This is an application challenging the effectiveness of a notice by a former feudal superior, purporting to reserve certain burdens by reallotment under the provisions of section 18 of the Abolition of Feudal Tenure (Scotland) Act 2000. We heard debate at Edinburgh on 23 August 2007 when the applicants were represented by Mr Gavin L MacColl, Advocate and Mr John Stirling, Solicitor-Advocate, appeared for the respondent.
Abolition of Feudal Tenure etc (Scotland) Act 2000 (“the Act”)
Town and Country Planning (Use Classes) (Scotland) Order 1997, No. 3061
Caledonian Railway Company v North British Railway Company 1881 8 R (HL) 23
Jamieson v Jamieson 1952 SC (HL) 44
London and South West Railway Company v Blackmore (1870) LR 4HL 610
Murray v Inland Revenue 1918 SC 111
Spillers Limited v Cardiff (Borough) Assessment Committee 1931 2 KB 21
Gloag and Henderson, The Law of Scotland, 11th edition
Professor Kenneth Reid, The Abolition of Feudal Tenure in Scotland
Scottish Law Commission Report No. 168: Report on the Abolition of the Feudal System
The Concise Oxford Dictionary
Stroud’s Judicial Dictionary of Words and Phrases, 7th edition
Words and Phrases legally defined, 3rd edition
The relevant statutory provision, section 18 of the Act, is in the following terms:
18 Reallotment of real burden by nomination of new dominant tenement
(1) Without prejudice to sections 18A to 18C of this Act, where—
(a) a feudal estate of dominium utile of land is subject to a real burden enforceable by a superior of the feu or which would be so enforceable were the person in question to complete title to the dominium directum; and
(b) at least one of the conditions set out in subsection (7) below is met, the superior may, before the appointed day, prospectively nominate other land (being land of which he has right to the sole dominium utile or sole allodial ownership), or any part of that other land, as a dominant tenement by duly executing and registering a notice in, or as nearly as may be in, the form contained in schedule 5 to this Act.
(a) set out the title of the superior;
(b) describe, sufficiently to enable identification by reference to the Ordnance Map, both the land the dominium utile of which is subject to the real burden (or any part of that land) and the land (or part) nominated;
(c) specify which of the conditions set out in subsection (7) below is (or are) met;
(d) set out the terms of the real burden; and
(e) set out the terms of any counter-obligation to the real burden if it is a counter— obligation enforceable against the superior.
(3) For the purposes of subsection (1) above a notice is duly registered only when registered against both tenements described in pursuance of subsection (2)(b) above.
(4) Before submitting any notice for registration under this section, the superior shall swear or affirm before a notary public that to the best of the knowledge and belief of the superior all the information contained in the notice is true.
(5) For the purposes of subsection (4) above, if the superior is—
(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in that subsection, then a legal representative of the superior may swear or affirm;
(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm;
and any reference in that subsection to a superior shall be construed accordingly.
(6) Subject to subsection (6A) below, if subsections (1) to (5) above are complied with and immediately before the appointed day the real burden is still enforceable by the superior (or by his successor) or would be so enforceable, or still so enforceable, were the person in question to complete title to the dominium directum then, on that day—
(a) the land (or part) nominated shall become a dominant tenement; and
(b) the land the dominium utile of which was subject to the real burden (or if part only of that land is described in pursuance of subsection (2)(b) above, that part) shall be the servient tenement.
(6A) Such compliance as is mentioned in subsection (6) above shall not be effective to preserve any rights to enforce a manager burden (“manager burden” being construed in accordance with section 63(1) of the Title Conditions (Scotland) Act 2003 (asp9)).
(7) The conditions are—
(a) that the land which by virtue of this section would become the dominant tenement has on it a permanent building which is in use wholly or mainly as a place of human—
(i) habitation; or
and that building is, at some point, within one hundred metres (measuring along a horizontal plane) of the land which would be the servient tenement;
(b) that the real burden comprises—
(i) a right (other than any sporting rights, as defined in section 65A(9) of this Act) to enter, or otherwise make use of, the servient tenement; or
(ii) a right of pre-emption or of redemption; or
(c) that the land which by virtue of this section would become the dominant tenement comprises—
(i) minerals; or
(ii) salmon fishings or some other incorporeal property,
and it is apparent from the terms of the real burden that it was created for the benefit of such land.
