DESCRIPTIVE RUBRIC

Heritable property - Land obligations - Discharge - Land restricted to use as a police station and house - Superiors claim to compensation - loss of ability to demand payment for waiver - Human Rights Act 1998, section 3(1) - European Convention on Human Rights, Protocol 1, Article 1 - Conveyancing and Feudal Reform (Scotland) Act 1970, section 1(3), section 1(4)(i) and (ii)

Strathclyde Joint Police Board v The Elderslie Estates Limited and Others
17 August 2001
LTS/LO/2000/42

A plot of land was feued in 1942 to a police authority. The Feu Contract contained an obligation limiting the buildings to be erected on the site to use as a police station and dwellinghouse and no other purpose except with the written consent of the superiors. The police house and station became surplus to operational requirements. The Board sought discharge of the obligation. The superiors did not object on the merits but propose to grant a Minute of Waiver for a consideration of £10,000. Previous authority had established that the Tribunal would not award compensation for loss of the right to grant a Minute of Waiver. It was argued that this was inconsistent with the provisions of the Human Rights Act and the relevant Protocol. It was not disputed that but for the power of the Tribunal to discharge the land obligation, the right to grant a Minute of Waiver would have a market value of at least the proposed sum of £10,000. For the applicant, however, it was argued that applying a fair balance the established construction of the 1970 Act was consistent with proper application of the Protocol. There was a very wide margin of appreciation in this connection. The Act did provide a route for compensation. It was not necessary that compensation should be the full market value. For the respondent it was contended that the power of the Tribunal to award compensation under section 1(4)(i) was a wide power and should now be interpreted in light of authorities bearing upon the Protocol.

Held that the established approach of the Tribunal was consistent with the Protocol in that the 1970 Act was within the margin of appreciation of Parliament; that being so it was not appropriate to attempt to construe the Act afresh to see whether it could be interpreted in a way which might, in some way, be more consistent with the Protocol. OBSERVED that the substantive conclusion reached by the Tribunal was supported by the views of the Commission in Esse v United Kingdom (Application No. 10741/84).

Donoghue v Poplar Housing and Regeneration Community Association Limited and Another (Court of Appeal - 25 April 2001)
Gasus Dosier-und-Fordertechnik GmbH v Netherlands 1995 20 EHRR 403
Katikaradis and Others v Greece 72/1995/578/664
Lithgow and Others v United Kingdom 1986 8 EHRR 329
Marckx v Belgium 1979 2 EHRR 330
McVey and Another v Glasgow Corporation 1973 SLT (Lands Tr) 15
Pressos Compania Naviera SA and Others v Belgium 1995 21 EHRR 301
Robertson v Church of Scotland General Trustees 1976 SLT (Lands Tr) 11
S v United Kingdom (Application No. 10741/84)
Sporrong and Lonnorth v Sweden 1982 5 EHRR 35
Stran Greek Refineries and Stratis Andreadi v Greece 1994 A 301-B
T Petitioner 1997 SLT 724
Van Marle and Others v Netherlands 1986 8 EHRR 483


See full decision:  LTS/LO/2000/42