4
4. Caparo Industries pIc v Dickman [1990] 2 AC 605
5. Baxall Securities Ltd v Sheard Walshaw Partnership [2000] EWHC Technology 53
6. Baxall Securities Ltd v Sheard Walshaw Partnership [2002] EWCA Civ 09
7. Pearson Education Ltd v Charter Partnership Ltd [2005] EWHC 2021 (TCC), [2006] PNLR 14
8. Pearson Education Ltd v Charter Partnership Ltd [2007] EWCA Civ 130, [2007] All ER D 262 Feb
9. Young v. Bristol Aeroplane Co Ltd [1944] KB 718 CA 
10. McIlveen v Charlesworth Developments [1982] NI 216
11. Nitrigin Eireann v Inco Alloys Ltd [1992] 1 WLR 498. 
12. Pearson v Charter [2007] EWCA Civ 130
13. Begum v Maran (UK) Ltd [2021] EWCA Civ 326
14. Velasquez, Ld. v. Inland Revenue Commissioners [1914] 3 KB 458

Part 3

The question of proximity is not one confined to the law of liability in the case of defective manufacture or construction. The case Hinz v Berry [1970] of Lord Denning M.R. otherwise known as ‘The Bluebell Case’, involved a woman Mrs. Hinz, who left her husband and seven of her children in a layby, while she  crossed the road with one child to pick bluebells on the other side. Next she saw her husband and the seven children run down by a car. Her husband was killed and the children were severely injured, and she sued the driver, representing her children in the action as well as herself, in tort. The judge, assumedly at the High Court, found the figure of £15,000 to be appropriate to cover the loss of income resulting from Mr Hinz’ death. Sums of money were paid in regard to the childrens’ injuries. 

Two years after the accident it was a medical conclusion that Mrs. Hinz was suffering from clinical depression, and this state persisted in the four years following up to the appeal case. The question therefore arose of compensation for nervous shock; that is; actual psychiatric illness brought on by an event. Lord Denning:

“In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress…” 

The problem is then how to separate out the usual grief and sorrow in losing a loved one from the suffering then extending to psychiatric illness caused by presence at the distressing event. Again, Lord Denning: 

“The way to do this is to estimate how much Mrs. Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident.”

It is added that in the event Mrs. Hinz had not been directly proximate to her husband’s death in this way she would have recovered in due course:

“Mrs. Hinz was not predisposed at all. She was a woman of great capacity, level-headed, hard working, happily married. She would have got over the loss of her husband in, say, a year.”

Indeed, qualifying the distinction between a death in more ordinary circumstances and what Mrs. Hinz witnessed was made clear by a previous judge, probably at the High Court: 

“I am satisfied that she was of so robust a character that she would have stood up to that situation, that she would have been hurt, sorrowful, in mourning, Yes; but in a state of morbid depression, No.”

Mrs. Hinz had been awarded £4000 for nervous shock, which the defendant protested was too large a sum. Lord Denning at the Court of Appeal upheld the judgment: 

“We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous.”

Another series of cases that explored proximity followed the Hillsborough Disaster of 1989 when 97 people were killed in a crush as spectators entered the Hillsborough stadium in Sheffield for an FA-Cup semi final. 

In Alcock v Chief Constable of South Yorkshire Police [1992], families of victims who watched the events on television or heard them on the radio were held not to be proximal, and therefore were denied damages for their ordeals. It was much to their anger when, in Frost and Others v Chief Constable of South Yorkshire and Others [1996], police officers present at the match were awarded significant damages as they had attempted to manage the situation, the Police being partly to blame for the disaster. This decision was overturned 4:1 in the appeal White and Others v Chief Constable of the South Yorkshire Police [1998].

Despite a protracted series of inquiries, coroners hearings and cases in tort, Lord Hoffman managed to refine a set of circumstances under which compensation for nervous shock could be awarded to family members of the victims in his opinion in White and Others v Chief Constable of the South Yorkshire Police [1998]: 

“(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence.

(2) The plaintiff must have been present at the accident or its immediate aftermath.

(3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else.”

Lord Hoffman’s opinion was indeed the most forthright of the five justices and is worth quoting at length: 

“The position which the law has reached as a result of Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310 has not won universal approval. The control mechanisms [tests for liability arising] have been criticised as drawing distinctions which the ordinary man would find hard to understand. Jane Stapleton has said that a mother who suffers psychiatric injury after finding her child’s mangled body in a mortuary “might wonder why the law rules her child’s blood too dry to found an action”: see The Frontiers of Liability ed. Peter Birks, O.U.P. (1994) Volume 2, p. 84. Equally, the spectacle of a plaintiff, who has, ex hypothesi, suffered psychiatric illness in consequence of his brother’s death or injury, being cross-examined on the closeness of their ties of love and affection and then perhaps contradicted by the evidence of a private investigator, might not be to everyone’s taste: see the Law Commission Report on Liability for Psychiatric Illness (Law Com. No. 249) at para. 6.24).”

