City of Edinburgh Council (Leith Links and Surplus Fire Fund) Bill Committee

Meeting date: Thursday, November 14, 2013

Official Report 401KB pdf

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City of Edinburgh Council (Leith Links and Surplus Fire Fund) Bill: Preliminary Stage

I welcome the panel of witnesses for the Leith Links provisions of the bill: Ian Buchanan, city centre and Leith neighbourhood manager, City of Edinburgh Council; Charles Livingstone, associate, Brodies LLP; and Mrs Pat Denzler, chair, John Rattray statue committee, Leith Rules Golf Society. Good morning to you all. I am a former employee of Brodies, which is noted on my register of interests.

I will move straight to questions. At the end of the questions, there will be an opportunity for you to add anything that you feel has not been covered by the questions.

Can the panel outline the background to the statue, including how the statue is to be funded and maintained—in particular, if the extra fundraising mentioned in the memorandum is not successful, where that additional funding will come from—the choice of the sculptor and landscape designer, and any feedback that Leith Rules Golf Society has received from the local community?

The background to the statue is that, when I first went to Leith on business, I was amazed that Leith had this extraordinary history in relation to golf—the game was played on Leith Links and the first written rules of golf were drawn up for play on Leith Links in 1744. Those rules were recorded in the City of Edinburgh archives and also in the minute book of the Honourable Company of Edinburgh Golfers.

That was tremendously exciting, but there was not a lot to enable people to realise that it had happened, which was a real missed opportunity. Leith has a lot of history, but I found that aspect of its history particularly interesting.

The society was formed in 2002 to increase recognition of Leith as the home or the cradle of the first recorded written rules of golf. We opened in line with the open championship that took place in 2002 because there is a continuous link with the Leith golfers who went to Musselburgh and then on to Muirfield and Gullane.

We wanted an iconic image. We open Leith Links each year for golf with hickory clubs, and that is quite popular. In July each year, for four days, the city allows us to open up the links. We also have an open competition. The Leith golfers have always had open competitions, which allow people from all walks of life to take part. Originally, people had to pay a certain fee.

The aim was to have something iconic to represent Leith. What would be iconic? We felt that a statue of a golfer would be, but which golfer? Rattray was a very colourful character. He was a surgeon; he was an archer; and he worked in Edinburgh, having come from Perthshire.

The archers competed for a silver arrow that the city had provided so the golfers approached the city fathers—the burgh council of Edinburgh at that time—to see whether they would provide a silver club. The city fathers agreed to provide a silver club, but the condition was that a set of rules be drawn up, so 13 rules were drawn up on 7 March 1744.

The match was played in April, and the winner was John Rattray, who became captain of the golf and had to affix a piece of silver to the silver club. That tradition has continued. It is no longer necessary to play to get it, but the captain always has to affix a piece of silver. I understand that the current silver club is now the fourth one. It really is iconic. The city has provided each of the clubs down the years.

Rattray played and won in 1744 and 1745. However, as you all know, 1745 was quite a disruptive time in Scotland. Rattray was a Jacobite and a surgeon, so he was asked to attend the troops at Prestonpans, which he did. He obviously did much too well, as he was then asked to accompany Bonnie Prince Charlie’s troops. He went south to Derby and then up to Culloden. He was captured and taken prisoner, but he was later released from the good services of the Lord President of Scotland, Lord Duncan Forbes of Culloden, so he got out to play again, and he won again in 1751.

We thought that that was a fantastic story. There was quite a bit of background to the golfers and to how they used to meet in Luckie Clephan’s tavern. It was obviously quite a social thing in the area. We thought that Rattray was a wonderful iconic figure, and so we thought about putting up a statue on the links somewhere. We thought about urban locations, but the golfers were on the links, so it was the links where the society really wanted to put the statue. We then discovered that there is a restriction on what could be put up on Leith Links.

I do not know whether that is enough background to start you off.

That is fascinating—that is incredible knowledge.

As regards the funding and maintenance of the statue—

I have seen the person responsible for that in the city council. His name is Paul—I have forgotten his second name for the moment. Apparently, there is a tradition of taking between 10 and 15 per cent of the capital cost of a statue and giving that to the city as a capital sum for its on-going maintenance. I understand that that is the normal procedure for looking after statues, and that is what we intend to do.

I heard what you said during your opening remarks about the particular location and the choice of sculptor. Can you give us some background on that?

We looked at the Canongate kirk, where there is a very attractive sculpture of Robert Fergusson. It has a lot of life and movement in it, and we thought that that was the sort of thing that we want. The sculptor David Annand is from Fife, but he works with Powderhall Bronze. He was very helpful, and he came and explained to the society how bronze is made and exactly what happens. We commissioned him to do a maquette of a figure.

We worked closely with the archivist from the Royal Burgess Golfing Society to get the sort of swing and style that people had in the 18th century. We had the maquette drawn up based on that. We had a fundraising brochure produced during the summer, and the maquette is on it. I am happy to pass some of the leaflets round, or to leave them for the committee to look at afterwards.

Could you remind me of your other question?

You touched on your choice of location during your opening comments.

We worked with CICL, which is Cairns Intersphere Consulting Ltd, headed by Bill Cairns. We paced round the links and worked out the background. We discussed the rootedness—the best location that we could find that represented what we were trying to show: where the golfers might have been and where they might reasonably have played the golf shot. The site is on part of the first hole, although it is facing up the way instead of down. We tried to get somewhere with reasonable oversight, which is always one of the tricky aspects in a park.

What sort of feedback have you had from the community regarding the position and choice of location?

We have worked closely with the councillors in Leith, even during the change of councillors, and we have found them very supportive. Either I or another member of our team attends the Leith steering group meetings, and we have found everybody there to be very supportive, including the historic society.

