Lands Tribunal for Scotland

OPINION

Pender
v
Sibbald Properties Ltd

This is an application under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 ("the Act") seeking variation of a land obligation to enable subjects forming part of the ground and basement of a building in the "office core" of Glasgow City centre, to be used, inter alia, as a restaurant and public house.

We heard the application at Glasgow on 29 and 30 June and 1 and 3 July 1998 and inspected the subjects and relevant surroundings on 14 July 1998. At the hearing the applicants were represented by Laurence Murphy, Advocate, instructed by Messrs Dundas & Wilson, Edinburgh. The benefited proprietors were represented by Thomas McFarlane, Solicitor, Glasgow. For the applicants, evidence was given by Robert Rogerson Easton Pender, Nether Gree, Burnhouse, by Beith; Ian Donald, FRICS, a partner in Murray & Muir, Chartered Surveyors, Glasgow and Edinburgh; Paul Hugh Wingate, 8a Clevedon Gardens, Glasgow; and William Baxter Allen, a planning design director, employed by Keppie Design, 160 West Regent Street, Glasgow.

For the objectors, evidence was given by Mrs Elizabeth Neilson Sibbald, 167 Churchill Drive, Broomhill, Glasgow, a director of Sibbald Properties Ltd; Allan Stewart, CA, 53 Bainfield Road, Cardross; and William E A Wallace, FRICS of E W Commercial Surveyors and Property Consultants, 117 West George Street, Glasgow.

The application subjects, described further below, form part of the ground floor and basement of a building known as 145 and 147 Bath Street and 257 West Campbell Street, Glasgow.

The land obligation, created in the circumstances set out briefly below, is contained in Clause (First) of a Deed of Conditions by John G L Wark and others as trustees, dated 22 and recorded in the Division of the General Register of Sasines applicable to the County of the Barony and Regality of Glasgow on 23 September both days in 1966. In said Deed of Conditions the "subjects" referred to the whole tenement of offices and shops known as 145 and 147 Bath Street and 257 West Campbell Street, aforesaid and any part of the subjects separately conveyed was referred to as a "unit". The obligation is in the following terms:- "(First) The subjects and each unit are to be used and occupied solely as professional, administrative and commercial offices and storage accommodation in connection therewith but use and occupation as shops is permitted in the basement and the ground floor of the said building; But the following uses are expressly prohibited namely, use for any manufacturing of industrial processes, restaurants and clubs, preparation and sale of food and further any other use which may by noise smell or other objectionable feature associated therewith be prejudicial to the amenity of the said subjects or any unit".

The application, as amended in answer to Responses made on behalf of the present objectors, was to allow the land obligation to be varied by deleting the said clause (First) and substituting the following:-
"(First)  Subject to the proviso after mentioned, the subjects and each unit are to be used and occupied solely as professional, administrative and commercial offices and storage accommodation in connection therewith but use and occupation as shops is permitted in the basement and the ground floor of the said building; But, subject to the said proviso, the following uses are expressly prohibited namely, use for any manufacturing or industrial processes, restaurants and clubs, preparation and sale of food and further any other use which may by noise, smell or other objectionable feature associated therewith be prejudicial to the amenity of the said subjects or any unit; PROVIDED that the ground and basement floors of that part of the said building known as and forming 257 West Campbell Street, Glasgow may be used and occupied for the purposes of shops, restaurants, cafes, public houses, bars, the preparation of food for consumption on or off the premises, and any other commercial purpose which does not have a material adverse affect on the amenity of the remainder of the said building, and for storage in connection with any of the foregoing purposes". However, in course of his submission, counsel sought and was granted permission to amend the application so that from the word "PROVIDED" it read as follows:- "PROVIDED that the ground and basement floors of that part of the said building known as and forming 257 West Campbell Street, Glasgow may be used and occupied for the purposes of high class shops, restaurants, cafes, or public houses, and, as ancillary thereto, the preparation of food for consumption on or off the premises or for storage in connection with any of the foregoing purposes."

The application is brought under all three paragraphs of section 1(3) of the Act which provide that the tribunal may vary or discharge a land obligation "… on being satisfied that in all the circumstances,

  1. by reason of changes in the character of the land affected by the obligation or of the neighbourhood thereof or other circumstances which the Tribunal may deem material, the obligation is or has become unreasonable or inappropriate; or
  2. the obligation is unduly burdensome compared with any benefit resulting or which would result from its performance; or
  3. the existence of the obligation impedes some reasonable use of the land."

We found the following facts to be admitted or proved:-

1.  The whole property which comprises 145-147 Bath Street and 257 West Campbell Street is a four storey and partly sunk basement stone and slated building ("the building") situated at the south-west corner of those two streets and bounded on the south by its rear frontage to Bath Lane. The building was said to be about 130 years old. 257 West Campbell Street, the application subjects, are located at the corner of Bath Lane and comprise ground floor premises with a shop type street frontage of about 25 feet (fully 7 metres) and a floor area of almost 1,000 square feet (93 sq metres). The basement immediately below is connected by an internal staircase and extends to about 1250 square feet (117 sq metres). There is no direct access from the application subjects to any other part of the ground floor or basement of the building.

2.  In its original form 257 West Campbell Street was a totally self-contained part of the ground floor and basement of the building. However, since about 1996, it has been connected by an internal staircase to the whole first floor of the building which has a floor area of about 2180 square feet (202 sq metres). Those three levels were occupied by the firm of Breeze, Paterson and Chapman, solicitors, until they vacated the premises in February 1996. Mr Pender and Mr McFarlane were partners in that firm.

3.  Number 147 Bath Street is the main entrance to most of the building. A short flight of steps up from pavement level accesses the common entrance at ground floor level: there are stairs from there to the upper floors which are also served by an antiquated, manually operated, passenger lift.

To the east at ground level there are premises owned by Sibbald Properties Limited which are let to Tim Wright Antiques and occupied as an antique shop. To the west the same firm has additional retail premises but they belong to Timothy M H Wright and Judith M Wright as Trustees of Tim Wright Antiques. In the basement beneath the antique shop premises are the subjects at 145 Bath Street which are reached by a flight of steps down from pavement level to the entrance in a partially sunk area. Number 145 Bath Street is owned by Sibbald Properties Limited and let to Hi-Fi Corner (Edinburgh) Ltd trading under the name 'James Kerr'. They are occupied as a retail shop selling audio equipment.