“… if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who caused the damage were not negligent, or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer.”

Indeed a complete refusal to offer compensation to claimants on the basis of psychiatric consequences was available as an option in this series of cases, as was the polar opposite approach of offering all present at a disaster the opportunity to claim on the basis of psychiatric harm. 

“…it is important to bear in mind, as I said earlier, that they [previous judgments] are not contemporaneous statements of the law but represent legal thinking at different points in half a century of uneven development.”

A key question is whether compensation for psychiatric injury should be extended to actors on the basis that they are ‘rescuers’ or employees (in the case of policemen): 

“There is no authority which decides that a rescuer is in any special position in relation to liability for psychiatric injury…”

“Should then your Lordships take the incremental step of extending liability for psychiatric injury to “rescuers” (a class which would now require definition) who give assistance at or after some disaster without coming within the range of foreseeable physical injury? It may be said that this would encourage people to offer assistance. The category of secondary victims would be confined to “spectators and bystanders” who take no part in dealing with the incident or its aftermath. On the authorities, as it seems to me, your Lordships are free to take such a step.”

“In my opinion there are two reasons why your Lordships should not do so.”

Lord Hoffman’s reasons defy succinct summarisation, however, firstly:

“… the line between them and bystanders becomes difficult to draw with any precision.”

And, secondly:

“… the more important reason for not extending the law is that in my opinion the result would be quite unacceptable. I have used this word on a number of occasions and the time has come to explain what I mean. I do not mean that the burden of claims would be too great for the insurance market or the public funds… [the] “floodgates” argument.”

“But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.”

“[The question] is not whether a policeman should be disqualified in circumstances in which he would ordinarily have a right of action, but whether there should be liability to rescuers and helpers as a class. And in considering whether liability for psychiatric injury should be extended to such a class, I think it is legitimate to take into account the fact that, in the nature of things, many of its members will be from occupations in which they are trained and required to run such risks and which provide for appropriate benefits if they should suffer such injuries.”

“Naturally I feel great sympathy for the plaintiffs, as I do for all those whose lives were blighted by that day at Hillsborough. But I think that fairness demands that your Lordships should reject them.” 

Three of the remaining four justices reached the same ultimate conclusion as Lord Hoffman. 

Interestingly there is a law in a number of states in America known as the ‘fireman’s rule:’ “In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid:” Krauth v. Israel Geller and Buckingham Homes, Inc. (1960). The rule often extends to other professional rescuers such as policemen. The reasoning at its most basic is that the dangers of the job are obvious. Over time the rule has sometimes been rejected by certain courts and it has been legislated against in some states. It has no basis in English law.

Cases: 

1. Hinz v Berry [1967 H. No. 95] 
2. Hinz v Berry [1970] 2 QB 40 CA
3. Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, [1992] 1 AC 310
4. Frost and Others v Chief Constable of South Yorkshire and Others [1996] EWHC CA 173, [1997] 1 All ER 540
5. White and Others v Chief Constable of the South Yorkshire Police [1998] UKHL, [1999] 2 AC 455.
6. Krauth v. Israel Geller and Buckingham Homes, Inc.157 A.2d 129 (1960)

At the end of the lease the question often arises; what can the tenant take with them? There are three types of object concerned; chattels, tenant’s fixtures and landlord’s fixtures. 

The point of a chattel is that it is a piece of personal property and it is intended that you take it with you. Obvious examples include personal effects, tools of a trade or small decorative items not affixed to the property. All items start their life as a chattel, they may then be affixed a piece of land (affixed to property in common parlance), upon which they become a tenant’s fixture or a landlord’s fixture. Tenants then have the right to take tenant’s fixtures with them at any time, while landlord’s fixtures are the property of the landlord at lease-end. 

Tenant’s fixtures are chattels of the tenant that have been affixed to the land, which can be removed without causing substantial damage. Landlord’s fixtures are any other fixture, installed by the landlord either at the beginning or during the lease, or any installation by the tenant that replaces the function of a pre-existing landlord’s fixture. 

Indeed the principle of tenant’s fixtures being identified by their removal without damage being done holds fast. In Webb v Frank Bevis [1940] even a large shed was held to remain a tenant’s fixture, and in Peel Land and Property (Ports No 3) Limited –v- TS Sheerness Steel Limited (2013) very large parts of a steelworks were held to be the property of the outgoing tenant. 

Most of the items we think of removing from a property are in fact chattels. For example, it is fairly firmly embedded that white goods such as fridges, microwave ovens and washing machines are ours to take at the end of a tenancy. Instinctively we know it unwise to attempt to remove bathroom porcelain when leaving, in the knowledge that it is somewhat brittle, probably was installed to replace previous facilities, and may leave behind a plumbing conundrum. 