(8) This section is subject to sections 41 and 42 of this Act.
The background material accepted by the parties or as set out in the respondent’s pleadings and accepted as the basis of debate, can be set out shortly.
The applicants are, or represent owners of, subjects at South Queensferry which were purchased as land in 1985 from the respondent’s predecessor for development as a factory. The purchase was subject to detailed conditions designed to protect the amenity of the respondent’s estate. These conditions were given effect as feudal burdens in a feu disposition.
It was the broad policy of the Scottish Parliament to sweep away the feudal system and the Act gave effect to that policy. It was recognised, however, that certain types of burden which had in fact been created as feudal burdens could quite properly have been created as real burdens for protection of the seller as a neighbouring proprietor. It was thought appropriate to allow such burdens to be preserved in certain circumstances. The mechanism chosen was to provide a set of conditions. If the feudal superior considered that his situation met the conditions, he could serve a notice on the proprietor of the servient tenement. This would give him a right to continue to enforce the burdens as a neighbouring proprietor rather than as a superior. If he did not think that he met the strict conditions, he could attempt to reach agreement as to reallotment or apply to the Tribunal asking it to agree to preservation of the right to enforce the burdens. The respondent chose to serve a notice.
The circumstances were that there was a permanent building on his land within a 100 metres of the applicants’ land. The building was a fully serviced toilet block housing a ladies toilet and a gents toilet. The block had been constructed in about 1994 for the use of persons using the adjacent field archery course. This had been tenanted by an archery club for about 10 years until May 2002. Since that time the respondent had been attempting to find new tenants. The relevant land is currently and has been marketed for let throughout the period since May 2002. The respondent had maintained the building on an ongoing basis. In particular repairs had been carried out in the toilet block in or around April 2004. Further repairs had been carried out after service of the notice. The land was laid out as a specialised sports ground suitable for only a small number of potential tenants. It was property of a type which could be expected to be vacant for substantial periods of time before a suitable tenant was found. Interest had been expressed by one archery club and also by a club interested in use of the land for off-road driving. The respondent was seeking appropriate new tenants at the time of the notice. At all material times it had been his intention that when the subjects were let the building would continue to be used as a toilet block in association with the let subjects.
There was no dispute that a notice using the appropriate headings set out in Schedule 5 to the Act was timeously sent and registered. Under the heading “Specification of condition met:-” it said: “The dominant tenement has on it a building capable of human resort in East Shore Wood, Hopetoun, South Queensferry, West Lothian which building is within 100 metres of the servient tenement”. The date of registration was 26 November 2004.
In their application the applicants contend that the notice was not in the appropriate form as it did not indicate that the conditions of section 18(7) of the Act had been met. The notice did not indicate that the building was “in use wholly or mainly as a place of human habitation or resort”. It stated merely that East Shore Wood had on it “a building capable of human resort”. Accordingly the notice did not intimate that any of the required conditions had been met. It was accordingly invalid for the purposes of the section.
The applicants also contended that, in any event, the building was not a building which was in use wholly or mainly as a place of human resort at the date of the notice, the date of its registration or thereafter. For that reason too, the notice was invalid. This contention was supported by averments of fact made by the applicants but it was argued that proof was unnecessary as the respondents own averments demonstrated this to be the case.
The applicants helpfully lodged a written Note of Arguments elaborating their contentions. At the hearing before us counsel contended that the provisions of section 18 were plain and unambiguous and it was trite that the Tribunal had to apply such provisions in accordance with their plain meaning: Gloag & Henderson para 2.13. He cited Caledonian Railway Co v North British Railway Co and Murray v Inland Revenue. He took us to a passage from Lord Hewart C. J. in Spillers Limited v Cardiff (Borough) Assessment Committee, which made the point in emphatic terms.
Under the statutory provisions various conditions had to be met in order to preserve the burdens. In particular, the dominant proprietor had to register the appropriate notice. The terms of section 18(2) were quite clear. The notice had to “(c) specify which of the conditions set out in subsection (7) below is (or are) met”. This was a mandatory provision. The notice in this case did not even purport to specify a condition. But, in any event, the only possible one was that contained in section 18(7)(a), that the land had on it “a permanent building which is in use wholly or mainly as a place of human … resort.” The notice did not attempt to say the building was “in use”. It said it was “capable of human resort” which was not the same thing at all. The statutory provision was in the present tense. It did not pose the question of whether the subjects “might possibly” be used but whether the building “is” so used. Plainly the notice did not specify that any condition was met. It did not comply with section 18(2)(c).
