Lands Tribunal for Scotland

OPINION

Turnberry Homes Limited
v
The Keeper of the Registers of Scotland

Introduction

[1] In this appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”), the appellants appeal against the Keeper’s exclusion of indemnity in registering their title to a strip of ground (“the appeal subjects”) which they have used in a housing development (“Briarwood”). The Keeper, in registering the appellants’ title to the development site, took the view that their title to the appeal subjects was open to challenge by proprietors of houses in an adjoining development (“Beechwood”) on the basis that the dispositions in favour of the Beechwood proprietors had conveyed pro indiviso rights in these subjects. Issues were raised in the parties’ written submissions about the competency of this appeal and the remedy in the event of the appeal succeeding, but during the hearing before the Tribunal the parties agreed to ask the Tribunal at this stage only for a finding on the title issue, which turns substantially on the construction and effect of a Deed of Conditions in relation to the Beechwood development (“the deed of conditions”).

[2] Having considered parties’ submissions on the basis of material facts which are not in dispute, the Tribunal does not consider that Clause Tenth of the deed of conditions has the effect contended for by the appellants. In our opinion the subjects of appeal were common parts of the Beechwood development and were subject to the provisions of Clause Seventh. We find, in agreement with the Keeper, that the title in relation to the appeal subjects is at least technically open to challenge, although it seems likely that it may in due course be made good by the prescriptive possession of individual Briarwood houseowners who have taken dispositions from the appellants of plots including parts of the appeal subjects. In accordance with the parties’ procedural agreement, we shall at this stage simply issue this Opinion and not make any formal order. We wish to reserve our position on the situation if, instead of seeking to convey the subjects of appeal to the appellants for the Briarwood development, the Beechwood developers had, after dispositions to individual Beechwood proprietors, sought, in reliance on the provisions of Clause Tenth, to convey land to a Green Belt company (“Green Belt”) referred to in that clause.

Procedure

[3] The appeal was opposed by the Keeper. It had also been intimated to a number of interested parties, none of whom however have entered any appearance or answers. The appellants were represented at the hearing before us by Mr Garioch, solicitor-advocate, of Messrs Morisons, Edinburgh. The Keeper was represented by Alan Dewar QC and Mr Sheldon, advocate, instructed by the Solicitor to the Scottish Government. Various productions had been lodged, but a Joint Minute of Admissions, together with agreement that the evidence of a Mr Divin, a planning officer with North Lanarkshire Council, could be taken in affidavit form and not subject to cross-examination, enabled the hearing to proceed on the basis of parties’ submissions, during the course of which the procedural agreement referred to above was reached. The Tribunal was prepared to deal at this stage with matters on the more limited basis jointly requested and is obliged to parties for their clear submissions.

Authorities referred to:-

Hunter v Fox 1964 SC (HL) 95
Melanesion Mission Trust Board v Australian Mutual Provident Society 1997 2 EGLR 128 (Privy Council)
Howgate Shopping Centre Limited v Catercraft Services Ltd 2004 SLT 231 (Lord Macfadyen)
McBryde, Law of Contract in Scotland, 2007, 3rd Edition, 8 – 30-32

Material Facts

[4] The facts material to the issue argued are not in dispute and are as follows.

[5] The appeal subjects comprise an area of ground at Watling Street, Motherwell, extending to approximately 1108 square metres and outlined in mauve on the Title Plan pertaining to Title Number LAN165216. The appeal subjects physically form part of the appellants’ Briarwood development and have in fact been included in dispositions of individual houses on the west side of that development.