We feel that there is good support. As I said, we open the links for four days each year in July, when people are free to come and ask us anything. We always have as much information available there as we can.

The leaflet is very useful. How have your fundraising efforts been going? Can you give us any background on how it is progressing? I appreciate that you might not be able to do so.

We have had good local support and people are very encouraging. We have had some modest donations from individuals, but we need to be sure that we can go ahead with the project before we approach trusts, which will probably be the main source of funding. People in business are very keen. They do not see the immediate payback, but they say that in the long term it will be great for the area and will encourage tourists.

We have a hotelier on our team, who has been talking to one of the tour groups. We have tried to assess whether the statue would be included on a tour. It might be, but nobody will commit at this stage. The hotelier said that visitors are coming to his hotel and visiting Leith more and more, although I do not know whether that is due to “Sunshine on Leith” or other things in the background. We are very hopeful that we will be able to raise the funds.

Can you remind me how much you need to raise?

The statue costs £42,000, which will be about £50,000 after VAT and the donation to the city. Overall, the full project could cost as much as £250,000, because of the earthworks and any interpretative panels. It will depend on how much we can do in that respect.

Thank you very much.

Do either of you gentlemen have anything to add to that comprehensive analysis?

I do not think so.

The Leith Links steering group that Pat Denzler referred to is a group of council officers, elected members, local councillors and local groups such as Pat Denzler’s group, which comes together for the benefit of Leith Links. It looks at how Leith Links can be developed and improved and it assesses the current maintenance. A broad group of people come together quarterly for that.

Sandra White will ask the next question.

Good morning, everyone. My question follows the convener’s questions about fundraising. I believe that the bill went before the council in early 2013. What factors were considered in the timing of the introduction of the bill?

Originally, the main driver for the timing of the bill was the open championship being at Muirfield in 2013, but it was not possible to get everything in order to hold a consultation and introduce the bill in time for that. Now the principal driver in the timetable is the Ryder cup, chiefly for the purposes of profile raising and assisting with fundraising.

On the process of the council agreeing to pursue the bill, a number of consultation and notification tasks have to be completed before a private bill can be introduced. A certain period of time was required for those tasks.

The other part of the bill—on the Surplus Fire Fund—was introduced after the Leith Links proposal had been set in motion. The council took the view that it would be a more efficient use of funds and the Parliament’s time to have both elements in the same bill. Additional consultation had to be carried out in relation to that, such as bill drafting and preparation of documents.

The consultation and notification documents were ready towards the end of 2012—into mid and late November. The consultation period ran until 7 January, with a view to getting the resolution that is required under section 82 of the Local Government (Scotland) Act 1973. A local authority must resolve to introduce a bill before it can be introduced. The consultation had to end and its results had to be processed before a report could go to council to be voted on.

The aim was to hold the vote at the 31 January council meeting, which was driven by wanting to introduce the bill in good time for it to go through the process and for construction to start so that the statue would be ready for the Ryder cup next year. That is an overview of the timetable.

09:45

It is obvious that the driver—if you will pardon the pun—is the Ryder cup, because of the publicity and so on. My colleagues will ask more about consultation and other elements of the bill, such as the fire fund provisions.

I will continue on the theme of estimated costs, which the convener talked about. Mrs Denzler said that the overall cost will be £250,000 and that the statue will cost £42,000. What is the timescale for raising that money?

That is hard to estimate, because so much delay has occurred. We started the fundraising slowly. To go hard on it, we need to be certain that we can build the statue. The Ryder cup provides a tough deadline, but it helps to provide a focus.

Something happens in golf almost every year. The Ryder cup might give us a better way to promote the project, as more golfers and golf things are about.

If we cannot start to cut the turf by 1 April, it will not be grown and ready by September, when the Ryder cup takes place. We might have to fundraise through 2014 on the back of the Ryder cup and, realistically, we might get the statue up in the following year. However, if we do not push the fundraising and say that we must have the funds by a certain date, we cannot encourage people to give.

I have a question that may be pertinent or impertinent—I do not know which way you will take it. How much money has been raised to date?

We have raised about £40,000 of the £250,000, which includes the contribution from the council. We received pro bono advice from a fundraiser who has worked on quite a lot of big projects. She said that we should put in absolutely everything because, if we do not put the maximum, it is hard to go back and say, “We’re terribly sorry—we didn’t estimate for enough.” We have included the pro bono account and what the city has put in, as well as the hard cash that has come in.

You have only a year to be ready for the Ryder cup and raise the £250,000. If you could not raise the money, would you continue the project?

Are you asking whether we would continue it into the following year?

Yes.

Yes—we would do that. In 2010, the society agreed to go ahead with the project, and we already had the maquette. It has taken longer than expected to reach the current stage, but there is no reason for the project to stop. The aim is to get there eventually. We are trying to set a realistic timescale that people can work towards.

The convener mentioned maintenance of the statue, which will be on-going. Is that included in the £250,000?

Yes. We estimate £50,000 for the statue, which includes a capital sum for the council to take over maintenance.

John Rattray’s story is fascinating. It sounds like the beginning of a plot for a new historical novel by James Robertson; it could be wrapped round all the stuff about Jacobite leanings.

I will deal with more technical aspects of the bill, as the committee is required to satisfy itself that no mechanism other than the legislative route of a private bill could be used.

The promoter’s memorandum says that primary legislation is needed to amend the City of Edinburgh District Council Order Confirmation Act 1991 and to authorise construction of the statue. Will you give more detail on why the council decided to follow the private bill route? Why was the legal approach that has been taken chosen to address the legal obstacles, and why did you not consider the different approach that was taken to the national gallery extension on Princes Street, for instance?

Can I check what the first part of your last question was? The second part was about the legal approach and the national gallery example.

Why did you not choose the route that was used for the extension, and why did you choose the route that is being used in the bill?