Counsel accepted that a building which was a dwellinghouse would not fall outwith the scope of being “in use as a place of habitation” simply because it was shut up while the owner was working, or taking a long holiday, abroad. However, he contended that if a house was empty and exposed for sale or let it would not fall within the description of being “in use”. No doubt that would be a matter of degree and there might be circumstances where it could remain a place of human resort. But if it had been standing empty for two years it certainly could not be said to be “in use”.
The second line of argument was that, even if the terms of the notice were adequate, the provisions of section 18(7)(c) were not met as a matter of fact. This was clear from the respondent’s own pleadings. Plainly the building was not “in use” at present. No-one was using it. What was said about the current position was simply that attempts were being made to let it. He added that even if it could, in a sense, be said that it was “in use as a toilet block”, this was not the same as “in use as a place of human resort”. He contended that simply going to the building to repair it would not be equivalent to using it as a place of human resort. He recognised that this, too, might be a matter of degree. If workmen were going to work renovating a house or a stable that could make these places of work and according places of resort. He also accepted that use as a stable might be a place of human resort. Humans would go there for work and pleasure. This might raise questions of degree. It was not disputed that a toilet block could be a place of human resort but nothing in the circumstances disclosed in the present case could possibly allow it to be said that the building in question was “in use”.
Accordingly, both as a matter of form and of substantive fact, the notice was invalid and ineffective. It should be discharged under the power given to the Tribunal by section 44 of the Act.
Although Mr Stirling initially appeared to contend that a proof before answer would be necessary to establish the respondent’s real intentions as regards the block, he accepted that the debate could proceed on the basis of an acceptance of an intention to continue the use of the toilet as an adjunct to the sports facility. If the applicant was successful despite that, there would be nothing additional to establish and no point in a proof. There would, of course, have to be a proof before answer if the applicants’ present arguments failed.
Mr Stirling’s contention was that on a proper approach to the phrase “in use” it was wide enough to cover the circumstances of the present case. That was so as a matter of ordinary English usage but, if there was doubt, it was resolved by a purposive interpretation.
The appropriate time of assessment, under the Act, had to be the time of swearing the affidavit. That was consistent with the terms of section 18(4). It was plainly too narrow a construction to look at actual use on the day. The proper meaning depended on the owner’s intention at that time. In the present case there was, of course, no significant difference between the time of the affidavit and the date of registration and it was convenient simply to refer to the latter.
Mr Stirling referred to the Concise Oxford Dictionary and to various judicial interpretations to show the potential range of meaning of the word “use”. It carried the meaning of continuing action. It allowed reference to purpose. It was wide enough to allow reference to intention. Intention to employ a thing to a particular purpose was the key. He referred to Stroud page 1295; Words and Phrases judicially defined, page 372. The building was part of a sports field to be let for a rent. In a planning context it was clear that subjects would not cease to be “used” simply because they were vacant. He referred to the provisions of the Town and Country Planning Order. The statutory wording admitted of the use made in the present case, namely, marketing for occupation as a place of human resort. To demand occupation on the day of swearing the affidavit was clearly too strict. Once it was accepted that the matter did not turn on the flushing of a toilet or running a tap, it was clear that a much wider interpretation was required. On any view, the expression was ambiguous and it was appropriate to look at the purpose of the section: Gloag and Henderson 2.13. Regard should be had to the report of the Law Commission at paragraph 4.34-4.35 and to the writings of Professor Reid on the subject, at pages 7, 19-20, 26 and 67.
Mr Stirling also sought support for his submission based on purpose and the intention of Parliament by reference to the nature of the respondent’s interest to protect the amenity of his home. The home lay on land adjacent to the sports field. The respondent had a clear interest. He referred to the detail of the conditions to show that their proper purpose was to protect the home. It was the intention of Parliament to protect a proper interest. In relation to the terms of the notice Mr Stirling advanced several propositions. He pointed out that section 18(1)(b) required only that the notice be “in or as nearly as maybe in” the form contained in Schedule 5. That schedule simply demanded specification of the condition met. In this case the recipient had clear notice of what ground was relied on. That was all that section 18(2)(c) required. There was no doubt which condition was meant.
