Lands Tribunal for Scotland

OPINION

Brennan v Angus Council

Introduction

[1] This case arises from the refusal by the respondents, Angus Council, of an application, dated 20 February 2010, by the applicant, Mr Brennan, to purchase, along with his wife, the house which he currently occupies known as South Lodge, Craigton Road, Monikie, Angus. The refusal was made under Section 68 of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001 (“the 1987 Act”). The respondents contended that the applicant was not a secure tenant under the Act as, in their view, he was required to occupy South Lodge for the better performance of his duties and therefore his tenancy is not a secure tenancy in terms of Section 11(4) and Schedule 1 of the Housing (Scotland) Act 2001 (“the 2001 Act”). No reliance was placed on another reason originally given for the refusal, viz. the ‘curtilage’ exception under paragraph 9 of Schedule 1. The respondents accepted that the onus of proof lay with them.

[2] The application was heard on 13 October 2010 at Arbroath Sheriff Court. The applicant was not legally represented. The respondents were represented by Mr Stephen Brown, Senior Solicitor for Angus Council. He called Mr Mick Pawley, Countryside Services Manager, to give evidence for the respondents. The applicant presented his own evidence. The parties lodged a number of documentary productions. Final submissions were, by agreement, in written form following the hearing. The Tribunal also inspected the exterior of the subjects and Monikie Country Park.

The Issue

[3] The right to purchase, under Section 61 of the 1987 Act, is now dependent on the existence of a “Scottish Secure Tenancy” within the meaning of Section 11 of the 2001 Act. Section 11(4) excludes tenancies of a kind mentioned in Schedule 1. The respondents now rely only on paragraph 1 of Schedule 1, which is in the following terms:-

“A tenancy is not a Scottish secure tenancy if the tenant … is an employee of the landlord or of any local authority and the contract of employment requires the tenant to occupy the house for the better performance of the tenant’s duties”

… ‘contract of employment’ means a contract of service … whether express or implied and (if express) whether oral or in writing”

Authorities referred to:-

Douglas v Falkirk District Council 1983 SLT (Lands Tr.)21
Kinghorn v City of Glasgow District Council l984 SLT (Lands Tr.) 9
Docherty v City of Edinburgh Council 1985 SLT (Lands Tr.) 61
De Fontenay v Strathclyde Regional Council 1990 SLT 605
MacDonald v Strathclyde Regional Council 1990 SLT (Lands Tr.) 10
McTurk v Fife Regional Council 1990 SLT (Lands Tr.) 49
Winthrop v East Dunbartonshire Council, 15.2.2000, LTS/TR/1999/11
Smith v Dundee District Council, 4.4.2001, LTS/TR/2000/18
Fee v East Renfrewshire Council, 1.7.2005, LTS/TR/2004/07
MacFadyen v Argyll and Bute Council , 6.11.2006, LTS/TR/2005/7

The Facts

[4] We set out below a statement of the facts which we determined from the evidence and submissions and from our site inspection. Many of the facts were not in dispute.

[5] Background. Monikie Country Park was established about 1992 following an agreement reached in 1990 that the Planning Committee of Tayside Regional Council would appropriate the former Monikie, Crombie and Clatto reservoirs from the Regional Council’s Water Services Department. As there was no requirement to retain the reservoirs in connection with the public water supply, they had been declared surplus to the Water Services Department. The Council retains responsibilities under the Reservoir Acts. Certain former reservoir keepers’ cottages were included in the transfer.

[6] Crombie Contry Park lies about 2 miles to the north east of Monikie. It is also open to the public and one ranger occupies a tied cottage within the country park. Clatto Country Park is located on the northern edge of Dundee. Other country parks within Angus County are located at Forfar Loch, The Angus Glens and the Montrose Basin but the authority does not own any land at these sites and there are no associated staff houses. The Council employs on a permanent basis a total of 14 countryside rangers of whom five live in tied cottages; other ranger staff are permitted to live some distance from their place of work.

[7] Monikie Country Park. Monikie Country Park, which lies about 8 miles north east of Dundee City centre, extends to approximately 67 hectares, is a popular recreational facility and attracts about 250,000 visits per annum. The major features of the park are the two former reservoir “ponds” which are separated by an elevated causeway with footpath along which visitors are free to walk. There is an extensive network of walkways around the “ponds” and through the wooded area to the north west. The main entrance to the country park is from the minor county road which leads from the B961 northwards to the village of Monikie lying immediately to the north west of the country park. Although originally a small rural village, Monikie has expanded with many new houses having been built.

