1. This is the third application to come before the Tribunal concerning a title condition affecting a property known as “Dunmail”, 3 South Avenue, Cults, Aberdeenshire (“the subjects”), the home of the applicants Mark Cadman and Sheena Stevenson.
2. The first application was in 2013 (LTC/TC/2013/04, “the 2013 application”) and was an application under sec 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to renew the title condition in question, notice of proposed termination of which had been served in terms of sec 21 of the Act. The applicants on that occasion included the present respondents, who were the only ones of a number of respondents accepted as having an interest to enforce the condition in question. The respondent on that occasion was Mr Cadman on his own. The Tribunal (Mr J N Wright QC and Mr D J Gillespie FRICS, decision of 20 December 2013) held that the condition, which prevented the building on a feu granted in 1876 of not more than three houses, should not be terminated but should be varied so as to permit the erection on the subjects of not more than four detached, semi-detached or terraced dwellinghouses. However the planning authority refused consent for that development.
3. That prompted the second application, in 2017, which was an application by Mr Cadman and Ms Stevenson, under sec 90(1)(a) of the Act, for the further variation of the title condition so as to allow the demolition of the present house on the subjects and the construction of 21 retirement flats. That proposed development already had planning consent, granted by the Scottish Ministers on appeal on 21 August 2017. However the application for variation was refused by the Tribunal (Mr R A Smith QC and Mr C Marwick FRICS) by decision dated 4 June 2018.
4. The present application, no doubt born of the frustration of having been unable to come up with a scheme which passed muster with both the Tribunal and the planning authority, is another application under sec 90(1)(a) and asks us “to discharge the existing title conditions on the Property and determine their validity, applicability and enforceability”. It has been opposed by Gavin and Tracey Miller, owners of a neighbouring property known as “Silverdale”, and by Mark Cook and Mary Rodgers, owners of a neighbouring property called “Glendarroch”. The latter have taken a plea of res judicata and this decision deals with that plea. All parties have agreed that we may dispose of the application without a hearing as permitted by Rule 26 of our Rules.
5. The title condition in question is contained in a Feu Charter by George Gibb Shirra Gibb in favour of Edmund Geering, recorded in the Division of the General Register of Sasines for the County of Aberdeen on 31 May 1876 and, in its original form, it read like this:
“[M]y said disponee and his foresaids shall be bound to erect and ever after to maintain upon the said piece of ground a Villa or Dwelling House of stone and lime covered with slates or lead worth £600 at least according to a plan and elevation and on the site and line which has been pointed out and approved of by my Agent, Declaring that my said Disponee and his foresaids shall at any time be entitled to erect other dwelling houses but not more than two upon the said area or piece of ground hereby feued But declaring also that my said Disponee and his foresaids shall not be entitled to erect any other buildings of any kind on the said feu without the express consent in writing of the Superior excepting stables and coach houses and other offices which shall be on the back part of the ground only the ridges of which stables coach houses or other offices are not to exceed fifteen feet in height and the position and plan with the elevation of such buildings shall be submitted to and approved of by me or my foresaids before the erections are made …”
6. The feu then granted extended to over two acres. The house which the feuar was taken bound to build was duly built and is now known as Glendarroch, the property of the respondents Mr Cook and Ms Rodgers. Other buildings were also built at or around that time, including one which became known as Glendarroch Cottage and has been the subject of some controversy in this series of applications to the Tribunal (see para 18 below). It came to be sold off in or around 1977 and its title contains no reference to the foregoing burden.
7. “Dunmail”, now the home of the applicants, was built on the feu in 1945 and at that time the feu was split, so that Glendarroch and Dunmail were held on separate titles, both burdened with the foregoing title condition.
8. In 1981 the house now known as “Silverdale”, the home of the respondents Mr & Mrs Miller, was built on a site carved out of the Dunmail part of the original feu. The Silverdale title is burdened by the foregoing condition.
9. There are five requirements for a successful plea of res judicata (MacPhail, Sheriff Court Practice, 3rd ed, paras 2.104 – 2.109) and we deal with them in turn.
10. The prior determination in question is the decision on the 2013 application, since the 2017 application was concerned with the narrower question of a further variation of the burden, not its intrinsic validity and enforceability. As has been said, that application was made under sec 90(1)(b) of the Act and the Lands Tribunal is the specified forum for all applications under sec 90, so this requirement is satisfied.