The schedule contained notes for guidance in completing the form. These were said to have “no legal effect”. But it would be absurd if the example provided in the notes was held not to comply with the requirements of the Act. It was therefore important that the example made no explicit reference to section 18(7). It required specification of the “type of building”. He submitted that if the notice had referred to a “toilet block” it would have fitted the terms of the note. The words “capable of human resort” were simply an attempt to describe the type of building.
The style suggested by the note did not repeat the wording of section 18(7). It did not indicate that it was necessary to say that the building was “wholly or mainly” used for any particular purpose.
It was important to observe that the Act provided, by section 44, a means of challenging the factual content of the notice. Accordingly, there was no need to require any special significance from the content of the notice. It was, indeed, simply to give notice.
Mr MacColl said that the respondent’s submission had effectively ignored the mandatory provisions of section 18(2)(c). The words “as nearly as maybe in” could not be used to get round these provisions. These words were familiar as a style and were plainly a provision intended simply to allow modification of a strict form to allow for minor change if a heading did not fit: as, for example, to accommodate plurals.
In his submission it was clear that the effect of the notice was to avoid saying that the conditions of subsection (7) were in fact met. It was a tacit acceptance that the statutory conditions were not in fact met.
Although the statutory guidance was explicitly said to have “no legal effect”, it was not clear exactly what that would mean. What was clear was that in the examples 2 to 4 of Note 3, the statutory wording was reflected in the examples given. Plainly, what was expected under example 1 was a quotation from section 18(7)(a). The “type of building” in question was a reference to the statutory type. This supported the contention that the notice required to say, in terms, which condition was relied on.
Counsel stressed that his main point in response was that the submission for the respondent had not addressed the terms of the Act. Whatever the thinking at the stage of the Law Commission Report, the Act itself was clear. The question was whether the building was “in use” at the date of the affidavit. The argument that the subjects were in use for letting had no bearing on the statutory provision. The test was not whether the building was “in use as a toilet block” but was whether it was in use as a place of human resort. All these other ways of describing the use were a tacit acceptance that the respondent could not meet the statutory test. In particular, the respondent’s emphasis on the distance test simply showed that they could only meet half the statutory requirements. The respondent’s intentions were not part of the statutory test.
Mr Stirling suggested that his submission had been misunderstood. It was not based on use for letting or marketing as such. The proposition was that the building was being “marketed as a place of human resort”. That showed it was in use. In relation to questions of formal validity it was to be observed that the word “specify” was a somewhat elastic term. It was necessary to suit the circumstances. In the particular context it required to suit the provisions of Schedule 5. It was not necessary to track the text of subsection (7). It was sufficient that the notice made it clear which ground was relied on.
Parties agreed that the case be certified as suitable for the employment of junior counsel.
We recognise the emphasis properly placed by the applicants on the need for compliance with the provisions of the Act relating to the notice itself and that this is an issue quite distinct from the question of whether, in fact, the respondents fall within the provisions of section 18(1)(b). However, we think it appropriate to start by following Mr Stirling’s approach of first looking at the requirements bearing on that question.
It is not disputed that the respondents have identified a permanent building, a toilet block, within 100 metres of the proposed servient tenement and that if that building was in use it would be a place of human resort within the meaning of the Act. The substantive dispute relates to the meaning of the words “in use” when used in conjunction with the phrase “place of human resort”.
Although Mr MacColl’s argument was based on the proposition that the language of the statute was clear and unambiguous, we are satisfied that the word “use” cannot be so described. Unlike the word “contiguous” which was under discussion in the Spillers case, the expression “in use” has no single precise “exact” meaning. The contrast must be kept in mind when looking at the dicta in that case. “Contiguous” has the clear meaning of “touching”. To use it in any other sense could be described as being inaccurate or “inexact”. Lord Hewart was making the point that when a word has a clear correct meaning there is a heavy burden on a party asserting that a loose or inexact meaning was to be preferred. It may be noted that he did accept that there might be circumstances where that would have to be done. There might be something in the context which pointed to the loose meaning. He instanced use of “contiguous” in reference to islands. If that did occur in an Act of Parliament, it plainly could not have the exact meaning. Another example of the same principle would be where a strict meaning led, in the context, to an absurd result.