[8] The park entrance, which is always open, gives access to an extensive car park adjoining an attractive wooded area within which are a number of buildings including the Main Lodge. This is the operational centre for the four full time ranger staff and the accommodation comprises offices, stores and enclosed courtyard. Also nearby are public toilets and a cafe/restaurant which during the summer months is open until 11pm. Council equipment, including rescue boats, sailing boats and outdoor play equipment, is located in the park. No staff live at the Main Lodge but one staff member, Norman Greig, occupies the North Lodge, which lies some 350yards to the north of the Main Lodge. The applicant lives at the South Lodge which lies some 700 yards to the south. Local residents are generally aware where they live. One other ranger employed at Monikie has a tenancy of a tied house at Fallaws, around 3 miles from the park.

[9] The park is almost completely encompassed by public roads and pedestrian access is possible at a number of points. The small village of Craigton lies immediately to the east of the park.

[10] To the south west the reservoir’s retaining banks are high and substantial and on entering the park at the south entrance beside South Lodge it is impossible to see much of the park other than the driveway leading north and the former Denfind Pond, now drained and largely covered with emerging scrub vegetation. A pathway on top of the retaining embankments encompasses the reservoir ponds and there are regular safety signs indicating that swimming is prohibited and warning of the danger of the steep sides to the reservoir, its deep water, the hazard of walking on ice and informing visitors of steps to be taken in an emergency, including dialling 999 but not including any reference to rangers’ houses or contacting resident staff. The emergency services are amongst the “key holders”.

[11] South Lodge, Monikie. South Lodge Monikie is a detached stone gate-house built about 1850 of traditional design with stone walls and a pitched slate roof. The cottage has a garden with a substantial hedge to the north and east and to the south there is a low wooden fence. The hedges to the north and east provide privacy and it is not possible in practical terms to see the country park from the house nor is it practical to monitor the gates to the park which can only be seen from one bedroom window. There are attractive open views to the south over farmland. The southern boundary of the property lies immediately to the north of the B961. A gate in the south east corner of the garden leads on to a tarred pull-in or bell-mouth from which the drive leads northwards into Monikie Country Park. Substantial double wooden gates prevent vehicular access, other than in an emergency, but a pedestrian gate provides access for individuals who wish to enter the park on foot. Drivers are directed to the park’s main car park.

[12] Applicant’s Employment. The applicant has been employed by the respondents as a country park ranger since 1988. This was initially at Clatto Country Park, where he had a tenancy of Clatto Cottage. In 1991 his place of work changed to Monikie but he continued to live at Clatto. In 1993, Clatto Cottage, which was on the Water Services Account, was apparently required by Water Services so that it would no longer be available for the applicant’s accommodation. The applicant identified South Lodge, Monikie, then also still on the Water Services Account, as unoccupied and asked if he could live there. That house was then also formally transferred to the Planning Account. The applicant has had the tenancy of South Lodge, Monikie, since 1994. In 1998 the applicant was promoted to “Countryside Ranger, 2nd in charge, (Monikie)”, and continues in that position, still residing at South Lodge, Monikie.

[13] The applicant is employed under a letter of engagement dated 20 April 1988. His place of work was then identified as Clatto Country Park but he could be required to work elsewhere if required, in particular at Monikie and Crombie. Clause 3 incorporates terms and conditions covered by collective agreements. These include a requirement, apparently applicable to a wide range of council employees, to fulfil ‘call out’ duties on a remunerated basis. The applicant was second on a ‘call out list’, below Mr Greig, the senior ranger at Monikie who lives in North Lodge under a similar tenancy. Clause 5 refers to a rota basis of working, and also provides:-

“The nature of your employment also requires you to work on public holidays and undertake overtime working as requested, for which you will be remunerated in accordance with the agreements referred to in paragraph 3.”

[14] Under Clause 6, the applicant was required to have a current driving licence, a valid lifesaving certificate and a valid first aid certificate. Clause 6 further provides:-

“It is essential for the better performance of your duties that you occupy Clatto Cottage within Clatto Country Park. You will be required to pay rent, rates and heating and lighting charges; you will be required to vacate the accommodation in the event of you leaving the above post. The Regional Council also reserve the right to require you to occupy any other property within the country parks as determined by your Head of Department for the better performance of your duties.”