We chose this route because there is a restriction in private legislation on the construction on Leith Links of what are technically called buildings but which include monuments. Although certain categories of buildings are permitted, monuments are not and there is really no way of constructing the statue without some primary legislation that either expressly or implicitly amends that restriction.

As a result, we have gone down the route of proposing an express amendment to create an exception to the general restriction to permit the construction of this particular statue. An alternative implicit route would be to seek primary legislation that authorised the statue. That would be in conflict with the 1991 act, but the later legislation would take precedence.

As for other potential amendments, it would have been possible to add monuments to the list of permitted categories of building for Leith Links but the council decided against the option. It did not want to add a general exception because the discussion was about this particular statue, not statues and monuments in general.

It might also have been possible to take a Scottish national gallery-style approach, but that involved taking a slice of eastern Princes Street gardens and saying that it was no longer part of the gardens in order to be able to build the gallery out on to it. That approach works for that kind of project because the area of land is no longer park but building. In the project that we are discussing, a statue is being proposed for Leith Links but the area itself will remain parkland.

If one were to exempt a particular part of Leith Links from the definition of Leith Links, it would not only be the restriction on monuments that would fall away as a result. The council wanted to create the narrower exception instead of, in legal terms, potentially opening up an area of Leith Links to any development.

That sounds quite logical.

Although section 1 states,

“Nothing in subsection (1) prohibits the construction of a monument on Leith Links, consisting of a statue of John Rattray”,

it does not stipulate where on Leith Links the statue will be constructed. If you wanted to take a more restrictive approach, should the legislation not have defined the monument’s exact location?

That would have been a more restrictive approach, but it is not the approach that the council decided to take. I cannot speak for the council because I am not sure whether that particular option was contained in the report that went before the council for a vote; nevertheless, it makes sense to do things this way because it allows for some flexibility over the statue’s siting. I know that there will be other questions about the consultation process, but the consultation itself reflected this particular view in encompassing the entire perimeter of Leith Links and not just the area in question. It might be worth pointing out, however, that planning permission has been granted only for the location in which the statue is planned to be constructed.

Of course that in itself is no guarantee because another application could be made.

Exactly.

However, in the current situation, it provides some certainty about where the statue will be.

Yes. The proposed area is the only area for which planning permission has been granted for the statue. Moreover, the council effectively retains the right to permit or not to permit its construction. The bill does not authorise the society to construct the statue. It would require the permission of the council, as owner of the property, to go on to the land, carry out the landscaping works and install the statue.

I have another small question unrelated to that issue. Next door to the statue’s intended location is the bowling club area. Who owns and controls that area? Do we know?

I do not know.

The council owns the area.

It is the council. I suspected that that was the case, but I could not see anything that identified the council as the owner when we visited the site to ensure that we knew what was going on.

To return to the location of the statue and the, albeit unlikely, possibility of it being moved, can the council foresee any circumstances in which the statue might need to be shifted and permission sought for that? What might those circumstances be?

I can speak only for myself. I do not foresee that circumstance arising. The consultation feedback has not expressed a particular interest or problem with the location or a desire to have it in any other location. An advantage of the chosen location is that it suits not only the needs of the John Rattray society but the needs of users of Leith Links because it does not interfere with any existing play provision. It is compatible with the use of Leith Links, so it is a good location.

I thank Mrs Denzler for her eloquently told beautiful true story of our history. I return to some of the techie questions that the panel may well have thought that it had answered by drilling down into the detail. On notification, what ground rules did you set to determine the affected persons and what sources of information were used to ascertain the identity of such persons?

I assume that you are asking about the letters that were sent out to residents and not the newspaper adverts.

Public meetings were held, particular bodies were written to and 400 residents were contacted, so it would be helpful to know about the whole process.

It may be easiest if I start at the beginning and deal with the matter chronologically. The public information evening on the Leith Links proposals was arranged for Wednesday 19 December 2012 and it was held in the locale in the Thomas Morton hall. On 20 December 2012, a public information evening on the surplus fire fund proposals was held at Edinburgh city chambers. Information about those events is included in the promoter’s memorandum.

The letters to consultees went out in advance of those meetings, so that they had notice of the meetings. The fund proposal letters were sent out on 23 November 2012. A list of recipients is available at paragraph 24 of the promoter’s memorandum. Do you want me to cover that?

No, we have that information.

On 10 December 2012, letters on the Leith Links proposal were sent out to particular consultees, including those who were thought to have an interest in Leith or in the history, culture and heritage of Edinburgh. The letters gave the groups notice of the public information evenings, as well as providing information about the bill and the proposals.

The consultation period lasted from 10 December 2012 to 7 January 2013. Is that correct?

The consultation on surplus fire fund proposals began on 23 November 2012, which was when the letters went out.

Did the council consider extending the consultation to compensate for the holiday period?

10:00

It is fair to say that that timing would not have been ideal had there been a bit more flexibility on time. The real driver—again, no pun intended—was the council meeting on 31 January, which was because of the need to have the council resolution before anything could be introduced. Of course, it needed to be a meeting of the full council, which happens only on a monthly basis. If the meeting had been missed, it would have added another month to the timetable. There was also the main consideration at that stage of the timetable for the Ryder cup and the impact that it would have on the society’s fundraising.

I am perhaps skipping ahead a bit here but, with hindsight, I think that there would have been time to extend the consultation period, because after the council’s vote on 31 January it took quite a lot of time to go through the process of identifying the properties that should receive the notification letters. That was not expected; we expected to be able to do that much more quickly than we did. If we had known that the notification letters would not go out until they did, the consultation process could have been a lot longer. In an ideal world, that would have been preferable, but there were timing considerations for that.

I think that you have partly answered my next question, about the problems around the notification. Obviously, in hindsight, you feel that you would have done it differently. Was there any other action that you could have taken to rectify the situation?