However, unlike “contiguous”, the words “in use” do not, in normal English usage, have a single proper and exact meaning. They can have a range of meanings depending on context. The present case happens to provide a clear example. A toilet might be said to be “in use” when the “engaged” sign was displayed and not “in use” when the “vacant” sign was seen. At the other end of the range, a toilet block might be said to be “in use” in the sense that it was not “disused” or “out of use”.
It was not suggested that the former meaning was required. In practical terms, it was not contended that there need be evidence of running water at or about the time of the notice. If the facts are as suggested by the applicants, namely, that the relevant building was in a dilapidated state, a question might arise as to whether the building was “disused” but on the facts as we must take them, it would be entirely appropriate to say that the building was still “in use”. Mr MacColl made the point that being in use in that sense as a toilet block was not the same as being in use as a place of human resort. We accept the distinction but are not satisfied that it is appropriate in the present context. If a place can be described as in use as a toilet block, it is not easy to see why it should not also be said to be in use as a place of human resort.
We have little doubt that, in the context of a real burden which will run with the land in perpetuity, a meaning of “in use” in a broad sense is to be preferred. We do not say that the very broadest sense will necessarily be appropriate but are not persuaded that any potential limitations or restrictions were identified in the debate which could confidently be applied. We do not require, for present purposes, to say that there should be no restriction but we have not yet identified how any restriction might fall to be expressed.
At debate, the issue was explored in a little more detail taking the example of a dwellinghouse. For the applicants, it was accepted that a house would be “in use” as a place of habitation even if no-one was actually living in it. But, it was contended that this was a matter of circumstances. If, say, the owners were off on a lengthy sabbatical, the house would still be in use if it remained fully furnished awaiting their return. But if it was unoccupied because the owners were looking for tenants it would not be in use. There could, of course, be any number of variations on the situation. However, we are satisfied that nothing can turn on the question of whether the house was being simply left unoccupied or was put on the market for let. In other words if the owners were simply away on a long holiday, it is impossible to think that the status of the house as being “in use” should depend on whether they intended to leave it unoccupied or whether they had put it on the market, unsuccessfully, looking for suitable tenants.
Equally, we are satisfied that if an ordinary dwelling-house was up for sale at the time of registration, it would still fall to be regarded as “in use as a place of human habitation” at that date. We are not persuaded that it could lose that status simply by lapse of time. Certain types of houses might take a very long time to find a purchaser prepared to pay the asking price. A more obvious example might be an office or factory which would be a place of human resort. It is not hard to find examples of offices or factories being empty for several years but on the market for sale or let. We have no reason to think that Parliament would have intended to exclude the owners of such buildings from the scope of the protection given by section 18.
When looking at the circumstances in which a gap in time following a period of actual physical use might be relevant in pointing to the use having ceased, we have no difficulty in accepting that an important element is the intention of the owner. We do not accept that intention is the only test. There might be circumstances in which intention could not survive exposure to reality. Mr MacColl gave an example of a summer house. It could be accepted as being in use as a place of human resort even if it was seldom used and had not in fact been used for many months but if, say, access to it had become blocked and nothing had been done to clear it, the inference might be inevitable that it was no longer properly in use. He recognised that this might depend on how access had come to be lost.
We did not hear further analysis of practical situations and are not satisfied that either party formulated a robust test which would give a meaning to the phrase “in use” more restricted than the general sense of being the corollary of “disuse”. It might be possible to formulate a test of intention qualified in some way. However, it seems unnecessary for us to attempt to do so. We think it sufficient, for present purposes, to say that we consider that the proper approach is to view the words as primarily intended to distinguish buildings which are disused. The precise dividing line will inevitably be a matter of impression and degree. However, in relation to a dwellinghouse, we think that if it was maintained wind and water tight and not put to use for any other purpose, then in absence of any contrary intention, it would normally fall to be regarded as a building being used as a dwellinghouse and, accordingly, one which was in use as a place of human habitation for the purposes of section 18(7).