[15] A detailed job description also applied to the applicant’s employment when engaged as a Countryside Ranger at Clatto. He was said to be responsible for “implementation of duties pertaining to the day to day operation of the Park.” The job purpose was described as:

“Assist the Senior Countryside Ranger in the day to day work of the Park and in particular the areas of surveillance, safety and rescue, resource protection, information and interpretation, and visitor facilities and recreational provision.”

There followed a list of 13 “major tasks” related to the normal work of the park, including:-

“13. Carry out any other related duties in the Parks or elsewhere as directed by the Chief Countryside Ranger.”

[16] On 26 April 1991, the Director of Personnel wrote to the applicant confirming that his place of work would be changed to Monikie Country Park with effect from 1 May 1991. The letter continued:-

“However, as agreed verbally, you will continue to occupy your present address within Clatto Park and will undertake call out duties when required for which you will receive remuneration in accordance with paragraph 3 of your Letter of Appointment of 20 April 1988.

This constitutes a formal amendment to your terms and conditions of employment. Your other terms and conditions remain unaltered.”

[17] On 17 December 1993, the applicant wrote to a Mr Mudie in the Planning Department concerning the impending loss of his accommodation at Clatto. He raised the possibility of a move to South Lodge, Monikie, adding:-

“We feel that this house, if taken over by the region, would benefit the security of the park as well as ourselves.”

[18] In his reply dated 6 January 1994, Mr Mudie acknowledged the applicant’s concern and indicated that he would pursue the possibility of a transfer of South Lodge into the Planning Account. He wrote:-

“Your occupation of Clatto Cottage as a category 1 tenant is based upon a need to maintain a security presence for Clatto Country Park. When your request to transfer to Monikie was granted it was made clear to you that your continued occupation of Clatto Cottage rested on your continuing to offer that service … ”

In relation to the possibility of South Lodge becoming available , he wrote:-

“If this happens then I am prepared to recommend that it is made available to you but a case would have to be made out and accepted for an additional category 1 tenancy.”

[19] In 1994, following a Joint Report by the relevant Directors, the Council approved the appropriation of South Lodge, Monikie, from Water purposes to Countryside purposes, at a figure of £42,000. The Report had stated: “The Director of Planning has a requirement for a house at Monikie for a park ranger whose duties include overnight security.”

[20] The applicant was offered the tenancy of South Lodge, Monikie, in a formal missive dated 31 May 1994. The rent, payable out of his salary, was set at 25% of the rent that would otherwise be payable. Clauses 10 and 11 provided:-

“10. The let premises are let to you as above but only on your remaining in the service of the Tayside Regional Council Planning Department as a Country Ranger at Monikie Country Park …

11. As you are an employee of Tayside Regional Council and as your contract of employment requires you to occupy the let subjects for the better performance of your duties, you do not have a secure tenancy or a right to buy in terms of the Housing (Scotland) Act 1987.”

[21] No other change was made at this time to the written terms of the applicant’s contract of employment.

[22] In November 1998 the applicant received a new Job Description following his promotion to “Countryside Ranger, 2nd in Charge (Monikie)”. He was said to be responsible for “implementation of duties pertaining to the day to day operation of the Park. Designated depute to the Senior Countryside Ranger (Monikie).” The ‘Job Purpose’ was:-

“The Countryside Ranger 2nd in Charge (Monikie) will assist the Senior Countryside Ranger in the day to day operation of Monikie Country Park, and will deputise for the Senior Countryside Ranger in his/her absence … ”

A slightly more detailed list of ‘Major Tasks’, including a percentage breakdown of 8 functions, e.g. “Staff Management”, “Resource Management”, etc. was provided. These duties again related to day to day work at the country park, and again included, “Undertake any other duties which may be allocated by the Senior Countryside Ranger.”

[23] This Job Description does not make any specific reference to responsibilities for security, monitoring alarms or CCTV or visitor safety and does not refer specifically to any ongoing duties beyond working hours. The applicant’s responsibilities have not altered since his appointment to his present position.

[24] No council equipment is stored at South Lodge.

[25] The applicant is called out on average around three times a year, usually in response to an alarm going off. Call-outs of the senior ranger at Monikie have included emergencies such as heart attacks, children playing on ice, etc.

