Lands Tribunal for Scotland

OPINION

Griffiths
v
The Keeper of the Registers of Scotland
and
Buchanan

The applicants are proprietors of a semi-detached house, No. 77 Kirk Road, Wishaw. The application bears to be an appeal against a decision or omission by the Keeper of the Registers of Scotland not to delete certain entries in the Land Certificates relating to that house and the adjoining one, No. 75. However, the application also refers to section 9(1) of the Land Registration (Scotland) Act 1979 and the substantive crave, supported by an appropriate plea in law, asks the Tribunal to ordain the Keeper to rectify the Register by deleting the burdens entry relating to No. 77 insofar as it refers to a servitude right of access in favour of the proprietors of No. 75; and by deleting from the Property Section of the Title Sheet relative to No. 75, a reference to a servitude right of access over No. 77.

It is unnecessary for present purposes to deal in detail with the physical description of the subjects. The two semi-detached dwellings are part of one building situated on a main road with garden or amenity ground to the rear of each. Each has a front door facing the street. No. 75 has space on its west side for pedestrian access to the garden. Access to the east of No. 77 is wider and permits use by car. The applicants park cars on the area to east of their house. The respondents claim a right of vehicular access over that area which would allow them to park in their back garden. Whether the supposed servitude could extend to vehicular access was not in issue before us.

The application was defended by the Keeper. It had been intimated to the registered proprietors of No. 75, as interested parties. They did not enter the process until a late stage on the view that their interests would be adequately served by the Keeper's opposition. However, after discussion between the Keeper and the interested parties, it was apparently considered appropriate that, as the latter had the substantive interest in the outcome, they should participate direct in the debate. They were allowed to lodge Answers which, in substance, adopted the averments of the Keeper in his Answers. It was agreed that in the circumstances, the Keeper did not require to be represented at the debate. However, it was recognised that the Keeper should remain in the process. It was noted that the application had an alternative crave for indemnity.

At the hearing on 21 and 22 October 2002 the applicants were represented by Sir Crispin Agnew of Lochnaw, QC. The interested parties, as respondents, were represented by Iain Davidson of Messrs Ballantyne & Copland, Solicitors, Motherwell.

Authorities referred to:

Bowers v Kennedy 2000 SC 555
Brookfield Developments Ltd v The Keeper 1989 SLT (Lands Tr) 105
Dougbar Properties Ltd v Keeper of the Registers of Scotland 1999 SC 513
Kaur v Singh 1999 SC 180
MacDonald v Dempster 10 MacP 94
Metcalfe v Purdon 4 R 507
Reid (MacTavish's Trustees) v Anderson 1900 8 SLT 80
Safeway Food Stores Ltd v Wellington Motor Co (Ayr) Ltd 1976 SLT 53
Shorts Trustee v The Keeper
1996 SC (HL) 14
Tesco Stores Ltd v The Keeper and Safeway Stores plc 2001 SLT (Lands Tr) 23
Cusine & Paisley: Servitudes and Rights of Way
Gordon: Scottish Land Law 2nd Edition
Gretton & Reid, Conveyancing 2nd Edition
Halliday: Conveyancing Law and Practice (2nd edition)
Rankine: Law of Land Ownership in Scotland 4th Edition
Reid: The Stair Memorial Encyclopaedia, The Laws of Scotland, Volume 18
Thomson: Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, annotated commentary

Statutory material referred to:

Registration of Leases (Scotland) Act 1857, section 3(2) (as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, section 3)

“3(2) Notwithstanding -

(a) any restriction imposed by subsection (1) above on the power under that subsection to assign such a lease; or

(b) any rule of law to the contrary, it shall be, and shall be deemed always to have been, competent in an assignation under this section to impose conditions and make stipulations which, upon the recording of such assignation or the registration under the [1979 Act] of the assignee's interest, shall be as effectual against any singular successor of the assignee in the subjects assigned as if such assignee had been a grantee of the lease and it had been duly recorded or, as the case may be, the grantee's interest had been so registered”.

Conveyancing and Feudal Reform (Scotland) Act 1970.

Land Registration (Scotland) Act 1979. (Unless otherwise specified all statutory references are to that Act).

It is convenient to note the terms of the following sections:

Section 2(4). There shall also be registrable - (c) any other transaction or event which (whether by itself or in conjunction with registration) is capable under any enactment or rule of law of affecting the title to a registered interest in land but which is not a transaction or event creating or affecting an overriding interest.

Section 3 - (1). Registration shall have the effect of -

(a) vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and in and to any right, pertinent or servitude, express or implied, forming part of the interest, subject only to the effect of any matter entered in the title sheet of that interest under section 6 of this Act so far as adverse to the interest or that person's entitlement to it and to any overriding interest whether noted under that section or not;

(b) making any registered right or obligation relating to the registered interest in land a real right or obligation;

(c) affecting any registered real right or obligation relating to the registered interest in land,

insofar as the right or obligation is capable, under any enactment or rule of law, of being vested as a real right, of being made real or, as the case may be, of being affected as a real right.

Section 3 - (7) Nothing in this section affects any question as to the validity or effect of an overriding interest.

Section 9 - (1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.

(3) If rectification under subsection (1) above would prejudice a proprietor in possession - the Keeper may exercise his power to rectify only where -

(i)  the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;

[the other circumstances listed are of no relevance to the present case].

Section 12(3). There shall be no entitlement to indemnity under this section in respect of loss where -

(g) the loss arises from inability to enforce a real burden or condition entered in the register, unless the Keeper expressly assumes responsibility for the enforceability of that burden or condition;

(l) the claimant is the proprietor of the dominant tenement in a servitude, except insofar as the claim may relate to the validity of the constitution of that servitude".

Section 28 “Interest in land” means any estate, interest, servitude or other heritable right in or over land, including a heritable security but excluding a lease which is not a long lease.

“Overriding interest” means, … in relation to any interest in land, the right or interest over it of - (d) the proprietor of the dominant tenement in a servitude. This is one of a list, all qualified by the following:

But does not include any subsisting burden or condition enforceable against the interest in land and entered in its title sheet under section 6(1) of this Act.

Preliminary

The pleadings raised the issue of an apparent failure by the applicants to follow the procedures laid down in the Land Registration (Scotland) Rules 1980 in relation to the request for rectification. In absence of the Keeper this point was not taken at debate. Although, we do not require to express any view on it, it should be said that the Keeper must be given a proper opportunity to perform his statutory duties in response to the prescribed procedures. In another case any failure to observe procedural rules may be critical.

