1. This is an application made prior to 28 November 2004 for discharge of a title condition which was originally a feudal burden but which by that date had been reallotted under Section 18(7) of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 ("the 2000 Act"). The principal feature of the burden was a limitation in the use of the subjects to use as a Church of Scotland church but latterly there had been a partial waiver to permit use as a Church of Scotland residential lay training centre. That centre closed in 2001. The respondent is a neighbouring proprietor who had acquired the superiority earlier in 2004. Considering the matter under Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 ("the 2003 Act"), the Tribunal has decided that it is reasonable to grant the application and discharge this title condition.
2. The title condition ("the condition") was contained in an Instrument of Sasine by Trustees for the then Church of Scotland Presbytery of Auchterarder recorded in the Particular Register of Sasines for Perthshire on 6 January 1847, following on a Feu Charter by Lady Willoughby de Eresby in favour of said trustees dated 14 December 1846, and is in the following terms:—
"The said piece of ground should be and remain in all time coming the site of a Church or place of worship in connection with the Established Church of Scotland which Church or place of Worship should always be maintained and kept in good repair and condition — and that no more houses or buildings of any kind should be erected on said piece of ground; as also that it should not be competent to nor in the power of the said Trustees or their successors to permit the said Church to be used employed or occupied otherwise than as a place of Worship for a congregation in connection with the Established Church of Scotland; as also it should not be lawful for the said disponees or their successors in office to the said Presbytery to sell, dispone or subfeu the foresaid piece of ground nor to borrow money on the security of the same or of the Church erected thereon, nor to burden the same with debts or obligations of any description, and that all Dispositions, subfeus, heritable Bonds or Dispositions in security, and all adjudications of said subjects in implementation or in Security of any such debt or obligations should be null and void; …"
3. The condition was relaxed by a Minute of Waiver by the Earl of Ancaster in favour of the Church of Scotland General Trustees recorded 2 March 1960 ("the waiver"), as follows:—
"I DO HEREBY WAIVE and DEPART FROM the foresaid provisions of the said Feu Charter whereby the said piece of ground should be and remain in all time coming the site of a church or place of worship in connection with the Established Church of Scotland, that it should not be competent to permit the said church to be used employed or occupied otherwise than as a place of worship for a congregation in connection with the Established Church of Scotland and that it should not be lawful to sell the said piece of ground or the Church erected thereon, and I consent to the sale of the said subjects by the said Church of Scotland General Trustees to the Trustees for the said St. Ninian's, Crieff for use by them for the purposes of a Lay Training Centre, provided always that the said Centre is under the control of a Board of Management approved by the said Church of Scotland General Trustees and the Presbytery of Auchterarder, and declaring that the plans of any alterations to be made on the subjects in respect of the use thereof as a Lay Training Centre shall be approved by me or on my behalf before the work is begun: And in the event of the subjects ceasing to be used as a Lay Training Centre the whole burdens, conditions, provisions, prohibitions and others contained in the said Feu Charter shall be restored and shall thereafter continue to be applicable as if these presents had never been granted: And I, as Superior foresaid, declare that the whole burdens, conditions, provisions, prohibitions and others specified and contained in the Feu Charter shall, except in so far as affected by these presents, remain in full force and effect."
The Statutory Provisions
4. Parties were agreed that, despite the date of the application, as the hearing commenced after 28 November 2004, the Tribunal required to apply the provisions of the 2003 Act. Section 98 of the 2003 Act provides as follows:—
"98. An application for the variation, discharge, renewal or preservation, of a title condition shall . . . be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in Section 100 of this Act, that —
(a) . . . it is reasonable to grant the application."
5. Section 100 (a) to (j) lists the factors referred to in section 98.
6. The applicants, the Church of Scotland General Trustees, are proprietors of the site of the former St. Ninian's Lay Training Centre, Heathcote Road, Crieff, Perthshire ("the subjects"). The centre had previously been Crieff West Church. They applied under Section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 ("the 1970 Act") for a discharge of the condition. The respondents, as partners and trustees for the firm of J. C. McLaren and Partners, are proprietors of a neighbouring property, Knox House, Comrie Road, Crieff. After the application was lodged, the respondents acquired the superiority title and lodged Answers. Thereafter, in terms of Section 18 of the 2000 Act, the respondents reallotted the burden, nominating their property as the dominant tenement. The applicants accepted that the respondents were, and remained after 28 November 2004, "benefited proprietors", and as such entitled to appear in the proceedings, although they made certain submissions in relation to the respondents' interest to enforce the burden. In their Answers as adjusted, the respondents' position was that they would be content with a variation of the burden permitting the use of the subjects "for any Christian purpose". The respondents do not seek compensation.
7. The application having been lodged under the 1970 Act, certain other neighbours received intimation as "affected persons". Of these, two other persons lodged objections, namely Alex Whitelaw, Ardbeg, Barnittock, Comrie Road, Crieff and Robert Johnson, Bernera, Comrie Road, Crieff. These persons were not present or represented at the hearing. Their objections were considered by the Tribunal.