[26] As regards holiday arrangements, the applicant is expected to liaise with his line manager, whose approval to holiday dates is required, with a view to limiting, as far as is practical, any clash of dates with the occupier of the North Lodge to try and avoid both being away on holiday at the same time. There is no formal mechanism which prevents both resident staff being away at the same time, for example at weekends. There is no “out of hours” duty roster. If called out as a result of an incident, overtime would payable.

[27] The applicant’s telephone line rental is paid by the Council but the applicant pays for all private calls. A memo in 1993 recorded: “These lines are supplied for the principal purpose of receiving urgent or emergency calls relating to the operation of the relative park.”

[28] Staffing arrangements. At Monikie, Angus Council employs five rangers, threee of whom are “key holders” on the call out list, plus seasonal staff. Of the additional two rangers based at Monikie but not having similar tenancies, one lives some 30 miles away and the other some 15 miles distant. All have life saving qualifications.

[29] Norman Greig‘s contract of employment also requires him to live in the Park “for the better execution of your duties”. In 1993 he contemplated moving and was advised by Tayside Regional Council that while he could move he would be required to “ … live within a reasonable (say 15 minute) travel distance from the park.”

[30] Prior to occupation by Mr Grieg, North Lodge was occupied by Mike Pawley. During the six years of his occupation he was called out for various medical and other emergencies averaging about twice each year. It was his practice to regularly walk around the park after normal working hours. There had been a number of thefts of equipment from the park though the problem diminished when security measures were improved. On vacating North Lodge he was given a new contract of employment.

[31] If staff decide to move out of their tied accommodation, Angus Council would seek to get the dwelling occupied by other ranger staff provided they were prepared to accept as a condition of their occupation that they were required to occupy the accommodation for the better performance of their duties.

[32] Lesley Wood, a senior countryside ranger, is employed by Angus Council at Crombie Country Park. At the time of her appointment she was offered a tied cottage at Crombie but she declined. This was accepted by the Council and a contract of employment signed. After several months she reconsidered her living arrangements and as the lodge at Crombie was still unoccupied she asked if it could be made available to her. This was accepted and an amendment to her employment contract was agreed which stated: “It is essential for the better performance of your duties that you occupy South Lodge within Crombie Country Park … You will be required to vacate the accommodation in the event of you leaving the above post. Her lease, signed in April 1989, also states that “as your contract of employment requires you to occupy the let subjects for the better performance of your duties, you do not have a secure tenancy or a right to buy in terms of the Housing (Scotland) Act 1987.”

Submissions

[33] In summary, the respondents’ final submissions referred first to the statutory provisions, to 9 principles set out by the Tribunal in Smith v Dundee District Council and to the express provisions in the applicant’s letter of engagement, the letters of 26 April 1991 and 17 December 1993, the missives of the two leases to him, the documentation of the formal transfer of South Lodge, Monikie, to the Planning Department account, and the job descriptions. Occupation of the property was expressly part of the applicant’s contract and stated to be for the better performance of his duties. Even if that had not been expressed, the whole evidence produced clearly showed it. Little was necessary to show that the requirement of occupation was for the better performance of duties. The nature and extent of the applicant’s duties were then considered. He was “the eyes and ears of the Council”. He was contractually required to undertake call out duties and was best placed to respond to emergency call outs. The individuals named first on the call out list were able to respond much quicker. Reference was made to holiday arrangements. The documentation around the applicant’s move to live at Monikie made it clear that he was being required to occupy the property for security purposes. All rangers were required to respond to emergency incidents and resident rangers were best placed to do so. The better performance of the resident ranger’s duties was recognised by virtue of the subsidised rental. There would be no sense in providing this valuable benefit if nothing were expected in return. Reference was made to Kinghorn v City of Glasgow District Council; Douglas v Falkirk District Council; Docherty v City of Edinburgh District Counciland cases referred to therein; Neillie v Renfrew District Council; McTurk v Fife Regional Council and cases referred to.