4.  The second and third floors of 147 Bath Street are owned by Mr Stewart and Mr David Watson who are partners in the firm of Messrs Gillespie and Anderson, Chartered Accountants. The firm occupies the whole of the second floor and part of the third floor. The remaining parts of the third floor are let out as offices. As has been stated, the whole first floor was, until February 1996, occupied by Breeze, Paterson and Chapman who used the internal staircase at 257 West Campbell Street for access to the first floor. The doors from there on to the stairwell at 147 Bath Street were used only as emergency exits.

5.  The building is listed category B. No evidence was led to indicate the nature of any specific features listed. On inspection we found no obvious interior feature which might justify the listing (although, of course, it is not part of our jurisdiction to assess or comment on such matters). It is likely that the listing relates to the external appearance of the building.

6.  In 1965 the building was occupied by a variety of separate businesses under tenancies. Breeze, Paterson & Chapman had been tenants since the 1930s. The owners then gave notice to each tenant that they would have to buy or quit. Four of the firms decided to remain and to acquire title to the whole building. Representatives of these firms entered a Deed of Trust dated 12 May 1966 in order to facilitate their acquisition of the building. This deed was not produced. By disposition dated 13 May and recorded GRS (Glasgow) on 23 May 1966 the Trustees acquired title to the building. By said Deed of Conditions, the Trustees set out the conditions under which they were to grant conveyances of the subjects to enable the conditions to be incorporated by reference into the dispositions of parts of the subjects. The Deed was prepared by Messrs Breeze, Paterson and Chapman. John Graham Lean Wark, the senior partner in said firm was the first-named trustee. We accept that the other parties were fully aware of the terms of the Deed of Conditions and agreed to these terms. There was no direct evidence of the reasons for inclusion of particular conditions.

7.  The Deed of Conditions included Clause (First) set out above and a further 6 pages of detailed conditions relating broadly to maintenance, alterations, use of the lift, and insurance. It provided for apportionment of liability for repairs and for common charges to be shared in proportion to the current gross annual value of the individual subjects. The deed also included provision for meetings of proprietors with powers to make regulations in respect of parts owned or used in common; to control payments in respect of parts owned or used in common; to control payments in respect of insurance and the like; to order maintenance work; and to employ staff including a factor. It provided, broadly, for voting on the basis of one vote per pound of gross annual value for each separate unit.

8.  The Trustees thereafter granted dispositions of the various parts of the building incorporating the Deed of Conditions. The subjects and the first floor premises were conveyed to the said Mr Wark, Douglas MacKay, and Mr Pender, the then partners of said firm of Breeze, Paterson and Chapman, as Trustees for the firm. The disposition provided for a right of property in common with the whole other proprietors of the building in respect of various specified parts of the building including all outside walls; rights in common were also granted to the ground and first floor premises in respect of the entrance at 147 Bath Street and the passages and stairs; and to the first floor premises in respect of the lift.

9.  The subjects and first floor premises were subsequently disponed in security of a loan to the Abbey National Building Society. Over the years various changes in the partnership occurred. The loan was repaid. By disposition in 1985 with appropriate consents, the building society conveyed the subjects to Mr Pender on a narrative that he was entitled to them as an individual. At that time he was the senior partner in the said firm.

10.  In August 1993 Mr Pender retired from the firm. By Deed of 22 August 1993 he appointed himself and his wife, Mrs Rosalind Stone or Pender, as Trustees of an Accumulation and Maintenance Trust in favour of their two young children. By disposition dated 22 September 1993 he disponed the subjects and said first floor property, all known as 257 West Campbell Street, to the said Trustees. This disposition was not presented for recording in the Register of Sasines until 14 June 1996. After Mr Pender's retiral the firm continued to lease the subjects and first floor premises. Rent was paid to the Trust. On 22 September 1995 the firm merged with another firm of solicitors and the combined business was carried on from another address. The firm finally vacated 257 West Campbell Street on 22 February 1996. At that stage the rent was £18,000. Mr Pender had taken advice on an appropriate level of market rent.

11.  When the property became vacant Mr Pender wished to find a new tenant. He consulted Mr Donald. He was told that it would probably be necessary to separate the first floor from the other subjects; that the latter had potential for restaurant or bistro use; and that the first floor offices might require to be let to more than one tenant. Mr Pender instructed Messrs J Trevor & Webster, Chartered Surveyors and Commercial Property Agents, to market the subjects. In addition to press advertisements, site boards were erected on the building. No steps were taken to remove old furniture and fittings or other rubbish from the property or to improve its appearance in any way.

12.  The property particulars prepared for the marketing exercise in March 1996 offered the subjects thus: "to let, together or individually, ground floor retail unit with first floor offices above". For the first floor, rental offers over £12,750 were sought and for the ground floor and basement offers over £15,000 were invited. This latter figure had been described by the applicants' said selling agents as "bold".

13.  There was little or no interest and no positive response from potential office tenants. In about May 1996 a franchise operation trading as 'Canadian Muffin Company' expressed positive interest in a tenancy of the subjects as a coffee shop or café with "take-away facilities". Mr Pender realised that this use of the subjects would be contrary to said Clause (First). He contacted the other proprietors (that is, the present objectors). They were all prepared to agree in principle to such a use.

14.  In the event, formal agreement to the Canadian Muffin Company's use of the subjects was not obtained. They lost interest. Although it is unnecessary for us to deal fully with the negotiations in relation to that company, it is plain that difficulty arose in specifying the detail of any variation in the land obligation. There was also evidence from Mrs Sibbald that she had been irritated by the manner of Mr Pender's approach. There was evidence that the firm of Gillespie & Anderson had received advice that by agreeing to a change of use they would be "selling their birth right". We understood this to be a reference to the negotiating position which they had with the obligation in place.

15.  In about December 1996 Mr Wingate entered negotiations for lease or purchase of the subjects. He is a director of Eat Drink Company Ltd, a new company formed to operate licensed bars and restaurants. They intend to concentrate in the city centre and are currently developing a former legal office at 190 Bath Street as a hotel with restaurant and bar. They have planning permission and have been granted a provisional licence. Mr Wingate's company has reached agreement with Mr Pender for the terms of acquisition of the whole trust property at 257 West Campbell Street although no contract has been concluded. The intention is to use the ground floor as a bar or café bar which would serve snacks and coffees as well as alcohol. The basement would be a licensed restaurant with 35 covers. It was intended to be "up market". The present stairs connecting ground floor and basement would be replaced by stairs nearer the front door. The existing internal stairs up to the first floor would be removed. He would use the first floor, entering by 147 Bath Street, as his company's administrative offices. Discussions to persuade the other proprietors to agree to an appropriate change in Clause (First) to allow this proposed use of the subjects failed.