8. The application was heard on 25 and 28 January 2005. The applicants were represented by Mr Johnstone, Solicitor to the Church of Scotland. The respondents were represented by Mr Henderson, Advocate, instructed by Messrs Thorntons, Solicitors, Dundee. The applicants led four witnesses, namely Thomas Hannah FRICS, surveyor, of Messrs Hardies, Perth; and Rev Derek Lawson, Clerk of the Presbytery of Perth, Rev Marjory MacLean, Depute Clerk to the General Assembly, and Rev Alex Millar, Secretary Depute of the Board of National Mission, all of the Church of Scotland. The respondent James McLaren gave evidence. Both sides lodged productions. The Tribunal carried out a site inspection on 31 January, during which they obtained access to the subjects and the respondents' house.
Halliday, Conveyancing Law and Practice, 2nd. Ed"n, Vol. 2, paras. 34-42, 77
Rennie, Land Tenure in Scotland, Chapters 3, 13, passim
Earl of Zetland v Hislop (1882) 9R. (H.L.) 40
Murray v Trustees for St Margaret's Convent (1906) 8F.1109 ; 1907 S.C. (H.L.) 8
Smith v Saxton 1927 S. N. 98
Bolton v Aberdeen Corporation 1972 S.L.T. (Lands Tr.) 26
Stirling County Council v Paterson's Trs., LTS, 11.2.1974
Robertson v Fraser, LTS, 6.12.1974
Grampian Regional Council v Viscount Cowdray 1985 S.L.T. (Lands Tr.) 6
United Auctions (Scotland) Ltd. v British Railways Board 1991 S.L.T. (Lands Tr.) 71
Miller Group Limited v Gardners' Executors 1992 S.L.T. (LandsTr.) 62
Church of Scotland General Trustees v Brand & Others, LTS/LO/2002/40, 25.4.2003
Ibid. v Bell, LTS/LO/2003/10, 25.8.2003
Ibid. v Dow & Others, LTS/LO/2004/10, 8.9.2004
George Wimpey East Scotland Limited v Fleming and Others LTS/LO/2004/19, 12.1.2005
9. On the basis of the oral and documentary evidence, parties' submissions and our own site inspection, the Tribunal found the following material facts proved or admitted.
10. The subjects, situated beside the Crieff to Comrie Road and comprising around 0.14 hectares in an approximately trapezoid shape, were feued out by the estate owners, in accordance with the condition stipulating use as an Established Church site, in 1846, at a feuduty of 2s 6d per annum but without any further consideration. The church had in fact been erected previously. The locality was then rural. Housing development apparently commenced some 15 to 20 years later. The locality is presently some 200 metres or so from the western edge of the central area of Crieff and is well developed, primarily residentially but with some commercial intrusion, there being a garage, a shop and a hotel all close by both the subjects and the respondents' house.
11. Title to the subjects changed at various dates, in accordance with the Church's system of property holding and the use of the subjects. The church was used as a parish church, Crieff West, until around 1957. In 1957, the parishes of Crieff West and Crieff North were united, based at the latter's church. The subjects became redundant as a church. There were formerly five Church of Scotland parish churches in Crieff. In recent years, membership and Church attendance has declined very markedly at Crieff as elsewhere in Scotland. There is now only one parish in Crieff. There is no prospect of the former West Church being required for use as a church, particularly as, unlike other former church buildings in the town, its later use involved substantial physical conversion involving the construction of two upper floors.
12. In about 1960, the subjects were converted for use as a Church of Scotland Lay Training Centre, the St. Ninian's Centre. The then superior agreed to this change of use and granted the waiver. Latterly, use as the lay training centre has become uneconomical. The factors contributing to this, in summary, were a change in the emphasis of the work of the centre, "competition" from other church centres in Scotland which were seen for one reason or another as more attractive venues and, apparently, some degree of mismanagement and inappropriate expenditure on the purchase of other properties in the neighbourhood. The centre had come under the control of the Home Board (subsequently Board of National Mission) of the Church. In 2000, the Board sought the authority of the General Assembly to close the St. Ninian's Centre. This was not forthcoming, the Assembly instead appointing a Special Commission to review the management, purpose and future of the Centre, to consult widely, and to report to the General Assembly of 2001. That Commission carried out its remit, consulting widely within the Church (but not among local residents). In its report, which was produced to us, the Commission considered issues about the management and governance of the centre. They looked at the likely future use of the centre. They considered that there was no prospect of a sudden uptake in use of the centre by the Church, and noted that some use of the centre was by non-Church agencies. They considered the possibility of transfer to some other body, but felt that all that would achieve would be to transfer the problems onto the shoulders of another organisation. Their conclusion was to recommend closure. That recommendation was endorsed by the General Assembly of 2001, which directed that the centre be closed with effect from 30 September 2001. This was, however, subject to the proviso that the centre itself, i.e. the subjects (as opposed to a number of other properties which had been acquired for the Lay Training Centre's use) was not to be sold on the open market until at least 15 March 2003. If, before that date, a Trust was formed with the aim of continuing the work at St. Ninian's as a Christian Centre, the Board was to give that Trust the opportunity to purchase the subjects at market value, provided that a firm offer was made before 15 March 2003.