[6] The appellants’ title to the appeal subjects was based on a Disposition of these subjects in their favour by George Wilson Homebuilders Limited (in receivership) (“Wilson”) acting through Gordon Iain Bennet and John Bruce Cartwright as joint receivers dated 4 June 2003 and registered in the Land Register on 17 June 2003. Wilson had been the developers of the Beechwood development. The appeal subjects formed part of the appellants’ larger subjects comprising title number LAN165216. The Proprietorship section of the Land Certificate LAN165216 includes the following Note (“the exclusion of indemnity”):-

“As regards the area edged mauve on the Title Plan indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that the Dispositions in favour of the proprietors of the dwellinghouses within the area tinted pink on Supplementary Plan 1 to the Title Plan, referred to as “the Development” were conveyed together with the rights as specified in the Deed of Conditions in Entry 4 of the Burdens Section; which Deed of Conditions provided that each proprietor within the Development would have a pro indiviso right of property to the common parts (being the Development under exception of all parts conveyed or to be conveyed to individual proprietors) and any pro indiviso rights in said area edged mauve created by virtue of said Dispositions rank prior to the Disposition of said area edged mauve by the Receiver of George Wilson Homebuilders limited in favour of Turnberry Homes Limited, registered 17 Jun. 2003, on which the entitlement of the above proprietor is founded.”

[7] The reference in the exclusion of indemnity to “the Development” is a reference to the subjects at Watling Street, Motherwell which were registered under Title LAN147409 with Wilson as proprietors. Those subjects comprised, in addition to the appeal subjects, the subjects on which the Beechwood development was built by Wilson.

[8] The Planning Permission for the Beechwood development, dated 27 September 2000, incorporated a requirement for a fenced buffer zone at the east side of that development separating it from an area which at that time comprised football pitches and a car park at a higher level. Wilson, however, subsequently obtained Planning Permission, dated 15 October 2002, for the Briarwood development on the land to the east of the Beechwood development. The Planning Permission for the Briarwood development did not incorporate a requirement for such a buffer zone, and the approved plans for that development, apparently prepared by another Wilson company for the owners of the majority of the land, ‘Motherwell Bridge’, showed the subjects of appeal as having been incorporated within it. Accordingly, it was considered no longer necessary, in order to comply with the planning requirements, to have such a buffer zone. The appeal subjects comprise the land which was originally to be the buffer zone to the east of the Beechwood development but which has in fact been incorporated into the plots of the individual houses on the west side of the Briarwood development. Wilson, which went into receivership, did not themselves proceed with the Briarwood development. The appellants did. Thus, the appeal subjects came to be conveyed to the appellants and incorporated by them into the Briarwood development.

[9] Wilson had executed the deed of conditions relative to the Beechwood development. This was the Deed of Conditions by George Wilson (Stonehouse) Limited dated 9 and 25 March 2001 and registered in the Land Register on 12 April 2001 and is the deed of conditions referred to in the exclusion of indemnity. It commences as follows:-

“WE, GEORGE WILSON (STONEHOUSE) LIMITED … , heritable proprietors of ALL and WHOLE that area of land at Watling Street, Motherwell registered in the Land register of Scotland under Title Number LAN 147409 (hereinafter referred to as “the Development”) … ”

The appeal subjects, having formed part of the subjects registered under LAN147409, were thus part of “the Development” covered by the deed of conditions.

[10] Generally, the deed of conditions makes provisions regulating the ownership and occupation of the houses in the Beechwood development. It excludes application of Section 17 of the Act.

[11] The deed of conditions makes provision in relation to areas of ground not included in the individual plots conveyed to the individual proprietors. Clause Seventh (which has a side note, “Roads, Footpaths, Open Space ground”), provides:-

“In relation to the Development “Common Parts” means the Development under exception of all of the plots conveyed or to be conveyed to individual proprietors and shall include any amenity play areas, boundary fences, walls, railings and hedges enclosing the same and common access roads, pavements, footpaths, visitor car parking spaces and all sewers, drains, pipes, cables and common lighting. Each proprietor within the Development shall have an equal pro indiviso right of property in common with all the other proprietors within the Development to the Common Parts except to the extent that the same or any part thereof may be taken over by or sold or conveyed to the Local Authority or other party with a view to the maintenance obligations being taken over by such party … ”

Clause Eighth makes each proprietor liable jointly with all other proprietors for a share of the cost of upholding and maintaining the Common Parts. Clause Ninth establishes a system for appointment of a factor to manage this maintenance and collect payments from the individual proprietors.

