1. This is an application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to discharge a title condition, or purported title condition, contained in a 1945 Disposition (“the Disposition”) of an area of ground which at the time was in use as tennis courts and which was being gifted by a bank to the local council. The condition purported to limit use of the subjects to “outdoor recreational purposes”. There has been no such use since around 1978, when another site was found for the tennis courts and the subjects were incorporated into an adjoining school site and built over. The school is now being moved to a new site elsewhere and the local authority proposes to sell the present site, including the subjects, as a development site. Two apparently benefited proprietors of adjoining land formerly owned by the bank object and wish use of the subjects restricted in terms of the title condition.
2. In all the circumstances, the Tribunal has decided that it is reasonable to grant this application and discharge the title condition. Put very shortly, we accept the applicants’ essential argument that things have so moved on in relation to this condition as to render it in effect obsolete and that a discharge is reasonable.
3. The Tribunal did not, however, accept certain submissions by the applicants to the effect that the condition was, because of its terms, not enforceable. There might be real doubt as to whether any attempt by the respondents to enforce it now could succeed, but we were not persuaded that it was not clearly enough expressed in the Disposition to be enforceable.
4. The Disposition was a Disposition of the subjects and another area of ground by the British Linen Bank in favour of the Provost Magistrates and Councillors of the Burgh of Kinross registered in the General Register of Sasines for the county of Kinross on 27 August 1945. It was narrated that the Bank had “agreed to gift to the Town of Kinross the piece of land belonging to us and presently used as Tennis Courts”, i.e. the subjects. The Disposition provided:-
“And whereas the said small field or park before gifted to our said disponees is at present leased for use as Tennis Courts it is hereby provided and said disponees by acceptance hereby agree that the said field shall be used only for outdoor recreational purposes which agreement and restriction is hereby declared to be a servitude over the subjects hereby disponed … in favour of us the said British Linen Bank and our successors in the Property in Kinross retained by and now belonging to us” (“the title condition”).
5. The applicants applied for discharge of the title condition. Section 98(1) of the Act provides that such an application “shall … be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that … it is reasonable to grant the application.” Section 100 lists factors, (a) to (j), to which the Tribunal are to have regard.
6. The applicants also argued that the title condition was “not properly enforceable as a title condition” and should be discharged for that reason. They did not, however, challenge the respondents’ entitlement to object as benefited proprietors if the title condition was valid.
7. At the oral hearing of the application, the applicants were represented by Mr MacColl, advocate, instructed by Perth and Kinross Council, and called Euan Mellor, solicitor, of Messrs Brodies, Edinburgh, who had been instructed to consider title matters in preparation for the proposed sale for redevelopment of a site including the subjects, and Jim Low, MRICS, the applicants’ Estates Manager who has considerable experience in the property sphere, to give evidence. The respondents, William Chapman, Chestnut House, Green Road, Kinross and David Oxnard, 2 High Street, Kinross, each appeared on their own behalf but did not formally give evidence. The applicants and Mr Chapman each lodged productions. The parties helpfully indicated the extent of their agreement on the facts at the outset of the hearing. The Tribunal made a brief unaccompanied site visit.
Anderson v Dickie 1914 SC 706 and 1915 SC (HL) 79
J & A Mactaggart & Co v Harrower and Others (1906) 8 F 1101
Kemp v Magistrates of Largs 1939 SC (HL) 6
George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Moncrieff v Jamieson 2008 SC (HL) 1
8. On the basis of the documentary and oral evidence and parties’ agreement, the Tribunal found the following material facts established.