13. Between 2001 and 2003 an inter-denominational organisation known as "Mission to Crieff" did, over a substantial period, express and maintain an interest in trying to organise itself to take over the property. Details of that group's contacts and correspondence with the Board of National Mission were not made available to the Tribunal, but a continuing topic during that contact was the valuation of the subjects and the price at which they might be sold. After 15 March 2003, Mr Millar wrote to "Mission in Crieff", asking them to confirm whether they were in a position to make an offer. Some further contact, in which the same issues were raised again, took place. No offer was forthcoming. Later in 2003, the Board considered itself free to proceed to sell the subjects.
14. The subjects have been marketed for sale, on the basis that the existing planning designation was Use Class 7 (hotel/hostel accommodation) but that it was understood that planning consent might be available for conversion to residential or office use. Potential purchasers were also advised of the existence of the title condition and of the seller's view (at a time before they were aware of the purchase of the superiority by the respondent) that the feuing conditions would be expunged in November 2004 "and should not, therefore, produce any practical difficulty". There is apparently a successful bidder, on the basis of a proposal to convert the subjects to around 11 residential flats. Further details of the proposed transaction or use have not been made available to either the respondent or the Tribunal. No planning application has been intimated to the respondents.
15. The subjects are located on a narrow angled and sloping site at the junction of Comrie Road and Heathcote Road. There are extensions to the original church building — at the front and on one side, a small modern octagonal chapel, which is internally linked to the main building, and, away from the road and towards and at the back of the building, another modern extension which comprises additional kitchen space, etc. and a caretaker's flat. The original building, which appears to be in a reasonable condition, is now arranged on three floors. The ground floor comprises communal areas, offices and kitchens. The first floor comprises a conference hall and library in the centre and 14 bedrooms arranged along each side of the building. The second floor is similarly laid out. The residential accommodation, though functional, is somewhat outdated by modern standards. The original traditional tall church windows are now divided into three, the rooms on each floor having smallish windows and the external appearance being of modern steel panels between the floors in the original window spaces. The external appearance of the church building is not otherwise affected. The building is listed and significant external change to the structure of the original building is unlikely to be permitted. Planning permission for conversion to residential use, or other possible uses such as office use, appears likely, the principal constraining factor on the number of units permitted being, apparently, the question of car-parking spaces.
16. The respondents' house, Knox House, is a large Victorian dwellinghouse which, during its years of use as part of Morrisons Academy, had extensions added. It is situated on the other, obtuse, angle of the junction between Comrie Road and Heathcote Road, to the south east, i.e. town centre side, of the subjects. It occupies the south part of a very substantial site of around 0.39 hectares. Vehicular access is from Coldwells Road to the rear. The front of the house, being on an elevated site, enjoys impressive views over Crieff to the south-west. On the north-west side, fronting Heathcote Road and closest to the subjects, there is substantial garden ground. That garden area is overlooked from the rooms on the east side of the upper floors of the subjects, as well as by some five other smaller Victorian dwellinghouses in the immediate vicinity, although three substantial deciduous trees at the boundary wall will, to a large extent, offset that in the summer months. Some four rooms within the house could be said to be moderately affected by being overlooked from the subjects. There is some noise intrusion from the road and other properties. The original use of the subjects as a church would have provided a very different pattern of intrusion on the privacy of Knox House, but use as flats would be unlikely to be materially different in this respect from use as the residential centre with 14 bedrooms overlooking the garden of the house. Immediately to the south is a licensed hotel fronting on Comrie Road and also taking vehicular access from Coldwells Road, and beyond that the former Church of Scotland South Church, now used as an antiques showroom. Heathcote Road and Coldwells Road lead north into a residential area. To the north of the subjects is a stone villa the ground floor of which is used as a dental surgery whilst to the south on the other side of Comrie road is a garage and retail unit.
17. Mr Johnstone started by reviewing and commenting on the evidence. The respondents were not the original superiors and had no connection with the family which had held the superiority title from 1846 until September 2004. This was not the typical situation where a former superior had feued off ground with conditions to protect his amenity and could, under the "100 metres" rule, preserve that protection after the superiority was abolished. Mr Johnstone accepted on the evidence that there had been no planning application, but suggested that that was irrelevant. Mr Hannah's evidence had confirmed that the area was largely residential and that the planning department might allow residential use. That issue, including the question of parking spaces, would be considered within the planning process. The Church witnesses had spoken to the position in relation to membership and attendance, and also the thoroughness of the deliberations about the future of the St. Ninian's Centre. Mr McLaren's concern was with the amenity of his own property. Although he was content to accept variation to use for any Christian purpose, he had no particular interest in such use, beyond thinking it would be less detrimental to his amenity. Given the range of possibilities under such a use restriction, it was difficult to think that it would necessarily be less disruptive than flats. Mr McLaren, being a church member elsewhere, would suffer no particular detriment in discontinuing church use of the subjects. He had conceded that he would also be prepared to accept conversion to a new single property or perhaps development of two or three dwellinghouses.
18. Turning to the legal issues, Mr Johnstone submitted that the concerns expressed by the "affected persons" reflected matters properly considered by the planning department.
19. Mr Johnstone recognised that the 2003 Act's provisions changed the expression of the test which the applicants now had to satisfy, but first addressed the issues as they would have been under the 1970 Act. He submitted that, with the building no longer used for the purpose permitted by the waiver, the original feuing conditions had revived, although account could also be taken of the use permitted by the waiver and the applicants were looking for discharge in relation to both. The waiver had in effect produced an option to use as a Lay Training Centre, because its closure was permitted. Taking the condition and the waiver together, they prevented disposal and restricted use.