16.  There is a demand for such use in the locality. Potential customers are attracted to an area where there is a variety of restaurants. Accordingly no difficulty of over provision can, at present, be foreseen. The actual style and type of restaurant which would be operated by the company would be adjusted to fit the prevailing market niche in order to provide best returns. At present this was perceived to be a market prepared to spend £10 - £15 on food, per head in the restaurant.

17.  Planning consent and listed building consent has been obtained for the proposed change. It is a condition of the planning consent that all cooking smells, noxious fumes, or vapours from the premises shall be disposed of by means of a suitable duct carried up the rear light well of the property and terminating at a point not less than one metre above eaves level. It is a further condition that the proposed extract flue should be installed and fully operative prior to commencement of use. It would be physically possible to install a suitable and effective flue or duct which would remove any significant risk of smells, fumes or vapours affecting the amenity of the building. We are not satisfied that a suitable flue or duct could be installed without consent of the other proprietors. There was no evidence that such consent would be forthcoming.

18.  It would be possible to operate a bar with sandwiches and light meals which would not require a flue on the common wall. Development of the subjects as a café bar would be viable without a flue.

19.  The company applied for provisional grant of a public house licence for the subjects. This was opposed on the basis that the subjects were unsuitable because of their position s part of an office block and because of the land obligation. The first hearing before the Licensing Board was adjourned to allow evidence of the nature and effect of the land obligation to be presented. At the adjourned meeting on 30 June 1997, the Board refused the application on the basis that the premises were not suitable or convenient for the sale of alcoholic liquor having regard to their location, their character and condition, the nature and extent of the proposed use of the premises, and the persons likely to resort to the premises. It is plain that in reaching this decision, the Board were substantially influenced by the existence of the land obligation. The terms of their decision do not suggest to us that there would have been a refusal if the restriction in title had not been present. We accept, however, that the effect of the decision is that there is no existing consent to use of the subjects as licensed premises and that an objection on the basis of suitability of the premises remains.

20.  Despite the physical proximity of the major retail shopping area of Sauchiehall Street, including the relatively modern Sauchiehall Centre to the north east of the building, it was agreed that the relevant neighbourhood should not be treated on the north as extending beyond premises with facades on the north side of Bath Street. The applicants proposed a neighbourhood bounded by the said premises on the north; by premises fronting St Vincent Street on the south and by Pitt Street and Hope Street on the west and east respectively. There was no serious dispute that this was a reasonable "wider" area nor that a "narrower" neighbourhood would be the two blocks bounded by Bath Street, Wellington Street, West Regent Street and Blythswood Street. Bath Street has a character which is quite distinct from Sauchiehall Street to the north. It is also distinct from Blythswood Square to the south. The ground rises from Bath Street to the south levelling off on the line of West Regent Street and its continuation, Blythswood Square to the west. We consider that this forms a reasonable boundary for the neighbourhood to the south and that the said premises with facades on the north side of Bath Street is an appropriate northern boundary. We consider that although Hope Street can be described as part of the office core of the Glasgow central area (and is so described in the proposals map for Glasgow central area local plan) its character is affected by its proximity to the central retail core. We treat with some reservation the evidence relating to Hope Street although it can be described as a convenient eastern boundary. Similarly Pitt Street is a convenient boundary to the west.

21.  Although office use predominates the whole of this neighbourhood, there have been obvious changes in the use of ground and basement subjects throughout the area. Many such premises, formerly offices, are now used as bars, cafes, or take-away sandwich shops. Many such offices are now used for the sale of art or antiques. The 1996 Valuation Roll discloses four public houses in the wider neighbourhood area. There are now over 20 licensed premises in that area. However this includes HopsHHope Street which we consider to be different in character. There will seen be nine licensed premises in what we accept as a reasonable neighbourhood. The 1996 Roll shows no sandwich bars within the wider neighbourhood.

22.  These changes have occurred in properties very similar to the said building. They are no longer perceived to have any adverse visual amenity effect. The presence of licensed premises or use such as for sandwich bars in the ground floor and basement parts of office blocks has no adverse effect on capital or rental values on the upper floors within the buildings.

23.  The changes in character of the neighbourhood are reflected in the changes in planning policies over the years. The neighbourhood is within the area zoned for office purposes in the 1960 quinquennial review produced by the Planning Department of Glasgow Corporation. This recommended that the area zoned for offices was to be promoted as the prime location for office employment. There were no other recommendations concerning other uses within this area. Policy BS2 contained within the Central Area Local Plan approved in April 1984, states that "there shall be a presumption in favour of office related uses in lower ground and basement units within property in the office area, although other commercial uses will be considered acceptable subject to shopping and conservation policies". In the draft written statement dated November 1990 prepared by the Director of Planning for Glasgow District Council, Land Use Policy 1 states that "A wide range of land uses and activities will generally be acceptable in the Central Area". It is, thus, plain that there has been a considerable shift towards encouraging mixed land use within the neighbourhood.

24.  It is plain that since the report of the Clayson Committee and the said Licensing (Scotland) Act 1976, there has been a marked change in social attitudes to alcohol in Scotland. This can, in part, be summed up by referring o the contrast between the old fashion style of public predominantly used by men and offering at best "a pie and a pint" and a modern wine bar with mixed clientele prepared to sell not only wines, beers and soft drinks but also coffee and a range of foods. Use of such facilities by office staff at all levels is now comparatively common. Patterns of behaviour have changed. In 1966 senior staff could be expected to use unlicensed restaurants for lunch as a matter of daily routine. This is no longer true. Lunch arrangements can vary from day to day and range from sandwiches taken at the desk to restaurant meals with wine. These changes have had a very obvious effect on the nature of the use made of ground floor and basement premises in the vicinity of the subjects.

25.  While the subjects are empty the applicants incur outlays in excess of £7,500 per annum in respect of insurance and maintenance of common parts. They incurred costs of over £6,000 in treating dry rot in the basement. If the subjects could be let the applicants would reasonably expect to receive rental income in excess of £15,000 if the premises were used for restaurant or licensed use.

26.  We heard no evidence that use of the subjects for such purposes would adversely affect the capital or rental value of the remaining parts of the building in their present state. The immediately adjoining building 151 Bath Street is being developed for use as licensed premises. There was no evidence that this was thought likely to reduce the value of the building. We accept that, if the proprietors of the building were to seek agreement for a scheme for redevelopment, a "high value" use of the subjects would reduce the potential net gain from such redevelopment and would proportionately reduce the profit available to other proprietors.