9. The subjects are an area of ground extending to 0.2955 Hectares at (now) Green Road, Kinross, adjacent to larger subjects which were formerly all owned by the British Linen Bank or its successors but are now divided among a number of proprietors, including the bank and the two respondents. The subjects were gifted to the Burgh of Kinross by the British Linen Bank by the 1945 Disposition, subject to the title condition. They were at that time, and remained until around 1978, in use as tennis courts. In 1977, they were owned by Perth and Kinross District Council and were the location of two tennis courts and a clubhouse. They were adjacent to Kinross High School, which was owned by Tayside Regional Council. The Regional Council wished at that time to expand the school buildings onto the subjects. The District Council agreed to transfer the subjects to the Regional Council on the basis that alternative provision would be made for tennis in Kinross. The Regional Council provided three new tennis courts and a new clubhouse at a slightly smaller site at Station Road, Kinross, which facilities remain in place and are used to the present time by Kinross Tennis Club. Nominal transfers of the two sites from and to the District Council, for no consideration, took place. There was apparently no actual transfer of title, but the subjects were incorporated into the school site and are now, in consequence of further local government reorganization, vested in Perth and Kinross Council as part of Kinross High School. Extensions to the main school buildings, of a permanent nature, were constructed on the subjects in about 1978 and also in 2003.
10. No consideration appears to have been given by either the District Council or the Regional Council (or their successors) to the existence of the title condition from 1978 until recently, when Mr Mellor’s firm was instructed to review the title. Neither the Bank nor any other proprietor apparently took any objection on the basis of the title condition to the change of use of the subjects to use as part of the school buildings. Neither of the respondents had any objection to such use.
11. A new secondary school elsewhere in Kinross is approaching completion and due to open later in 2009. The existing school site, including the subjects, will cease to be used as a school and will be marketed as a development site, with a variety of possible uses, including retail and housing, with the proceeds to be ploughed back into the school building programme.
12. Whether viewed separately or as part of the larger site, the marketability and value of the subjects would be seriously adversely affected if the subjects were burdened in terms of the title condition.
13. On the applicants’ behalf, Mr MacColl first made submissions on the evidence. There was significant agreement on the factual background, and where there was not, the applicants’ evidence should be accepted. In particular, the evidence of Mr Low that the burden would have a detrimental impact on the marketability and price of both the whole site and the subjects in isolation, and also that the title condition did not provide any benefit to the respondents’ properties, should be accepted. There was nothing which would enable the Tribunal to be satisfied that discharge would have a material adverse effect on the respondents.
14. Mr MacColl made two submissions to the effect that the title condition was “not properly enforceable”:-
(i) It was not properly constituted as a real burden, it being well recognized on principle that in order to be enforceable over land, a burden must be expressed in exact terms (Kemp v Magistrates of Largs, per, Lord Macmillan at 12, 13). The right expressed was incorrectly described as a ‘servitude’, i.e. a right to use land as opposed to a restriction on use (Moncrieff v Jamieson, per, Lord Scott at para 47); and
(ii) Having referred to property benefited, it failed adequately to identify the benefited subjects (Anderson v Dickie, per, Lord Guthrie at 717, and Kemp, supra; c.f. Mactaggart & Co v Harrower, at 1104).
It was, said Mr MacColl, open to the Tribunal to exercise the jurisdiction under Section 90(1)(a)(i) to discharge simply on the basis that the title condition was invalid.
15. Mr MacColl further submitted that in any event, applying the test of reasonableness, the burden should be discharged. He referred briefly to Tribunal guidance on the test under Section 98 and 100. He submitted that the purpose of the condition was to keep an area of ground in Kinross, of the size and nature of the subjects, for outdoor recreational purposes, in particular tennis. That purpose had long since been extinguished, or was being fulfilled elsewhere, without objection, alternative provision having been made, in fact with one more tennis court. If anything, the breach had led to an increase in provision. The purpose was not to give neighbouring proprietors the right to restrict or restrain development on the burdened subjects. There had been two significant changes of circumstances in the form of breaches which had not resulted in any objection or attempt to enforce: matters had moved on very significantly. There was no true benefit to the respondents, any benefit being in the provision of outdoor recreational facilities rather than the right to prohibit development. The existence of the burden clearly impeded the applicants’ ability to make use of and dispose of the whole site with which the burdened property was intrinsically linked. The period of time since the burden was created was not insignificant, although the period since 1978 was more significant. Whether or not there was planning consent was not particularly in point. There was no offer of compensation, but also no evidence of any financial impact. The provision of alternative facilities was relevant as ‘some other factor’, but general planning considerations were not.