We heard various submissions in terms of failure by the Keeper to take proper care or matters which "ought to have alerted him" to the lack of enforceability of the rights in issue. However, it was not ultimately submitted that fault of the Keeper was relevant to the issues now arising and it may be distracting to focus on the conduct of the Keeper in this way. We consider that the issues in this case can best be assessed by considering the matter in three main stages: the state of parties' rights prior to registration; the effect of registration; and whether rectification is possible without consent of the respondents. We have attempted to summarise the history of the respective titles and then state the essence of the submissions as accurately as possible in appropriate chapters.

History of the subjects and titles

The existence of various potential methods of creation of a servitude right requires examination of the titles of both dominant and servient tenements. In the present case, we are not concerned with creation other than by express grant or registration although the possibility of extinction by prescription was touched upon. There are express references to the supposed servitude in both sets of titles.

The first relevant deed relating to No. 77 is a lease of 1921 by James H Holdsworth to Thomas Gibson. His interest in the lease was acquired by his daughter Miss Catherine Robertson Gibson by testamentary succession. She assigned the lease to Alison W Condie on 13 September 1956. The assignation, recorded in the Register of Sasines on 26 September 1956, included the following provision: "But these presents are granted always with and under a servitude right in favour of the proprietors of the subjects forming No. 75 Kirk Road, Wishaw of access to the rear of said subjects 75 Kirk Road aforesaid which are situated to the South West of the area of ground described in [the lease] over which area of ground said servitude right of access is granted which right of access shall be for all usual and necessary purposes but shall at all times be exercised reasonably and so as to occasion as little inconvenience as may be to the said Alison Watson Condie and her successors".

It may be noted that the servitude was in favour of persons who were not parties either to the lease being assigned or to the deed of assignation. Although the servitude condition, or limitation of the method of exercise of the servitude, was described by reference to the assignee by name, it is convenient to observe at this point that we do not think that the validity or otherwise of the purported servitude could turn on this. The effect of the assignation was to make the named person proprietor (qua tenant) and the designation of the proprietor by name instead of status could hardly be thought critical. It was effectively a description of the extent of the burden by reference to its effect on the servient proprietors. It made express reference to the proprietor's successors. It reflected a constraint which would, in any event, have been implied.

Mrs Condie assigned the lease of No. 77 to her daughter Mrs Margaret Harvey Condie or Moffat on 5 February 1973. The assignation repeated the reference to the burden in similar terms to the above except that the qualification was that the servitude be exercised "so as to occasion as little inconvenience as may be to the said Mrs Margaret Harvey Condie or Moffat". Here again, the use of the name merely identifies the person who was, by the effect of the assignation itself, the current proprietor. It will be noted, however, that the previous reference to "successors" had been omitted.

We did not have detail of the subsequent transmission. It may be assumed, however, from the search sheet and the date of first registration, that the next formal step was the assignation in favour of the applicants giving rise to that registration on 14 March 1997. In the Burdens Section, the title sheet LAN 121522 first sets out the conditions of the lease and, second, under reference to the said assignation of 1973 quoted the provision anent the servitude referred to above. It is convenient to repeat it: "A servitude right in favour of the proprietors of the subjects 75 Kirk Road of access to the rear of the subjects 75 Kirk Road, which right of access shall be for all usual and necessary purposes but shall at times (sic) be exercised reasonably and so as to occasion as little inconvenience as may be to the said Margaret Harvey Condie or Moffat". (We note that nothing was made in submissions of the accidental omission of the word "all").

It seems clear that the reference to Mrs Margaret Moffat would have been recognised as out of date by the time when Mr and Mrs Griffiths took title. This might have led them to assume that the whole reference was out of date. However it was not suggested on their behalf that any such assumption was well founded.

The title to No. 75 was based on a lease, again between James H Houldsworth and Thomas Gibson. It is important to stress that although the scheme was to lease land to Mr Gibson to allow two houses to be built, separate leases were used for each plot. This may be explained by the fact that, as the titles to No. 77 make clear, Mr Gibson was, himself, to occupy the house on that plot. The 1921 lease of what was to be No. 75 was followed in 1923 by an assignation of the tenancy to Joseph MacKay. After his death, his trustees sold the tenancy to John Myles Johnston and by Assignation recorded on 11 October 1956 the lease was assigned to the Halifax Building Society in security. The assignation dealt with the assignation of the lease itself and continued: "Together with a servitude right in favour of our said assignees and their successors as proprietors of the subjects hereby assigned forming No. 75 Kirk Road, Wishaw of access to the rear of the said subjects over the area of ground situated to the North East thereof and containing the subjects forming No. 77 Kirk Road aforesaid … which right of access shall be for all usual and necessary purposes but shall at all times be exercised reasonably and so as to occasion as little inconvenience as may be to the proprietors of the said adjoining subjects".

This was on the face of it a purported assignation of an existing servitude. The deed did not purport to create a servitude and, of course, the assignor had no title to the subjects to be burdened. Although not recorded until 11 October, the dates of execution were 14, 22 and 26 September 1956. As we have seen, the Assignation of No. 77 was dated 13 September. Clearly there was some agreement between the tenants at that time. It is idle to speculate as to whether the servitude was declared to reflect an existing practice of access over No. 77, or was an agreement entered to accommodate the wishes of the incoming tenant of No. 75.

We have no detail of the terms of subsequent assignations of No. 75 but it is apparent that there was such an assignation in about 1988, triggering the first registration. The title sheet was updated on 15 April 1997 to show the interest of the present respondents. In the title sheet No. LAN 46563 the Property Section describes the subjects by reference to the Title Plan and continues: "Together with a servitude right of access to the rear of the said subjects over the area of ground situated to the north east thereof and containing the subjects forming Number 77 Kirk Road aforesaid; Which right of access shall be for all usual and necessary purposes but shall at all times be exercised reasonably and so as to occasion as little inconvenience as may be to the proprietors of the said adjoining subjects".

It may be observed, at this point, that counsel drew attention to the various uses of the term "proprietor" in the titles and in the title sheets. The term is used on occasion in a way which tends to indicate that the relevant draftsman has not had in mind the nature of the tenant's interest as limited to rights under a lease. However, we consider that the intention is tolerably clear in each case from the context and we are not persuaded that anything turns on this. We shall, of course, have to consider the use of that term in the context of the 1979 Act which raises different issues.