Applicants' submission

The case was presented on all three grounds of section 1(3). Mr Murphy submitted that if the tribunal agreed to vary, it would be appropriate to have a further hearing to consider any consequential changes such as change to voting rights under the Deed of Conditions. His submission fell in three chapters: (1) survey of case law; (2) response to points raised by the objectors; and (3) reference to evidence supporting the application.

Mr Murphy had helpfully supplied copies of his authorities having highlighted passages to which he wished to refer. We do not attempt to summarise the points taken from the various cases but record that he referred to Main v Lord Doune and Others 1972 SLT (Lands Tribunal) 14 at page 15, second column, page 17 end of second column, and, in more detail to pages 18 and 19; Murrayfield Ice Rink Ltd v Scottish Rugby Union 1972 SLT (Lands Tribunal) 20 at page 21 second column and from the bottom of page 23 to the top of page 24; Bolton v Aberdeen Corporation 1972 SLT (Lands Tribunal) 26; Smith v Taylor and Others 1972 SLT (Lands Tribunal) 34 at the foot of page 36 first column and from the foot of page 36 second column to foot of page 37 first column and midway down page 37 second column; Manz v Butters Trustees and Others 1973 SLT (Lands Tribunal) 2 at page 3 and the top of page 4; Morris and Another v Feuars of Waverley Park 1973 SLT (Lands Tribunal) 67 at foot of page 7 and page 8 top of second column; McVay and Another v Glasgow Corporation 1973 SLT (Lands Tribunal) 15 at page 16 second column and page 17 first column; United Auctions (Scotland) Ltd v British Railways Board 1991 SLT (Lands Tribunal) 71 at 75 H-I; Miller Group Ltd v Gardner's Executors 1992 SLT (Lands Tribunal) 62 at 65 I and 68 C-D and H-I. The propositions established by the above cases were not in dispute. We deal with them where appropriate, below.

Mr Murphy also referred to the "keep open" cases, and, in particular, to Retail Parks Investment Ltd v The Royal Bank of Scotland plc (No. 2) 1996 SLT 669. Mr Murphy pointed out that an order for specific implement was attended with criminal sanctions. It accordingly had to be precise. In that case, the court had found the expression "bank offices" to be sufficiently precise. He referred to Lord McCluskey page 679 D-H. In response to questions about differences between real conditions running with the land in perpetuity and a decree ad factum praestandum, he referred to pages 676J - 678A. The need for great precision in the latter was well established.

Counsel also referred to Co-operative Wholesale Society Ltd v Saxone Ltd 1979 SLT 1052. In that case a lease contained an obligation to keep the subjects open as "a high class shop". The Court had rejected a submission by the tenants that this was not of sufficient precision to allow enforcement by specific implement. Mr Murphy referred to the passage at page 1055 F-J.

Mr Murphy, under reference to the objectors' case, submitted that, although the applicants as trustees were closely connected with the original disponee this was irrelevant. In any event, the original disponees had been the firm. That was quite separate from Mr Pender as an individual. It had been transferred to him on dissolution and there was clearly no community of interest between him and the firm. The fact that it was now held by trustees for his children was a further step away from the initial disponee. In any event the proper test under section 1(3)(a) related to the passage of time not to the identity of individual disponees.

He accepted that there was a right of parties to regulate their interests in the property by private means. The essence of the matter was whether variation was reasonable. In answer to the contention that the applicants had not established that the burden was unduly burdensome because the difficulty in finding a beneficial occupation was due to bad marketing, he submitted that, on the evidence, the marketing had been reasonable. At worst it might be said that Mr Pender had not been sufficiently careful of the feelings of the objectors. However that did not affect the marketing. There was no justification for spending substantial sums to make the subjects more marketable. Mr Pender, on the evidence, had followed professional advice. The evidence demonstrated lack of demand not failure or inadequacy of marketing. Implicit in the objectors' position was the suggestion that there was a conspiracy to find a high value user. However, the evidence was that Mr Pender had made strenuous attempts to permit the Canadian Muffin Company to occupy the premises. Admittedly a high value user would have implications for the other owners. This could, however, be adjusted.

Counsel submitted that it was irrelevant that a high value user would prejudice the overall development value of the building. It was not logically connected with the question of burdens and was irrelevant to the tribunal's exercise of its discretion. It had not been suggested that the Deed of Conditions was entered into or accepted with a view to preserving the overall development value of the building.

The difficulty with the flue was not insuperable. On the evidence it was not essential to have a flue within the common light well. Although it was a condition of the present grant of planning permission, this could easily be varied by the planning authority if satisfied that alternative arrangements could be made. In any event, it would be possible to have a bar facility without hot food.

Mr Murphy then turned to his substantive submissions. The evidence demonstrated a change in character of the area and, he submitted, brought the case within section 1(3)(a). He referred to the change in number of licensed premises in the neighbourhood; to the change in planning policy; to the evidence of over-supply of office floor space; and generally to the social change and changes in eating habits. Under reference to the flue and the fire precautions he submitted these matters would be adequately dealt with by the appropriate authorities, including building control. The planning consent demonstrated that it was thought the flue could be adequate to deal with smells and that adequate fire provision could be made.

In relation to section 1(3)(b) he submitted that the property had been well marketed for more than two years. The only serious applicant was for licensed premises, a prohibited purpose. The burden accordingly prevented a beneficial use. Substantive outlays were incurred while it was empty. There was no reason to assume any change in demand in the foreseeable future. The burden did not in fact confer any benefit. There was no amenity being preserved by the present use. Use as a restaurant would not give rise to any visual intrusion. There was no real issue of noise. The problem was seen as one of small. This was more apparent than real. The main occupation would be after office hours.

In any event, he submitted that under section 1(3)(c) the use proposed was reasonable. Even if the burden conferred some benefit on the objecting proprietors this was not itself a reason for refusal. Even if the tribunal did not accept that the marketing had been adequate this, in itself, was not relevant to assessment under (c).

In course of the submission, Mr Murphy sought leave to give further consideration to the proposed variation and after adjournment, changed the terms of the variation sought. The detail of this is set out above.

Objectors' submission

After further adjournment to allow time to consider his response in light of the changes proposed by Mr Murphy, Mr McFarlane confirmed that he continued to oppose the application. As the tribunal had been taken through the relevant law and was familiar with the background to the case he said he would deal simply with the matters of particular importance.

The flue was of major importance. A restaurant was prevented not only by the land obligation but by the proprietary right of the objectors in the common walls. The present application was premature. On the evidence, the applicants had not demonstrated that they could have a restaurant without a flue. The objectors would not permit this.

