OPINION

(1) Lawrence Riva and (2) Capitol Investments (Scotland) Limited v Edinburgh Airport Limited

Introduction and Summary

[1] In these two references of objections to blight notices served by the applicants under Part V, Chapter II of the Town and Country Planning (Scotland) Act 1997 (“the Act”), the respondents maintained preliminary arguments on the formal validity of the Blight Notices and on the relevancy and specification of the applicants’ pleadings. The matters raised all related to the requirements of Section 101(1)(b) and (c) of the Act in relation to endeavours to sell the qualifying interests in the hereditaments and inability to sell except at a price substantially lower than might otherwise reasonably have been expected. These arguments were considered at an oral hearing.

[2] In summary, the Tribunal decided:-

(i) the blight notices are formally valid;

(ii) the respondents’ submissions on relevancy and specification in relation to the applicants’ case under Section 101(1)(b) are not upheld; but

(iii) the respondents’ submissions on relevancy and specification in relation to the applicants’ case under Section 101(1)(c) are upheld, because in the Tribunal’s opinion there is no relevant and specific averment of the price for which the applicants’ qualifying interests might reasonably have been expected to sell but for the ‘planning blight’ claimed.

Having regard to our decision in (iii), we have dismissed these references.

Procedure

[3] The references followed the service of two blight notices dated 4 January 2012 by Capitol Investments (Scotland) Limited, as owners, and Lawrence Riva, as tenant, of what was described as an office building, known as ‘The Flying Club’, at 45 Turnhouse Road, Edinburgh, and two counter-notices by the respondents Edinburgh Airport Limited dated 1 March 2012. (The references insofar as directed against another respondent, BAA Limited, were dismissed following an earlier hearing on different issues.) The counter-notices raised objections under a number of headings under Section 102(4) of the Act, in particular under Section 102(4)(g). Written pleadings, in addition to the notices and counter-notices, had been consolidated. At the hearing, the applicants were represented by Mr Bryden, Solicitor, of Tods Murray, Edinburgh, and the respondents by Miss MacGregor, Solicitor, of Pinsent Masons, Glasgow. Each helpfully provided written Notes of Argument which they supplemented in oral submissions.

[4] The submissions on both sides generally did not distinguish between the two applications because, although the owners and tenants of a hereditament have differing legal interests, they are in this case apparently associated parties and the pleadings related in effect to a course of joint action in relation to possible dealings with their interests as a whole (although Miss MacGregor did make reference to, in her submission, a lack of clarity in relation to what was being offered for sale and by whom). The Tribunal was prepared to proceed on this basis in the circumstances of this case.

Section 101(1)(b) and (c) of the Act

[5] Section 101(1) provides inter alia:-

“(1) Where the whole or part of a hereditament or agricultural unit is comprised in blighted land and a person claims that –

(b) he has made reasonable endeavours to sell that interest … and

(c) in consequence of the fact that the hereditament or unit or a part of it was, or was likely to be, comprised in blighted land, he has been unable to sell that interest except at a price substantially lower than that for which it might reasonably have been expected to sell if no part of the hereditament or unit were, or were likely to be, comprised in such land, he may serve on the appropriate authority a notice in the prescribed form requiring that authority to purchase that interest … ”

Authorities referred to:-

Stubbs v West Hartlepool Corporation (1961) 12 P & CR 365
Campbell v Glasgow Corporation 1972 SLT (Lands Tr) 39
Bowling v Leeds County Borough Council (1974) 27 P & CR 531
Perkins v West Wiltshire District Council (1976) 31 P & CR 427
Louisville Investments Ltd v Basingstoke District Council (1976) 32 P & CR 419
McMinigle v Renfrew District Council 1992 SLT (Lands Tr) 97
Mannai Investments Co Ltd v Eagle Star Insurance Co Ltd [1997] AC 749
Sabella Ltd v Montgomery (1999) 77 P & CR 431
Ravenseft Properties Ltd v Hall [2001] EWCA 2034; [2002] 1 P & CR 22
Speedwell Estates & Anr v Dalziel & Ors [2002] HLR 43
Town and Country Planning (General) (Scotland) Regulations 1976 SI No 2022

Formal Validity of Blight Notices

[6] The Regulations. The Town and Country Planning (General) (Scotland) Regulations 1976 (“the Regulations”) remain relevant in relation to the prescribed form of blight notices.