20. Mr Johnstone contended not only that the restriction preventing sale was void (a proposition with which Mr Henderson indicated his agreement) but also that the use restriction was unenforceable. Both title and interest were required to enforce real burdens — Halliday, Vol. 2, 34-42; Rennie, 3-33. Acknowledging that Section 119(4) prevented the application of Section 8 of the 2003 Act in proceedings commenced before 28 November 2004, Mr Johnstone directed this submission at possible proceedings after that date, as a relevant consideration in this application. Interest to enforce was no longer presumed — Section 24 of the 2000 Act. Section 8(3)(a) of the 2003 Act would impose a hurdle in the way of enforcement. The respondents would have to demonstrate that failure to comply with the real burden would result in "material detriment". It would be necessary to show a significant effect and, crucially, in the application of this test, the purpose of the burden had to be considered. Looking at the test of interest that way, the respondents would not be able to show that failure to provide a church, or other Christian use, for the community would cause them material detriment.
21. Mr Johnstone then considered the position under the three separate tests in the 1970 Act, submitting that Sections 1(3)(a) and (b) would have been satisfied but acknowledging that in the absence of a clear indication of the suggested "reasonable use" he could not have pressed a case under Section 1(3)(c). There had been changes in the character of the land, but also other circumstances rendering the burden inappropriate. The burden had been imposed almost 160 years ago at a time of vastly greater churchgoing. He also referred to the union with the United Free Church. Over the years, the Tribunal had recognised, admittedly in relation to congregational properties, the force of such changes. It was clear from the wording of the condition that the superior had intended to provide for the perceived need at the time for a church and the continuing needs of members of the Established Church. There was no reference in the condition to amenity issues, and Knox House and other buildings in the locality now had not even existed at the time. There was also no longer any need for a Lay Training Centre. The Tribunal had previously referred to the balancing exercise which the Church required to do between the wishes of local congregations and communities and the financial implications of change. The burden was also unduly burdensome — in relation to maintenance and also inability to sell — compared with benefit to the benefited proprietor, properly viewed. Maintaining control over adjoining land was not a relevant benefit. The respondents were seeking a greater say in church affairs than on any reasonable test they ought to have. It was also, said Mr Johnstone, strange that the respondents, having themselves changed the use of their property from a non-residential use to residential, should object to a similar change in relation to the subjects. Further, Mr McLaren's fear of the "horrendous impact" of the possible number of flats to be created was overstated. Mr Johnstone referred to the following authorities in relation to the 1970 tests: Church of Scotland v Brand & Ors; Same v Dow; Same v Bell ; United Auctions (Scotland) Ltd. v British Railways Board; Stirling CC v Paterson's Trustees; Robertson v Fraser; Bolton v Aberdeen Corporation; Miller Group v Gardner's Executors.
22. Finally, Mr Johnstone reviewed the factors listed in Section 100 of the 2003 Act, in so far as not already referred to. He submitted that their relative weight was a matter for the Tribunal, who could also have regard, under (j), to any other factor which the Tribunal considered material. Factor (a), he said, focused more now on change of circumstances. It was critical that there was no longer any requirement for either a church or a lay training centre. He also referred to the enactment, since the condition was created, of public planning controls. In relation to (b), it was necessary to consider the purpose, and the burden conferred little or no benefit at all on the respondents. The question raised as to their interest to enforce was relevant here. On (c), "enjoyment" referred to a general intention, here, residential use, and it was the use, rather than the particular development purpose, which was in issue. The burden prevented anyone other than the Church of Scotland from using the subjects. On (d), there was Mr Hannah's evidence about the cost of restoring the building for church use. On (e), the period was 159 years: there had been no Charter of Novodamus. On (f), the purpose was the provision of a church in the community. On (g), if anything, there was planning support for use as hotel or residential hostel. On (h), the applicants were not prepared to pay any compensation. (j) perhaps gave greater scope for consideration of the applicants' circumstances, but the only additional matter to which Mr Johnstone referred as possibly significant was the fact that the superiority interest had only been acquired a few months ago, at a time when the respondents knew about the situation at the St. Ninian's Centre. The only conclusion under the reasonableness test was that it was reasonable to grant the application for complete discharge. In this section, Mr Johnstone additionally referred to Rennie, 13-17 to 27 and Halliday, 34-97.
23. Mr Henderson first took issue with what he described as a failure by the applicants to disclose essential facts and materials. The written pleadings had tended to suggest, perhaps in reliance on what the Tribunal had said in Church of Scotland v Brand, that the church did not require to disclose the justification for their proposed course of action. In relation to valuation and surveying evidence, Mr Hannah had only been able to speak to matters from his memory, and there was a failure to explain the basis on which properties had been valued. This, said Mr Henderson, was important in relation to trying to understand the report and conclusions of the Special Commission. Then, the future intended use of the land had not been spelt out, a factor important under Section 1(3)(c) of the 1970 Act. Most importantly, there had been a serious failure to disclose the extent of interest by an outside body in taking over the centre. The pleadings had suggested that no-one else was interested after March 2003, and the matter had only arisen in the evidence of the last witness, Mr Millar, and again without any documentary evidence. Greater candour would have been expected. This left a suspicion that the Church was not really interested in anyone else at all using the building for a Christian purpose.