Although it had been represented that the licensing board had refused the provision grant simply on the basis that it was premature to make a grant while the land obligation remained unresolved, the fact was that there had been objections before the licensing board based on suitability of the premises and the problem of smells etc. The board had decided that it would be an academic exercise to consider these matters pending resolution of the title condition. No inference could be taken from the terms of the refusal letter that it was simply a matter of resolving the land obligation. The licensing board would still have to consider suitability and, in particular, the problem of smells and the difficulty over the flue.

He did not accept that the evidence demonstrated that the restaurant could function without the flue. 45% of the trade was, on the evidence, to come from the restaurant operation. The restaurant was essential in financial terms and was part of the current planning permission. The flue was fundamental. There was no evidence of technology having improved flues. The evidence led was purely anecdotal. He stressed that the evidence that the planning authorities would be prepared to change the conditions of grant of planning permission merely strengthened the importance of the protection of private right by land obligation.

When considering all the circumstances of the case the tribunal should have regard to its function in protecting amenity. A wide range of uses was permitted. The parties to the Deed of Conditions were obviously concerned about amenity. The burden specifically referred to noise, smell or other objectionable feature. In addition, the parties had plainly sought to avoid dispute as to what might be objectionable by identifying certain established categories. The prohibited categories had the common theme of being likely to give rise to noise, smell or other objectionable feature. Enforceability is always an important consideration. The problem was to identify, with sufficient precision, permitted uses. The original proprietors had done so. He accepted that there was no higher test to be applied by the tribunal because of any possible similarity of identify in disponee between 1966 and the present date. However it was a factor to be taken into consideration as part of the whole circumstances. The original proprietors had all got together and agreed the Deed of Conditions. We were not dealing with old feuing conditions but with a recent condition freely entered into by proprietors who are still involved today. This was a very important circumstance.

He accepted that there had been substantial social changes. The effect of relaxation on licensing of alcoholic liquor was widespread. However the onus was on the applicants to show that such changes made the condition obsolete or inappropriate. In fact, in his submission, these changes made the condition more important than before. Planning and licensing policy in the public interest plainly encouraged uses which might well be contrary to the amenity of private proprietors. It was all the more essential for private conditions to be enforced. He stressed that some reasonable freedom of use might properly be lost in the interests of clarity. He stressed the "overriding" interest of clarity because of the problem of enforceability. Any land obligation would have to be enforced by interdict. Clarity was accordingly of primary importance. He stressed that it was entirely reasonable for proprietors to wish to avoid the risk of disputed litigation. That was a factor to consider as part of the circumstances.

He distinguished the "keep open" cases. Relationships between proprietors were quire different from the commercial relationship between landlord and tenant. Conditions in a lease served a variety of purposes. Although the expression "high class" was common in commercial leases, it was difficult to define. In Highland and Universal Properties v Safeway Properties Ltd 1996 SLT 559 it could be seen that the pursuers had deliberately excluded reference to "high class" from the orders sought by them from the Court because this was not in issue. Although Lord Hamilton in the Co-operative case, supra, had allowed an order in those terms, this was because the parties had ample time to consider what it meant. The definition of a high class restaurant was much more subjective. He gave examples of premises which could properly be described as "high class" chip shops or "high class" burger bars. There was no justification for sales "off the premises" accordingly such operations could remain banned. A greater difficulty would arise over high class Indian or Chinese restaurants which could be "high class" and yet capable of producing pervasive smells. It was entirely reasonable for proprietors to wish clarity to avoid such disputes.

Mr McFarlane relied on dicta in Bolton v Aberdeen Corporation 1972 SLT (Lands Tribunal) 26. The mere fact that there had been substantial changes in a neighbourhood did not render a land obligation inappropriate. As in that case, the proprietors here had a real and reasonable concern. The tribunal should accept that as an important factor in the balance and not assess matters too closely.

Mr McFarlane made detailed submissions in relation to the marketing of the subjects. The actual marketing had been over a very limited period. It was common to have a delay before subjects such as office premises were taken up. The tribunal should not accept that the subjects were in any way sterilised in their use because of the burden. The evidence was inadequate. The permitted uses were very wide.

If a high value use was permitted this would change the balance of voting rights for maintenance etc. This was a real concern. It was a relevant circumstance.

Response

Mr Murphy drew attention to various points of evidence which were relevant in answer to submissions by Mr McFarlane. Further, he advised us that the variation to allow supply of food "off the premises" was intended to cover outside catering activities by the occupier. It is right that we record that we heard no evidence of this. There was no discussion of the scale upon which it might take place nor the extent to which it might intensify cooking activities and consequent need for disposal of fumes.

Decision

Having regard to what we consider to have been the purpose of the land obligation when first accepted and the probable effect of the proposed use of the subjects, we conclude that variation of the obligation is justified to allow the main uses discussed in evidence.

In this case, we require to find the intentions of the original parties simply from the Deed of Conditions itself. The terms in which the obligation is expressed are either tautologous or confused. The basic provision is a restriction in respect of the building as a whole to use as offices with a single relaxation (which applies, inter alia to the subjects), permitting use as "shops". The subsequent express exclusions suggest a doubt as to the scope of the term "shops". In any event it is wide enough to include use as a coffee shop, an off-licence for sale of alcoholic drink; a dry-cleaners shop; a paint shop; or a record shop. It would perhaps permit use as a betting shop. All these uses would, of course, be subject to the subsequent prohibition in relation to noise, smell or other objectionable feature, but might be thought to be types of use with typical features no less objectionable than, for example, most restaurants.

Looking at the terms of the obligation in light of the evidence of circumstances in 1966, we think that two main underlying purposes can be identified. There may have been a desire to protect the value of the whole building by avoidance of any use which might be perceived as a "bad neighbour". Plainly perception of certain uses as undesirable would tend to lower values whether or not the particular use in question had any identifiable harmful impact. We have no difficulty, for example, in accepting that in 1966 the conversion of premises adjacent to professional offices for use as a public house might have tended to depress values even if the public house itself was conducted in exemplary fashion. Use as a shop for sale of alcohol, ie an "off-licence", might also have been expected to have that effect on values but such a use was not excluded. We heard no evidence that use as a restaurant in 1966 would fall into the same category. The evidence was of habitual use of 'dry' restaurants by office workers for lunch.

It is probable, accordingly, that the main purpose was to protect amenity by avoiding actual nuisance from definable factors such as noise or smell. In looking at the proposed uses of the subjects, we are therefore mainly concerned with the risk from that point of view.

We do not accept that it can reasonably be inferred that in framing the Conditions there was any intention to prevent use which would have a "high value" and thus upset the balance on, or potential for, redevelopment of the site.