I am not sure that it could have been done more quickly, simply because the delay between the council resolution and the notification letters going out was due to a combination of using council systems to identify the properties that are not generally used for that sort of purpose and some of the logistics of delivery. A very large number of properties were affected; I think that it was just under 400 properties around Leith Links. Identifying those and the logistics of delivering to them meant that a lot of time was added.

It might be worth adding, though, that in the earlier consultation period there was a letter drop to more or less the same number of properties. It was the same principle of a letter drop to residents living around Leith Links. The letters were provided on 10 December. At the same time as letters went to consultees such as the Leith Trust, a leaflet drop went to the residents around Leith Links telling them about the public information meeting and asking them to provide any views to the council by 7 January. In addition, there was the advertisement that is required for private bills, which appeared in The Scotsman and the Evening News on 11 and 18 December. Again, it exceeded what is technically required in terms of the bill process by including information about the public information evenings so that people would have as much notice of those as possible. There was also the notice that went up in public libraries all around Edinburgh.

In addition to letters going to the properties that abut Leith Links, notices were put up on lamp posts around and inside Leith Links for the benefit of those who use the links—I have seen the written submission in respect of the consultation—which gave information about the statue that contained some photographs of what the statute would look like and where it was proposed to put it. I think that that notice also appeared on a park notice board.

Therefore, although it was on a short timescale, the consultation was designed to be as inclusive as possible. I think that it was fairly comprehensive in terms of covering the entire perimeter of Leith Links which, as you have seen, is quite large. However, all the properties around the entire perimeter were consulted and then later given the notification letter about the bill.

Thank you for your extremely comprehensive answer.

Sorry to be a bit boring about this, but can you clarify the system that was used to identify who the affected persons were? Was it just a matter of looking at a street map and highlighting the streets that you thought were affected or was a more certain process undertaken to identify those people?

The systems used to identify the properties were the council’s geographic information system and its corporate address gazetteer data. Mr Buchanan can perhaps explain those systems.

On the ground rules that we adopted, we started with the principle that all the properties either abutting or over a road from Leith Links would receive a notification letter, on the basis that there is only a very minor effect on any heritable property here. This is not a bill that seeks to compulsorily purchase any property or anything like that. The minimal impact would be, for example, that someone would look out of their window and see a statue. That was the basis on which we decided that those properties that either abut or are over the road from Leith Links should be notified.

From that point, it was effectively a case of identifying the perimeter of the links, using the council’s systems to identify all the addresses and issuing intimation notices to those addresses.

The council took the view that, given the limited impact on any property, it would have been disproportionate to go further and identify those who owned those properties. On that basis, the notices were addressed to the owner or occupier of each property.

The gazetteer system records every property in Edinburgh against an address. It is not necessarily useful for identifying all those properties. It will give the number of properties in a street or it will identify properties in a street or an area, but it does not necessarily show the properties that may overlook Leith Links. That is where the GIS comes into use. Staff can compare the gazetteer address list with the properties that are adjacent to the links. There are properties that overlook Leith Links whose address—their main entrance—is not on the links but on another street. If staff were just to use the gazetteer system, they would not pull those properties up, so they use the GIS to ensure that they have captured all the properties that look on to and abut Leith Links.

Staff then double check that when they are hand delivering letters to every property adjacent to the links. They can then identify anomalies where a particular property may be slightly off the links but has a direct view of the links or the statue area. They included all those properties as well. It was a sort of three-layer process of checking to ensure that they got every property that abuts the links.

That is helpful. Thank you.

Normally, properties within 200 yards—I think—have to be identified. You are saying that you went over and above the usual neighbourhood notification that councils do.

Yes. I think that in the planning application, for example, properties within 20m of the area affected receive notification. Properties significantly over and above that distance away received the notification letters and the earlier leaflet drop.

You said to my colleague that there was a short timescale for the consultation, which is an issue of concern to the public and others. The letter was sent out on 23 November for notification of public meetings on 19 and 20 December, which is obviously during the Christmas period. It would be interesting to know how many people turned up at those meetings, given the festive season. Do you have figures for that?

You put out leaflets and letters and you put notices on lamp posts and in newspapers. That was basically to tell people that this is going to happen. Was there any consultation on the idea that it may happen?

I think that the consultation expressed the erection of the statue as a proposal. The exception was the advert that appeared in The Scotsman and the Edinburgh Evening News, in which it was expressed as an intention, because the specific wording that is in the annexes for the private bill process had to be followed. Other than that, it was expressed as a proposal rather than as a fait accompli. The consultation certainly invited people to provide views to the council—it gave a postal address and an email address.

The meeting on the Leith Links proposal was held on 19 December. According to the promoter’s memorandum, it was attended by

“three Council officers, a representative of the Scottish Parliament’s Non-Government Bills Unit, one elected member of the Council, five members of the Leith Rules Golf Society and two members of the public.”

The information evening on the fund proposals on 20 December was attended by

“three Council officers, two representatives of the ... Non-Government Bills Unit, one elected member of the Council, one representative of EVOT”—

which is the Edinburgh Voluntary Organisation Trust, the charity to which the fund will be transferred—

“one representative of the Edinburgh Voluntary Organisations Council (EVOT’s parent charity), one representative of the FBU and one member of the public.”

It is important to stress that those were information evenings and that the main thrust of the consultation was to give people the opportunity to provide comment to the council, by email or by post, at the addresses that were provided in all the notices.

Eight formal responses were received by the council. According to the promoter’s memorandum,

“In relation to Leith Links, responses were received from the Leith Trust, which was in favour of the proposal ... and from Historic Scotland, which confirmed it would have no objection”.

Two responses raised concerns about the erection of the statue, which related to the aesthetics of the statue and the landscaping; the risk of the statue being damaged or defaced;

“the surrounding area already being in poor condition and ... objections to the use of Council funds on maintaining or repairing the statue.”

