OPINION

Scottish Ministers (per Tayside Health Board)
(Applicants)
v
(1) Brechin Healthcare Group
(2) City of Brechin and District Community Council
(3) The Don Centenary Trust
(Respondents)

Subjects: Brechin Infirmary, Health Centre and field, Brechin

Introduction

[1] This is an application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 for discharge of title conditions. The applicants are owners of an infirmary, health centre and field in Brechin. The infirmary is no longer used as a hospital. The applicants wish to sell off the infirmary building and the field, and to be free to deal with the health centre should it become surplus to requirements in the future. The application is opposed by the respondents who have submitted representations. The first and third respondents are community groups, registered as charities. The second respondent is a community council. The application founds upon various factors specified in s 100 of the 2003 Act, which we do not detail here.

Title conditions

[2] The title conditions are comprised in two feu charters. The first is a feu charter of an area of two acres or thereby at Caldhame by James Craig and Others, Commissioners of the Right Honourable Fox, Earl of Dalhousie, Baron Panmure of Brechin and Navar in favour of the Provost Bailies etc of the Town Council of Brechin and their successors in office as Trustees for behoof of Brechin Hospital Infirmary and Dispensary, and their assignees, recorded PRS Forfar 1 June 1866 (“the 1866 Feu Charter”). The feuing conditions include that the Provost, Bailies and foresaids should (1) erect a substantial building called The Brechin Hospital Infirmary and Dispensary built of stone and lime and roofed with slate and to maintain the same, (2) they were not to cause injury to the amenity of the locality, or nuisance, disturbance or annoyance; (3) the building would be used for no other purpose than a hospital, infirmary and dispensary and (4) they were not to sub-feu the ground. There was no consideration other than the payment of a feu duty (£8 p.a.) to the superior, namely the Earl of Dalhousie and his successors. There was an irritancy clause.

[3] The second deed is a feu charter of a piece of ground measuring 2 acres, 2 roods and 5 poles by the Trustees of Thomas Ogilvy and Another in favour of the Brechin District Committee of the County Council of the County or Forfar as local authority under the Public Health (Scotland) Acts and the Commissioners of the Royal Burgh of Brechin acting under the Burgh Police (Scotland) Act 1892 as local authority for the said burgh under the Public Health (Scotland) Acts, jointly, and their assignees, recorded GRS (Forfar) 28 August 1897 (“the 1897 Feu Charter”). The feu charter required the District Committee and the Commissioners to erect a hospital or other substantial building or buildings of a value of at least £1,000 and to maintain on the ground buildings of at least that value. Similarly the feu charter makes no mention of a consideration other than the payment of feu duty (£30, 7s, 6d p.a.) to the trustees and their foresaids, who retained the superiority. There is also an irritancy clause.

Procedure

[4] The application named the above Commissioners for the Earl of Dalhousie and Ogilvy’s Trustees as persons entitled to the benefit of the title conditions. The applicants indicated that there was uncertainty as to the extent of the land covered by the burdens, but that it was thought unlikely for there to have been any common scheme in respect of neighbouring properties. In these circumstances the tribunal proceeded to advertise the application by local newspaper in terms of s 93(2)(a) of the 2003 Act.

[5] The respondents submitted separate written objections to the application. At this point the applicants lodged adjustments with preliminary points to the effect that the respondents were not entitled to make representations in terms of s 95 of the 2003 Act. The applicants adopt the position that they are entitled to have the application treated as if it were unopposed and should be granted as of right, in terms of ss 97(1) and (3)(a).

[6] The applicants invited the tribunal to fix a debate on the preliminary issues. Parties subsequently agreed that the preliminary issues could be determined by means of written submissions, to which the Tribunal agreed.

[7] The applicants were represented by Kathryn Gormley, solicitor, of the NHS Central Legal Office, Edinburgh. The respondents were unrepresented.

Legislation

The Title Conditions (Scotland) Act 2003 (“the 2003 Act”) provides:

95. Persons entitled to make representations

The persons entitled to make representations as respects an application under section 90(1) … of this Act are–

(a) any person who has title to enforce the title condition;

(b) any person against whom the title condition is enforceable;

97. Granting unopposed application for discharge or renewal of real burden

(1) … an unopposed application duly made for–

(a) the discharge or variation; …

of a real burden shall be granted as of right; and as respects an application under paragraph (a) above neither subsection (6)(a) nor subsection (8) of section 90 of this Act [compensation] shall apply in relation to the order discharging or as the case may be varying the real burden.