The other purpose stressed by Mr McFarlane was to achieve clarity. He emphasised that the parties could be taken to have wished to avoid any risk of argument over what was or was not permitted. We doubt, however, whether weight can be given to that as a specific purpose of an obligation. It is trite law that real burdens are to be interpreted narrowly and with a presumption for freedom. Clarify of exposition is always the goal. However a restriction which went beyond the practical praedial needs of proprietors could seldom be justified purely because it was thought to be clearer in meaning than a more limited restriction. That said, we accept that a problem of definition does arise and we do not exclude the possibility that a definition which might go further than was strictly necessary, could be accepted as reasonable as a practical means of achieving control. It may be observed that we are not persuaded that clarity of exposition was uppermost in the minds of parties to this particular agreement.

Although the 'Tribunal accepted in the case of McArthur v Mahoney 1975 SLT (Lands Tr) 2 that there might be circumstances in which it would be proper to take into account what has been referred to as a "windfall benefit" where maintenance of an obligation would achieve a purpose outwith the original intention, we think such cases are rare. In McArthur, the Tribunal observed (at p.4) that "the disappearance of the substratum must be a powerful argument against preserving the obligation even if it is not held as conclusive". (It may be observed that, as reported, the case appears on its facts to show that the "substratum" which had disappeared was the justification for the original building and not the substratum of the obligation limiting its height. However the Tribunal was prepared to assume for the purposes of the argument that it was the initial reason for the obligation which had gone). In the present case, it is sufficient to say that we find no justification for giving effect to any incidental or windfall purpose to be achieved by enforcing the obligation. We consider it proper to proceed on the basis of the purpose originally intended by it.

It is convenient next, to deal with the submission based on the contention that great weight should be given to the fact that the present parties were, in substance, the same as the original contracting parties.

We accept that there is no significant difference between Mr Pender's position as an individual and his position as a trustee, in a trust created by him, for the benefit of his pupil children. There are some very obvious differences, on the other hand, between holding subjects for a partnership and holding as an individual after leaving that partnership. However we do not consider that it has been demonstrated that these matters are in any way relevant to the present issue. All burdened proprietors are assumed to be aware of the conditions accepted by them. There is no dispute that the source of Mr Pender's problems lies in the fact that the original occupants, who were truly the original proprietors, namely, Messrs Breeze, Paterson and Chapman, have, for business reasons which were not fully explored before us, vacated the subjects. Mr Pender cannot, on the evidence, be faulted in any way for this. On the other hand, we think it is relevant that the benefited proprietors remain the same. Where an obligation has been imposed to meet particular wishes of a proprietor and that proprietor has not changed we accept that may be an important factor to be taken into account. In the present case we have also had regard to the fact that the burdens were to an extent reciprocal: in other words burdens of a type which has been referred to as a "community burden". Again, we accept that this may be a feature which requires special weight. Where burdens are accepted as part of a scheme imposing similar burdens on the benefited proprietors, that is an aspect of the nature of the obligation which adds weight to its reasonableness. However the prime factors for consideration are the purpose and effect of the obligation. The main significance of the nature of the obligation in the context of a reciprocal burden is that granting of the variation in respect of one proprietor would undoubtedly be a powerful, thought not necessarily conclusive, precedent for varying the burden on others. In the present case nothing was made of this. However we have had regard to the fact that any use permitted for the present subjects would, in all probability, have to be accepted for the other ground floor or basement premises in the building.

We turn to consider the evidence bearing on the reasons for objection. Mrs Sibbald, on behalf of the company Sibbald Properties Limited, was plainly concerned about smell and we deal with that issue below. Her other express concern was about fire safety. We are not satisfied on the evidence that this is a factor of particular significance. Appropriate precautions will, of course, be required, but such precautions present no unusual difficulty and little was made of this in the submissions.

Although Mr and Mrs Wright are objectors and Mr McFarlane's submissions were, of course, made on their behalf, we did not hear of concern specific to them. Their praedial interest as proprietors of the shop premises round the corner from the subjects is unlikely to be directly affected by any of the suggested uses of the subjects. It is possible their business would benefit - even if only marginally - from the increase in passing trade generated by the use now proposed.

The objections expressed by Mr Stewart on behalf of the firm of Gillespie & Anderson, reveal a basis for objection which goes beyond the interest properly protected by the land obligation. Mr Stewart told us that the firm had initially been sympathetic to the idea of use by the Canadian Muffin Company. However they had been advised that consenting to a change would be equivalent to selling their birthright. The implications of this expression were not explored in evidence. We think it unlikely to have been related to considerations of amenity. In the present case there was a clear financial interest in maintenance of the obligation. Mr Stewart explained that if the stage was reached of complete renovation and redevelopment of the building or the site, the presence of a high value occupier could have an adverse effect on the interests of the other proprietors. Mr Wallace had given advice to that effect in his letter of 27 February 1997. He had advised that allowing development of a bar/restaurant would sterilise any prospect of redevelopment of the building as the cost of assembling a bar/restaurant would inevitably put any redevelopment of the rest of the site beyond the pale. Mindful of that, he suggested that any consent to variation be conditional on a payment to Messrs Gillespie and Anderson of a sum of £60,000 and a conveyance to them of the whole first floor office premises for nil consideration.

Such matters can, no doubt, be distinguished from a straight demand for payment for release of a burden in which the benefited proprietor has no proper interest. However, these are not factors which have a proper bearing on the matters we have to assess under section 1(3). We have no reason to think that such considerations were in the minds of parties when the burdens were agreed in 1966 and we see no justification for allowing them to influence our assessment. The obligation with which we are concerned was plainly intended to protect the amenity of the units in the building as it was occupied in 1966 not to influence the allocation or distribution of units in some entirely new development.

The applicants accepted that we should have regard to the effect of the land obligation within the Deed of Conditions. Mr Donald's report included a calculation intended to demonstrate that the changes proposed would not alter the balance of voting power in relation to control of common parts of the building but, that the other proprietors would be likely to benefit from the proposed change as the probable increase in the rateable value of the subjects would lead to decrease in their shares of the common repairing, responsibility. Mr Donald's assessment of rateable value of the subjects as he expected them to be operated by Mr Wingate was £16,000. This, he conceded, was a figure produced for him by the surveyor in his office experienced in the rating valuation of licensed premises. Mr Wallace challenged this figure. He explained the probable basis of the rating assessment of the subjects as licensed premises and produced a figure substantially higher than that used by Mr Donald. He thought that Mr Donald's figure must have been based on comparison with a neighbouring business, 'Sartis', but that business did not have a full public house license. Based on Mr Wingate's projected figures he assessed the rateable value of the subjects at £55,000. This would give the owner of the subjects and the first floor the major voting rights. Mr Wallace's evidence was impressive in its obvious familiarity with the approach to valuation of licensed premises now operated in Glasgow. His figure was, however, based on Mr Wingate's projection. We are entitled, as an expert tribunal, to have regard to the fact that the figures used for the other parts of the building were existing rateable values. These would be based on assessment as at 1 April 1993. We have little difficulty in drawing the inference that the change of use to licensed premises would alter the voting weights in favour of the owners of the application subjects. However, we are not satisfied that on properly comparable figures, the owner of the present trust premises would necessarily have a majority of votes. It is plain that the owners of the application subjects, as such, would not have a majority.

