Heritable Property – Former Church - Title conditions – Discharge – Reallotted feudal burden limiting use to use as church – subsequent waiver permitting use as residential lay training centre – centre now closed – probable conversion into residential flats – whether reasonable to grant application - Title Conditions (Scotland) Act 2003, Sections 98, 100

Church of Scotland General Trustees v James Crawford McLaren & Another
16 March 2005
LTS/LO/2004/17 & 18

Church trustees sought discharge of a burden originally imposed as a feuing condition in 1846. The burden in particular limited use of the subjects to use as an Established Church of Scotland church. The condition had been relaxed in 1960 to permit use as a Church of Scotland residential lay training centre. That use ceased in 2001. After a period in which, as directed by the Church's General Assembly, the subjects were not offered for sale to allow an opportunity for a trust formed with the aim of continuing the work as a Christian Centre to offer a market value for the subjects, the trustees placed the subjects on the market. The most likely use by a purchaser would be for conversion to flats. The trustees applied prior to 28 November 2004 under the 1970 Act for discharge of the burden. The respondents, neighbours, then purchased the superiority, reallotted it as a real burden in favour of their property and opposed the application. They contended that the subjects should continue to be used as some form of residential centre rather than flats, or at least that not more than a very small number of flats or houses should be formed in any conversion. They contended that a burden such as the original feuing condition should not be seen as merely a private matter benefiting the Church congregation but rather as providing a public amenity in the neighbourhood. Parties were agreed that although the application had been lodged under the 1970 Act it fell to be determined under the provisions of the 2003 Act as the hearing commenced after the ‘appointed day'. The applicants contended inter alia that although the burden had admittedly been validly reallotted the respondents would not have an interest entitling them to enforce it now that interest to enforce was no longer presumed — Abolition of Feudal Tenure (Scotland) Act 2000, Section 24 and 2003 Act, Section 8(3)(a).

Held, granting the application and discharging the condition, since the waiver had made clear that in the event of the new use ceasing the original conditions would again apply, and there had been no charter of novodamus, the application was to be seen as an application to discharge the original burden (although the Tribunal also had regard to the more recent situation involving a permitted use as a training centre). It was not necessary to consider whether, in hypothetical enforcement proceedings, the respondents would, under the new law, have an interest to enforce: the new formulation of the test in applications for variation or discharge of title conditions provided sufficiently for consideration of the extent of the benefited proprietor's interest.

The factors set out in Section 100 of the 2003 Act were of varying weight in different cases. In many cases, the view taken of the purpose of the title condition — factor (f) — would be of great importance. In the present case, this was to secure for the benefit of the neighbourhood the provision and subsequent maintenance of an Established Church church. While this was in a sense a public facility, it had nothing to do with physical amenity. There was a major change of circumstances in that there was now a requirement for only one parish church in Crieff where there had previously been five, and the subjects, having been physically converted when adapted (following the waiver) for use as a residential centre, were no longer suitable for that use, even if there was a demand for it, so that there was no longer any prospect of the subjects being used as a church. As regards factor (b), there was no real suggestion that the availability in the immediate vicinity of a church in which to worship (or a lay training centre) would be of any substantial benefit to the benefited proprietors, and even viewing the burden as an amenity burden in favour of the respondents' property, their concerns about conversion to flats, compared to the use as a lay training centre with bedrooms overlooking the respondents' garden, was overstated. Overall, and particularly with regard to factors (a), (b), (c), (e) and (f) taken together, the application was reasonable. The respondents' argument about the extent of attempts to secure continued use as a lay training centre or something similar was considered, but the jurisdiction did not give the benefited proprietor any positive right of control over the use of the property, except so far as to further legitimate purposes still protected by the condition. The applicants having explained why the statutory factors favoured the application, there was no further scope for enquiry by the Tribunal.

Authorities referred to:

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 Gardiners' Executors 1992 S.L.T. (Lands Tr.) 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 & Others LTS/LO/2004/19, 12.1.2005

See full decision:  LTS/LO/2004/17 & 18