The last two concerns in particular were based on a misunderstanding of who would pay for the statue—it was believed that it would be paid for from council funds, even though the consultation information said that the society would meet the cost of it. The concerns about aesthetics and the risk of damage or defacement were issues that would be dealt with through the planning process. I think that the council took the view that, because the bill does not say anything about the aesthetics of the statue or how it should appear, those were not necessarily issues for the bill process.

In relation to the fund proposals, four responses were received. Should I leave what the Fire Brigades Union and Firrhill community council suggested for the second panel?

Yes, if you do not mind.

Those are the responses that were provided in relation to Leith Links. Although it was not ideal to run the consultation over the Christmas period, the thrust of the consultation was to invite written responses; it was less about the information evenings.

Thank you very much for that.

I will move on to ask about the security of the proposed statue. What consideration has been given to dealing with antisocial behaviour, given that a new seated area is to be created, which might have some unintended consequences? What has been done to address such concerns?

The submission that Police Scotland has made to the committee is, in effect, identical to the submission that it made to the council as part of the planning application process, which the council considered as part of that process. No conditions were attached to the granting of planning permission specifically as a result of that submission, but the permission included an informative that advised the society to take on board what the police had said and to consider how to deal with those matters. Mrs Denzler will be able to comment on that.

10:15

Yes, the police are concerned about the bronze and the seating. I think that the seating is an issue that we will have to work on with the police. I understand that that is being taken on board by CICL, which is the design team. On the security aspect, we went back to the sculptor, who said that when concrete is put inside and there is steel reinforcing right down to the base, trying to pinch a bronze statue becomes a much more difficult task, because it cannot just be sawn through. We will continue to address those issues.

Okay. Does the security aspect raise any potential issues for neighbouring properties, such as the bowling club? Do you or the bowling club have concerns that it might be impacted in some way?

I have no knowledge of any concerns in that regard. One of the bowling greens has become three tennis courts, so there is more activity there, and I would think that more activity would mean a better security situation. As Leith Links develops and people use it in that way rather than in an antisocial way, we hope that it will become increasingly secure.

The bowling club was consulted, but it did not raise any concerns.

Okay. Thank you. Do members have any other questions?

Yes, convener. The letter from Police Scotland mentions that the area experiences a high level of recorded crime and antisocial behaviour, and it recommends that closed-circuit television cameras be placed there. Do you have any comments on that?

Police Scotland’s recommendations were particularly relevant to the planning application. The bill seeks permission to change the rules to allow the statue to be erected, not the large information panels that gave Police Scotland concern. There is a lot of CCTV across Edinburgh—and there are concerns about the level of CCTV use. There is a cost to installing, maintaining and monitoring it.

As the process develops, we need to continue to work with Police Scotland, as Pat Denzler and colleagues have said. I hope that, through greater use of the area, as Pat Denzler said, we can avoid the need for any CCTV. It was only the bowling club that adjoined the area previously, but tennis courts have been reintroduced, and the old tennis court area is now an allotment area. There was information about the erection of the statue on the allotment notice board so that all the people coming and going there would be aware of what was happening.

On getting more activity into the area, next to the tennis court area is an area for pétanque—I hope that I have pronounced that correctly—which is the French version of bowls. That is increasing the range of uses of the links and increasing the number of people who come to use the area. A statue will draw Leith residents and others to visit it, so there will be more visitors to the Leith area, which can only benefit the area. We should not avoid doing something there because there is a risk of antisocial or criminal behaviour, which occurs across Edinburgh, Scotland and the world. We need to deal with that rather than avoid investing in improving an area because there is a risk that it will occur. We are dealing with that behaviour. For example, our community safety teams work closely with the police not only to enforce but to educate, change behaviours and provide alternatives, such as tennis and other activities on the links.

Police Scotland’s comments are pertinent and we need to take them on board and consider them, but a lot of the issues that Police Scotland had with the planning application have now gone away, because the large information panels will not now be constructed. They would have created in the pathway a screen that would have allowed someone to hide behind them.

I am sorry—I did not hear the last bit of your response. Did you say that the panels are not going to be there?

They are not part of the bill, which is simply asking for the restriction to be lifted to allow the statue to be built on the links. It is not asking for another structure—the information panels—

So all the bill is asking for is the statue.

Indeed.

The panels are another matter. Are they going to happen?

There will be some information panels around the statue because interpretation of the statue and the history is important. However, the bill does not authorise something that might be classed as a permanent monument. What you see in the leaflet is a concrete structure, which might be caught by the restriction in the 1991 act on putting permanent monuments in place. However, that is not what has been accepted in the bill. Instead, what is planned is something more akin to the general and more temporary notice boards that one sees in parks; there would not be a fixed structure that would offer the kind of potential for people to hide that the police were worried about.

I am sorry to press you on this point but the leaflet that has been circulated to us shows a statue that is very nicely landscaped and then what looks like a permanent structure. Obviously, there are two parts to the bill. Are you saying that the statue alone will go ahead under the bill and that the information panels will not be a permanent fixture and will be able to just come and go, as it were?

It is not that they will come and go; it is just that they will not be a permanent structure made of concrete or whatever. They will just be wood and plastic notice boards. Because they are not part of the bill, they will be developed as the project progresses.

Will there be any consultation for that extra bit?

There will be interpretative panels of some sort but they will not be as they appear in the flyer.

I realise that they are nothing to do with the private bill but, as you will understand, I am coming at this from the public’s point of view. However, I take on board what you have said.

If I have heard you right, you are saying that, despite the restrictions on building on Leith Links, the panels do not require any legislation to be put in place because they are of a temporary nature.

Exactly.

Although I should clarify that we are not talking about the panels in the leaflet.

I understand that.

A notice board in a park does not need any legislation.