In any event, we do not consider that preservation of a particular voting balance was a purpose of the original obligation. The formula allows for fluctuations in value over the years. We have considered the issue as part of the general exercise of our discretion under section 1(3) but are not persuaded that it should be given any significant weight. We are, of course, aware of the applicants' offer to agree to vary the conditions so as to adjust the balance of voting. This seems a sensible and neighbourly approach to the matter. We would encourage it. However, we recognise that the various interested proprietors may not ultimately be able to agree a suitable formula. We do not consider that variation of the land obligation is dependent upon this.

Returning to the main ground of objection we consider that the risk of smell has been established as a well-founded concern. There was some reference to noise but little was made of this and, having regard to the layout of the building and the use made of it as offices, we do not consider that noise presents any significant difficulty.

If a restaurant kitchen was operating without adequate venting it could give rise to adverse effects on amenity which would justify giving full effect to the obligation preventing such use. However as was confirmed by our inspection it would be physically possible for an adequate flue to be installed in the lightwell without itself having adverse impact on amenity. It appears on the evidence that the objectors are not, at present, prepared to agree to this. We cannot compel agreement and it is, accordingly, clear that, as matters stand, the objectors would be able to prevent the use for which the applicants have planning consent. We return to this matter below.

We turn now to consider the specific statutory grounds for variation against the foregoing background. We consider that the effect of the evidence as a whole is that there have been changes in the neighbourhood and in society's attitude to the use of alcohol which mean that use of such city centre subjects as licensed premises cannot now be seen as inherently offensive or liable to reduce value. We accept that a land obligation which gives neighbouring proprietors a specific right to object to adverse nuisance factors, such as noise and small continues to be of value. Indeed, as Mr McFarlane contended, the very fact that attitudes have changed so that planning policies are more favourable to licensed premises, places more importance on private controls to protect the private rights of individual neighbours. However we consider that if the obligation can be varied to leave a protection for such specific identifiable elements of nuisance, a broader burden, preventing a whole class of use otherwise acceptable in the neighbourhood, is now "unreasonable or inappropriate" within the meaning of section 1(3)(a).

Having found that as a result of relevant changes a particular burden is inappropriate under (a) it is unnecessary for us to reach a separate view on the submissions under head (b) of subsection 1(3). Factors justifying exercise of our discretion under one of the statutory heads frequently have a bearing upon another head. The tribunal is seldom persuaded that a case has been established under (b) in absence of change but, where there has been a change, a conclusion that a burden has become inappropriate in terms of (a) normally reflects our view that the benefit does not justify maintaining the burden. The matters founded on as establishing ground (b) have in other words, been persuasive in relation to our decision on (a).

In considering ground (b), the Tribunal has often pointed out that a burden is not to be described as unduly onerous merely because it prevents a proprietor maximising the commercial gain from his land. In the present case we accept that commercial subjects are frequently marketed without any attempt to improve their appearance in any way. It cannot be said that the applicants were unreasonable in attempting to sell or lease the subjects as they stood when vacated. However we are not persuaded that the evidence as to marketing of these particular premises in this case, demonstrates that the subjects are incapable of a reasonable range of uses while subject to the land obligation. No doubt prospective tenants may be expected to haggle over the level of rent or incentives at the negotiating stage. On the other hand, effective marketing may require more than was done here. Each case will turn on its own facts and no purpose is to be served by analysis of the evidence of steps taken to dispose of the present subjects.

We consider that the obligation as it stands does impede some reasonable use of land in terms of section 1(3)(c). Use as a licensed bar and restaurant can now be described as a reasonable use from he viewpoint of public acceptance and impact on amenity generally. Such uses are now well established in similar situations, including locations in the immediate neighbourhood of the building. They may, of course, have specific adverse consequences and we could not accept a use as reasonable within the meaning of the subsection unless satisfied that significant nuisance can be prevented. We think that is a matter of formulation of the detail of the variation. We are satisfied that it would be physically possible to use the subjects for a licensed bar and restaurant without significant impact on the office uses above or the proper interests of the other ground floor and basement proprietors.

If the restriction is inappropriate within the meaning of section 1(30(a) it is unnecessary to determine whether the absence of permission for a flue is fatal to the case under (c) or to take a view as to the prospects of grant of a suitable liquor licence. However it is right that we should deal briefly with the submissions on these matters.

Although Mr Wingate expressed the view that an external flue was not essential to his use of the subjects, the existence of such a flue is an essential condition of the current planning permission. There was no sufficient evidence to persuade us that the subjects could be used as a restaurant without such a flue. It was contended, accordingly, that it was not the land obligation which prevented use as a bar and restaurant but the absence of any likelihood of permission to install a flue.

We accept that there may be circumstances where the existence of factors other than the land obligation standing in the way of a particular use might lead to a finding that the use was not reasonable. The Lord Justice Clerk (Grant) in Murrayfield Ice Rink v SRU 1973 SLT 99 at 106 gave an example where "unfathomable difficulties in regard to planning, building alterations, parking and access" made use impracticable and hence unreasonable. We do not, however, accept that it is necessary to demonstrate that the land obligation is the only obstacle to a particular use before we can hold that subsection 1(3)(c) has been established.

We realise that in Cameron v Stirling 1988 SLT (Lands Tr) 18, the Tribunal's observations on planning permission appear to point to a different conclusion. At page 20J the Tribunal said that: "A refusal of planning permission is probably conclusive evidence that the relevant land obligation does not, of itself (our emphasis) impede the proposed new use of the land". The Tribunal was there dealing with a situation where planning permission had been granted and the observation was plainly obiter. We heard no argument that section 1(3)(c) was limited in application to a situation where the burden was the only factor impeding the use. In the context of legislation designed to allow the Tribunal to free land from the constraints of unreasonable land obligations we see no reason why the mere existence of some other apparent impediment should prevent application of the Act. There is certainly no express provision that all other impediments must be removed before a land obligation can be changed. Such a rule could work quite capriciously. It is well established that there is no obligation to seek planning permission before an application to the Tribunal although it is often thought that as the grant of planning permission may be of persuasive assistance in relation to reasonableness of a use from the public view point, it is sensible to deal with it first.