We see no reason to apply a different approach to the question when it arises in relation to a place of human resort. Inevitably, the range of circumstances to be considered will be wider and the difficulties of finding a useful practical test or set of tests, may be greater. We need not attempt that exercise. It is sufficient to say that where subjects have been in active use for human resort and there is no actual change or intention to change the use, it can be taken to continue unless there are circumstances which point to a different conclusion.
As we think this is a matter which will have to be determined after proof in the present case, it is inappropriate to say much about possible circumstances which might have that effect. But if, for example, a building was purpose built for a particular sport and there was evidence that the sport in question had virtually died out, the intention of the owner that it be held available for a new occupier might be insufficient to justify the description of being “in use”. On the other hand, a building, suitable for use with one sport might well be said to be a building in use for sporting purposes, and thus a place of human resort, even if the next actual occupation was likely to be for the purposes of a different sport.
In our view, the question of continuation of a use is quite different from the circumstances referred to in the London and South West Railway Company v Blackmore, a case cited to us solely through its appearance in Words and Phrases legally defined, at page 373-374. The dictum, as cited, appeared to relate to a situation where there had never been any actual use. In short, there was no question of use being held to be continuing because of an owner’s intention. The Court was dealing with intention to change the use and, unsurprisingly, appeared to have little difficulty in finding that a future intention was not equivalent to use; however obviously suited the subjects might be for the intended purpose.
We are satisfied that the facts relied on by the respondent support the view that the building could properly be described as being “in use as a place of human resort” at the relevant date. Accordingly, we think the second leg of the applicants’ argument, insofar as it was essentially based on a challenge to relevancy, fails. It is unnecessary and inappropriate to express any concluded view as to how it might apply to the facts as they might be established after proof.
As this conclusion is sufficient to support the respondent’s broad argument as to the application of section 18(7), it is unnecessary to deal with the detail of the subsidiary arguments advanced on their behalf. We think there was some force in Mr MacColl’s observation that some of Mr Stirling’s formulations, properly understood, could be seen as an attempt to apply a different statutory test from that in fact provided.
We turn to the adequacy of the notice. It may be observed that we heard no citation of authority bearing on the sufficiency of notices given in other statutory contexts. Mr MacColl was content to rely on the proposition that the requirements for the notice were mandatory and that the provisions were clear and unambiguous. Mr Stirling contended that sufficient specification had been given to meet the statutory requirement. We are satisfied that it is consistent with established principle and with the submissions of the parties in this case, to distinguish between a requirement to give notice of the essential ground upon which it is based and notice of the facts and circumstances which are to be relied on to support that ground. We also consider that, unless there is a specific statutory requirement to that effect, it is not necessary for a notice to refer explicitly to the statutory ground by giving it its statutory label or by repetition of the precise words of the statute. We heard no submission to a contrary effect.
We are satisfied that the notice given in this case complied with the first obligation, that arising under section 18(1)(b), to be in the form contained in Schedule 5 to the Act. That form simply provides a statutory layout within which the relevant information is to be provided. The form used follows that layout. It is unnecessary to consider whether it follows, precisely, the guidance given by the notes because these are expressly said to have no legal effect. There is, in our view, no need for the respondent to invoke the latitude given by the phrase “or as nearly as may be” and we do not consider that phrase to have any relevant bearing on the issues before us. The difficulty does not arise from the form but from the content.
The form requires to contain the material set out in section 18(2). Subsection (2)(c) provides that the notice shall “specify which of the conditions set out in subsection (7) is met”. It is important to note that there is no obligation to specify the grounds upon which it is alleged that any particular condition is met. There is no express obligation to make reference to the statutory label.
It may be observed that the formal part of the notice does not, itself, require to contain any reference to the authority under which it is sent nor to the statutory provisions which give it effect. However, the “Explanatory Note” which is part of the Notice provides a brief explanation which includes reference to section 18 of the Act.
Both parties made reference to the express provisions in the Schedule that the Explanation and the Notes have ‘no legal effect’”. Neither attempted an exposition of the scope of this expression. Plainly the main intention of the drafter must have been to ensure that nothing in the language used could be taken to modify or change, in any way, the effect of the substantive provisions of the Act. However, for present purposes we proceed on the basis that it would be unsafe to place any weight on the fact that, as part of the Notice, the recipient would receive an explanation which would inform him that for the Notice to be valid the building required to be in use as a place of human habitation or human resort.