[12] Clause Tenth (which has no side note) provides for the possible conveyance of some open areas to Green Belt and makes detailed provision for maintenance by Green Belt, payment by individual proprietors, etc. It provides (verbatim, sic) as follows:-

“Whereas the Grantors may decide to convey to The Greenbelt Group of Companies Limited or any associated company of the said the Greenbelt Group of Companies Limited or its successors (hereinafter referred to as "GGC or its foresaids") any area(s) of open space/landscaped areas and play areas within the Development (hereinafter referred to as the "Open Ground") and whereas GGC or its foresaids are or will be taken bound in terms of the Disposition granted or to be granted in their favour in respect of the Open Ground to manage and maintain the Open Ground as a landscaped open space and as a play area in accordance with a Management and Maintenance Specification comprised in the Schedule annexed and executed as relative to such conveyance to GGC or its foresaids subject to such variations to the said Specifications as may be agreed in writing from time to time between GGC and all the proprietors within the Development (all of which works and other matters comprised from time to time in such management and maintenance are hereinafter referred to as "the Management Operations") all proprietors within the Development are hereby taken bound and obliged in all time coming to contribute to the whole costs of the Management Operations on a pro rata basis as aftermentioned and to pay and make over to GGC or its foresaids such annual sums (plus Value Added Tax exigible thereon) as represent the pro rata share applicable from time to time the relevant dwellinghouse [i.e. each proprietor's dwellinghouse] of the total annual costs of effecting the Management Operations as aforesaid for the relevant year, which pro rata share shall in the case of each dwellinghouse be calculated by reference to the total number of dwellinghouses constructed or permitted to be constructed within the Development with each dwellinghouse bearing annually a proportion of the said costs which is equivalent to the numerical proportion or fraction which the relevant dwellinghouse bears to the total number of dwellinghouses constructed or permitted to be constructed within the Development, (and so that and by way of illustrative example only, if the said total number of dwellinghouses amounts to ninety seven (97), each dwellinghouse shall bear a one ninety seventh share of the said costs annually), and which pro rata share shall be payable in all time coming annually in advance by all proprietors within the Development to GGC or its foresaids; (Two) the costs of effecting the Management Operations to be paid by Proprietors pursuant to sub-clause (One) of this Clause shall not be permitted to increase in any one year by a margin or amount which exceeds in the relevant increase (if any) for that year in the rate of inflation as measured by the UK Index of Basic Materials and Fuels as published by the Financial Times, London; (Three) all proprietors within the Development are hereby bound and obliged not to deposit refuse upon or otherwise exercise any rights which they may have over the Open Ground in such a manner as to cause nuisance or prejudice to the Open Ground or any part thereof or to prejudice or adversely affect the efficient and economic carrying out by GGC or its foresaids of any part of the Management Operations; (Four) to the extent, if any, to which it may in law be necessary, for the purposes of enabling GGC or its foresaids, validly to enforce the foregoing land obligations, there is hereby conferred upon GGC and its foresaids a jus quaesitum tertio for enforcement of the foregoing provisions of these presents in a question with all proprietors within the Development (Five) for the avoidance of doubt, the provisions of this Deed of Conditions, with the exception of this Clause TENTH, are intended to regulate ownership and occupation of dwellinghouses and therefore such provisions, with the exception of this Clause TENTH are hereby disapplied from application to the Open Ground; (Six) the whole of the foregoing conditions and obligations contained in this Clause are hereby declared to be real reservations, burdens, conditions and land obligations affecting each and every dwellinghouse within the Development with the intent to confer upon GGC or its foresaids as proprietors of the Open Ground express right title and interest jus quaesitum tertio to enforce performance of same against all proprietors within the Development or any one or more of them, and as such are appointed to be inserted in all Dispositions and other deeds or instruments relating to any dwellinghouse within the Development otherwise the same shall be null and void.”