In summary, it can be seen that the title sheet of the dominant subjects includes a reference to a servitude right of access in perfectly conventional terms appropriate to creation of such a right. The reference in the title sheet of the servient tenement describes the manner of exercise of the right by reference to a named person and without reference to successors.

Prior to registration, was there a valid servitude or other real right?

If a valid servitude had been created by the terms of the assignations, it was accepted that the present application would fall to be refused. The dispute as to the nature and effect of the servitude - whether pedestrian or vehicular - would require to be pursued in the Sheriff Court. However, Sir Crispin submitted that no real right had been created. The submissions fell into two parts, those dealing with the creation of a servitude as such and those relating to the effect of section 3(2) of the 1857 Act as amended. Mr Davidson said that he had no submission to make on the question of the validity of the creation of the servitude as such and we can deal with it shortly.

Sir Crispin set out his submissions by an exposition of the detail of the relevant provisions of the Act and the titles of the two subjects. (It may be noted that in addition to the analyses to be found in Short's Trustees a convenient short summary of the Act may be found in Dougbar Properties Ltd at p518. We need not repeat this material.) He opened the substantive submission by posing two questions: ought the reference to the servitude to have been entered in the register and, if not, could the entry be said to be ineffective? As it was plain, on the face of the register, that the right was simply one given by one tenant to another it was not, in his submission "capable" of being a real right. He submitted that to determine this it was appropriate to go beyond the four walls of the registered title.

The first submission in relation to the effect of the attempt to create a servitude in an assignation of a lease turned on the proposition that a servitude could not be created over one parcel of land in favour of another when both were owned by the same proprietor. Sir Crispin accepted that, at debate stage, this faced the difficulty that the averment that both parties hold their subjects as tenants under separate long leases held of the same landlord is denied. There was no dispute as to the effect of the titles lodged in process. These showed the one landlord in 1921 when the leases were granted. However there was no indication of the identity of the landlord at the time when the attempt was made to create the servitude. Although Mr Davidson did not make any attempt to support the proposition that there was a validly constituted servitude, as such, prior to registration. He did not suggest that the subjects were not in fact held under the same landlord at the relevant times but he did not, himself, know. The denial in the pleadings had been made by the Keeper and simply adopted by the interested party. Had this proved critical it would have required clarification.

The related submission was that, in any event, a tenant could not, at his own hand, burden the landlords' property by creation of a servitude: Reid v Anderson. Counsel also submitted that a tenant could not accept the benefit of a servitude for subjects which were not his property: Safeway v Wellington Motor Co. These submissions were supported by analysis of principle. Servitudes ran with the land and it was the landlords' interest which was the proper focus. The submissions were also supported by reference to Rankine, pages 414, 421, 443 and to current academic texts: Cusine and Paisley, paragraph 2.12 - 2.13; Reid, paragraph 449. Sir Crispin referred us to Gordon 24-09 where Professor Gordon describes the question of whether a tenant in a long lease can acquire or hold a servitude over his leasehold interest as being an open one.

In light of Mr Davidson's approach to the first issue we are content, for the purposes of this case, to proceed on the basis that there was no valid servitude, as such, prior to registration. It may be said that if, as parties tended to assume, the subjects were held from the same landlord at date of purported creation, the observations of Lord Kylachy in Reid v Anderson, whether strictly obiter or not, give a very clear expression of opinion and we would not wish to suggest any contrary view without full submission.

Although there was no mention of the 1857 Act in the pleadings, Sir Crispin dealt with the possibility of an argument under section 3(2) of that Act (as amended). The precise meaning of section 3(2) of the 1857 Act was not entirely clear but he submitted that, on any view, the section could only apply within the scope of the original lease. He stressed that in the present case there had been separate leases of No. 75 and No. 77. The intention of the Act was to allow creation of conditions which might be enforced between tenant and assignee. The intention of the Act could not have been to give a power to put in conditions which could be enforced as real burdens by third parties. The intention must have been to deal with rights falling within the four corners of the existing lease. Any right going beyond the leased subjects would remain binding on the landlord after the lease was at an end. Such a result could not have been intended. He suggested that academic commentators could be taken to assume that intended limitation and that was why none dealt expressly with the point. He referred, however, to Reid, paragraph 352; Thomson, comment on section 3; and Halliday, where the passage referred to by Professor Reid is now to be found in the second edition, volume 2, 46-13.

Mr Davidson argued that a right of access had been created as a real condition by the effect of section 3(2) of the 1857 Act, as amended. He accepted that academic writers seemed agreed that the purpose of the amendment was to deal with problems which arose when the various plots on a building lease came to be sold off by way of assignations of parts of the original holding. But he pointed out that this had never been determined judicially. There was nothing in the wording of the statutory provision to justify limiting it in this way. He submitted that the plain effect of the statutory provision was that all conditions or stipulations, referred to in an assignation, would be deemed to be part of the terms and conditions of the lease. He accepted that the scheme of the section was that such conditions would be treated as part of the lease.

Sir Crispin made what he described as a related submission that it was, in any event, plain on a fair reading that the terms of the assignations did no more than create a personal obligation between the two tenants. Whatever the question of title, it was obvious that this was just a personal obligation. If so, it was not enforceable as a real burden merely because it was on the Register. He accepted that there was a difference between the wording in the progress of titles relating to No. 77 and that relating to No. 75. At the time when No. 75 was registered the Keeper would not have had available the progress of titles relating to No. 77. The initial reference to Mrs Moffat was in the No. 77 progression. It was then referred to in relation to No. 75 in the 1956 assignation from MacKay Trustees to the Halifax Building Society. His point was that the Keeper should have been alerted because the right did not appear in any lease nor in the assignation to Mr MacKay. It appeared in the 1956 assignation without mention of agreement by neighbours or by landlord. It simply purported to create a right over another's ground. If the Keeper had been alert and had sought to ascertain the basis of the alleged right he would have realised from the No. 77 titles that the right was a personal obligation only.

Mr Davidson agreed that if a right was patently a personal one on the face of the Register it would not be enforceable as a real right. An example would be an attempt to grant a "servitude" in favour of one named individual. But the right here was not so limited. It was not patently limited to a personal right.

In response on this issue, Sir Crispin submitted that if the Tribunal looked at Mr and Mrs Buchanans' Land Certificate in the title to No. 75 (No. 4 of process) it could be seen that the right was patently a personal one. On the face of it, it was a right of a type which was not binding on singular successors.