[34] The applicant’s final submissions consisted of numbered propositions, some of which really amounted to further evidence. He explored the position at Clatto, where, he argued, neither Clatto Cottage nor an alternative house there could assist with security. The reference in his letter of December 1993 to benefiting the security of the park was in response to the need to make a case for an additional ‘category 1’ house. He had only moved to Monikie, which already had a resident ranger, to solve the potential problem of eviction from Clatto Cottage. He referred to the lack of any recorded special condition about providing a security presence or any duties outwith working hours other than call outs. Little importance should these days be attached to provision of a land telephone line. In emergency situations, the advice to park users was to contact the emergency services, not resident rangers, and if rangers were contacted they would do the same. Overnight security had never been part of his duties. All but six of Angus’s tied houses had been sold, five of the six belonging to the Ranger Service. Reference was made to Ms Wood’s initial refusal of the offer of the house at Crombie. The indication to Mr Greig that he would not be required to live at North Lodge was inconsistent. Reference was also made to the positions at Angus Glens and Forfar Loch, where there were also large bodies of water. Rangers were only required to live on site if they wanted to: it was not really essential for the better performance of duties. South Lodge was purely held by the Council for accommodation. Reference was made to the job descriptions, which referred to general duties regardless of living in a tied house or not. Avoiding holidays at the same time as the Senior Ranger was more to do with staffing problems during working hours. Reference was made to the respondents’ differing position in relation to janitors. The applicant referred to: Winthrop v East Dunbartonshire Council; MacDonald v Strathclyde Regional Council; Fee v East Renfrewshire Council; Smith, supra; Kinghorn, supra; Douglas, supra; Docherty, supra; and McTurk, supra. Finally, the applicant referred to some criticisms of Mr Pawley’s evidence and reminded the Tribunal of his responses.

[35] In a response, the respondents reminded the Tribunal of the extent of documentation confirming the security requirement. The tied properties had contributed to security. The parks were open and frequented by the public outside normal working hours. The applicant had been obliged to respond to call outs. He and the other resident ranger were the first contacts on the call out rota. The respondents might not prevent the applicant moving out of the accommodation but in that event he would no longer be able to undertake the duties associated with residing in the park cottage. The differences between this location and Forfar Loch, Montrose Basin and Angus Glens had been explained. Resident rangers helped to ensure cover in inclement weather. South Lodge had been built to secure access and egress through the south gate of the park.

Tribunal’s Consideration

[36] Application of the test for this particular exclusion from secure tenancies has not always been straightforward. In Smith v Dundee District Council, the Tribunal explored the difficulty related to implication of a term in the contract of employment requiring the tenant to occupy the house. The principles set out at page 30 of the Tribunal’s opinion in that case mainly address that difficulty which had to do with the test for implication of such a term in the context of the requirement being for the better performance of the tenant’s duties.

[37] In the present case, the term is express. However, it is clear from Smith and other cases that even where a requirement of occupation for the better performance of duties is expressed, the issue of better performance must be assessed by the Tribunal: the express contractual provision does not exclude the Tribunal’s function of assessment. It is necessary to identify some duty or duties which the parties have genuinely agreed as part of the contract of employment and which are better performed by the employee if he or she has the particular tenancy and occupies the house.

[38] There must be some substance to such duties. They need not, however, be central parts of the employment. Also, the question is whether they are better performed, not whether they can only be performed, if the employee occupies the house. The fact that duties could be performed by other employees who do not have service tenancies at that location is therefore not fatal, although it is certainly relevant and may be instructive.

[39] The onus of proof is on the landlord employer. The matter has to be considered as at the date of the application to purchase, in this case 20 February 2010, in relation to occupation of South Lodge, the subjects of the application, by the applicant whilst employed at Monikie.

[40] ‘Occupy’ in this context appears clearly enough to refer to actual residence, i.e. living in a house. Actual residence need not involve being present all the time: the resident may be away on holiday, or out for the day or evening.

[41] Where there are normal working hours, it will often be the case that duties during normal working are irrelevant: the employee living at or close to the place of work may get to work quicker than if he resided elsewhere, but where he lives is irrelevant while he is working. That is the basic position in this case. There is, however, a class of case in which, while that position is recognised by the landlords, reliance is placed on some form of out of hours commitment. Difficult cases have arisen where such commitment has not been clearly or specifically recorded. It is clear as a matter of law that terms of a contract of employment can be implied, and indeed Para 1(2) of Schedule 1 to the Act specifically incorporates that rule into this particular provision. So the respondents can argue that duties are implied. It is, however, natural, and appropriate, to look for some written specification of the duty or duties relied on. A particularly sceptical or questioning approach appears appropriate where, on the one hand, the words of the statutory provision have been used; and on the other hand, although normal duties are spelt out in a job specification, there is either no, or no clear, recording of the particular out of hours duty or duties relied on. Again, that is a fair description of the circumstances of this case. A local authority employer which fails properly to record out of hours duties runs a considerable risk of failing to establish that the exception applies. That said, we do recognise that there may be cases of longer serving employees whose contracts of employment were framed at a time when this was less clear.