It is obvious that refusal of planning permission might, in some circumstances, lead to the conclusion that a proposed use was not in fact "reasonable". That however is a separate issue which might depend, for example, on examination of the reasons for refusal and assessment by the Tribunal of the prospects of appeal. We discuss this below in relation to the proceedings before the Licensing Board in the present case.

A similar objection was presented in relation to the decision of the City of Glasgow Licensing Board refusing the application for the provisional grant of a new licence. The formal reason for refusal was that the premises were not suitable or convenient for the sale of alcoholic liquor having regard to their location, their character and condition, the nature and extent of the proposed use of the premises, and the persons likely to resort to the premises. It is plain that this was a refusal in standard terms and that it is necessary to look t the more particular detail given in the decision letter of 25 July 1997. It is also plain that the application was first continued in order that the deed of conditions could be considered. The Board were thereafter satisfied that the deed did on the face of it prevent the proposed use of the application premises. The board took the view that their role was to license premises which were in a position to trade. The relevant clause in the deed constituted a real and obvious impediment to the premises trading. The letter said expressly: "The Board was concerned about the situation which could arise, as in this case, (our emphasis) where the criteria for approving and finalising the provisional licence may be met but the premises were still not in a position to trade by virtue of the restricted use condition in the relevant deed. Such a grant could distort consideration of other applications in assessing over provision." They specifically granted leave under section 14 of the Licensing (Scotland) Act 1976 allowing an application to be presented within a two year period. The basis upon which this was requested was that it might be possible to have a land obligation varied within that period. On the face of the decision letter, it is accordingly reasonable to infer that a licence would probably be granted if the land obligation was varied to permit such a use.

It is apparent that the applicants have found difficulty in formulating a variation to meet the needs of the uses proposed. The variation initially requested was changed to that set out above and two further changes were proposed in course of debate. Mr Murphy did suggest that if we were prepared in principle to allow a variation, the detail could be resolved at a further hearing. However we think that there is a need to be confident that it is possible to specify with some precision the scope of uses to be permitted before being satisfied that variation is appropriate.

We think it plain that the variation now proposed goes beyond uses discussed in evidence and beyond uses justified by the evidence. For example Mr Murphy argued that the variation proposed would cover use of the premises as a base for outside catering. The implications of this were not touched on in the evidence. It could lead to substantial intensification of the use of cooking facilities and, possibly, an emphasis on a type of operation far removed in character from even a restaurant. The limiting feature would be that the outside catering would be "ancillary" to a "high class" restaurant. Both these terms are liable to create doubt and difficulty.

As we have said, we consider that provided the risk of significant adverse noise, smell or other objectionable features can be controlled, the specific use proposed by Mr Wingate is a reasonable one. It is unnecessary, however, to focus solely on that proposed use and that basis for variation of the obligation. Having found the restriction to be inappropriate in light of the changes discussed above, the task is now to reformulate the restriction in reasonable and appropriate terms.

It is unnecessary for us to express any view as to enforceability of a burden in terms of "high class" use. We accept that an order ad factum praestandum, with its potential sanctions, requires to be expressed with precision and that decisions or dicta in that context are likely to be of assistance in relation to real burdens or conditions. However, it is one thing to accept that a condition in terms of high class use is not void from uncertainty and another to choose to accept such terminology ab initio. Where such an expression is used in relation to an established pattern of business and after the implications have been ventilated at debate there may be little room for any genuine doubt. These factors are absent in a burden to run with land in perpetuity.

There was evidence of concern about a fast food type of operation. Some such operations can, no doubt, be described as "high-class", but the description would not, of itself, say anything about the nature of the use. We consider that if the specific practical concerns of noise and, particularly smell, can be adequately dealt with, the main protection for amenity lies in the location of the subjects. We see no need, in the circumstances of the present case, to rely on such a subjective term as "high class" in relation to a restaurant, café, or public house. No such qualification was applied to "shops" in the original obligation.

We have no real doubt that the operation presently envisaged by Mr Wingate would be as likely to enhance as to detract from the amenity of the building. We recognise, however, that public houses can be operated in a wide variety of ways. We recognise, too, that the means of control available to the Licensing Board are not designed to give full protection to the private interests of immediate neighbours. Here again, however, we consider that if the controls in respect of the practical concerns of noise and smell remain, the wider aspects of amenity will be adequately protected by the location. We are not aware of any features of the catchment area which would be likely to lead to a public house in this location attracting a clientele of the type which caused Mrs Sibbald's concern.

We are satisfied that most types of bar or restaurant will be able to operate without creating significant nuisance and that the real problem is potential smell. We do not accept that use for a carry-out trade is acceptable even as an ancillary to a restaurant. Smell is notoriously more difficult to control where there is constant coming and going with food being taken out. Such trade may also tend to give rise to groups of people gathering outside the premises and to problems of disposal of waste food and wrappings. We accept that certain types of restaurant can give rise to greater problems than others. Although the quality of evidence on this point was not impressive, we accept that it supported the conclusion that fish and chip shops, Indian and Chinese restaurants, may be associated with pervasive smells. Although we think that venting should be capable of dealing adequately with such smells if there is no "carry-out" trade, we understood the applicants to accept that it would be appropriate to qualify the types of restaurant permitted in order to attempt to avoid types of use which were recognised as creating a particular risk of such problems. There can be no doubt that some Indian and Chinese restaurants are properly described as "high class" by any standard. However in light of the applicants' attitude to the variation and the use now proposed to be made of the subjects, we think it appropriate, in the context of the present application specifically to exclude use for Indian, Chinese or other oriental styles of cooking and to exclude use where the predominant method of cooking is by total immersion in fat.

It follows from the above that we are not persuaded to grant the variation now sought. We have reformulated the obligation in terms of a right to use the ground floor and basement subjects at 257 West Campbell Street as shops, restaurants, cafes, public houses, excluding use where the predominant method of cooking is by immersion in fat; use for Indian, Chinese or Oriental styles of cooking; and use for supply of hot food for consumption off the premises. The permitted uses will all be subject to exclusion of use which adversely affects amenity by noise, smell or other objectionable feature.

Parties were agreed that Mr Wallace, Mr Donald Mr Allen be certified as expert witnesses and that sanction for use of junior counsel was appropriate. It was agreed that the question of expenses should be reserved.