16. Mr Chapman submitted that the burden had been properly created. His general position was that the applicants should be required to take the subjects back to use for outdoor recreational purposes. They had been gifted to the community and should be used for community purposes. Removal should require the approval of the people of Kinross. It would be possible to impose the title condition on a purchaser of the school site. The current use in connection with the school had little or no impact on his property and had been accepted. It had already been the accepted use when he purchased his property in 1983. The pre-fabricated buildings added in 2003 had not been opposed, on the understanding that they would be removed when the new school was built. The title condition provided some restriction on future development, and his property was the main benefiting property. It would be unreasonable to remove the restriction in the absence of any indication of the future use. The Council were proposing to ignore planning policies, in the Kinross Area Local Plans, particularly in relation to outdoor recreation and the conservation area in which his property and the school site, except for the subjects, was situated.
17. Mr Oxnard said that he had been unaware of this burden until recently and had not been made aware of any of the planning applications or of the present application (about which he had heard indirectly). No regard had been paid to this burden attached to a gift, and it should now be honoured. The burden should be maintained, irrespective of breaches or the passage of time. Clearing the land of any burden would have a potentially negative impact on the neighbourhood, and would represent an enormous expansion of the possible uses, without being safeguarded as the burdened land should be. The provision of outdoor recreational space was at a premium. The alternative site for the tennis courts was in fact slightly smaller than the subjects. Mr Oxnard said that his main fear was the loss of the ability to impose restrictions on building.
18. We have made relatively brief findings in fact in this case, the material facts being in short compass and largely agreed, but we should start by commenting on some matters of fact.
19. Firstly, we were provided with substantial material from the files of the (then) two local authorities involved in the arrangements initiated in 1977 for the change of use of the subjects. On the one hand, there is no indication that anyone at that time paid any regard to, or was even aware of, this burden which prohibited the new use, there being no suggestion that incorporation into the school site was in order to provide outdoor recreational space. The files do show consideration of ownership and title, and even of the possibility of compensation. It seems to us slightly reprehensible that this burden was at that time either not discovered, as it easily could have been, or simply ignored. The applicants are to an extent on the wrong foot in this application, having been in clear breach of their title obligation.
20. On the other hand, the correspondence from that time does make clear that the school was only to be given this ground on the basis that the education authority provided alternative tennis courts, and there is no doubt at all that that is what happened. To the extent that this burden was directed at the provision of outdoor recreational facilities such as tennis courts, it has in fact been, and is still being, honoured, although it appeared that there is no burden securing such use for the future at the alternative site.
21. Secondly, we were also provided, by Mr Chapman, with a substantial file of planning materials. There was a useful one-page extract from the ‘Community Council News’, with a summary of the relevant planning policies and apparent development possibilities for the school site including the subjects. The applicants agreed that this was broadly accurate. The area local plan, or much of it, was also produced, and Mr Chapman made some detailed references to that in support of planning arguments about the use of this site. We have not gone into the detail of this as we do not see it as relevant in this particular case. It is sufficient to be clear that the applicants wish to free up this title and then to market the subjects with the aim of maximizing the return, and there do appear to be a number of possible uses for this substantial site close to the centre of Kinross. The respondents’ concern about some of the possibilities is obvious and understandable, but the question in this case must be related to this title condition and the reasonableness in the circumstances of the application to remove it completely.
22. Thirdly, we should mention that it was the respondents’ position that the extension built in 2003 was in fact pre-fabricated and that planning opposition to it was dropped on the basis that it would be removed when the new school was built. Whatever the implications of that if correct, it was explored with Mr Low in evidence. He was clear that this was a building of a permanent nature: the inside structure was admittedly modular but it was encased by brick walls. There was no contrary evidence other than assertion in submission. We accept Mr Low’s evidence.The building certainly does not give the appearance of being temporary. There is in any event no suggestion that the school buildings will be retained.