[42] Employers might, quite reasonably (from their point of view), wish to retain ownership and resume possession of the house when the employee moves on or retires, but the statutory exception may not apply (unless there is no other accommodation available, so that it can be said that the duties could not be performed at all without occupying the house: De Fontenay v Strathclyde).

[43] In Smith, the Tribunal said (at page 33):-

“The fact that an obligation was inserted in a contract would not of itself be sufficient to satisfy the statutory requirement. Although little is necessary, we consider that the respondents cannot discharge the onus of showing that the requirement is for better performance of duties unless there is some identifiable substance in the better performance achieved or intended.”

[44] There are a number of possibilities. One is that the statutory wording has simply been inserted as a device to try to evade the right to buy, i.e. the reference to ‘better performance of duties’ is really just a sham. That is a stark way of putting it, and it may in fact reflect a very genuinely perceived need to retain the particular housing stock or to ensure that it cannot be occupied by any member of the public, as might happen, for example, if it were sold to an employee such as a school janitor who subsequently moves away. It may be that there has been no positive intention of abusing this provision but the words have been inserted almost as a matter of course but cannot really be substantiated. Another possibility is that the service tenancy, perhaps on advantageous rental terms, may really have been offered as an inducement to attract the employee, or for some other reason indicating that occupation of the house was unrelated to the fulfilment of duties.

[45] In cases such as these cases, the result may well be a secure tenancy if none of the other exceptions apply, with the result that the employee will have the right to buy.

[46] However, in some cases it may be accepted that the employers genuinely believe that the provision properly reflects an out of hours commitment of the employee which will be better performed if he is required to live in the house. In such a case, it is necessary to ask whether there is contractual agreement, express or implied, on such a commitment and, if so, whether it has real substance.

[47] Parties referred to a number of reported decisions which illustrate the approach although it must be stressed that each case will depend on its own particular facts and picking out some similar circumstances in other cases does not really assist. Cases involving janitors’ houses, including Smith, have tended to reflect a move away from traditional janitorial arrangements to arrangements involving teams of janitors, or ‘facilities co-ordinators’, whereby although a janitor might still have a tenancy of a traditional janitor’s house the link with employment at that location had really been broken and in particular it was clear that whatever advantage, if any, might be claimed from having the applicant still living there, it was difficult to relate this to employment duties. The applicant is clearly aggrieved at the respondents’ recognition of the changed situation regarding janitors’ houses whilst maintaining their view on rangers’ houses, but it is necessary in order to decide this application to look at the situation in this case. Indeed, it would not necessarily be correct to regard all the rangers who have tenancies such as this as being in the same position.

[48] We have considered the various cases in relation to houses situated within or close to parks of one kind or another, with decisions going either way in differing sets of circumstances. Cases involving some similar circumstances may on closer analysis be seen to be very different. The applicant, for example, relied on similarities with the circumstances in Winthrop v East Dunbartonshire Council, but in that case there was no evidence of any agreed link with duties under the contract of employment, the house had been built in order to attract the appropriate calibre of employee and there was no suggestion that the applicant provided any form of security presence. Other cases, in which applications were refused, were also not by any means ‘on all fours’ with this case. We must focus on the evidence in this case as to what can be said to have been agreed between the applicant and his employers and landlords and what the agreement amounts to in substance.

[49] We are satisfied on the evidence that the employers genuinely believed that there was an out of hours security commitment on the part of those rangers who had service tenancies, including in particular the applicant’s tenancy at Monikie. We do not find any indication that the tenancies at South Lodge and the other four locations were used as inducements to take the employment. We have considered the applicant’s suggestion that he was given this tenancy purely in order to solve his accommodation problem. We can accept that this was part of the background but it is still necessary to consider whether there was genuine agreement on a link between the tenancy at Monikie and any employment duties of the applicant.

[50] We accepted Mr Pawley, the current Countryside Services Manager, as a credible witness. He had had experience himself of occupying the North Lodge at Monikie under a service tenancy. In short, he spoke to a requirement for a staff presence at the site, in connection mainly with security but also to be able to respond to emergencies. This provided an early response capability. He also spoke to callout duties being better performed by a person living on the site. Mr Pawley might be thought to have a slightly old-fashioned approach to employment duties, and there is certainly a real question as to whether there was any real substance in this out of hours commitment, but we are in no doubt that, representing the employers, he genuinely believed that there was some obligation to provide some form of out of hours security presence, which was better performed by having the applicant living on site.