As we have seen, the provision of the “Notes for completion of the Notice” tells the person completing it to insert, in relation to the specification of conditions met: “The dominant tenement has on it a [specify type of building] at [specify address of building] which is within 100 metres of the servient tenement”. Although it was recognised that the words had no legal effect we heard certain submissions about the meaning of the expression “specify type of building”. Mr MacColl said that it was clear from the way the other examples in Note 3 reflected the provisions of section 18(7) that the intention was to specify which of the two statutory types of building was being founded on: a building for habitation or one for resort. Mr Stirling contended that the respondent’s Notice had, in effect, done this but he pointed out that the Note tended to suggest that it would have been sufficient to describe the type of building in the popular sense: that is as “toilet”, “house”, “stable” or whatever.
We are satisfied that the Explanation and the Notes can provide no real assistance in determining whether the provisions of section 18(2)(c) have been complied with in any particular case. We consider that what is necessary is that the Notice gives a tolerably clear intimation to the recipient as to which condition the sender says is met.
The respondent’s Notice said: “The dominant tenement has on it a building capable of human resort”. It then specified the address and said that the building was within 100 metres of the servient tenement. We think there could be no real doubt that this was intended as an assertion that the condition relied on was that set out in subsection (7)(a)(ii). In other words the notice clearly indicates the specific condition the sender was intending to intimate had been met. The applicants’ challenge is based on the proposition that the form of words used shows that the building did not in fact meet the criteria in subsection (7) and, in any event, that it does not positively assert that the building in fact met the relevant criterion.
The applicants’ submission was attractively presented and it has an appealing simplicity. To say that something is capable of being used in a particular way is quite different from asserting that it is in fact used in that way. But we are satisfied that the dominant thrust of section 18(2)(c) is to require a notice which identifies the ground relied on rather than to establish that the ground is well founded. The statutory obligation was not to set out why a particular condition was met but simply to specify which of the conditions was met. The significance of this, in our view, is that if the Notice had been in a slightly expanded form it would have complied with the statutory requirement to specify which condition was said to be met. It might have said: “The condition in subsection (7) which is said to be met is the condition that the land has a permanent building on it which is in use wholly or mainly as a place of human resort within 100 metres of the servient tenement. The condition is met in that there is a building capable of human resort”. We think this formulation implicit in the Notice as sent. There is no significant change of content or substantive meaning. The question of whether the specified condition was in fact met was one which could be determined after challenge in terms of section 44.
We accept that the probable intention of the “Notes for Completion”, in requiring specification of “type”, was to reflect the statutory requirement to identify which head of subsection (7) was said to be met. If the form had been completed to say that the building was a place of human resort, it would have met the intention of the Note. However, we have little doubt that the reference to a “type” of building is potentially ambiguous. This word would normally be read as intended to direct attention to the essential characteristics of the building rather than to the particular use being made of it. We think it likely that the use of the words “capable of” instead of “in use as” when completing the re-allotment form, arose from an attempt to comply with the statutory notes rather than from any implicit acceptance that this was a building which did not in fact meet the statutory test. A careful drafter anxious to comply with the statutory guidance can be forgiven for the conclusion that to say of a building that it is in use for a particular purpose would not normally be regarded as describing the type of building. It is easy to see why concentration on the given style could have led to the words “capable of” as a way of complying with the guidance. The drafter may have had little experience of statutory provisions with no legal effect. It might have seemed safer to try to describe the building in terms of a type which made clear which of the categories in subsection (7)(a) were relied on.
We think it plain that any recipient of the Notice would have no doubt that the respondent was intending to say that the relevant statutory conditions were met and the condition which was relied on was the one relating to use as a place of human resort. Although the notice was not happily worded, we are satisfied that on a fair reading it met the essential requirements of section 18(2)(c). On that basis, the applicants’ primary line of argument also falls.
The respondent accepted that if he was successful, the matter would not be concluded at debate. There would have to be a proof of his averments. We accordingly appoint a hearing at a date to be determined. We certify the cause as fit for the employment of junior counsel. As we indicated at the debate, counsel’s presentation was exemplary and of considerable assistance to us. The point on notice was a narrow one and involved the first case we have had to consider under the relevant provisions. We continue the cause for any submissions on expenses.