23. Finally, we can note that although the extent of land owned by the Bank in 1945 and retained by it was not explored or established, it was not in dispute that the property of each of the respondents was historically owned by the Bank so that they would each be entitled to the benefit of a burden benefiting that property. Mr Chapman’s property is a substantial house and garden, apparently built as a bank manager’s house, perhaps before 1945, and immediately adjoining the subjects, from which it is separated by blank gable walls and substantial boundary walls. Mr Oxnard’s property is an upper flat in the bank building, accessed from the High Street, very approximately 50 metres from the nearest boundary of the subjects.
24. We did not find either of Mr MacColl’s submissions about the validity of this title condition persuasive.
25. We entirely accept that a burden on land has to be clearly expressed and will be strictly construed, especially against parties with whom there is not privity of contract and who must rely on what they find in the title register. A person such as a purchaser has to be clear about any restriction imposed on the normal enjoyment as owner of the land. We do not, however, think anyone reading this provision (accepting, as Mr MacColl did, the identity and extent of the subjects affected) could be in any doubt as to what burden was being imposed. Mr MacColl relied on the speech of Lord Macmillan in Kemp v Magistrates of Largs. With regard to use of the word “servitude” – Mr MacColl’s first point – we find the following passage from Lord Macmillan (at page 13), although no doubt directed at the expression of the intention that the restriction should be a real restriction and not simply personal to the parties, instructive:-
“But, while the conveyancer who would effectually impose a real restriction on land must comply with this exacting standard of precision, it is not necessary that he should employ any technical formula.”
In any event, the term ‘servitude’ was, as we understand it, historically used in Scotland in a negative sense as well as a positive sense, a position recognized, although abolished for the future, by Section 79 of the 2003 Act. It is not uncommon to find burdens which are now clearly categorized as real burdens expressed in this way in older deeds.
26. In relation to the definition of the benefited property, Mr MacColl’s submission was not supported by any direct authority on the point, and as he fairly and properly pointed out, the opinion of the Dean of Guild, not disturbed by the court on appeal, in Mactaggart & Co v Harrower, to the effect that an intention to benefit retained lands which might be injuriously affected by breach of the restriction, could be implied from silence, points against his argument. He argued that where the provision sought to set out the benefited property, the test of clear expression had to be applied and the reference in this case to property in Kinross retained by the Bank did not meet the test. In our view, however, there is a distinction between the need for clear identification of the burdened property and the benefited property, which can only in fact obtain the benefit if there is an interest to enforce: if the Bank did happen to own other property elsewhere in Kinross, it or the current proprietor of that land would have no interest to enforce the burden. Any dubiety on this point is therefore academic, as opposed to uncertainty about the extent of land burdened. We would add that we are in any event not so sure as Mr MacColl that the expression, “the Property in Kinross retained by and now belonging to us”, in its context, would not pass the test of certainty of expression.
27. In our opinion, this title condition was validly expressed so as to bind successors. (Whether the applicants are in fact successors or, as a result of local government reorganization statutes, in the same position as the original disponees, was not a matter which was raised.) No submission in relation to either acquiescence or negative prescription having been made, we find this to be a valid and subsisting real burden although of course subject to our jurisdiction to discharge it if we are satisfied that it is reasonable to do so.
28. We would add that Mr MacColl’s submission also required us to accept that we could, in an application under Section 90(1)(a)(i), i.e. an application for discharge or variation of a title condition “or purported title condition”, grant the application simply on being satisfied that the condition was not enforceable. In our view, and in our current practice, an owner wishing to argue before us that a title condition is not valid, or not enforceable, has to invoke our jurisdiction under Section 90(1)(a)(ii) to determine that matter. Mr MacColl’s suggestion that any benefited proprietor who has not opposed an application to discharge can be taken not to be interested in the question of validity no doubt makes substantial practical sense, but it does seem to us that it will not inevitably always be so, as such an owner might have some subsisting right arising out of the condition although not be opposed to discharge. The burden might, for example, have affected the extent of his liability for past maintenance costs or the like. Further, such an approach would not work in applications for variation. In any event, we consider it appropriate as a matter of fair notice that such a contention should only be made in applications under Section 90(1)(a)(ii). It has, however, been our practice in some cases to allow amendment of applications under (a)(i) to include applications under (a)(ii), but in such cases we would consider whether re-intimation might be necessary.