[7] Regulation 3 provides:-

“The forms set out in Schedule 1 hereto or forms substantially to the like effect are the prescribed forms of blight notice for the purposes of” (now) the 1997 Act.

Schedule 1, Form I, is the form of blight notice referred to. This contains various alternative formulations. In relation to the requirements under section 101(1)(b) and (c), Para 3 sets out a formal statement in relation to the requirements of those provisions, ending as follows:-

“Particulars of those endeavours are set out [below] [in the letter accompanying this notice] (f)”

“(f)” is a reference to “Notes to Forms 1,2 and 3”, including:-

“(f) Particulars of the steps taken to sell the land should be given here or in an accompanying letter, and should include dates, price asked and any offers received.”

[8] Respondents’ Submissions. The respondents’ challenge to the formal validity of the blight notices in this case relates only to the particulars given in the blight notices, which were in the following terms:-

“Particulars of those endeavours are set out below:-

“The hereditament was marketed by Easy Way Financial Services Wellingborough between August 2005 and July 2006 and then by Fairways Estate Department, Tranent, East Lothian between September and November 2006. In addition the hereditament was marketed directly by us. As a result of the foregoing we had negotiations in 2007 and 2008 with three prospective purchasers, none of whom wished to pursue a sale due to the blight on the hereditament. As a result of seeking professional advice we were advised that there was no point in further marketing.”

(Capitol Investments; the notice for Mr Riva was couched in the singular, substituting “me with the owner” for “us” in the second sentence.)

[9] The respondents submitted that these notices were fundamentally flawed because they did not contain details of the price asked, for what or offers received. The Tribunal should take the prescribed notice, compare it with the notice served and decide whether it was the same or “substantially to the like effect”. It was important to look at the requirements in the legislation and the purpose of the notice. Reference was made to Sabella v Montgomery, at 434-5, Ravenseft Properties v Hall, at 630-1and Speedwell Estates v Dalziel, at 821-2,in relation to the approach to be taken. The purpose of this statutory notice was to set out what the claims were in relation to their nature and basis. Without details, the recipient could not properly set out the grounds on which he objected. He needed to know what was offered, when at what price. These notices did not refer at all to the price asked, a matter specifically set out in Note (f). The counter-notice fixed the respondents’ grounds of objection: if he was not in a position to judge whether the requirements for serving a blight notice were met, he could not properly take a view as to whether he should be objecting. Miss MacGregor said that she was relying on a ‘purposive’ rather than a ‘reasonable recipient’ (“Mannai”) approach. The issue related to the quality or substance of the information provided: for the notice to be “substantially to the like effect”, it must in substance achieve its purpose.

[10] Applicants’ Submissions. The applicants submitted that the notices were formally valid. In relation to particulars of the endeavours to sell, it was clear that there was no prescribed form. The endeavours taken to sell the hereditament would depend on the circumstances of the case. It was up to the person completing the form to fill it out as approriate to the circumstances. Note (f) was guidance and it was not prescriptive. The present case was obviously different from, for example, ordinary residential property. It was a question of fact and degree. Sabella and Ravenseft were concerned with giving the recipient information about his rights. The purpose of the notice here was to accelerate compulsory purchase. The recipient required sufficient information to understand why the claimant was seeking that. The required particulars would vary, which was why there was no specific form, c.f Speedwell. The notices were the same, or at least “substantially to the like effect”, as the form in the Regulations.

Tribunal’s Consideration: Formal Validity

[11] Parties were agreed that we require to compare the form set out in the regulations with the actual notices given, and then decide whether they are the same or at least “substantially to the like effect”. The cases referred to by the respondents are of some general assistance, although Miss MacGregor freely acknowledged that they were in different areas and indeed there is no indication of any authoritative or persuasive guidance on this issue in the particular area of planning blight or indeed in any context of compensation.