[13] The land comprised within the Beechwood development includes various open areas which were not included within individual house plots. These areas include access roads, pavements, a central ‘Amenity and Play Area’ and shrub plantations along strips to the north (separating the development from a railway line) and to the south (between the development and Watling Street). There was a specific planning condition requiring the provision of adequate play facilities, and the approved plans included the ‘Amenity and Play Area’ in the centre of the estate in order to comply with this provision. Neither the subjects of appeal nor, apparently, any of these open areas were conveyed to Green Belt.

[14] By Disposition dated 26 April 2001, Wilson conveyed a house and garden at 1 Marius Crescent within the Beechwood development to Luke and Mary Gilmour, with entry on 27 April 2001. This title was registered on 7 May 2001, with the following description in the Property section:-

“Subjects within the land edged red on the Title Plan being 1 MARIUS CRESCENT, MOTHERWELL ML1 3GA edged brown on the said plan, together with the rights specified in the Deed of Conditions in Entry 3 of the Burdens Section”

The Deed of Conditions referred to is the deed of conditions by Wilson. The dispositive clause in the Disposition provided as follows:

“ … HEREBY DISPONE to the said Luke Gilmour and Mary Gilmour equally between them and to the survivor of them and to their respective assignees and disponees and to the executor of the survivor whomsoever heritably and irredeemably ALL and WHOLE that plot or area of ground forming and known as Plot 76 of our Beechwood Park Development, Motherwell being the subjects shown delineated within the boundaries coloured red on the plan annexed and executed as relative hereto; which subjects form part and portion of the subjects registered in the Land Register of Scotland under Title Number LAN 147409; Together with the dwellinghouse and whole other erections on the said plot or area of ground hereby disponed, the fixtures and fittings therein and thereon, the whole common, mutual and exclusive rights of property access and others pertaining thereto as specified in the Deed of Conditions aftermentioned, the parts, privileges and pertinents thereof and our whole right, title and interest present and future therein and thereto … ”

The titles to other houses within the Beechwood development are apparently similar. Many (and perhaps all) of the Beechwood houses were conveyed, and their titles registered, prior to the conveyance by Wilson of the subjects of appeal to the appellants.

Appellants’ Submissions

[15] The appellants’ position was that the appeal subjects were a strip of ground which was never part of the Beechwood development and was ‘Open Ground’ within the meaning of Clause Tenth in the deed of conditions; Clause Tenth (5) therefore disapplied the other provisions of the deed of conditions, in particular Clause Seventh; and the subjects of appeal were not within the ground conveyed to the Beechwood owners pro indiviso.

[16] Mr Garioch started his oral submissions by referring to three relevant rules of construction: firstly, an objective approach was required, particularly in relation to a registered deed; secondly, words should be given their ordinary meaning and if clear and unambiguous should be given effect – Melanesian Mission Trust Board v Australian Mutual provident Society, at 129E-F; and thirdly, a construction which gives effect to all terms of a deed is to be preferred to one which does not. There was no ambiguity here. It was clear that the condition in Clause Tenth (5) relied on was not intended to be suspensive. The deed of conditions was primarily to govern the conditions affecting the proprietors of houses within the development. The opening words, referring to the “Development” were of no significance, although it was accepted that the subjects of appeal were included in the Title LAN147409. In Clause Tenth, “Open Ground” was clearly defined as including any area of open space or landscaped area. Once that was identified, Clause Tenth (5) provided that Clause Tenth was the only relevant provision, and Wilson retained ownership of that ground. The words “for the avoidance of doubt” showed the granter’s emphasis that the remainder of the deed had no application. The appeal subjects clearly lay outwith the external fences of the development. Although there was an overlap and some tension between Clauses Seventh and Tenth, the buffer zone was clearly ‘Open Ground’. Looking at Clause Seventh in isolation, the Keeper would be correct, but that would result in Clause Tenth being redundant, which was the flaw in the Keeper’s approach. The two clauses needed to be read together, giving effect to both: the ‘Common Parts’ were the whole development less the plots conveyed to individual proprietors and the ‘Open ground’. Mr Garioch accepted that the wording was not entirely happy. Specific reference in Clause Seventh to the ‘amenity and play area’ was required because this was a requirement of planning consent and meant that Clause Tenth could not apply to that area, but the appeal subjects fell within the definition of ‘Open Ground’. Wilson therefore remained as proprietors and were free to dispose of these subjects to the applicants in 2003. The provisions of Clause Tenth were clear and unambiguous.