The real battle begins when distinguishing between chattels and fixtures in general. But why would we want to make this distinction; the above conventions set out clearly what is the tenant’s to take away at the end of a tenancy? The reason why it is important is that the terms of a mortgage over a property often catch ‘all fixtures,’ and when the unfortunate time comes for the mortgagee to foreclose, the terms ‘tenant’s fixture’ and ‘landlord’s’ fixture’ become irrelevant, the relevant distinction instead existing between fixtures and chattels. 

The simple idea that fixtures are fixed and chattels are not only holds true in specific cases. Indeed there is a general convention that machines in factories that are affixed to the floor are fixtures. This has remained the case ever since Holland v Hodgson (1872), where looms attached to the floor of the factory were considered fixtures. 

On the other hand, another oft-quoted case is Lyon & Co. v. London City and Midland Bank [1903]. This time, chairs which were affixed to the floor of a hippodrome (theatre) were considered to be chattels. This case is something of a red-herring in rebutting the relevance of the fixedness test of Holland v Hodgson; for a start, the chairs were on a hire purchase agreement, and so never actually became the property of the mortgagor.

In the case Botham v TSB Bank plc [1996] the distinction between fixtures and chattels in a residential setting was made. Interestingly while a bathtub and connected taps are attributed fixture status, Roch LJ concedes that he can imagine a Victorian bath, standing on four legs, might be a chattel. 

A more interesting case is Vaudeville Electric Cinema Limited v Muriset [1923]. This concerned a cinema, and the items in question were the cinema screen, two oil frescoes in the hall of the cinema, advertising boards outside the entrance and 477 plush tip-up seats. The conclusion was that these were all fixtures, and the justification from Sargent J was: 

“To my mind they are all fixtures; for, although they can be removed, still they are attached to and form part of the building, and are part of the ordinary equipment of the building for the purpose for which it was used and was intended to be used. It is quite clear that the cinema must have a screen on which images are through. The paintings or frescoes, in my judgement, form part of the permanent decoration of the hall; and in the same way, the advertising boards outside, fixed as they are, form part of the permanent structure and ordinary adjuncts of the hall as a cinema.”

The degree of irremovability of the frescoes obviously justifies their remaining where they are. The key idea to be highlighted here is that the objects were fixtures because they in some way facilitated the use of the building for its intended purpose.

In contrast, where items are placed or affixed for the purpose of their own enjoyment rather than that of the building itself they should be chattels. In fact, going back to the original judgement of Blackburn J in Holland v Hodgson;

“The tests,… seem to be the purpose of the item and the purpose of the link between the item and the building. If the item… is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel… The ability to remove an item… is another indicator.”

If we look back through all the judgements made in deciding chattels from fixtures, the principal methods of determining whether an object is a fixture or a chattel is the degree of annexation to the land. When this method starts to fail the only vein of logic that seems consistent is that chattels are present for their own enjoyment, whereas fixtures are there to facilitate the enjoyment of the building at large. 

Continuing with this, an unfixed statue which formed the centrepiece of a room or garden of a country house would be considered a fixture, whereas a single more minor bust on a table among other decorations would remain a chattel; see D’Eyncourt v Gregory (1866). We can even integrate the case Lyon & Co v London City and Midland Bank, with the chairs in the hippodrome: the chairs were chattels, because their annexation was as Joyce J said; “for the more complete enjoyment and use of the chattel as a chattel.” 

Putting the issue of annexation aside slightly, it could be argued that certain necessities in a building which facilitate its use are fixtures rather than chattels. Keys to the building might be considered a fixture rather than a chattel, they are absolutely necessary and are transferred with ownership of a building; there is no attempt to sell them separately. And finally what about toilet roll? This clearly facilitates the use of a building and is not celebrated by itself in any sense without a convenience to make its use necessary. It would certainly be helpful if the outgoing tenants left some behind…

Cases:

Webb v Frank Bevis Ltd [1940] 1 All ER 247

Peel Land and Property (Ports No 3) Limited –v- TS Sheerness Steel Limited [2013] EWHC 2689 (Ch)

Holland v Hodgson (1872) LR 7 CP 328

Lyon & Co v London City and Midland Bank [1903] 2 KB 135

Botham v TSB Bank plc [1996] EGCS 149 CA

Vaudeville Electric Cinema v Muriset [1923] 2 Ch 74

D’Eyncourt v Gregory (1866) LR 3 Eq 382

Bibliography:

Jourdan, S. Battles about Chattels – fixtures and chattels in dilapidations disputes. https://www.falcon-chambers.com/images/uploads/articles/Battles_about_chattels.pdf