11. Although parties in both previous applications, as parties have in this one, agreed to have the application disposed of without an oral hearing, full written submissions were lodged and the decisions were therefore pronounced in foro contensio.
12. The subject-matter of the present application is in two parts, being (reversing the order in which they are stated in the application), (a) determination of the validity and enforceability of the burden and (b), if valid, deciding whether it ought to be discharged.
13. The subject-matter of the 2013 application was also in two parts, (a) whether the condition should be renewed or allowed to terminate in terms of the notice of proposed termination which Mr Cadman had served and (b) whether, if not terminated, it should be varied. However, looking to the substance of matters, essentially both applications concern the question whether the subjects should continue to be burdened by the title condition in question. We are therefore satisfied that this requirement has been met.
14. In the 2013 application Mr Cadman did not challenge the burden as being invalid or unenforceable. Instead matters appear to have proceeded on the basis of a concession by him that it was both valid and enforceable by the present respondents. We see that at a couple of points in the Tribunal’s decision. At para  we read “The respondent accepted that the proprietors of Glendarroch … and Silverdale … but not the other applicants, were benefited under the title condition.” Paragraph  repeats the same point:
“We should first note the position about the status of these burdens. All the relevant titles have not been produced and neither side has put forward any deep analysis of the validity and enforceability of the burdens. It is a fair point that the onus in on the applicants to set up title and they have not really addressed the legal analysis, but the respondent’s position does make clear his acceptance that at least the owners of Glendarroch and Silverdale have title to enforce.”
15. At para  the Tribunal itself appears distinctly hesitant about the true legal position:
“In the absence of fuller submissions, and without sight of the subsequent titles, it appears to us that under the previous law there was no contrary indication, such as reservation of a power to waive, in the Feu Charter, so that the subsequent sub-divisions probably did produce, apparently by implication, mutually enforceable community burdens. Presumably the respondent’s concession of continuing effect is based on Section 52 of the 2003 Act.”
16. In the present application the applicants seek to revisit all of that. At section 5 of the application, headed “Details of application” they say this:
“The purpose of this application is to address this deficiency [i.e. the lack of analysis identified by the Tribunal in the foregoing passages]. This application contains new evidence, fuller submissions and analysis which have not previously been before the Lands Tribunal. The applicants believe there is nothing which joins these dwellings in a common scheme and that feu subdivision has not created by implication mutually enforceable burdens.”
17. Although the 2013 application proceeded on a concession and although the present application contains new argument (new evidence of any significance is more difficult to find), it is clear that the basis upon which the burden is now said to be invalid is not new. That basis is this:
“8 Basis of application
We believe that the building of Silverdale was a clear breach of the original 1876 title conditions. Four dwellinghouses is a material increase above the maximum of three dwellinghouses that were permitted. We believe that this action irrevocably broke the development scheme that was contemplated by the Superior in 1876. We believe this is significant as any implied common scheme or common plan which covered the original feu was broken. We believe that there is no relationship between the four detached properties as they are of different design, size, character, have different outlooks, were built at different times, have no common facilities with each property having separate drive access to the public high way. We believe there is nothing which joins these dwellings in a common scheme.”
It will be seen, therefore, that the building of Silverdale is regarded as putting a coach and horses through the purpose of the burden, destroying the scheme envisaged by the Superior.
18. Much the same argument was dealt with by the Tribunal in the 2013 application at para , where they said this:
“There is also the question as to whether, and to what extent, the burden may have been breached. There are two suggested types of breach. Firstly, it is the case that there are 4 separate houses on the original plot. The applicants first conceded that this was a breach, but then moved to a suggestion that as Glendarroch Cottage is known to have been occupied by 1881 and may have been built on the back part of the ground, the number of houses specified may not have been exceeded. We make two points on this. Firstly, although it may, at least now, exceed the original permitted height of ancillary buildings, Glendarroch Cottage does seem to us probably to have complied with the stipulation in relation to ancillary buildings in the back ground. If that is right, the building of Silverdale, the last of the four houses, would not be a breach. There is no prohibition of sub-division. Secondly, even if the number of houses does exceed the permitted level, we do not thing that there has, as a matter of reasonableness, been any significant breach, because Glendarroch Cottage clearly has the character of a small lodge/stables/gardener’s cottage type of building which has had no significant impact on density. Generally, it seems to us that this large feu has been developed, and remained, in line with the burden, i.e. with three substantial dwelling houses plus ancillary buildings.”