[17] If, contrary to his initial submission, there was a degree of ambiguity because of the overlap between the subject matter of the two clauses, Mr Garioch submitted that it was competent to look at the circumstances, in a situation akin to a boundary dispute. The appeal subjects had initially been required as a buffer zone, but the Briarwood planning permission, subsequent to the deed of conditions, allowed for the appeal subjects to be incorporated into Briarwood. From that it could be taken that the granter of the deed considered that it would be possible to incorporate the appeal subjects into another estate, i.e. the granter still had the option to withhold the appeal subjects, understanding them not to have been disponed to the Beechwood owners. Mr Garioch accepted that there was a question as to how much weight to put on this.

Keeper’s Submissions

[18] Mr Dewar referred to the circumstances in which the Keeper had taken the view that when the Wilson receivers purported to grant an exclusive right of ownership of the appeal subjects by disposition in favour of the appellants, this was a disposition a non domino. The appeal, he said, turned crucially on the extent of the registered titles of the Beechwood proprietors, and in turn on the correct construction of the deed of conditions. Turning to the deed, he noted that the dis-application of Section 17 of the Act meant that mere registration of this deed would not create real rights: that could only happen when a disposition referred to its provisions and was recorded or registered.

[19] Mr Dewar accepted the principles of construction to which Mr Garioch had referred, and that the deed must be read as a whole. He disputed, however, the suggestion that the Keeper’s construction made Clause Tenth redundant. To the contrary, his construction gave content to the whole of the deed. The appellants’ construction gave rise to curiosities. In relation to common parts, Clause Seventh was the starting point and the governing provision. He accepted that the wording of some parts of the document left something to be desired. The first sentence of Clause Seventh contained an extremely wide definition of common parts. The expression, ‘amenity play areas’, differed from ‘amenity and play areas’, the expression which Mr Garioch had used from the planning consent drawing. ‘Common parts’ were not restricted to the areas specifically listed in the second part of the sentence, after “shall include”. The second sentence was also important. It looked forward to the later provision. Green Belt could be an “other party”, although no such transfer had taken place and the individual dispositions therefore included everything. The buffer zones, including the subjects of appeal, were within the boundary of the development and were accordingly conveyed pro indiviso to the individual proprietors. Clause Tenth provided an option to transfer to a Green Belt company, but not after the first individual disposition. Dis-appliance of the deed of conditions was understandable, putting oneself into the position of the granter of the deed when it was entering the register. Clause Tenth was not redundant: when it was entered into and registered, there was an option, although that was then precluded when conveying to individual proprietors. Clauses Eighth and Ninth, in relation to maintenance of the common parts, would apply to the buffer zones unless they had been conveyed under Clause Seventh or Clause Tenth. Clause Tenth was in a rather different form but entirely consistent with the exception in Clause Seventh. The ‘Whereas’ preambles made it clear that the whole clause depended on the option being exercised: it was not redundant but would have no effect if not exercised. If it was exercised, the provisions of the clause would take effect. The provisions for remuneration of the third party in the form of Green Belt would be a nonsense if the land were never conveyed to them. The provisions only meant something if the option were exercised. However, as soon as the first individual disposition was registered, that proprietor would have real rights, and it had therefore to be recognised that the option had, as it turned out, only existed for a short time. Mr Dewar reviewed the provisions of Clause Tenth, from (2) onwards: they clearly represented provision for what might happen in the event of a conveyance to Green Belt. The whole operative parts of the clause depended on exercise of the option. The appellants’ construction would mean that proprietors were obliged to pay Green Belt where that company had never performed any services; and, further, that certain other open ground would have remained in the ownership of Wilson despite the clear intention to divest themselves completely upon the last disposition to an individual proprietor.