As members’ questions have been exhausted, do the witnesses wish to add anything that they feel has not been covered adequately?

Do you need any more plans or whatever, or do you have enough information?

I think that we have enough.

I thank the witnesses for coming and suspend the meeting.

10:23 Meeting suspended.

10:27 On resuming—

I welcome to the meeting our second panel of witnesses, who will deal with the bill’s Surplus Fire Fund provisions. Mrs Ella Simpson is director of Edinburgh Voluntary Organisations Council, Charles Livingstone is an associate at Brodies LLP and Esmond Hamilton is finance manager at the City of Edinburgh Council.

As before, we will ask you a number of questions and at the end of the session you will have an opportunity to comment on anything that you feel has not been adequately covered. The first question is from my colleague Bruce Crawford.

A number of interesting and in some cases quite complex legal changes need to be made here. Why has the private bill route been chosen to deal with the matter and what alternatives were considered?

We were keen to take legal advice on how the matter should be properly handled. In essence, that advice said that a trust fund or charity constituted by legislation can be transferred or have its purposes changed only through legislation. We were mindful of the fact that, had we ignored that advice and had the transfer gone ahead without going down the legislation route, someone in future might claim that the transfer or change of purpose was not lawfully carried out. We simply wanted to ensure that the process was done properly and in accordance with the advice that we had taken.

Okay, but is it not also true to say that the Charities and Trustee Investment (Scotland) Act 2005 provides a route that allows permission to be sought from the Office of the Scottish Charity Regulator to modify a fund’s purpose and to transfer assets? Why was that route not looked at and chosen?

10:30

Yes, indeed: that is correct. We are conducting a twin-track approach. We have put in an application to OSCR under the 2005 act, but the advice that we received was that it was appropriate to take the legislative route as well. We are covering both bases.

Why was not that route considered sufficient in itself? Why go to the next stage of requiring a private bill?

That was really based on the advice that we were given. We have to take advice, as we are not legal experts, and that was the approach that was decided.

Let me put it another way. Is it true to say that, had the council decided to follow only the Charities and Trustee Investment (Scotland) Act 2005 route, because the council is not a charity, that would not have been sufficient in itself to enable the process to be moved to the Edinburgh Voluntary Organisations Trust, as you require?

That is correct. The council is not a charity, although it is the trustee of the charity. The distinction needs to be made on that point.

Right. Okay.

Mr Livingstone, do you have anything to add on those issues?

I am afraid that I cannot comment on that. That was not advice that was received from Brodies; it was received from other solicitors. We dealt with the private legislation. The advice was received separately by the council before it came to us, so I cannot comment on it.

I can certainly direct the committee to paragraph 16 of the promoter’s memorandum, which explains the basis on which the council took its decision. It was certainly the council’s view that the reorganisation provisions in the 2005 act are quite complex, but its view was also that the reorganisation under section 39 of that act was not available because section 42(5) of the act states that section 39 does not apply

“to any charity constituted ... under any enactment.”

The fund was vested in the council by the Edinburgh Corporation Order Confirmation Act 1927. Section 42(6) of the 2005 act says that section 39, on the reorganisation power, will apply to a charity constituted by an enactment but only with regards to an endowment if its governing body is a charity. However, the council’s approach was that the fund is an endowment but the council is the sole trustee, so it concluded that the governing body is not a charity.

I can certainly narrate that as the council’s position.

That is helpful and gets the issue on the record.

I ask Mr Hamilton whether the council considered other approaches and whether, having done so, it considered that the private bill route was the only route available to it.

We were not aware of any other potential approaches. It is important that members know that we had a conference call on the matter with the Office of the Scottish Charity Regulator, which involved a person giving us legal advice. There was a lengthy discussion about the finer points of the law, which you have heard previously. It is clear that we are not experts in trying to fine-tune how the law should be interpreted. We have to use our best initiative to interpret our way through that and to do things that protect the council from the legal perspective.

Yes, but the council is the promoter of the bill, and we have a requirement to ensure that no other mechanism was available and that the private bill route was the only route that could achieve the aims that you wanted to achieve. I want to get on record that you agree with that.

OSCR’s view was that it was not necessary to go down the legislative route. It was happy for us to use the route of the 2005 act alone. However, having taken legal advice and having heard the information that the committee has just been told about, we had to take a view on what we were going to do.

My understanding is that the council’s legal advice was contrary to OSCR’s view. The position that that puts the council in is narrated in paragraph 17 of the promoter’s memorandum. OSCR might have been content to use its reorganisation powers under section 39 of the 2005 act but, based on the council’s view, if that was challenged, there would be a risk that that would be found to be unlawful, which would make any actions that had been taken by the council or EVOT in respect of the fund unlawful. The council has taken a risk-based approach.

That is based on the council’s view that it is a sole trustee, and not a charity, and that it therefore could not use that mechanism. I ask Mr Hamilton to confirm that that is the case.

That is indeed the case.

I will not go over the ground that my colleague has covered. We have quite a lot of information about EVOT, so I will move on. What prompted the council to revitalise the fund? What factors were considered in relation to the timing and introduction of the bill? A more pertinent question might be why EVOT—for people who do not know, which was me before I looked it up, that is the Edinburgh Voluntary Organisations Trust—is an appropriate body to take over the fund.

The first point, on revitalising the fund, is perhaps for Mr Hamilton.

The Surplus Fire Fund has a long history, dating back to 1824. Prior to 2000, it had gone into a state of dormancy. Obviously, the council is keen to ensure that its trust funds are used effectively, so it considered ways in which we could revitalise the fund and ensure that it is relevant for the future.