[51] Mr Pawley’s position seems to us to be supported by documentary evidence going beyond the documents which simply used the statutory wording. Firstly, in the applicant’s own words when writing on 17 December 1993 about the possibility of a tenancy at South Lodge, “this house, if taken over by the region, would benefit the security of the park”. The applicant was at that time working at Monikie. In reply, on 6 January 1994, the Assistant Director of Planning referred to “a need to maintain a security presence” (at that time in relation to Clatto Country Park, where the applicant then had a similar tenancy). Then, the Report to and also the Minute of a meeting of the Council’s (at that time, Tayside Regional Council) Property Sub-Committee in February 1994 refer, in relation specifically to South Lodge, to “a requirement for a house at Monikie for a Park Ranger whose duties included overnight security”. It seems to us unlikely that these references were dictated by reference to this statutory exception. Nor do we think that this was all just a cover for solving the applicant’s accommodation problem.

[52] The applicant gave evidence about the letter which he wrote in December 1993. He said that he had been advised what to write, and the reference to benefiting the security of the park was to “beef up” his case for this move. Pressed, however, as to whether he in fact believed what he had written, he said that he probably believed it at the time but, 17 years later, no longer believed it.

[53] The evidence was that, if an employee who had such a service tenancy wanted out of the obligation to occupy the house, the council would be likely to allow him to give up the tenancy but retain him in the employment. At first sight, this may cast doubt on the genuineness of the requirement to occupy for the better performance of duties. The evidence, however, was that the council would look to having the house occupied by another ranger on similar terms. This is consistent with a genuine belief in the security benefit. Further, there was no suggestion by the applicant that he was entitled to move out and retain his employment. He would have to ask. That tends to confirm the reality of the obligation to occupy.

[54] We see nothing in principle wrong with a situation in which there are a number of employees with similar duties in normal working hours, the location of their residences being essentially irrelevant to that work, but one or more of them also living in tied accommodation at or close to the workplace and carrying additional employment duties, provided that the employers and landlords can demonstrate the genuineness of the requirement to live in the accommodation so as to be able to perform these additional duties better than if they were not so required.

[55] We consider that the applicant agreed with the respondents as his employers to accept the tenancy on the basis of a degree of out of hours commitment. He accepted the original contract of employment, which was also reflected as a condition of his tenancy at Clatto. He did nothing to object to confirmation of this arrangement when his normal workplace moved to Monikie. Then there was the correspondence in connection with obtaining the tenancy at Monikie, when he himself referred to the security benefit. Again, he was at one with his employers on this matter at that time. Years later, he may, as he said, have come to think that nothing he did out of hours added to the security at Monikie, but there is no indication of any change in the agreed employment conditions. The applicant did not, and could not, unilaterally give up this commitment, especially whilst still accepting the accommodation at the reduced rent. He in fact said in evidence that he and his fellow employees had at one stage considered asking the employers if they could come out of the arrangement and pay full rent, in order to achieve protection and the right to buy, although in fairness it might be that their consideration did not reflect a full understanding of the legislation.

[56] Against that, however, there is no written contractual stipulation, and a real question arises as to whether there is any substance to this additional requirement in the contract of employment. Although, as we have said, the applicant could not unilaterally alter his contract, we must assess the substance of the matter, as relating to the applicant’s employment at Monikie, as at the date of the application.

[57] In our view, the duties listed in the two job descriptions (including the ‘catch-all’ references to ‘other duties which may be allocated’), fairly read, can only relate to duties during normal working, to which the applicants’ residence was irrelevant. Other rangers lived elsewhere. The applicant himself lived for a period at Clatto whilst carrying out his normal duties at Monikie. It cannot be said that any of the listed duties were performed any better as a result of the applicant’s residing at South Lodge. Nor do we consider that the contractual requirements to work on public holidays, or overtime, assist the respondents’ case, these again being related to normal work in the park and apparently equally applicable to rangers living elsewhere. To this extent, the case is in the same position as Winthrop.