[20] In relation to ambiguity, Mr Dewar identified the difficulty of knowing to what ground Clause 10 related: for this provision to have true meaning, there would need to be a conveyance under it. This compared with the clear definition in Clause Seventh of ‘Common Parts’. That clause plainly governed. ‘Amenity play areas’ illustrated the difficulty: it was difficult to see Clause Tenth as distinctly operative on its own. Generally, deeds were not to be construed by using extrinsic evidence - McBryde, 8-30. Reference had been made to layouts of the Briarwood development under names different from the granter of the deed of conditions. This did not indicate anything other than that the planning requirements had altered. Regard could only be had to circumstances knowledge of which was, or ought reasonably to have been, available to both parties: Howgate Shopping Centre v Catercraft Swervices Ltd, at 232D, 241L-242A. At best, this was an example of a party acting consistently with his understanding of a contract – McBryde, 8-31,32. The deed might be infelicitously worded, but its meaning was clear.

Appellants’ Reply

[21] In reply, Mr Garioch submitted that the Keeper’s construction of Clause Tenth required the implication of terms to the effect that the granter’s option required to be exercised and that Clause Tenth(5) only took effect in that event. The Keeper accepted that there was only a window of around one month within which this would have to happen. The objective approach to construction was important, particularly with a registered deed. Any third party would not be concerned with the intention of the granter: Hunter v Fox, per Lord Reid at 99. Straying into implication – the presumed intention of the granter, as opposed to objective construction – was difficult. In any event, it was clear that if the granter had intended any time constraint, he could have put it in. The clause worked without such implication. Asked whether the provisions of Clause Tenth about payment applied only once the qualifying conditions had taken place, Mr Garioch submitted that these were in a different category: these provisions would take effect in the event of a disposition to Green Belt. Clause tenth (2), (3), (4) and (6) were therefore all conditional. ‘Open ground’ was defined in Clause Tenth, so as to exclude open ground and amenity play areas from ‘Common Parts’. It would be a surprising position if the provision only had a lifespan of one month, and it was reasonably likely that the developer would already have concluded a contract to sell. It would be normal practice for any such disposition to Green Belt to take place at the end of the development: they were not to carry out landscaping works, but to maintain. There was neither a condition, nor a burden, to the effect that the land could only be sold to Green Belt: at best, there might be a personal right if they did not sell the land as they said. The developer had retained ownership.

Tribunal’s Consideration

[22] The subjects of appeal lie within the Briarwood development and not the Beechwood development. However, it is agreed that they are part of “the Development” for which the Beechwood deed of conditions makes provision. Further, while Clause Seventh describes some of the areas not included in individual conveyances, it is clear from its reference to “the Development under exception of all of the plots conveyed or to be conveyed to individual proprietors” that its basic definition of “Common Parts” includes the subjects of appeal and all other open or common areas.

[23] In the Tribunal’s opinion, the provisions of the deed of conditions in regard to areas within “the Development” not conveyed to the individual proprietors, while not always happily expressed, have a clear and natural meaning. Such areas are, under Clause Seventh, “Common Parts” owned by the individual proprietors on a pro indiviso basis except to the extent that they are publicly taken over or transferred to someone else with a view to the transferee maintaining them. Clauses Eighth and Ninth make provisions for liability for the costs of maintenance of the “Common Parts” and for the appointment of a factor to manage, arrange the maintenance and collect the payments from the individual proprietors. In relation to some of these areas, Clause Tenth provides alternative maintenance and payment arrangements if (as is allowed for in Clause Seventh) some or all of the areas of that description are conveyed to Green Belt with a view to that company arranging the maintenance. If that happens, the areas so conveyed are “Open Ground”, as distinguished from “Common Parts”, and a different set of provisions in relation to maintenance and payment of these areas is set out. Clause Tenth (5) provides (“for the avoidance of doubt”) that the rest of the deed no longer has any application to these areas, so that, in particular, Clause Seventh (ownership), Clause Eighth (liability for maintenance costs) and Clause Ninth (factoring arrangements) do not apply. In that event, individual proprietors do not have an ownership interest and the maintenance arrangements are different although financial responsibility for it remains the same.