Discussion

For reasons referred to above we accept that the attempt to create a servitude as such was inept. We have had greater difficulty with the submission that the attempt to create a right of access was made effective by section 3(2) of the 1857 Act as amended.

It is clear that there is scope for confusion between servitudes and leasehold conditions: Cusine and Paisley, 1.18. However the two are conceptually distinct. On the face of the assignation of No 77 the attempt being made was to create a "servitude". It did not purport to be a condition or stipulation of the lease. The distinction cannot simply be glossed over: see as an example in a different context, Bowers v Kennedy page 558H-559C. However, we accept that it might be necessary to ignore the distinction if this could be said to reflect the intention of the legislation.

An important feature of the purported servitude or condition was that it was in favour of a third party, outwith the scope of the lease. The tenant proprietors of No 75 were not parties to the lease of No 77 which was being assigned.

Section 3(2) does not expressly limit the empowered "conditions and stipulations" by any reference to the lease. However, the "conditions and stipulations" are not given direct effect in any way analogous to the provisions of section 3(1) of the 1979 Act. The effect is to come from the new assignee being treated as if he was an original grantee. The prima facie implication is that the rights become part of the lease. Mr Davidson accepted that this was implied. It would follow that enforcement would be a matter for the landlord. This, of course, might be thought to defeat the point of the amendment. The granter of the assignation would have little interest in creation of a right enforceable only by the landlord. Some wider construction seems necessary. This has been attempted: Thomson, comment on section 3; Halliday 31-13; Reid 352. We accept that the purpose of the section was to permit creation of conditions enforceable between tenants.

A lease is a contract. The parties to it are the landlord and tenant or landlord and tenants. Statutory provisions intended to apply to the creation of rights between these parties can properly be construed as impliedly limited to such rights and not applicable to the creation of rights involving a third party. There is a presumption for freedom in relation to ownership of heritable subjects. The effect of the purported servitude would be to impose a burden on the subjects as well as on the tenant's interest. We see no justification for an approach to construction of section 3(2) of the 1857 Act which is any broader than is necessary to give sense to the provision.

No doubt, rights in favour of third parties can be created in a lease but the starting point must be the intention of the primary parties. The consent of a landlord to creation of rights in assignees or rights between assignees may be assumed. All such rights will fly off when the lease comes to an end. Such consent cannot simply be assumed in relation to rights which will permanently burden his land. We are not satisfied that a construction which would lead to that effect is within the intention of the legislation.

We recognise, of course, that the proper construction of this section 3(2), as amended, is not free from doubt. The observations of academic writers make it clear that if it is to receive effect, some creative inference as to the intention of the draftsman will be required: Reid para. 352. Such inference, while no doubt permissible, must in our view be limited to what is necessary to give some practical effect to the provision.

We have accepted that the purported creation of a servitude as such was inept and have not been persuaded that it was made effective by the 1857 Act. We accordingly conclude that prior to registration there was no valid real right of access over No. 77 in favour of No. 75. It is unnecessary for present purposes to deal with the submission that the purported right was, on the face of it, limited to a personal one. However, we did not find the argument persuasive and return to it below.

What was the effect of registration?

There was no dispute as to the basic principles of the scheme for registration. General reference was made to Shorts Trs and Kaur v Singh. It was recognised that the scope for change was very limited and that it was not enough to show that a particular right appearing in the register was not properly justified by reference to the pre-registration rights of parties. Mr Davidson accepted that change could be made to the register in such circumstances but, he submitted, only by way of rectification which was not possible if it would be to the prejudice of the proprietor in possession in terms of the provisions of section 9(3). This chapter of discussion attempts to deal with the submissions to the effect that an apparent right might be, or become, ineffective without need for rectification or by rectification without reference to the prejudice of a proprietor. Such rectification would be permitted by section 9 (3)(a)(i) in relation to an overriding interest. We deal with this under a separate subheading.

Sir Crispin sought to draw and maintain a distinction between "change or correction" of the register and "rectification" of it. It was, he submitted, necessary to bear in mind that all change was in a sense a "correction". Even where it might appear that the Keeper was simply changing the Register to reflect external events, this was really a correction. It was due to a recognition that the register no longer accurately reflected the rights. It was accordingly insufficient or over simplistic to express a distinction in terms of powers to "update" and powers to "rectify".

The substantive submissions turned on the effect of the proviso to section 3(1). The section, after setting out the various effects of registration, adds the proviso that the effects specified apply only "insofar as the right … is capable … of being vested as a real right etc". Sir Crispin submitted that as the so called servitude of access could not be created by assignation of a long lease, the right set out as a burden in the register was not one which was capable of being a real right. Accordingly the entry would not have the effect provided for by section 3(1). The entry might simply be ignored or the Keeper would have power to give effect to any observations by a Court or the Tribunal confirming that the entry had no effect by treating a decision containing such observation as "an event" under section 2(4) or by noting the effect of such decision under the powers given by section 6(1)(g). The obligation of the Keeper under section 6 was to make up "and maintain" a title sheet with certain specified categories of information. Section 6(1)(l) provided for the entry of "any enforceable real right … or subsisting real burden …". The "servitude" of access was not enforceable or subsisting and should not have been registered. The Keeper ought to take it out as part of his obligation to maintain the Register.

Mr Davidson relied on the short submission that rectification was required to make any change in the circumstances of this case. There was no patent incapacity. Excision of a right because it was invalid or had lapsed for whatever reason was correction of an inaccuracy. This was to be achieved by rectifying under section 9. He did not require to consider whether, and in what circumstances, other methods of change might exist. However, he submitted that the Keeper's duty to "maintain" the register under section 6 could not, in its context, include a right to correct by way of "updating". In particular, he said section 6(1)(g) was not authority for any pretended right to correct the register. It could, and should, apply only in relation to inclusion of material available at the time of making up the entry. Finally, Mr Davidson pointed out that both Brookfield and Dougbar were cases providing clear illustration of the need to rectify the register in circumstances similar to the present.