[12] The notices seem to us clearly enough to indicate what the applicants say they endeavoured to sell, viz., in each case, “the hereditament”; they summarise the efforts made; they suggest that no offers were received, and the reason for that; but they do not indicate any asking price; and overall they can be said not to be very detailed or precise.

[13] It seems to us that we should first ask whether the notices omit anything required by the Regulations. We think it highly arguable that they do not. The Regulation requires them to give ‘particulars’ of their ‘endeavours to sell’. They have given particulars of the efforts which they claim to have made.

[14] Miss MacGregor relied on the ‘Notes’, which do indicate that the particulars “should include dates, price asked and any offers received.” We did not receive any submission on the status of the Notes, which must surely be below that of the prescribed form, as otherwise that would have specified these particulars (as, for example in Speedwell). The notes themselves are in varying terms, some implying “shall” and some, including this one, expressing “should”, with certain variations in the surrounding words (Note (j), for example, qualifies the “should” by “if this is necessary”). The reason suggested by Mr Bryden for this lower degree of prescription, that it recognises that circumstances will differ, may or may not be correct, but at all events, reading the passage in the blight notice as a whole, even with the reference to Note (f), we are not persuaded that it omits to give “particulars” of the endeavours to sell.

[15] If we are wrong in that, and it is necessary to consider whether the notice was “to substantially the like effect”, the question does become one as to the importance of any difference, having regard to the purpose, not, we think, of the notice as a whole but of the requirement in question. The specific difference identified is the omission of any indication as to the price at which the hereditament was offered for sale. Miss MacGregor came to rely on a ‘purposive’ approach rather than a ‘Mannai’ approach, and we think that she was right to do so in the circumstances of this case. Having regard to the purpose, did the notice convey the important substance? Did it give the ‘core information’ required? We note that the particulars to be stated are of the ‘endeavours’, not of the price at which the hereditament might reasonably have been expected to sell or at which the claimant was able to sell it. A property can be offered for sale without specifying a price. The purpose of the requirement seems to us to be to enable the recipient authority to decide whether it has grounds, based on the adequacy, judged on a standard of reasonableness, of the endeavours to sell, to object to the notice. If there is no indication of an asking price, that may indicate to the authority a weakness under either section 101(1)(b) or 101(1)(c). Again, looking at the passage as a whole, even if it is not in the form set out in the Regulation, in our view it is “substantially to the like effect”.

[16] Although Speedwell, and some other cases referred to in the judgment of the Court of Appeal, were in the different area of leasehold enfranchisement, we do in fact consider that analogous to some extent to this case, insofar as one party is initiating a claim to exercise a statutory right, partly at least on the basis of facts within his knowledge and likely outwith the knowledge of the other, who therefore requires information about those facts. The claim has to be initiated, not by commencing proceedings as such, but by service of a notice in a prescribed form. These cases were about the adequacy of particulars required to be given in the notice. However, the regulation itself specified, in some detail, the particulars which the notice “shall contain”, albeit that the actual prescribed form had a similar “substantially to the like effect” qualification. The different layout of the regulations here seems to us to be of some significance.

[17] There was some discussion of possible inconsistency between the notices and what is averred by the applicants in their pleadings in these proceedings, but Miss MacGregor in her closing remarks accepted that, in relation to the issue of formal validity, we should only look at the notice. We think this must be correct, in particular because the recipient would of course only have it, and not the subsequent pleadings, before it. Substantial departure in the pleadings from the terms of the notice might perhaps raise different issues, such as the admissibility at all of a very different case or at least the reliability of such.