[24] It appears to us that the appellants’ construction of Clause Tenth produces unacceptable inconsistency with Clause Seventh in relation to the treatment of areas of ground not conveyed to individual proprietors as individual plots. This arises at two levels. Firstly, the primary definition of “Common Parts” in Clause Seventh includes all of “the Development” not so conveyed to individual proprietors, but, if the appellants are right, “Open Ground” in Clause Tenth also includes “open space/landscaped areas within the Development”, i.e. some at least of the same land. If the appellants are correct, one might have expected Clause Seventh to exclude “Open Ground” under Clause Tenth from its definition, but what Clause Seventh actually does is to exclude (at least in relation to ownership, which is what is in issue in this case) parts publicly taken over or conveyed to another party with a view to such party taking on the maintenance. That seems to us to fit naturally with “Open Ground” being only ground which has been conveyed to Green Belt. Secondly, each clause also refers to descriptions of the areas covered in its definition. This includes, in Clause Seventh, “amenity play areas”; and in Clause Tenth, “area(s) of open space/landscaped areas and play areas”. Mr Garioch failed to persuade us that these references could, on the appellants’ construction, be reconciled, even looking at the extraneous material referred to.

[25] We are also unable to accept that Clause Tenth can be read as authorizing the developers to transfer open space, or landscaped areas or play areas, anywhere within “the Development”, which includes not only the subjects of appeal but other open areas around or within the Beechwood development, for some other use. Everyone agrees that the construction is to be objective, finding and applying the natural meaning to a third party of the words used in their context. We do not consider that the appellants’ construction meets that test. The third party finds no mention at all of an option to transfer land to another party for a purpose unconnected with this development, which would conflict with the option which is provided to transfer to another party with a view to that party taking over the maintenance.

[26] The appellants’ construction, in reliance on the wording of Clause Tenth (5), would give the developers the right to remove an area such as the subjects of appeal. Because the construction involves defining “Open Ground” before and without any conveyance to Green Belt, it would also apparently mean that all open space, landscaped areas and play areas not taken over or conveyed to another party remains within the developers’ ownership, leaving them free either to sell or transfer them to anyone for any purpose or to retain them. Then, because the rest of the deed of conditions would be dis-applied and, as Mr Garioch acknowledged, the other operative provisions of Clause Tenth were conditional on transfer to Green Belt, the developers would if they retained these areas have no obligations to the individual proprietors. Nor, apparently, would the individual proprietors have any obligations in relation to these areas. This would seem to leave the whole issue of maintenance, and perhaps also use, of such areas unprovided for.

[27] In our opinion the natural meaning of all the operative parts of Clause Tenth, including Clause Tenth (5), is that they only apply in the event of a transfer to Green Belt. We do not agree that this involves implication. It is simply a question of giving a natural meaning to the provisions in their context. The expression, “any area(s) of open space/landscaped areas and play areas” cannot in our view simply be read in isolation as a definition of “Open Ground”. The immediate context has to be looked at: “whereas we may decide to convey [to Green Belt] … any areas of … [open space, etc] (hereinafter referred to as the “Open Ground”) … ”, i.e. “Open Ground” is not defined except as those areas of ground, within the stipulated class, which the granter may decide to convey to Green Belt. Then, Clause Tenth (5), looked at in isolation, is unqualified but seems clearly enough to be one of a series of provisions which follow on from a decision to convey some areas to Green Belt. Mr Garioch agreed that Clause Tenth (2), (3), (4) and (6) were, in this way, conditional, although in these cases also that was not expressed but clearly what was meant. We can see no reason why Clause Tenth (5) should be any different. If it is right that “Open Ground” means those areas of open space, etc which it has been decided to convey to Green Belt the reference to “Open Ground” in Clause Tenth (5) confirms the conditionality of that sub-clause. Finally, the context includes the deed as a whole and particularly its other provisions about areas not conveyed to individual proprietors, and in that context the appellants’ construction involves a substantial conflict between Clause Seventh and Clause Tenth, whereas the Keeper’s approach not only avoids such conflict but also produces a coherent scheme enabling the developer to opt for ‘Green Belt’ maintenance arrangements and select the areas covered by that.