Discussion

It is plainly the intention of the Act that the scope for change of entries in the register should be extremely limited: Short's Trustees. It is, of course, evident that the Keeper is bound to give effect to certain changes taking place in relation to rights after registration. An obvious example of change is that following a valid sale. The personal rights in the subject change in circumstances where change in the real right is also appropriate. However the real right does not change until the register itself is altered and the circumstances would not, in our view, justify the term "correction". Another possible change would, no doubt, be to reflect any order of the Tribunal varying or discharging a registered right under section 1 of Conveyancing and Feudal Reform (Scotland) Act 1970. Such changes do not challenge the effect of section 3(1) as applied to the original entry. They involve no challenge to the accuracy of the register at the date it was made. It is, again, an unnecessary stretch of language to refer to correction of the register in that context. Many similar examples can be found including discharge of securities. They would all be registrable as dealings with the registered rights under the provisions of section 2(4) and it is an implicit and essential feature that the Register is to be changed when registrable events occur.

A possible way of describing the scope for change would be to say that alteration of the Register to reflect dealings with rights or variations in rights subsequent to registration would be permitted by virtue of the provisions of section 2(4); whereas any change which would in substance have the effect of undermining section 3(1), by giving effect to a pre-existing ground of challenge, would require rectification.

Mr Davidson was happy to accept such a distinction as sensible and adequate for his purposes. However, mention was made of the observation of Lord Jauncey in Short's Trustees page 26, C-D where it was noted that counsel "accepted that defeasance or forfeiture of an interest would be registrable under section 2(4)(c) although he was unable to advance any reason in principle why there should be a distinction between these events and reduction". This passage leads to some caution before simply adopting as straightforward a division between change based on giving effect to the need for correction arising out of an attempt to give effect to the legal rights of parties as they existed before registration, and giving effect to changes in such rights after registration. For present purposes, however, it is enough to say that we are not persuaded that there is any warrant for the Keeper making an alteration based on a change of view or a judicial finding as to the "true" rights of parties before registration. Even if such a construction of the Act was possible we consider it negatived by the plain thrust of the decision in Short's Trustees.

In any event, we are satisfied that a right described as a "servitude right of access" is a right which is "capable" of being vested as a real right within the meaning of section 3(1). We are not persuaded that challenge to the title of the granter has any bearing on this. In the present case the assignation might have been with the express consent of the landlord for all that appears on the face of the register in relation to No. 75. The scheme of the Act is that the public should, as far as possible, be able to rely on the plain effect of entries in the register. They do not require to investigate the granter's title.

The applicants submitted that the right of access patently could never be a real right because the qualifications demonstrate that it is only personal. Counsel advanced no authority for the contention as to the effect of the qualification. He referred explicitly to the title of No. 75 as "patently a personal right only". However, that title refers to a "servitude right of access". The qualification as to the method of exercise of the right appears to us to be in typical terms and no aspect was referred to explicitly as demonstrative of the right being limited to a personal one. This reference to No. 75 may have been made in error. The Land Certificate of No. 77 does include reference to a named person. But, as we have seen, that certificate also refers explicitly to a "servitude right". This term in itself goes some considerable way to establishing an intention to create a real right: Gordon 24-16. The only qualification relates to the manner of exercise. It was to be exercised so as to occasion as little inconvenience as may be to a Mrs Moffat.

Mr Davidson accepted that if it was, indeed, obvious on the face of the title sheet that the right was purely personal, section 3(1) would be of no effect. However he submitted that this was not such a case. The burden as set out in the title sheet of No. 77 did not lose its patent effect as a real right merely by reference to the convenience of a named party. In any event he submitted that the respondents' rights derived from their own title to No. 75.

It is plain that the reference to the convenience of Mrs Moffat could be treated as a limitation which would simply fly-off after her departure. We recognise that it introduces a personal element but it is not one which is necessarily destructive of the intention to bind singular successors. We did not hear any submission in relation to the decision in Inglis v Boswell which is referred to in the passage cited from Gordon (24-16). The reference suggests that mention of a named party is not in itself enough to vitiate an apparent intention to create a servitude. In the circumstances of this case, it is enough to say that we did not find the applicants' submission persuasive in face of the express reference to a servitude in favour of singular successors.

We are therefore satisfied that although the right which appears in the title sheet of the applicants' property was not properly constituted as a servitude, it is, on the face of the Register entitled to be treated as such. In any event, for the reasons discussed below under reference to "overriding interests", we consider that Mr Davidson's submission is well founded. The more important title sheet is that relating to the dominant subjects.

The issue of correction of inaccuracy in the Register was addressed in Brookfield Developments v The Keeper. That was the first appeal under the 1979 Act to come before the Tribunal. A bench of three lawyers sat to hear the case. The decision itself is entitled to considerable weight. However, judicial examination of the Act, over the years since, has disclosed a variety of doubts and ambiguities. It would be unrealistic to treat obiter remarks in that first case as binding or particularly persuasive in relation to matters upon which there may have been no full argument. Although the decision illustrates rectification in circumstances similar to the present, it is plain that the question of the appropriate remedy was not in issue. The arguments show that the applicants sought rectification and the substantive argument related to the nature of the Keeper's function and the scope of the appeal. However the Tribunal said that the real issue turned on the test of "inaccuracy" for the purposes of section 9: page 110 J-K. It follows that the Tribunal's construction of that word as it appeared in section 9 was at the heart of the decision. "The meaning of the word 'inaccuracy' appearing in section 9(1), as a result of which corrective insertions, amendments or cancellations may need to be made should, in our opinion, be construed widely so as to include any incorrect or erroneous entry in or omission from the Register".

A distinction can, of course, be drawn between rights which were invalid from the outset and rights which had become unenforceable or ceased to subsist before registration. It is plain, however, that both may lead to an incorrect or erroneous entry. The decision remains persuasive that the proper remedy in such circumstances is rectification.

Reference was made to Dougbar Properties Ltd as illustrative of rectification being used where "a right of use for all purposes of parking" had been registered despite a prior formal agreement of relevant parties superseding any such right. The decision dealt only with the subsequent stage of claim for indemnity and, in our view, cast no light on the propriety of, or necessity for, rectification in the circumstances.

In summary, it appears to us that where the change in the register is said to depend upon a view as to the anterior rights of parties, there is no statutory machinery for effecting such change other than by way of proceedings under section 9. It is unnecessary for us to express a view as to any limitation on the scope for change arising from events subsequent to registration. If a right appearing in the burdens section of the title sheet is, on the face of it, not a right capable of being a real right, the "burdened" party can, no doubt, ignore it and take his chance on defending any attempt to enforce it. He could protect his position by a declarator that it did not create a real right.