Relevancy and Specification

[18] The applicants’ pleadings. It is important to be clear than an attack on relevancy and specification, in support of a motion to dismiss, proceeds on the basis of accepting the applicants’ averments pro veritate, i.e. on the assumption that they are true. This applies not only in relation to the applicants’ case on Section 101(1)(b) and (c), but also in relation to their answer to the various other objections tabled by the respondents in their counter-notices and in the pleadings. The respondents maintain that this hereditament is not in fact subject to ‘planning blight’; that they do not anyway propose to acquire any part of it; and that the applicants have yet to properly vouch their qualifying interests. However, at this stage, as Miss McGregor readily agreed, we must consider the submissions made on the basis of assuming that the applicants’ averments on all these matters are correct, recognising that if they do not achieve dismissal the respondents will be entitled to maintain their opposition on all aspects.

[19] The substance of the applicants’ pleadings in support of their claim to satisfy the requirements of Section 101(1)(b) and (c) is to be found in lettered sub-paragraphs, (a) to (k) of Para. 24 of their reply to the respondents’ answers to the application. In summary, the applicants aver that they had intended to work together to develop the site as a hotel but concluded that they lacked the means to do so without outside investment and began to consider either obtaining such investment or selling the site, including the tenant’s interest. They had instructed a specialist commercial property consultancy with links with clients interested in investment opportunities to market the site for investment and/or sale, which company had “promoted” the site for approximately a year from February 2005. They “sought offers in the region of £500,000” for the combined sale of the two interests and “goodwill in the business”, i.e. the tenant’s business. The averments in fact refer to five disparate businesses, four carried on by the tenant (restaurant, supply of fitness equipment, music recording and publishing and film making and distribution) and one by the landlord in a retained office (investment brokerage). However, Mr Bryden indicated that the main business was a restaurant business. It is averred that as a result of the marketing by the first agents the applicant were approached by a Mr Price who was interested in purchasing the two interests, but he withdrew “due to the fact that the Site was identified as an area of future expansion of Edinburgh Airport”. In around May 2006 surveyors had been commissioned to value the site and had valued it subject to the lease at £380,000. Then, “between September 2006 and November 2006” the respective interests at the site had been placed for sale by another company, involving, “amongst other things”, a ‘for sale’ sign at the site and marketing through a prospectus. As a result of that marketing, the applicants had been approached by a Dr Lindsay, also “interested in the Site”, but following lengthy negotiations he had indicated “around September 2008” that due to the fact that the site was included in an area identified for future airport expansion the most he would be prepared to offer was £140,000 for the heritable interest and £45,000 for the goodwill of the tenant’s business (presumably, again, the restaurant business). Following the collapse of those negotiations, it is averred, the applicants sought professional advice from the same surveyors as before and been advised that it would be extremely unlikely that anyone interested would proceed to purchase, given the inclusion of the site in the area of future airport expansion, “as it would not make business sense for anyone to have endeavoured to take over the Site or establish a business, knowing that there was a possibility of compulsory acquisition in the near future”. Then, in 2008 and 2009 the applicants had attempted direct marketing of their interests, including “mobile advertising throughout Edinburgh” for two periods of approximately 4 and 2 months, ending in August 2009. As a result of the direct marketing, the applicants had been approached by a number of interested parties, including 4 named parties who, “on discovering that the site was included in and identified as an area for airport expansion”, withdrew from any discussions.

[20] In an attack such as this on relevancy and specification, the respondents’ pleadings are generally not significant, unless they make averments which they can reasonably complain the applicants should have answered. In this case, the respondents do have some averments as to matters affecting the value of the hereditament, but the applicants have answered these points in another paragraph and Miss MacGregor did not seek, at this stage, to make anything of those matters. She did suggest that we might take account of another matter, viz. the current recession, as a matter of judicial knowledge.

[21] Respondents’ submissions: Section 101(1)(b). The respondents submitted, under two heads, that there were no relevant and specific averments that the applicants had made reasonable endeavours to sell the site.

[22] Firstly, there were no averments of any efforts to sell beyond August 2009. Endeavours to sell stopping 2½ years before serving the blight notices could never be justified, particularly considering the economic conditions. Reasonable endeavours required taking steps to market the site appropriately. A delay of a small number of months might be acceptable. The applicants had not stated why they stopped marketing and their averments about the period up to 2009 did not advance any explanation for that.