[28] The construction problem in Hunter v Fox was different, because that case concerned the inclusion of two words which in the context were meaningless and the question whether they could be treated as pro non scripto and the rest of the provision applied. We think, however, that we can derive assistance from the following words of Lord Reid:-

“I can think of no stricter method of construction – and none was suggested in argument – than to ask whether a reasonable man with a competent knowledge of the English language could have any real doubt about the meaning of the provision read in its context in the disposition.”

We do not think that there can be any real doubt about the meaning of Clause Tenth (5) in its context. However, if we are wrong and implication is required, while we did not have full submissions on this, we think that implication of a condition precedent in the operative provisions of Clause Tenth, including sub-clause (5), is necessary and legitimate in order to make sense of the clause. We would not then be straying into the presumed intention of the granter, as Mr Garioch suggested, but rather what was necessary to give a business effect to the clause. We do not find any ambiguity, but if there were ambiguity we would agree with Mr Dewar that the material referred to by Mr Garioch, which really just showed some understanding (not necessarily that of the granters of the deed of conditions) that the subjects of appeal could be incorporated into the Briarwood development, is not the sort of material which would assist in resolving that.

[29] Accordingly, in our view as a matter of construction of the deed of conditions, the conveyances to individual proprietors, which include conveyance of the rights specified in the deed of conditions, took it out of the appellants’ power to convey (at least without the consent of those individual proprietors whose titles were registered) the subjects of appeal to the appellants, there being no authority for that in the deed of conditions.

[30] We are not so certain of the position if Wilson had, after one or more individual conveyances, sought to transfer to Green Belt. The deed of conditions might appear to allow for this possibility. On behalf of the Keeper, however, Mr Dewar submitted that as soon as there was a conveyance to an individual house owner it was no longer possible for the developer to convey common parts to anyone else. There would seem to be force in that submission, but it also seems to produce some practical difficulty. This arises because we think that developers may often at the time of the first sale still be uncertain either whether to enter into the ‘Green Belt’ arrangement in relation to maintenance of common areas or as to the exact extent of such areas which are going to be left at the end of the development. A clear provision reserving the right to make such transfers might seem sensible. It does not seem difficult to deduce such an intention from this deed of conditions. The reference to the local authority taking over, for example, common access roads, seems clearly to envisage this happening after individual conveyances, although the local authority presumably then exercises statutory powers which would prevail over the ownership rights previously conveyed to individual owners. As Mr Garioch pointed out and Mr Dewar accepted, if this did not apply to conveyance of open space to Green Belt, the option conferred by Clause Tenth only lasted for a very short time. There might not seem to be anything unusual about the timing in this case. Mr Dewar was able to meet the point as it related to construction so as to give effect to all the terms of the deed, because the option seems to have been a live one for a short time. However, it seems unrealistic to think that a development would be planned and constructed over a lengthy period of time without the precise identification of the common areas and/or without a decision whether to enter into a Green Belt arrangement but that that matter would then be resolved in the short period between execution of the deed of conditions and the first individual conveyance. The question is perhaps whether a developer can, at the same time as providing that individual proprietors will receive rights pro indiviso in the common parts, effectively reserve a right subsequently to withhold or withdraw some of the land. Perhaps the Keeper is right and such a result has to be achieved in another way. However, as we are unable to construe the deed of conditions as reserving a right to dispose of land otherwise than in accordance with Clause Tenth we do not consider it necessary to decide this question in this case and wish to reserve our position on it.

[31] In any event, for the reasons given above in relation to construction of the deed of conditions, we uphold the Keeper’s view that the disposition of the appeal subjects in favour of the appellants was open to challenge. The Tribunal will consider further procedure, if required, in this appeal in accordance with the timescale agreed between the parties.