Overriding interest

Sir Crispin submitted that a servitude was "an overriding interest" within the meaning of the definition in section 28. Section 3(7) accordingly excluded it entirely from the scope of section 3(1). In his submission the proviso to the definition section was not relevant. The right was within the definition and it was not necessary to consider whether it might otherwise have been included by reference to section 6. The Keeper could rectify the register under section 9(3)(a)(i). We also understood Sir Crispin to repeat, in relation to rights which fell to be regarded as overriding interests, his submission that an ineffectual entry might simply be ignored or that the Keeper would have power under section 2(4) to give effect to any observations, by a Court or the Tribunal, confirming that the entry had no effect or to note the effect of such decision under the powers given by section 6(1)(g).

In response, Mr Davidson dealt shortly with the submission relating to the overriding interest noting that, while the definition in section 28(1) could include a servitude, the effect of the proviso was that it did not include servitudes which had been entered in the title sheet. A right could hardly be both a registered right and an overriding interest. Once registered it ceased to be in the latter category.

Discussion

If we have correctly understood the submissions, counsel's contention was in essence, that where rights were of a nature covered by the definition of "overriding interest" they could be treated as an overriding interest wherever they appeared. The various provisions as to noting or rectifying such interests accordingly applied. Mr Davidson's response was, in effect, that once a right was registered as a substantive right and not merely as a note of an overriding interest, it was no longer to be treated as an overriding interest. The submissions were directed at the issue of construction of the Act insofar as bearing on change to the register and we did not hear full submissions as to the scope and purpose of the various provisions relating to overriding interests. The question of the inter-relation of rights in two separate title sheet was not explored.

In the context of the present case, an overriding interest is the "right or interest over an interest in land of the proprietor of the dominant tenement in a servitude": section 28. This is one of a list of rights defined as having the status of overriding interest. There is no reason to imagine that the overriding interests were given special status in recognition of their intrinsic importance. Plainly the provisions safeguarding that status are required simply to deal with the fact that the various rights or interests in question would not have been expected to appear in the Sasine Register or necessarily to be noted as part of a progress of titles. It may reasonably be assumed that the task of identifying all relevant interests and registering them as part of the definitive title was regarded as impossible in practical terms. Their status is preserved by section 3(7).

However, the underlying policy of the Act is plainly aimed at having a reliable public record of relevant rights in land. As a matter of policy it might appear that where rights falling within the definition of an overriding interest do appear explicitly as burdens in the Register in the title of the burdened subjects they no longer require separate preservation. The proviso to the definition may be thought to be an attempt to reflect this. However, there is obvious potential for conflict if there is any difference between the burden as appearing in the burdens section of the registered title of the servient tenement and the right as it may appear in the dominant title sheet or as it may have existed prior to registration.

Under the Sasine system, servitude rights would not necessarily appear in a recorded title. Cusine and Paisley discuss some of the issues arising when a right, described in an express grant, is not consistent with the use made thereafter over the prescriptive period: para. 10.04. Similar issues could arise where an express grant has followed the potential establishment of a right by prescription and a conflict might arise between an express grant and the terms used in the related recorded title to the burdened subjects. In theory, the proper measure of any right conferred over these subjects would lie, not in the burden as set out in the title to these subjects, but in the original grant. The beneficiary of that grant would not necessarily have any say in relation to the titles of the burdened subjects.

The active role of the Keeper in relation to the system of registration means that the situation is not directly comparable with the Sasine register. However, the possibility of there being a difference between the existing right, however constituted, and the right as it appears in the burdened title, would be a justification for the view that a right derived from express grant ought to continue to exist as an overriding interest in relation to the servient tenement. To that extent, therefore, we can see the attraction of Sir Crispin's position. If, for any reason, the servitude continued to exist as an overriding interest it would seem to follow that, however expressed, the registered version of that right in the servient title would have to be treated as no more than the noting of such interest.

We are satisfied that the servitude in the dominant title sheet (No. 75) is expressed in terms entirely appropriate to constitution of a servitude right of access as a real burden and that it reflects the terms of the original grant (in the assignation of 13 September 1956 of No. 77). Accordingly it is unnecessary to consider whether similar conflicts could arise in relation to the dominant interest. It would, no doubt, be consistent with the policy of the Act that all rights in the dominant title should be found in the register but we were not directed to any provision which might lead to a conclusion that omission of a servitude from the dominant title sheet could prevent that servitude from being treated as an overriding interest in relation to the servient title. In most cases such a servitude would be expected to be covered by the provisions of section 3(1).

In relation to the broad positions of parties as summarised above, we have come to the view that a right which appears as a benefit, explicit on the face of a title sheet or implicit by virtue of section 3(1), cannot be "an overriding interest" in the context of that title sheet. It is not a right "over" the primary registered interest. Accordingly, where there is explicit reference to a servitude in the title sheet of the dominant tenement, it must follow that any such reference cannot be changed by reliance on provisions relating to overriding interests.

The servitude appearing in the title sheet of No. 75 would be an overriding interest in relation to No. 77. We are not satisfied that it loses this status by virtue of the purported inclusion of an apparently similar right in the burdens section of that title sheet. In practice, the scrutiny of the Keeper may avoid most problems but the possibility of conflict between the rights as they appear in the dominant title and in the burdens section of the servient title does exist. For example a dominant title might have express inclusion of vehicular access and the related servient title might refer explicitly to pedestrian access. With such an obvious difference in scope it might simply be concluded that two different rights existed. However, if the dominant title included an unqualified right of access and the servient one a right limited to pedestrian access, the issue would be less clear. Difficult could arise if there were any differences in the language used in the two titles.

It is unnecessary for us to express a view on this matter. If, as counsel submitted, a valid servitude remains as an overriding interest unaffected by the proviso to section 28 and by the terms in which it appears or is referred to in the servient title sheet, it would follow that the Keeper could freely rectify or change any reference to it as an overriding interest in that title without affecting its validity. There is nothing in section 9(3) which allows the overriding interest to be "rectified". All that can be changed is the information in the burdened title sheet. The critical issue which remains is the nature and extent of the overriding interest as it may be established without reference to that title sheet, and, in the present context, that depends on the Keeper's power to alter the dominant title. As any change would not relate to an overriding interest in the context of that title, the provisions of section 9(3)(a)(i) can have no bearing on that power.