[23] Secondly, more generally, the averments were unclear. Against the requirement to make reasonable endeavours to sell their qualifying interests simpliciter, there was a failure to specify what had been offered for sale, when, under what conditions and at what price. It was not clear what they had marketed in 2005 “for investment and/or sale”, or what “was promoted”. It was not clear where the proposed hotel came in, during the earlier period, and no indication of an asking price for “their respective interests” during the later period. The subject of the negotiations with Dr Lindsay was not clear. There was no specification of the date on which the applicants obtained the advice as to the likelihood of achieving a sale. There was no specification of the efforts made in 2008 and 2009, apart from mobile advertising, “amongst other things”, or of the price then sought. There was a general lack of specification about the asking price. Reference was made to McMinigle v Renfrew District Council and Perkins v West Wiltshire District Council. Cases referred to by the applicants were case-specific and of no assistance.

[24] Applicants’ submissions: Section 101(1)(b). The applicants submitted that a relevant and specific case had been pled. The issue whether the applicants had made reasonable endeavours was an issue for evidence, not legal debate, and could not be determined without considering the overall circumstances (c.f Stubbs v West Hartlepool Corporation, at 369.) Cases referred to had been decided after hearing evidence.

[25] On the respondents’ first point, as at 2009, the Rural West Edinburgh Local Plan, as amended in 2008, existed, and the applicants had endeavoured to sell. Thereafter, they had received advice as to the prospects of sale. It could not be said that it was automatically unreasonable to stop their efforts. Periods during which there had been no attempt to market the site could be identified in Louisville Investments Limited v Basingstoke District Council, at 434, and Bowling v Leeds County Borough Council, at 538, 542. The receipt of competent advice was relevant. Fair notice had been given of a clear chain of events. The pleadings distinguished the case from the efforts made in McMinigle and Perkins.

[26] On the second point, it was submitted (in addition to the above) that there was sufficient to instruct a relevant case. The opening averments were, if anything, over-specific, narrating the background. There were clear averments of marketing, and the averment as to asking price was not limited in time, but rather flowed through the period of marketing as an indication of the applicants’ aspirations. The price for the tenant’s interest could be inferred from the difference between the valuation and the asking price. This was not ordinary residential property and involved issues of fact and evidence from a number of parties, all identified in the pleadings. The averment, “amongst other things”, could be elaborated by amendment. Mr Bryden did not, however, either seek leave to amend or propose any specific amendment.

[27] Respondents’ submissions: Section 101(1)(c). The respondents submitted that the applicants’ averments did not specify what price the site would have been expected to achieve if it were not blighted land. The only averments as to price related back to May 2006. The counter-notices had clearly raised this issue. Only two figures, £500,000 and £380,000, had been referred to. The first gave no specification as to the conditions attached. The second related only to the landlord’s interest in the lease in place in 2006, which was not the current lease. There was nothing to explain why that remained relevant. No prices were attached to the 2006, 2008 and 2009 negotiations. Reference was made to Campbell v Glasgow Corporation, at 9-10. The wording of the statutory provision raised a timing issue. The primary submission was that there were no figures from which such a price at any time could be established. Alternatively, there were no figures for such a price as at the date of the application.. It was not suggested that the price as at January 2012 had to be established, but there had to be sufficient from which this ground could be established as at the date of the blight notice.

[28] Applicants’ submissions: Section 101(1)(c). The applicants submitted that their averment of their asking price of £500,000 clearly set out their aspirations for their combined interests. They had averred the price expected, and there was also a valuation. There was sufficient pleading of the applicants’ valuation, the question being ultimately whether approximately £500,000 was the price at which the interests might reasonably have been expected to sell, the only offer received being substantially lower. Campbellwas of no assistance at all, the problem in that case being related to the possibility of other factors contributing to the inability to sell. The valuer had not been able to gauge their impact. That did not arise in this case, where the single blighting factor was known. Again, that decision followed the leading of evidence.