24. Mr Henderson submitted that the applicants were taking too narrow a view of the purpose of the burden, as if it was only for the benefit of the Church and its members. A church was more than a private members' club. One did not have to be a member of a particular church to attend it. The purpose of giving Crieff another church involved a public amenity open to more than just West Crieff Church attenders. Mr Henderson supported this proposition by reference to Smith v Saxton, a right of way case in which the court had observed that the whole community had rights in a parish church and churchyard.
25. Mr Henderson submitted that the application was to strike down the use restriction in the Minute of Waiver. The reality was that the subjects were a lay training centre. That was their present use, which did not essentially require continuing occupation. The condition should therefore be regarded as some 40 years old, and not over 100.
26. Looking at the matter under Section 1(3)(a) of the 1970 Act, said Mr Henderson, the decline in the fortunes of the St. Ninian's Centre was nothing to do with the land itself, but rather with the activities of the Church of Scotland, i.e. self-induced. Reliance could not therefore be placed on that — Halliday, 2-22. The Special Commission had been brought about by a petition, accepted by the General Assembly, to the effect that the decision to close the centre was not good enough. Then the recommendations of the Special Commission had been fairly severely cut, because the General Assembly ruling in 2001 clearly envisaged that someone else could take over the centre. It was important to know what marketing had been undertaken on that basis. Whatever could be made of the evidence of Mr Millar, there was clearly one genuine, interested party who approached with a view to taking over the centre, but the Church had been more interested in attempting to sell for as high a price as possible. The proper inference was that the decision not to make an offer was made in the light of that knowledge. It could not therefore be said that the subjects had been exposed for sale and that no price could be obtained for them for use as a Christian centre. The applicants had not established that there was no market. If the subjects remained as a Christian centre, there was likely to be a buyer. Reference was made to Grampian Regional Council v Viscount Cowdray. There was also nothing to suggest that the "neighbourhood" had changed.
27. Mr Henderson suggested that the burden had been imposed to protect the environs of the church, and varied for the same purpose. It was not "unduly burdensome", and it was of benefit to Knox House and other houses round about.
28. Use "as a Christian centre" would include the church, a lay training centre, and also ancillary organisations over whom the church had control. The applicants had not looked at all the possibilities.
29. In relation to "interest", Mr Henderson submitted that there could not be an application involving someone as respondents without accepting that they had an interest. At common law, the question of interest did not arise: a party must come forward and establish change of circumstances, usually acquiescence. Reference was made to Earl of Zetland v Hislop and Murray v Trustees for St. Margaret's Convent, per Lord Kinnear at 1116.
30. Turning to the factors under Section 100, Mr Henderson first suggested, in relation to (a) that the neighbourhood had not changed to any great extent. The change in the use of Knox House was immaterial. He did not accept that the neighbourhood had become residential since 1960, and even in 1846, it had, he said, been "zoned" for residential use. The matter of interest arose under (b) — could the respondents interdict demolition of the church? Mr Henderson suggested that, considering the close proximity of their property, the test in Section 8(3) could be satisfied, the purpose of the burden being irrelevant in this consideration. Even if it was necessary to look at the purpose, as already submitted, this included the public benefit, part of which was environmental. Mr Henderson did not concede that this was only incidental, but in any event there was a benefit to the respondents. Factor (c) had already been addressed: the applicants had not proved that the subjects could not be sold as a Christian centre. On (d), there was no evidence of anything requiring to be done under the burden. (e) and (f) had already been discussed. (g), in relation to the planning position, favoured the respondents: there was neither planning permission, nor the consent of any other regulatory authority, for the proposed use, and that must also affect the consideration of (c).
31. In conclusion, Mr Henderson suggested that the respondents stood in the shoes of someone who appeared to have donated land for a purpose, yet the applicants were seeking to obtain the highest possible price for it.
32. We have noted and given some, but not very much, weight to Mr Henderson's complaints about the quality of the applicants' evidence. With regard to the evidence of Mr Hannah, the context has to be remembered. In a dispute about valuation, we would expect to see a reasoned opinion and of course to be clear about the basis of any expression of opinion about "market value". That, however, is not the nature of this dispute. Mr Hannah's evidence was quite general, in connection with the proposed future use of the property and the planning position, and to that extent the applicants cannot look for detailed findings on these matters. However, when the factors in Section 100 are looked at in this case, we do not think that detailed findings on these matters are required or indeed would particularly assist. As will be seen from our findings and our subsequent consideration of the issues, we have appreciated that, basically, the church is looking to realise a market price for the subjects. It is also the position that the applicants have not revealed the prospective purchaser's detailed plans. We are therefore considering the application on the basis of a likely flatted development the layout or density of which is not known to us. We do not find that a particularly surprising position where a development site is being sold subject to the prospective purchaser obtaining a planning consent, because prospective purchasers are often unwilling to incur the costs of preparing architectural plans and drawings before addressing the title issue. That might, in some cases, present a serious problem, but considering the view which we take of the purpose of this condition we have felt able to consider the issues arising, on a balance of probability, without difficulty. Had the issue been under Section 1(3)(c) of the 1970 Act, Mr Johnstone conceded he could not have succeeded, but we are not confined to that issue and indeed are considering matters on the altered formulation of the same principles in the 2003 Act. Mr Henderson's most serious complaint related to the applicants' failure to disclose, until it emerged with their last witness, the extent of interest by an outside body, "Mission to Crieff", in taking over the subjects for something close to their last use which Mr McLaren said would have been acceptable. The Church's approach does seem to have started from the position that what mattered was the decision of the General Assembly, which made March 2003 the critical date, whereas in fact we have to look at the position at the time of this application. This means that we have a less than complete picture, but we have to assess the reasonableness of the application, on a balance of probabilities, in accordance with the statutory factors. We give fuller consideration to the respondents' argument on this matter in our consideration of factor (j), and it will be seen that even on this less complete picture we consider that, on a proper approach to this jurisdiction, the applicants have discharged the onus on them.