Counsel's submissions in relation to overriding interests were not limited to that section. We understood his submissions in relation to the Keeper's powers under section 2 and section 6 to apply also to overriding interests. It may be observed that we did not find these particular submissions entirely easy to follow and it may be for that reason that we did not find them persuasive. In any event, we were not invited to make any positive order giving effect to them. The present application seeks rectification. Although it appears that no formal application for rectification was made in terms of Rule 20(1) of the said Rules, the pleadings refer to a letter of 8 August 2000 asking the Keeper to "rectify" the land certificates. In so far as the application is to be treated as an appeal, it is said to be against his failure to do so. If we had to conclude that rectification was not appropriate we would have to refuse the application. No other disposal was suggested.

Is rectification precluded by the provisions of section 9(3)?

It was accepted by Mr Davidson that if the supposed servitude was not enforceable and subsisting at the date of registration, the appropriate course would be rectification - if this was not precluded by the provisions of section 9(3). It was not disputed that in this case the interest in land described as a "servitude right of access" had to be looked at on its own. Accordingly the difficult questions which might arise as to the scope of the term "forming part of that interest" in section 3(1)(a) do not require to be considered by us. Bowers v Kennedy was referred to, by Sir Crispin, as an example of circumstances where a right of access might be an essential part of the physical subjects. In such a case it would be dealt with as if the physical subject included the access. However the servitude here in issue was not in that category. It was clear that the servitude was not an essential part of the physical property registered as No. 75.

Sir Crispin's submission was that the expression "proprietor in possession" as used in section 9(3) fell to be construed in a very limited sense in accordance with dicta in Kaur v Singh. He submitted that it was clear from these dicta that the scope of protection given by the Act was a matter of policy which required the balancing of interests of parties. It could be seen that where the interest was actual possession of a physical unit of land, policy would seek to prevent the possessor being ousted on rectification of title. Where there was no identifiable physical property there was no need to prevent rectification. Servitudes and heritable securities were treated as the same for the purpose of the definition of interest in land: section 28(1).

Although he contended that the issue was effectively determined by dicta in Kaur v Singh, Sir Crispin also sought support for the argument by reference to the specific provisions of section 12(3)(g) and (l). The existence of specific provision for real burdens tended to indicate that they were not to be treated in the same way as physical property. Sir Crispin suggested that the fact that indemnity would not automatically follow in relation to servitude rights supported the view that they were not to be accorded the same level of protection as proprietory rights in land.

Counsel accepted that if the benefited proprietor in relation to a servitude fell to be regarded as "proprietor" of that servitude, the issue of whether he was a "proprietor in possession" would require, in the circumstances of this case, to be determined after proof. Nevertheless he submitted that the reference to "possession" had a bearing on construction of the word "proprietor". It would not be normal to talk of a person "possessing" a servitude. He might be described as "using" it.

A servitude was at best an incorporeal right. Someone else would be proprietor, and have possession, of the land over which the right was exercised. This was not a case where the sanctity of the register could be seen to protect an essential right of recognised public importance such as security of title to home or physical property. Here, the benefit to one was a burden on the other. It was, he submitted, proper to allow rectification if the title was wrong. In this connection, the practical implications for the undisputed proprietors in possession of the subjects at No. 77 were to be kept in mind. They exercised possession, inter alia, by parking cars on their own land. They would not be able to do so if the servitude right of vehicular access existed over that land. In short, the primary protection of the proprietor of the land would be interfered with if rights over it were also protected. The supposed servitude right had appeared in error and there was no reason why the register should not be rectified. In appropriate circumstances there could be an indemnity.

Mr Davidson submitted that it would be necessary to have a proof to determine whether the respondents were "proprietors in possession". There was, in his submission, a qualitative distinction between rights in respect of a standard security and a dominant proprietor's right to exercise access. The decision in Kaur v Singh, accordingly, had no bearing on the latter. He argued that Sir Crispin's submission would mean that section 9 would only apply to disputes over the boundary or extent of an area of ground. There was no justification for so limiting it. The argument that servitudes and rights in a standard security should be treated as the same for this purpose because both were covered by the definition in section 28(1) was ill-founded because it was clear that rights to the dominium utile also fell within the definition. He submitted that it was plain that the respondents were proprietors of the servitude. It was really the question of possession which would have to be determined after proof.

Discussion

Section 9(3) applies where rectification "would prejudice a proprietor in possession". For present purposes, we are concerned only with the scope of the term "proprietor" as used in this context. The question of possession would require proof. The expression "proprietor in possession" does have a resonance of its own. As explained by the Court in Kaur it appears to derive from English usage: page 187H. This may have a bearing on construction. However, as it seems to us, the essential conflict is between a construction which would limit the term "proprietor" to a popular sense and a construction which would treat the concept of "interest in land" as the essential focus of the Act. In popular speech "proprietor" is used as synonymous with an owner of property; and in the context of land transactions, "property" tends to be viewed as referring to concrete or tangible subjects which can be physically identified and which can be bought and sold.

This issue was discussed fully in Kaur v Singh: pages 186C - 187B. There is no purpose in our attempting further analysis. We accept, without difficulty, that the decision is not expressly determinative of the present dispute. There is a clear distinction between rights in security which, in themselves, require no element of physical possession and rights of use which necessarily provide on an element of physical involvement with the land. However, the importance of the decision is that it is clearly authoritative in relation to the fundamental question. "Proprietor" in section 9(3) is not to be taken as equivalent to a proprietor of an interest in land as that term is defined for the purposes of the Act: page 187 B-C. The nature of the particular interest and the policy of the Act must be considered.

We are satisfied that the guidance to be derived from the decision is not limited to rejection of reference to the defined "interests in land" as an implied modifier of the term "proprietor". The views of the Court are expressed very clearly in favour of limiting that term by reference to lands in the tangible or corporeal sense. "In our view, when, in the context of a discussion of land, one refers to 'a proprietor' without any qualification then in ordinary usage the reference is to 'an owner' of the land. On that basis alone we would tend to the view that when the draftsman refers to 'a proprietor in possession' in section 9(3), he intends to refer to 'an owner of land who is in possession'. Had he wished to encompass proprietors of other interests, he could have written 'a proprietor of an interest in land', following the usage which he adopted in section 3(6)": (page 187B) The Court stressed that the concept of an owner of land was not limited to the owner of the dominium utile but the examples of the wider sense envisaged by the Court were limited to "those with equivalent rights under the other systems of land tenure in Scotland - proprietors under udal tenure and kindly tenants. It also seems to us that, as section 6(1)(a) would suggest, lessees under a long lease should be viewed as being in substance similar to proprietors of the dominium utile. All these, if in possession, would therefore be entitled to the special protection afforded by section 9(3)": (page 187D).