We covered as part of the first panel the timing considerations for the Leith Links element of the bill and the Surplus Fire Fund element was in effect subject to those considerations. The decision to transfer the fund came along when the Leith Links bill was already on the cards, if not already in preparation. In effect, it was considered that efficiency gains could be made for the council and the Parliament by combining the two issues into one bill. From that point, the timing was driven more by the Leith Links element than by the Surplus Fire Fund element. There are no pressing timing considerations in relation to the fund. The change is viewed as an improvement so, to that extent, the sooner it happens the better, but there are no real deadlines.

The question about EVOT is perhaps for Mrs Simpson.

EVOT was founded in 1868, so we have a long history of alleviating hardship in the city of Edinburgh. We run various grant programmes and we have several restricted funds. We have active trustees who come from the sector, a legal background and a financial investment background and who meet regularly. They have firm control over the workings of the trust.

We work with a huge network of organisations that would be able to refer possible beneficiaries of the fund to us, so we would capitalise on that existing network. We work closely with many organisations that we feel we could bring into a co-operative approach to working with people who have been impacted by fire. For example, we could work with the Bethany Christian Trust to provide household goods. The change will have a cumulative impact on other charitable organisations and, more importantly, on individuals.

Your organisation has the experience and breadth of network too.

I have a small question for Mr Livingstone with regard to revitalising the fund. Did the FBU approach you to raise that issue?

That question is probably for Mr Hamilton.

Yes, indeed—the FBU has a long association with the surplus fire fund.

Going back to the information that I gave previously, the Surplus Fire Fund had, like a lot of local authority charities, entered a state of dormancy and it was the FBU’s interest in the fund that stimulated its rejuvenation. The union sought legal advice on what was happening with the surplus fire fund and contacted the council to express its concern that the fund had gone into dormancy.

At that point, the council agreed to bring the fund back into operation and the FBU was invited to send a representative to the pensions and trusts committee when the fund business was discussed. Ever since then, the union has been actively involved in promoting the interests of the fund. I should emphasise that the FBU is acting in the public interest rather than acting narrowly in firefighters’ interests.

That has clarified the point for me—thank you.

I want to ask the witnesses about the fund’s purposes. Can you explain why the purposes have been expanded and set out the factors that were taken into consideration in deciding what new purposes should be included?

Yes, indeed. As part of the due diligence process, we went through a period of discussion with EVOT on how it would propose to take the Surplus Fire Fund forward. As part of that exercise, we noted that it had become increasingly difficult in recent years to use the money from the fund effectively. We were not getting sufficient—indeed, hardly any—applications for benefit from private individuals and, in recent years, most of the money has been used for awards to the burns units at the sick kids hospital and in Livingston.

We were interested in trying to use the money better in the future by re-examining the purposes. The changes can be summarised as follows. First, there was originally a requirement that meant that someone could not be considered for benefit unless the injury was serious. We have removed that restriction, so minor and even psychological injuries rather than just physical injuries can be considered, which will allow additional people to apply.

Secondly, the fund did not explicitly allow help for damage to household contents or domestic premises, and we wanted to allow more people to apply by widening that restriction. Finally, we wanted to state explicitly that it was possible for money to be awarded to hospital burns units. We wanted to cover all the practical uses that we could foresee that would enable EVOT to make best use of the money in future.

Thank you; I want to look at that in a bit more detail. A decision has been taken to allow for compensation for damage, but structural damage is excluded. Can you give us a bit more information on why that decision was made?

The reason was that the size of the fund is approximately £1.25 million, which generates roughly £25,000 to £30,000 of income a year. If we opened the fund to cover structural damage, one claim could wipe out a whole year’s income. We thought that, in order to use the money effectively and to get the best benefit across Edinburgh, it would be best to restrict the criteria to personal damage and contents.

Are all household contents covered or they are restricted in some way?

No, the trustees would have the discretion to decide in the circumstances. In some cases people will have insurance while in other cases they will not. Part of EVOT’s role in future will be to examine the circumstances and decide how the money can appropriately be used.

Will the fund compensate people for damage if they have not taken out their own buildings or contents insurance?

Potentially so. Ella Simpson can comment on that further, as she is in touch with the sector.

10:45

Our aim is to target specifically people who earn the living wage or less, and that living wage will be reviewed every year to see whether any adjustment is needed. We are looking at people who are on benefit or who are in fairly low-paid work, who tend to be the people who are caught in poverty while they are in work. As always when people are in poverty, they stop spending money on the things that they think they might be able to do without—things such as household insurance are seen as fringe benefits that they cannot afford. That is our target.

The scope of the fund has been extended to cover the district of City of Edinburgh Council. Is anybody excluded from being eligible for the fund? How will that change impact on those who want to apply to the fund?

There has been no change. As I stated earlier, the genesis of the charity was the series of fires in the High Street in Edinburgh in 1824. At that time, £11,000 was collected and the money was used to assist the people who had suffered in that fire. The restriction in the existing legislation is that people will be assisted only in relation to Edinburgh-based fires.

From our previous work with OSCR, we know that it likes charities to adhere to geographic restrictions if at all possible. Had we found out that there was no longer any possibility of getting potential claimants from Edinburgh, we would have been allowed to widen the scope to the whole of Scotland or the UK. However, as we know, there are still fires in Edinburgh and OSCR would not be happy about our widening the scope of the fund.

Given the fact that more people will potentially be able to claim from the fund, are you confident that the fund will be able to sustain those additional payouts?

We manage our funds carefully and will apportion them across the year. It is a new fund, and in the first year it will probably take a bit of work to get the publicity out to ensure that potential referers understand the restrictions on the fund. Because we are opening the fund up to people with psychological damage as well as to those who have suffered damage to property and physical injury, we will definitely have enough applicants to use the fund to the full. However, I would not suggest that we will have too many applicants. We also run other funds, and if the fire fund were not quite able to cover something we would use two or three streams of funding to meet the needs of the people who applied.

That is helpful. Thank you.

I have a question for Mr Livingstone. It is similar to the question that I asked earlier, but on a different topic. Can you explain the ground rules that determined who the affected persons were for the consultation?