33. Mr Henderson submitted that this application should be seen as an application to discharge a restriction on use of the subjects to use as a lay training centre. He said that that was the present use of the subjects. We can understand the approach, but it appears to us that the legal analysis is otherwise. As Mr Johnstone pointed out, the original conditions were not changed, but merely waived to the extent of allowing use as a lay training centre. The waiver did not impose any restriction on use, or positive obligations. It also made clear that in the event of the new use ceasing, the original conditions would again apply. That is what has happened. So at present the restriction is to use as a Church of Scotland church and nothing else, with an obligation to keep the subjects in good repair and condition.
34. As far as "interest" in the legal sense is concerned, we do not consider it necessary to express a concluded view as to whether in hypothetical enforcement proceedings brought after the commencement of the 2003 Act (which proceedings would not be caught by the saving provision in Section 119(4)) the respondents would be able to satisfy the condition set out in Section 8(3)(a). Mr Johnstone did not, and we think could not, suggest that the respondents were not entitled to appear and oppose this application. Rather, he submitted that, applying the law as it now stands, whatever the position may have been before the 2003 Act took effect, the respondents, despite having reallotted the burden, would not be able to enforce this condition because they could not establish an interest. That, he said, was a factor relevant in our consideration of reasonableness. It is certainly the case that interest to enforce is required as well as title, and the interest of the new benefited proprietor following reallotment will no longer be presumed — Abolition of Feudal Tenure (Scotland) Act 2000, Section 24. However, the new statutory formulation of the test of interest to enforce is a test to be applied "in the circumstances of any case" — 2003 Act, Section 8(3). As it seems to us, the new formulation of the test in applications for variation or discharge provides sufficiently, particularly at Section 100(b), for consideration of the extent of the benefited proprietor's interest. Moreover, the Tribunal has been given a specific new jurisdiction, under Section 90(1)(a)(ii), to rule on inter alia the enforceability of real burdens, and we have not been asked to exercise that jurisdiction in this case. The question of the extent of the benefited proprietor's interest in maintaining an entitlement is not the same as the question whether, in the circumstances of a particular case, he can show an interest to enforce an admitted entitlement. There may be an issue, to be considered in an appropriate case, as to whether, and if so in what way, the test in Section 8(3)(a) includes consideration of the purpose of the burden. In these circumstances, we do not consider it necessary or appropriate to answer this specific question in this application.
35. We agree with Mr Henderson that the respondents stand in the shoes of the original landowner who imposed the condition. The personal circumstances of the benefited proprietor are irrelevant. Further, the very recent acquisition of the superiority does not seem to us to count in any way against the respondents. It may serve to make clearer the motive for opposing this application and point to the contrast between that and the true purpose of this condition, but in a case where a feudal burden was directed at questions of physical amenity in the neighbourhood, we can see no objection at all to the benefit of that belatedly falling to a neighbour in this sort of way so as to entitle him to resist its discharge under the new statutory framework.
36. Section 98 of the 2003 Act requires us to have regard to the factors set out in Section 100. These will be of varying weight in different cases. As we observed in George Wimpey East Scotland Ltd v Fleming and Others:—
"Section 100 does not require consideration, under each head, of whether the application succeeds or fails under it. Rather … the task is to look at the evidence about the various factors and then weigh them up as a whole, judging, not, as it were, the result under each factor but rather the relative strength and weakness, in the overall issue of reasonableness in the circumstances of the case, of the various items of evidence in relation to the factors set out in the section …"
37. In many cases, the view taken of the purpose of the title condition (factor (f), where that can be ascertained, will be of great importance, just as it was under the 1970 Act. We can accept that this condition had some public purpose and was not merely for the benefit of members of the Church congregation. That purpose would have been to secure for the benefit of the neighbourhood the provision and subsequent maintenance of a Church of Scotland church (the granter being clear at that historic juncture in Church history that she wished to favour the Established Church). That would be a facility open to the public in the sense illustrated in Smith v Saxton, and in that sense an amenity. We do not, however, accept that the provision had anything to do with physical amenity. In the present case, the evidence is that at the time when the condition was created there were no immediately surrounding houses. It may be that there was some thought about future housing development in the vicinity but we do not accept that the neighbourhood was, to use a modern expression, "zoned for housing". Nor can the purpose of this condition have been to preserve the physical amenity of Knox House or other houses whose development may have been envisaged but none of whose owners would have been benefited proprietors. There is simply nothing in this condition to point to a purpose of that nature.