We accept the submission on behalf of the applicants that these examples of equivalent rights form a class which would not cover a servitude right of use. We are, of course, well aware of the need to read all dicta in their proper context. The implicit contention of Mr Davidson was that servitudes were not included merely because the status of such rights was not in issue in the case. The Court was dealing only with the contentions relative to a person vested in a right under a standard security and required to do no more than exclude such a right. Dicta designed to emphasise a contrast with such an interest would not necessarily have been put in the same way had the issue been whether the term "proprietor" was apt to cover the rights of a person in benefit of an interest of the nature of a servitude. Nevertheless the emphasis on the ordinary usage of the term was at the heart of the decision and we have no doubt that this emphasis supports the applicants in the present case. Rights such as servitudes are incorporeal. The implicit emphasis in Kaur was on land as a corporeal asset: (p.190D).

Further analysis of the particular nature of a servitude right also supports this conclusion. As the parties agreed, the purported servitude in this case had to be looked at as a separate right. Mr Davidson agreed that it was not sufficient for him to point to the undisputed status of the respondents as "proprietors" of the dominant subject tenement. However, servitudes cannot be owned by a proprietor as an individual. They must run with the dominant property. For this reason one would not normally speak of an individual as "proprietor" of a servitude. Within the Act itself, we note the definition of overriding interest referred to above. Section 28 refers not to "the proprietor of a servitude" but to the "proprietor of the dominant tenement in a servitude". This supports counsel's submission but we cannot place much weight on this use of language. The Act does place considerable reliance on the concept of an "interest in land" and it would, no doubt, be possible to refer to the proprietor of such an interest without any violence to the language.

While the sanctity of the Register is, of course, of major importance, it is also important to recognise the tension between the preservation of the Register and the correction of error. If no valid servitude was created, there should, ideally, be no servitude on the face of the register. It is unnecessary for us to restate the policy of the Act or to discuss how that tension should be resolved in any particular case. Reference may be made to Short's Trustees and to Kaur v Singh at pages 188 and 189. In the latter, the Court had little doubt that the policy behind section 9(3) was the same as that behind the English legislation: 189 H-I. "An innocent registered proprietor who is in physical occupation of the registered property should not be ousted from his enjoyment of it. Monetary compensation is of little comfort to a man who is thrown out of his home or ejected from his land, whilst it should normally be sufficient to recompense the owner of a property who has never occupied it".

Loss of an apparent servitude of access could have a significant adverse effect on an occupier's enjoyment of his land. For many people an ability to use garden ground to park a car is a valued aspect of their property rights. Loss of access removes that particular value. This, however, is not the equivalent of being ejected from the land.

We observe that the conclusion that servitudes are not protected fits an analysis of the Act which has become familiar from textbook treatment. "The 1979 Act calls real rights 'interests'. In effect, it divides real rights into two classes, primary and secondary. We say "in effect" because the Act is not as clear as that. There are three kinds of primary interests: (a) dominium utile, (b) dominium directum; and (c) long lease. Other interests are secondary. Examples are standard securities, short leases, real burdens and servitudes. Primary interests have their own title sheet. Secondary interests do not, and are registered on the title sheet of the primary interest to which they relate": Gretton and Reid 8.03. A policy of giving special protection to proprietors of interest in land which have their own title sheet can be identified as consistent with Kaur v Singh.

It was submitted in Dougbar Properties Ltd that although the scheme of the Act was that the public be entitled to act on the faith of the register, the possibility of rectification had to be considered by those relying on the register. A purchaser who could take possession was virtually invulnerable to rectification. A purchaser who could not take possession might find his rights restricted to claiming indemnity. We recognise that the purchaser of a piece of land would normally expect to be able to check that vacant possession was available. Possession of a real right may be quite a different matter. This may be a line of argument which also supports the conclusion that "proprietor in possession" was intended to be limited to the obvious position of a owner of land in its varied forms. However, we did not hear argument on these lines and place no great weight on it.

One area which has given us pause is the question of indemnity. Sir Crispin stressed the special provision relating to real burdens - which were agreed to include servitudes - as tending to support the proposition that servitude rights should be seen as separate from rights of property in land itself. However, the approach of the Court in Kaur, insofar as based on policy, considered matters in the context of a choice between protection of a possessory right or provision of indemnity: p190 G-I. It was thought that financial indemnity would not always be an adequate remedy but for the purposes of that case it could be assumed that the choice lay between this and protection of the right. That choice may not exist when the rectification arises out of non-enforceability of a real burden. The Keeper is not obliged to indemnify in that situation: section 12(3)(g). Accordingly, the policy issue discussed by the Court in Kaur v Singh would not apply in relation to servitudes because the person in benefit could not always rely on indemnity.

We consider, however, that section 12(3)(g) is indicative of the policy of the Act itself. If it was regarded as inappropriate to compensate for loss of a right to enforce a burden, this tends to support the conclusion that the word "proprietor" in section 9(3) should not be construed in such a way as to give such rights special protection.

Conclusion

For the reasons set out above, we conclude that the registered titles to both subjects disclose, in error, a servitude of access. The register should be rectified. As the protection given to a proprietor in possession does not extend to a party whose rights are derived from ownership of the dominant subjects, there is no bar to rectification. Proof of possession is irrelevant and, accordingly, unnecessary. The applicants are entitled to an order on the lines craved.

Expenses

Parties were agreed that the question of expenses should be reserved. Sir Crispin moved for certification of the case as fit for the employment of senior counsel. He stressed the recognised difficulties in construction of the Act. The issue was of great importance to the applicants in their enjoyment of their home. Mr Davidson left this matter to the Tribunal.

We recognise the importance of the case for the applicants in relation to their enjoyment of their home. Plainly it is of importance to the respondents in a similar way. We are only too aware of the difficulties of construction of the Act. Indeed we take this opportunity of urging both sides to recognise that the real blame for all the anxiety and uncertainty they must have had over this matter, rests with the genuine legal difficulties in the case and not with each other. However, we are not persuaded that it should be certified as appropriate for employment of senior counsel. The matter was, of course, dealt with at debate and accordingly involved no difficulties of evidence. The approach taken did not require a full exposition of all the potential difficulties of construction of the Act. We certify it as suitable for the employment of counsel.