Tribunal’s Consideration: Relevancy and Specification

[29] The applicants’ averments on this area of their case appear to us thin, vague and, when the mixture of their interests and businesses is considered, unclear. However, the step of dismissing the case without hearing evidence is a large step to take, particularly where, as we have said, we have to assume at this stage that their site was indeed “blighted land” within the meaning of the legislation; there was no indication that the airports authority, as “the appropriate authority”, did not intend to acquire the site; and the applicants have qualifying interests in the land.

[30] An action will not be dismissed as irrelevant unless it must necessarily fail even if all the claimant’s averments, reasonably construed, are proved. To satisfy the test of relevancy, there has to be sufficient material on the essential matters which require to be proved. Specification is an additional test: averments may pass the test of relevancy but be lacking in specification in respect that they do not give fair notice of the facts which it is intended to establish. The onus, in relation to this part of their case, is on the applicants. However, we agree with the applicants that we are not at this stage looking to see whether they have sufficient evidence: the question is whether they have given relevant and specific averments. We also accept that each case depends on its own facts and circumstances, and where there are issues of reasonableness we should not at this stage be assessing these, but rather considering whether the facts averred are sufficient fairly to raise the issues.

[31] Section 101(1)(b). The applicants have to establish that they have made reasonable endeavours to sell their qualifying interests. They offer to prove that in this case by reference to efforts to sell the two interests together, i.e. in effect to sell the site and buildings vacant and unencumbered by a lease.

[32] The reasonableness requirement must, we think, be qualified by the context. The efforts must be reasonable in the context of establishing the blighting effect of the planning status of the land.

[33] We do not accept that it is necessarily fatal to the applicants’ claim to have made reasonable endeavours to sell that they were not attempting to sell after August 2009.

[34] We made a suggestion at the hearing that there may be no requirement on applicants under this procedure to go on attempting to sell until they serve the blight notice. In other words, it may be that on principle landowners who have attempted to sell may have a discretion as to when, if at all, they choose to invoke the blight provisions and thus trigger and accelerate compulsory purchase (although delay might one way or another prejudice their chance of success). There is no specific limitation as to the time of the efforts to sell. We did not receive full submissions on that, and therefore do not proceed on that basis. We can decide this issue on the more straightforward basis that it must be a question of reasonableness in the circumstances whether the applicants’ efforts, judged at the date of the blight notice, are reasonable, including in relation to their timing. That may depend on the extent, and perhaps the outcome, of the efforts they have made. Further, we agree with the applicants that advice received as to the prospects, at the culmination of efforts to sell, may be relevant. The delay might well affect the applicants’ chances of establishing that they “have been unable”

[35] We also reject the submission that, overall, the applicants’ averments on reasonable endeavours to sell are not sufficiently clear. Put shortly, we agree that they could be clearer, but it does seem to us that they have, in the course of their averments, done enough to identify attempts to sell the relevant interests. Miss MacGregor wisely did not try to make too much of the references to offering the goodwill of the businesses, as well as the hereditament itself. If we accept that the primary business was as a restaurant and the premises in fact comprise a restaurant, it is not altogether surprising to find reference to sale of the goodwill, and we do not feel that we can at this stage affirm that such references are irrelevant, provided that there is sufficient indication of attempts to sell the site. There are, in any event, references in Para 24(e), (f), (h) and (j) which, in our view, give adequate notice of attempts to market the qualifying interests. We think that there is sufficient specification of the dates of the efforts. The single reference to an asking price, for the interests and the goodwill, without specifying a date, so that it is to be taken as applicable to all the efforts over a period of years, is not very satisfactory. We cannot conclude that the applicants will necessarily fail on this issue. As to specification, the applicants have named the agencies used in addition to themselves, the surveyors instructed to value and advise, and several of the parties said to have been interested. We consider that there are sufficient relevant and specific averments on this issue.

[36] Section 101(1)(c). We take a different view, however, on this issue, in which valuation plays an essential part.

