Heritable Property – Title Conditions – Discharge or variation – Competency – Tenement deed of conditions apportioning common charges under rating system – Effect of variation order on other properties – Tribunal expressing doubt about competency of application by individual proprietor and allowing opportunity for further submissions – Title Conditions (Scotland) Act 2003, Sections 33-34, 35-37, 90(1)(a)(i), 90(5) and 91

Heritable Property – Title Conditions – Discharge or variation – Relevancy and specification – Tenement deed of conditions apportioning common charges on basis of values fixed under rating system – Applicants not specifying exact apportionment sought – Title Conditions (Scotland) Act 2003, Section 90(1)(a)(i)

A. Murray & Sons Ltd v Munro & Ors
18 April 2011

Proprietors of a ground floor commercial property in a tenement sought variation of a condition in a deed of conditions apportioning common charges on the basis of rateable values. At a preliminary hearing on competency, relevancy and specification, they accepted that Section 111 of the Local Government Finance Act 1992 was applicable. They argued, however, that the doctrine of implied amendment/repeal applied to enable the Tribunal to have jurisdiction. They submitted that the variation order would leave the burdens on other properties as they were: competency could not be determined on the basis of the result which might follow. There were practical reasons why the exact variation order sought had not been specified at this stage. The application was opposed by a number of other proprietors.

Held, continuing the application, it could be accepted that Section 111 did not of itself prevent the Tribunal from having jurisdiction to vary the condition, as Parliament could subsequently create a jurisdiction the exercise of which might affect the operation of Section 111. Also, the condition would not simply be a statutory provision over which the Tribunal would not have jurisdiction. The Tribunal, however, doubted the competency of application under section 90(1)(a)(i) for an order the effect of which would apparently be to increase the burden on other proprietors. It was noted that the 2003 Act provided other mechanisms for varying community burdens. Reference was made to authorities not referred to at the hearing, viz Murrayfield Ice Rink Ltd v S.R.U. and Mrs Young & Ors Applicants. The application would be continued to give parties the opportunity of making further submissions on the matter.

On the issue of specification, an application could not be allowed to proceed without specification of the order sought, but this matter could if necessary be addressed by an order for further particulars.

Authorities referred to:-

Murrayfield Ice Rink Ltd v S. R. U. 1973 SLT 99
Macdonald Applicant 1973 SLT (Lands Tr) 26
Mrs Young & Ors Applicants 1978 SLT (Lands Tr) 28
Thoburn v Sunderland City Council 2003 QB 151
Craies on Legislation, 8th Ed’n

See full decision:  LTS/TC/2008/27