38. Looking at the other factors in Section 100, we first accept that, not surprisingly, there have been changes in circumstances since 1846, although these are of varying effect in relation to the issue of reasonableness. It can be said that the transaction in 2004 whereby the respondents acquired the (then) superiority has brought about a change in the benefited property, although since we do not find the purpose of the condition to be one of local physical amenity this is of limited relevance. As far as the burdened property is concerned, there has been this major change that, as elsewhere in Scotland, the demand for churches has dwindled to the point where there is now a requirement for only one parish church in Crieff where once there were five. Further, with the then superior's consent, the subjects were substantially physically altered so that they could no longer be used as a church without enormous expenditure. Use as a church, certainly a Church of Scotland church, has in practice become impossible. If we were required to view this factor on the basis that the condition was created in 1960, and was a condition restricting use to use as a church lay training centre, there would still be a substantial, although not nearly so striking, change, viz. a substantial reduction in the demand for use of that facility. The reasons for the reduction in demand do not seem relevant unless perhaps it was brought about by some intentional manipulation by the proprietor, which we do not find here. That reduction is relevant even if the possibility of some party being prepared to use the subjects as a training centre cannot be entirely excluded. As far as the neighbourhood is concerned, from being rural in 1846 it has become mixed use, primarily residential, but, again, on the view which we take of the purpose of the condition, that is of very limited relevance.
39. Factor (b) is the one which, as we have indicated above, does introduce the very important test of the extent of the benefited proprietor's interest in fulfilment of the purpose of the condition. The original condition does — or would if it was still capable of fulfilment — provide the benefit of having a church in the immediate vicinity. The respondents' personal position, of in fact being a member of another congregation, is not relevant here, but we do not detect any real suggestion that the availability in the immediate vicinity of a church in which to worship would be of any substantial benefit to Knox House as the benefited property. We heard no evidence of any such benefit. Even if there would be such benefit, maintaining the burden would not be sufficient to secure it, since such use is no longer practicable. Nor, in our view, would use as a lay training centre confer any particular benefit. Even if it were correct to ignore the purpose of the condition and ask whether compliance confers benefit on Knox house as the benefited property, in relation to physical amenity, by comparison with residential development, it will be seen from our findings that we do not consider that a flatted development would be much different in its impact on the amenity of Knox House than the lay training centre, with 14 bedrooms on the upper floors overlooking the garden, was.
40. In relation to factor (c), the respondents correctly point out that the applicants have not disclosed the details of the prospective purchasers' proposals. It is, however, completely clear that the requirement to use the subjects as a Church of Scotland church (or even as a lay training centre) very considerably impedes enjoyment of the subjects. It was not disputed that planning permission for residential development, or possibly office use, would probably be granted although there might well be an issue as to the number of units allowed. We consider below, under factor (j), the issue as to the possibility of resuming use as a residential centre.
41. As regards (d), there is an obligation not only to maintain the subjects as a church (or, on the respondents' view, as a lay training centre), but also to keep that building in good repair and condition. It is obviously not practicable to meet these obligations indefinitely if the building is no longer being used. No evidence was led as to the costs involved, nor was it indicated that the building is in any state of disrepair, so we are not able to make any particular finding in relation to the cost of complying with these parts of the condition, but we can take it that there is some cost, which may be quite considerable, in maintaining a building of that age and kind in good order and repair.
42. Factor (e) relates to the length of time since the condition was created. On the basis that we are considering an 1846 and not a 1960 condition, this is clearly a very considerable period. As it seems to us, this will often be a factor of much less significance than the purpose of the condition, although sometimes the fact of very recent creation may tell with some strength against the application. However, this is unquestionably a very old condition, which was conceived in very different circumstances and which may be said long ago to have fulfilled its purpose. It is perhaps worthy of note that this burden is comfortably old enough to be the subject of termination under the "sunset" rule in Section 20 (although the benefited proprietors could apply under Section 90(1)(b)(i) for renewal and thereby raise the same issues as we have to consider in this application). Mr Henderson suggested that the "sunset" rule involved completely different considerations, since the reality in this case was that only 44 years were being considered. We cannot, however, see why Section 20 would not apply to this burden.
43. We have already considered (f). Under (g), the applicants have not been able to point to any planning consent which the condition prevents. We have given such consideration as is appropriate to the planning position above in relation to (c). As regards (h), while Mr Johnstone made clear that the applicants were not offering any compensation, Mr Henderson very properly placed no reliance on this, as the respondents are not seeking compensation.
44. Factor (j) allows us to have regard to any other factor which we consider material. We have already indicated that we do not think it of any relevance that the respondents only very recently acquired the superiority and are unconnected to the family which held the superiority until then. The one matter which we think it appropriate to explore further, for its possible relevance to the issue of reasonableness, is the question as to the extent of attempts to secure continued use of the subjects, if not exactly as a Church of Scotland lay training centre, for something similar to that.