19. It seems to us that in that passage the Tribunal decided quite clearly that the title condition with which we are concerned was not breached, or, if breached at all, was not breached to any material extent. The question of whether there has been a breach has therefore already been decided. No argument to the effect that the condition is invalid or unenforceable because of this alleged breach can now be entertained and it does not seem to us that anything said in the present application amounts to a new ground of invalidity.
20. Even if we are wrong in that, however, such new material as the present application contains could have been advanced in the 2013 application and introducing it now would be open to the challenge of “Competent and Omitted”, which is acknowledged to be an exception to the rule that a new medium concludendi elides a plea of res judicata; MacPhail, supra, para 2.108.
21. The second issue in this case – whether the title condition should be discharged – was part of the subject-matter of both previous applications. If one substitutes the word “terminated” for “discharged”, it was the whole point of the 2013 application and, although, in light of a change in the then applicants’ position, the discussion came to be about the extent to which the condition should be varied, rather than terminated or discharged, it is clear that Mr Cadman’s primary position continued to be that it should be discharged. The Tribunal said as much at para :
“ There is a general issue as to whether this density provision in the private title should be retained. The respondent still primarily seeks discharge, and although they (sic) would now, alternatively, accept a variation allowing further houses on their (sic) property, this submission is expressed on the basis of bringing the position into line with planning guidelines. Effectively, therefore, he is still saying that the private title condition should no longer have any effect so as to prevent development for which he might obtain planning consent.”
22. The Tribunal then went on to hold that is was reasonable to retain this title condition subject to variation to the extent of allowing the erection of up to four houses on the subjects:
“ Drawing all these considerations together, we are firstly of the clear view that this burden should not simply be discharged. Despite its age and the extent of change which has taken place in the vicinity, it is not in our view by any means obsolete.”
23. The reasonableness of a further variation to allow the erection of 21 retirement flats on the subjects, rather than the four houses allowed for in the 2004 application, was, of course, the subject matter of the 2017 application. The tribunal which dealt with that application were “of the clear view that it would not be reasonable to vary the title condition” (para 83).
24. It seems to us, therefore, that the same ground of challenge to the ongoing validity and applicability of the condition as is now being advanced (which, despite embellishments, remains, essentially, that the original scheme was breached by the building of Silverdale) was advanced and dealt with in the 2013 application.
25. We bear in mind that an unsuccessful party has a right to raise a further action against the same defenders relating to the same subject-matter provided that the second action is based on different grounds. There is, however, a difference between different grounds of action and different arguments in support of grounds and it seems to us that what the applicants are doing in this application is attempting to make good omissions, as they see them, in the way the case was presented by their legal advisers in the 2013 application. Their pleadings are quite candid on the point:
“5 Details of application
This application follows a recent refusal by the Lands Tribunal, case reference LTS/TC/2017/33 to vary the title conditions of the property, whilst having planning consent. That recent decision has led us to revisit and consider the original purpose and intent of the burdens. The applicants make this submission without having to consider the interest of potential developers whose legal advice controlled the content, nature and focus of earlier dealings with the Lands Tribunal insofar as there was common interest.”
26. The parties here are not identical. Ms Stevenson was not a party to the 2013 application and not all who were applicants then are respondents now, but the present respondents were among the then applicants. So the only new party is Ms Stevenson. She was also an applicant in 2017 but the res judicata argument relies on the earlier application. Her interest is the same as Mr Cadman’s: that of heritable proprietor of the burdened subjects. We accordingly hold this requirement to be satisfied.
27. Being persuaded, for the foregoing reasons, that the requirements of res judicata are satisfied in this case, we have upheld the plea. Although in the ordinary courts that would usually be reflected in a decree of absolvitor, we think that in the context of a statutory application to a tribunal, albeit one that works very much like a court, the appropriate order is dismissal.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 February 2019
Neil M Tainsh – Clerk to the Tribunal