29. Our assessment of the factors listed in section 100 of the Act is as follows.
30. It is often appropriate to consider first the purpose of the title condition (factor (f)). There is no extraneous evidence of the Bank’s purpose in 1945, but what is clear from the Disposition is that the subjects were being gifted to the town council for continued use as tennis courts or at least for outdoor recreation. There is no express requirement for such use to be community use. Letting or selling the subjects for private, possibly even commercial, outdoor recreational use was not prevented, but it may reasonably be supposed from the fact of gift to the council that community use in some form was envisaged. The burden was expressly stated to benefit the Bank and its successors in the property, from which some amenity purpose might be inferred, but there is no restriction on building, for example, a sports pavilion or the like, ancillary to outdoor recreation. We do not accept the applicants’ submission that the purpose was purely to keep an area of ground somewhere in Kinross for recreational use, but we do think the predominant purpose was recreational provision. That purpose has in this case been fulfilled not just by some 30 years use of the subjects as tennis courts but also by the provision, in direct substitution for this site, of comparable alternative facilities.
31. This gift of land subject to the restriction as to use appears to us analogous to gifts by benefactors such as estate owners for the erection of churches, village halls or the like. If the amenity of the Bank’s retained property was an important purpose, there would in our view have been clearer provision to that effect. The provision that it was to benefit the bank’s property might indicate some amenity purpose, as the condition would preclude substantial building development. On the other hand, it may simply have been a control to ensure that the council could not make some more profitable use and thus defeat the purpose of the benefaction. We do not think that there was any particular purpose of protecting the private amenity of the Bank’s property.
32. We are satisfied that there has been a highly significant – one might say complete – change of circumstances (factor (a)), in so far as the character of the burdened property changed from tennis courts to school buildings some 30 years ago, apparently without any objection related to the title condition. Mr Chapman’s property appears not to have been the original bank building but to be one of two houses built at some time as managers’ houses. Mr Chapman told us that it had been unoccupied at the time of this change, but even so we find no apparent objection, and certainly no attempt to enforce the burden, by the immediately neighbouring benefited proprietor over a very substantial period. To the contrary, Mr Chapman himself, having owned the property since, apparently, 1983, took no objection and indeed was, he said, happy enough with the school use. This change of character of the subjects has involved substantial expenditure on buildings. This is not the case of a burdened owner effecting a change of use contrary to the neighbouring owner’s interest and then seeking before the Tribunal to rely on the fait accompli. This is a supervening well established and accepted use in breach of the title condition.
33. As regards the extent to which the condition confers benefit on the benefited property (factor (b)), some distinction requires to be made between Mr Chapman’s property and Mr Oxnard’s. Mr Oxnard’s flat, separated from the subjects by Mr Chapman’s house, enjoys little, if any, amenity benefit from the condition, particularly when it is remembered that the condition would not, on any view, prevent redevelopment of the rest of the school site. Mr Chapman’s property could be said to enjoy some amenity benefit from the condition, but this seems to us largely theoretical. The likelihood of the condition now securing use of the subjects for outdoor recreational use seems to us in practice very low. No doubt in theory developers of the whole site could be required to dedicate the subjects to such use, but that seems to us more likely to lead to such developers not taking on the subjects, in which case it is difficult to see the applicants or anyone else developing them in compliance with the burden. The subjects are in our view very much larger than might be required for, say, a play area which planners might require as part of a larger development. Further, outdoor recreational use might involve a variety of possible buildings or uses, not all of which would necessarily be attractive to the immediate neighbours.
34. As regards the extent to which the condition impedes the enjoyment of the burdened property (factor (c)), we accept Mr Low’s evidence and are entirely satisfied that the condition represents a substantial impediment. If the site is viewed on its own, restriction to recreational use, at a location where planning consent for commercial development of one kind or another appears likely, would clearly have a considerable effect on value. If, however, in present circumstances, where the subjects are part of a larger site which is shortly to become free for development, we are again clear that the burden has a substantial effect on value. It may either simply reduce the area with direct effect, or, by reducing the useable area, it might deter some purchasers and thus render the whole site less marketable. There is also a suggestion in the agreed summary of the planning position that the subjects could provide secondary access to a major development, but Mr Low tended to play this down.