45. On the evidence, the position seems to be that the applicants have been seeking a "market price" for the subjects and that this was a recurring obstacle to the proposal by the "Mission for Crieff" to take over the subjects as some form of inter-denominational centre similar to the lay training centre. The respondents' suggestion would seem to be that, the subjects having historically been gifted to the Church, it is unreasonable for the present Church trustees, knowing that the Church no longer has a use for the subjects, to seek, as Mr Henderson put it, the highest possible price. At least they should have fully explored the "Mission for Crieff" proposal to see whether it might be viable. It might also be said that while the General Assembly had fixed a time limit of March 2003, the relevant date as far as this application is concerned is the date of the application (July 2004): the applicants required to satisfy the Tribunal of the position then.
46. We do not consider this matter material to the reasonableness of this application. Firstly, it builds on the proposition, with which we do not agree, that this condition is a restriction of use to use as a lay training centre. Secondly, it involves an assumption, which we do not think has been established, that the original grant of the title was a gift. We note that a feuduty, which may have been at a commercial rate at the time, was imposed and there is no indication that the landowner paid for the erection of the church. Thirdly, it involves an assumption as to the original granter's intention in the event of circumstances changing: if the intention was to benefit the Established Church by donation, why should it be assumed that the benefactor would not wish the church to obtain maximum benefit when the church could no longer be used? More fundamentally, however, this jurisdiction (like the 1970 Act jurisdiction) involves the entitlement of an owner of property to make use of his property. It enables private title conditions to be lifted, on a test of reasonableness, so as to prevent benefited proprietors from either extracting a ransom or hindering reasonable uses of property. It does not give a benefited proprietor any new positive right of control over the use of the property, except so far as necessary to further legitimate purposes still protected by the obligation. The benefited proprietor's own view as to how the property should be used is, of itself, irrelevant. Equally, any view which the Tribunal may hold as to how the property should be used would not be directly relevant.
47. In the present case, the applicants have explained why, according to them, the statutory factors favour the application, and have explained the process by which they came to decide that the subjects should be sold free of any restriction. In the circumstances of this case, there is in our view no further scope for us to explore whether another use closer to the original Christian purpose could be found.
48. In our view, having regard to the factors listed in section 100, this application to discharge the condition in the 1846 Feu Charter, thus removing any private restriction of use in favour of the respondents, is reasonable. We reach this view particularly with regard to factors (a), (b), (c), (e) and (f) taken together. We see the purpose of this very old obligation as the provision and maintenance of a Church of Scotland church in the neighbourhood, a purpose no longer capable of fulfilment with the result that the condition has become unduly onerous. On the other side of the equation, having regard to the purpose of the condition, we see little or no relevant benefit to the respondents. Even if the respondents were entitled to rely on the effect on the physical amenity of their property and consider the issue on the basis of use of the subjects as a lay training centre, on the evidence we would still see little or no benefit to the respondents by comparison with the likely use of the subjects as flats and the balance in our view would still be tilted in favour of the applicants. We see no justification for partial discharge or variation in the way proposed by the respondents.
49. For reasons which we do not think it necessary to elaborate, we record that we would have reached the same view under the 1970 Act provisions, on the basis of Section 1 (3)(a) and (b).
50. We can deal briefly with the written objections of the two other neighbours, Mr Whitelaw and Mr Johnson, who, though not benefited proprietors, made their objections as "affected persons" before the new Act came into force. Mr Whitelaw is a nearby but not adjoining proprietor. He refers to the uncertainty regarding proposed development of the subjects, and also suggests that the original superior had the welfare of local residents in mind and her wishes should be honoured. Mr Johnson, who is proprietor of an upper flat of the house adjoining the subjects on the north-west side, objects on a number of amenity grounds. We can understand the concerns of near neighbours who, so far as the evidence goes, have not yet been consulted at all about the proposed development and do not yet know the extent of it. However, for all the reasons which we have previously given, private physical amenity is not a factor of importance in this particular case. We would just mention firstly that it does appear that the developers may not be permitted to form extra windows in the original church building, which is a listed building, and secondly that we agree that the question of the extent of parking space will require to be addressed. Such concerns should indeed be addressed in the public planning process which is required if the proposal for residential development proceeds. In relation to Mr Whitelaw's objection, as we have indicated above, we can accept to some extent that the purpose of this title condition was to provide local benefit, but that was the benefit of provision of an Established Church of Scotland church, which is clearly no longer feasible and we are satisfied, on the evidence that we have heard, that there is no scope for us to enquire further into other possibilities.
50. We have for these reasons granted this application and discharged the condition (which of course renders the waiver of no effect, at least as regards the future).
51. As we have indicated, there is no issue as to compensation. Mr Johnstone indicated that the applicants would seek expenses, and we reserved that matter. We would propose to deal with any motion for expenses on the basis of written submissions in accordance with our normal practice.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr I K Johnstone, Solicitor, Church of Scotland | |
| for the respondents: | Mr G M Henderson, Advocate, instructed by Messrs Thorntons, Solicitors, Forfar | |
| Heard: | Edinburgh, 25 and 28 January 2005 | |
| Sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 16 March 2005 | |
LTS/LO/2004/17 & 18
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 16 March 2005
Neil M Tainsh — Clerk to the Tribunal