[58] We are satisfied that the applicant is under a contractual duty to undertake out of hours ‘call-out’ duties, although there is no requirement to be ‘on call’. Although this is not spelt out in the letter of appointment, we were told, and it was not disputed, that this is a matter of collective agreement covered by paragraph 3 of the letter of appointment. This ‘call out’ commitment was also specifically referred to in the letter of 26 April 1991 at the time of the change in the applicant’s place of work. The applicant is second on a call out list, the first being Mr Greig, the senior ranger who resides at North Lodge. It seems clear that there is an order of call out reflecting employees’ places of residence, but it does not necessarily follow that the call out duties are better performed as a result of residing close by. There are cases in which call out duties reflect a specific need for an immediate response, as where a ferry operator was required to mobilise the ferry in an emergency out of hours within a specific time (MacFadyen v Argyll and Bute Council ). In other cases, however, it may simply be common sense to call first on the employees who require to travel the shortest distance to respond, for example, to an alarm sounding. So far as we could see on the evidence as to actual call outs, this case is more of the latter sort. There was evidence of key-holders for some country parks living some distance away. We are not persuaded that this, on its own, is sufficient to satisfy the statutory requirement.

[59] Apart from call outs, the respondents argued that there are requirements to respond to out of hours emergencies and to provide a security presence. As far as emergencies are concerned, we are not persuaded that there is any specific employment duty, as opposed to the reasonable expectation that, like any other nearby resident, the applicant on becoming aware of an emergency such as some form of accident would react as necessary. There is no record or evidence of any such contractual requirement. Safety notices in the park do nothing to draw attention to the availability of resident rangers in emergencies. Certain evidence about a drowning incident at Crombie in 1999, about which we have not made detailed findings, appears to support our view on this aspect. Lesley Wood, a ranger living in a tied house in that park, was off-duty, sick, when persons came to her house seeking help. She assisted by making a telephone call and also by coming out and attempting resuscitation. We would have thought that such assistance would not be in any way dependent on any contractual obligation.

[60] The security presence seems to us to be identifiably different. This is the aspect which, as we have seen, was referred to by both sides in correspondence as well as being spoken to by Mr Pawley. This particular park is owned by the employers. They keep valuable equipment on the site. The fact that there are no signs drawing attention to the possible presence of rangers is consistent with a requirement on those who live on site to provide some element of security presence. The normal arrangements about holidays may also be explained by a wish not to leave the park without any resident ranger. Local residents who might be expected to respond to some emergency might not be expected to keep an eye on the park or draw attention to any unusual or suspicious activity, as we think the resident rangers would. This is the requirement to be “the eyes and ears” of the Council …

[61] On the evidence, the content of such a duty has not been spelt out. It is extremely general and involves no particular specific requirement. The location of South Lodge is such that, without any specific requirement to undertake any form of patrol or lookout in the park, we can well understand the suggestion that this security presence may not achieve very much.

[62] On the other hand, there was in our view an identifiable, and actually identified, need for some security presence at Monikie, by contrast perhaps with locations such as the Angus Glens where the council did not own any property. We accept that the council as employers can legitimately expect the applicant to react, if only by calling the police, to any suspicious presence or actings of which he becomes aware. He is slightly, although admittedly not a great deal, better placed to do so as a result of living (although of course not necessarily present all the time) at South Lodge, beside an entrance to the park. In our view, this goes a little bit beyond the expectation on an ordinary tenant or local resident.

[63] As we see it, the lodge houses at Monikie, including South Lodge, are capable of providing a security presence. They might have been sold off as private houses, but in the case of South Lodge the opposite happened: it was acquired by the park owner with security specifically in mind. We think that this house was indeed acquired, not simply to solve the applicant’s accommodation problem, but for the purpose of providing some degree of security presence. The park, although not locked at night, was evidently not considered to require the presence of a night watchman or the like, but was considered to be benefited by the presence of a resident employee, in addition to the senior ranger living at North Lodge, to help security, to however limited an extent, simply by keeping a general eye open.

[64] Further, in the case of the applicant, this is reflected and understood in correspondence with him.

[65] In the particular circumstances of this case, we have on balance reached the view that the link with the applicant’s employment has been established and that such a duty, albeit extremely general, can be taken to have been agreed. The requirement to reside at South Lodge is for the better performance of that duty. The statutory exception applies. The applicant does not have a secure tenancy and therefore does not have the ‘right to buy’.

[66] For these reasons, we have refused this application.

[67] If any issue arises as to expenses, we can deal with this, in accordance with our normal practice, on the basis of written submissions.