DESCRIPTIVE RUBRIC

Heritable property - Land obligations - Discharge - Burden restricting use of railway land to "use for railway purposes" - Proposed development as shopping centre - Implications for links with adjacent harbour - Proper approach to planning consent - Importance of original purpose of obligation - Need not be sole impediment - Relevance of prematurity - Tribunal discretion - Conveyancing and Feudal Reform (Scotland) Act 1970, section 1 (3) (c)

Railtrack plc v Aberdeen Harbour Board
17 December 2001
LTS/LO/2001/13, 14-21 and 28-31

The proprietors of the railway freight terminal in the centre of Aberdeen applied for discharge of land obligations which, inter alia, restricted the subjects to use "for railway purposes". Planning consent had been given for development as a shopping centre with related car parking. This was part of a wider development which included development of integrated passenger rail and bus stations. It was intended that the proceeds would be used to provide a large new goods yard at a farm at Dyce, and a smaller one in the city at Craiginches. Discharge was opposed by the Harbour Board as benefited proprietors. The Harbour lay immediately across a busy road from the terminal. Little use was currently being made of the terminal for harbour traffic. Because of the road layout, vehicles travelling from the yard to the harbour required to take a significant detour. Use of the new yard at Craiginches would only add some 10 minutes or so to the trip. Having regard to current levels of traffic the difference was of no commercial significance. However it was reasonably expected by the Board that developments in the scope and pattern of goods traffic through the harbour would lead to greatly increased use of the railway facility. A direct traffic link across the road between the harbour and the yard would be possible. It would be much more convenient than Craiginches. Movement of goods from the harbour to Dyce would not be practicable. The harbour did have land available for development as a railway goods yard to the north but train movements from there to join the main line would be slow and complicated.

Held:

1. Assessment of the reasonableness of the proposed use involved three principal elements: reasonableness from the public viewpoint, sometimes referred to as prima facie reasonableness; assessment of the adverse impact on benefited proprietors; and identification of the original purpose. The weight to be given to the adverse effects depended on whether these fell within the scope of the original purpose. A grant of planning permission might, in many cases, do little more than establish that proposal was reasonable from public perspective but where the issues were matters in the public sector, the planning consent might be of positive weight. The Tribunal could have regard to the public benefit of the proposed new yard at Dyce. This would be much better for most existing and potential customers. It would remove a significant number of heavy goods vehicles from the city centre. The new passenger facilities would be a significant benefit. The adverse impacts on the Harbour Board would be more speculative. The Harbour Board did not itself use the rail facility. Impact would be indirect and depend upon the comparative attraction of the harbour to its potential customers. It was reasonable for the Board to seek to maintain the facility but this was not the purpose of the obligation. It had plainly been imposed as part of the statutory authority given to the railway company. The adverse effects were, accordingly, of no special significance. It was noted that the objectors had founded on a variety of public policy documents, stressing the need for direct rail and harbour links. But these were in the public domain. The planning system was designed to make a proper assessment of such matters.
2. It was not necessary in an Application under section 1 (3) (c) to show that the land obligation was the only impediment to the use.
3. The Tribunal doubted whether a plea of prematurity would normally be a relevant plea where the Tribunal was satisfied that a particular use was reasonably likely to take place.
4. It was doubtful whether there was any role for separate discretion after the Tribunal had made a decision under head (c) because assessment of "reasonable" included all elements likely to be relevant to exercise of such discretion. In any event use of the discretion would rarely be justified where the Tribunal was satisfied that it could make a finding under any of the heads of section 1 (3).

Cases referred to:

Anderson v Trotter 1998 SC 925
Biggerstaff v SSBCA (LTS/LO/1990/17)
Bolton v Aberdeen Corporation 1992 SLT (Lands Tr) 26
Cameron v Stirling 1988 SLT (Lands Tr) 18
Crombie v Heriot's Trustees 1972 SLT (Lands Tr) 40
Cunninghame DC v Fforde (LTS/LO/1992/8 at page 17)
Driscoll v Church of England Commissioners [1975] 1 QB 330 at 431
Re Ghey and Galton's [1975] 2 QB 650
Henderson v Mansell LTS/LO/1992/41
Jackson v Bell (LTS/LO/1996/12 and 13)
Keith v Texaco Ltd 1977 SLT (Lands Tr) 16
Lord Advocate v Glasgow Corporation 1973 S.C (HL) 1 at 12
Lothian Regional Council v George Wimpey & Co Ltd 1995 SLT (Lands Tr) 2
Macarthur v Mahoney 1975 SLT (Lands Tr) 2
Main v Lord Doune 1972 SLT (Lands Tr) 14 at 19
Merchant Company Education Board v Bailey (LTS/LO/1994/51)
Miller Group Ltd v Gardner's Exrs. 1992 SLT (Lands Tr) 62, 67, 68
Murrayfield Ice Rink v SPU 1973 SC 21 at 26
Nicolson v Campbell's Trustees 1981 SLT (Lands Tr) 10
Noble v Viscount Reidhaven (LTS/LO/12989/98 at page 10 and 11)
North East Fife District Council v Lees 1989 SLT (Lands Tr) 30
United Auctions (Scotland) Ltd v BRB SLT (Lands Tr) 71
Solway Cedar Limited v Henry 1972 SLT (Lands Tr) 42
Stevens v Smith (unreported, 16 May 1997 LTS/LO/1996/16)

See full decision:  LTS/LO/2001/13, 14-21 and 28-31