Yes. There was no effect on any property, so there was no notification—it was just the consultation process. The consultees who received letters in respect of the fire fund proposals were a number of bodies connected with charities, fire and financial management. The letter went to the following: the headquarters of Lothian and Borders Fire and Rescue Service, as it was then; the council’s director of children and families and its director of services for communities; EVOT; the Fire Brigades Union; the Scottish Federation of Housing Associations; the sick kids hospital; and the burns unit at St John’s hospital in Livingston. It also went to Audit Scotland, the Edinburgh Tenants Federation, Four Square, OSCR and every community council in the council area. That was an attempt to capture everyone who we thought would have an interest in the fund either as a fellow charity or as a potential beneficiary. A notice was sent to Lothian and Borders Fire and Rescue Service with a request that it be put up in every fire station in the area, and our understanding is that that happened. There were also the required notices in newspapers in the fire fund area.

How long was the consultation period?

The letters went out on 23 November, and the notice for fire stations with the request that it be put up was also sent out on that date. The period for providing comments was the same as that for the Leith Links proposal and ended on 7 January. Again, that was driven by the desire to have the proposal voted on at the 31 January council meeting.

Were any responses received?

Yes. There were four responses and they all supported the proposals in principle, although I qualify that by saying that, as we have discussed, OSCR did not agree that it was necessary to take the private legislation route. I will not reopen that issue. It has approved the change through a separate process in the 2005 act, so it is content with the proposals.

The Fire Brigades Union and Firrhill community council suggested that the residence condition should not apply to the purpose of making awards or grants to people who have rendered meritorious services in connection with a fire in the City of Edinburgh Council area, on the basis that a professional firefighter might live in East Lothian or Midlothian but still provide heroic service within the Edinburgh area. The feedback on that was that the residence restriction should be removed. The council agreed, so the restriction now applies only to the injury and the property damage purposes.

You told us how the intent behind the bill was notified to both EVOT and the FBU, but it would help us if you could describe how their consent was determined and obtained. After you had notified them, what processes did they go through in their organisations to get consent?

They were both instrumental in driving the changes and did not just respond to them. Perhaps Mr Hamilton can speak to the FBU’s role and Mrs Simpson to EVOT’s role.

I have already explained how the FBU became involved with the Surplus Fire Fund. The council has been keen to ensure that we have its support throughout the process of transferring the Surplus Fire Fund to an external charity. It has been involved in discussions with EVOT and expressed its contentment with EVOT as a recipient of the fund. We are happy with its support for the proposal.

I add that the FBU’s role in attending meetings at which the fire fund is discussed is set out in the bill. That is not new, as it happens with the current council meetings. The bill preserves that situation for when the fund is transferred to EVOT.

The matter was discussed at three of our trustees meetings. We discussed fully what we would want to be taken on to make sure that we have the network and the structures to reach the people who should be the beneficiaries. We thought about that thoroughly because we would never take on anything that had a restriction on it without being clear that we could fulfil those restrictions. We wondered whether we would need to do any further recruitment as trustees to make sure that we would be able to do that, but that concern was allayed by the fact that the Fire Brigades Union would be present at any of our committee meetings at which we discussed the matter.

We considered the volume of administration and whether we had the capacity to work it through, and also the requirement for the trust administrator to take things forward. The issues were thoroughly discussed at committee meetings and we had productive meetings with both Mr Hamilton and the Fire Brigades Union representatives.

That helps us understand some of the processes that have been going on and clearly identifies that there has been strong process to involve people.

On a slightly more technical matter, will Mr Livingstone give his view on whether the bill will or will not confer powers on EVOT, rather than transfer them? I know that there is an issue about that, but I am not sure that I fully understand it, if I am being honest.

I am not sure that I entirely follow the issue, but I will give your question a go. I do not think that the bill will confer any powers on EVOT—it will not give it the ability to do anything that it cannot already do. That is how I would interpret conferring of powers.

Certainly it will transfer the fund’s property rights, interests and liabilities—in effect, it will transfer the fund’s entire existence. The council is not aware of any liabilities, but any organisation may have liabilities that they are not aware of, and any such liabilities will be transferred across.

EVOT will hold the property and have the ability to pursue any rights that the fund currently has—for example, if the fund had a claim against somebody else. EVOT would have to defend and deal with anything that came out of a liability of the fund.

The bill will also place restrictions on what EVOT can do with the property. However, it will not confer any powers on EVOT as I interpret the term.

You did a good job of explaining that.

Thank you very much.

Will the bill confer any powers on the FBU?

No. Section 4 deals with the FBU. It will allow it to nominate two individuals, but that is not an innovation; it is a continuation of the existing process that is used with the council.

Do those nominees attend meetings?

Indeed they do.

The Scottish Parliament must consider the bill’s human rights implications. Mr Hamilton, what account did the council take of the requirements of ECHR law when it drafted the bill?

It would be more appropriate for Charles Livingstone to answer that question, as he is our legal expert on the drafting of the bill.

I have had fairly lengthy exchanges with Parliament solicitors on this issue, which perhaps could be made available for the committee if needs be.

I do not believe that any convention rights will be engaged by the bill. It is hard to explain that, because in effect to do so would be to try to prove a negative. I could address particular rights, if you like.

You will be glad to hear that my next question is probably the last. Are you aware of any amendments to the bill that might be required, whether to tidy it up or to give effect to any other issues?

There is nothing that the council or I think has been missed out of the bill’s original draft. If the committee has any concerns about the bill, such as those discussed in the earlier part of the meeting regarding geographically restricting where in Leith Links the statue could be constructed, we could suggest amendments at consideration stage.

That concludes our questions. Thank you all for coming; it has been very useful to have you here today.

10:59 Meeting continued in private until 11:08.