[37] What the applicants have to prove in order to succeed on this issue is that in consequence of the fact that the hereditament or a part of it was, or was likely to be, comprised in blighted land, they have been unable to sell their interest except at a price substantially lower than that for which it might reasonably be expected to sell, but for that blight. Thus the applicants have to address, with relevant and specific averments, the price at which their interests might reasonably have been expected to sell; the price, if any, at which they have been able to sell it; whether the latter was substantially lower than the former; and whether the difference was a consequence of the planning blight or the likelihood of the planning blight. The respondents’ submissions are directed at the first of these, which is clearly an essential part of the statutory requirement.

[38] We should here note our view that, by contrast with some of our jurisdictions in which we are required, in effect, to fix a price or value, the requirement here is simply that one value is substantially lower than the other. Approximate values may be sufficient, particularly if, as the applicants wish us to consider, one is around £500,000 and the other £140,000 (or even £185,000).

[39] It seems to us, however, that the applicants have paid little or no attention to this aspect of their case. They certainly have not made any specific averment as to the price at which the site might reasonably have sold but for the blight. We cannot accept their averment as to the asking price, or, as Mr Bryden put it, their “aspiration”, as meeting the test. It does not follow at all that an asking price, far less an asking price which includes the (unspecified) goodwill, necessarily points to a reasonable valuation of the unblighted site. Further, there is no specification of the date of that valuation: we are asked simply to consider it as covering the whole of the period over which attempts to sell are said to have been made. That does not seem to us adequate in relation to this requirement.

[40] The applicants also refer to a valuation in May 2006 by Allied Surveyors, of the landlord’s interest in the site, at £380,000. This valuation is produced and incorporated into the pleadings, although the applicants did not refer to it in their Note of Argument or at the hearing. Can we, in relation to relevancy and specification, take this as a minimum value for the site, to be compared with the £140,000 informally offered by Dr Lindsay in September 2008, although there is no specific averment that that was the highest price at which the applicants had been able to sell?

[41] Considering the specific requirements of Section 101(1)(c), we do not think that such sketchy averments, with no attempt to address either movements of the market in general or at this location or any change in the planning position over the periods in question, will do. The applicants do not in our view indicate any valuation of their interests which could fairly be set alongside Dr Lindsay’s suggested offer. Miss McGregor referred to a change in the tenancy, into the sole name of Mr Riva, after the valuation, but the applicants’ averments may be taken as indicating only a change from Mr Riva trading as a company to sole trading, so we would not at this stage attach much importance to that. The difficulty seems to us to be more general. Proof that the applicants’ interests were reasonably valued at one figure in 2006, and an offer more than two years later was substantially lower, would not, without more, be sufficient. The point is underlined by the consideration that this was a period of very substantial disturbance, including large reductions in value, in the commercial property market.

[42] Accordingly, in our view, whether the ‘statutory price’, as it was referred to in Campbell, is claimed to be around the applicants’ aspiration of around £500,000 less the value of the goodwill, or to be based on the valuation in May 2006, the only possible figures, we do not think that there is any relevant and specific averment of the price for which the applicants’ qualifying interests might reasonably have been expected to sell if no part of the hereditaments were, or were likely to be, ‘blighted land’, for the purposes of section 101(1)(c). We therefore accept the respondents’ submissions in this regard.

Disposal

[43] It follows that we must uphold the respondents’ preliminary plea so far as relating to the relevancy and specification of the applicants’ averments in relation to section 101(1)(c) and dismiss these applications.

[44] There was a minor point, about use of the expression, “amongst other things”, at two points in the applicants’ pleadings as to their attempts to sell. At paras 24(g) and 24(h), the applicants identified ways of marketing at different times, “amongst other things”. Asked about this, Mr Bryden was not prepared to undertake that the applicants would not lead evidence about other ways of marketing. It seems to us that this is an unacceptable form of pleading, but not something which should in itself lead to dismissal. Had we not been dismissing the references, we would have deleted that phrase in these two places where it occurred.

[45] Finally, we would note that if parties are unable to agree on any issue of expenses, the Tribunal can deal with that on the basis of written submissions.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 June 2013

Neil M Tainsh – Clerk to the Tribunal