35. Factor (d) applies to positive obligations. Mr MacColl did not rely on it, no doubt on the view that the title condition is predominantly restrictive rather than an obligation “to do something”. Nor did the respondents, so far as we understood it, make any submission relating to this factor. Indeed, when pressed to say how the applicants could be required to make use of the subjects now for outdoor recreational purposes, Mr Chapman did not have a reply.
36. More than 60 years have elapsed since the condition was created (factor (e)). This factor may have little weight in itself, and tends to acquire weight in conjunction with more general changes. The factor does not, however, in any way count against the reasonableness of the application to discharge.
37. Factor (g), whether there is planning or other regulatory consent for a particular use which the condition prevents, was not relied on by either party.
38. Factor (h) also appears neutral, since no question of loss or compensation has been raised.
39. Factor (i) has no application.
40. Factor (j) is “any other factor which the Lands Tribunal consider to be material”. The provision of the alternative facilities for tennis appears to us to fall into this category and to be another factor of considerable significance, having regard to the purpose of the title condition: the predominant purpose has been fulfilled in another way.
41. The origin of this title condition in a gift to the community was relied on by the respondents, the suggestion being that the subjects should be used for community purposes. Presumably, although this was not Mr Chapman’s stated position, some community use like the educational use to which he did not object would meet this argument. In reality, however, it means allowing the respondents to exercise private control over the use of the subjects. They were prepared to tolerate one use in breach, but seek to prevent other uses not to their liking. This is far removed from the purpose of this title condition. An alternative application of this argument is that with the subjects no longer used for either the stipulated purpose, or indeed another community purpose which succeeded it, and now apparently to be exploited commercially, the proceeds should be used for community purposes rather than simply being a ‘windfall’. We were told that that is indeed what is to happen, i.e. the proceeds are to be allocated to the school building budget. In other words, the origin of this condition in a gift to the community might be thought a material factor but does not necessarily, as a matter of reasonableness, favour the retention of this burden.
42. Mr Chapman’s references to some particular planning policies which ought to apply in relation to use of this site are not in our view material under factor (j) or relevant in any other way. They are arguments as to what should happen, or not happen, under public planning legislation. This case is about this private title restriction.
43. Drawing our consideration of all these factors together in order to reach an overall view on the reasonableness of the application, we are satisfied that the application for discharge is reasonable. The predominant purpose of outdoor recreational provision has been fulfilled elsewhere. The use of the subjects changed fundamentally 30 years ago, in breach of the condition, with either the agreement of the benefited proprietors or at least no attempt to enforce. With a second change of use approaching, the applicants are no longer in a position to point to a particular reasonable use which the condition impedes but there appear to be a number of potential uses which are likely to be reasonable. Accordingly, the burden represents a substantial impediment to the applicants’ enjoyment of the property. It is of doubtful benefit to the benefited properties. Of course if it is used by the respondents to dictate the future use of the subjects to their owner, that would be a benefit to them but that is not in our view a reasonable use of the condition. It is not a very recent burden. It has been ignored for years. One or both of the respondents may not even have known about its existence until the present application, but that cannot support the reasonableness of the attempt to resurrect it. In short, the circumstances have in our view rendered this burden obsolete. No doubt the respondents would prefer to know and have the opportunity to address the reasonableness of a particular intended use, as is appropriate in many applications to the Tribunal. That, however, presupposes that the burden has some reasonable continuing application. This burden does not.
44. For these reasons, we allow this application.
45. Any application for expenses could be considered on the basis of written submissions according to our usual practice. The applicants may, however, wish to reflect on the fact that this application would likely have been unnecessary if their predecessors had in 1977 given proper consideration to the existence of this burden.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 August 2009
Neil M Tainsh – Clerk to the Tribunal