(3) An application is unopposed for the purposes of–

(a) subsection (1)(a) above if, as at the date on which the application falls to be determined, no representations opposing it have been made under section 96 of this Act either by an owner of any benefited property or by a holder of a personal real burden;

or all such representations which have been so made have been withdrawn.”

Submissions for the applicants

[8] The applicants produced a written submission dated 18 March 2019. It was submitted that none of the three respondents was entitled to make representations in terms of s 95. The only potential category was sub-para (a), namely, any person who has title to enforce a title condition. None of the respondents had title to enforce the title conditions.

[9] It was pointed out that neither the second nor third respondents claimed any title to enforce the real burdens or advanced any factual basis from which it could be argued they had title to enforce the burdens. The submissions of the first respondents on the other hand suggested that they maintained a right to enforce the real burdens as representatives of a community. However, this could not constitute a title to enforce the real burdens.

[10] The applicants’ submission contains a detailed analysis of the various routes by which title conditions could be preserved and enforced via the Abolition of Feudal Tenure etc (Scotland) Act 2000 (“the 2000 Act”) and the 2003 Act and concludes that none of the respondents could establish title to enforce the real burdens. We do not rehearse the submission in detail, but the applicants point out that there is no suggestion in either deed that the burdens were enforceable by anyone other than the feudal superiors. As these were feudal burdens enforceable only by the superiors, the burdens were extinguished by operation of law on the appointed day (28 November 2004) in terms of section 17(1)(a) of the 2000 Act. There was no notice by any party in terms of Part 4 of the 2000 Act so as to re-allot or convert the burdens such that extinction would have been avoided. There are no indicators of a common scheme as would permit enforcement by third parties in terms of ss 52 or 53 of the 2003 Act.

[11] There was a contention by the first respondents that the burdens could be seen as a “health care burden”. However, in terms of s 18C of the 2000 Act the burden required to be enforceable by a National Health Service Trust or the Scottish Ministers. These provisions did not accordingly apply to the respondents.

[12] Burdens involving maintenance, such as facility or service burdens coming under s56 of the 2003 Act, would require the identification of benefited property, which was not the case here.

[13] It followed that the application fell to be granted as of right in terms of ss 97(1) and (3)(a). There could be no compensation in terms of s 90(6) of the 2003 Act.

[14] Inasmuch as the feudal grants were intended to create any public benefit, this was through the grant of ownership of the ground to the nominated public bodies. Any benefit to the local community was indirect in the sense that it derived from that ownership. It was misconceived to suggest that the burdens conferred a benefit upon the community in the necessary sense.

Submissions for the respondents

[15] The second and third respondents did not add to their original objections, which did not deal with the applicants’ preliminary points discussed above.

[16] The first respondents produced a detailed letter dated 12 December 2018 dealing with the issue of title to make representations, and made further submissions by emails dated 29 March and 4 April 2019. These submissions extend over eight pages and we do not attempt to rehearse all the points here. However, the core theme is that the obvious beneficiaries of the title conditions are the public; that the land should be used for healthcare purposes in keeping with the instructions of the feu charters and clearly benefits the local community. The donors of the land specified the conditions to deny themselves the benefit of the title and to benefit the community of Brechin and Edzell.

[17] There were serious healthcare needs in the area that required to be addressed. There are significant levels of deprivation and access to services is a significant problem. There is a petition containing more than 2,000 signatures of people on the electoral roll of Brechin and Edzell who feel better use could be made of the infirmary site than for it be sold for housing.

[18] Once the land was no longer used for healthcare purposes, the agreement in the 1897 Ogilvy feu charter rendered the feu null and void and the land should have reverted to the donors. It was unreasonable that the NHS, having obtained the areas of land through nationalisation and without compensation, that they should seek to improve the conditions for sale to their benefit without respect to the previous owners and the community. The NHS should compensate for the change in the status of the land. Compensation was appropriate.

[19] The burdens could also be seen as maintenance burdens or healthcare burdens.

[20] The first respondents had informed the applicants of their interest in the property but NHS Tayside had not informed the first respondents of any intention to sell the land. The first respondents are developing plans to create a community health and wellbeing hub for Brechin, Edzell and the Glens. They wished to provide this service on the Brechin Infirmary site. The first respondents however accepted that there have recently been positive discussions with the applicants on the matter.

[21] Reference was made to the fact that in dealing with applications for discharge the Tribunal has in the past looked to the original purpose of the burdens and also in the absence of any benefited proprietor, to look to matters of public benefit.

[22] There had been discussion with the current Earl of Dalhousie, understood to be the successor to the superior in the 1866 feu charter, who supported the community position on the basis of ethical considerations. The first respondents forwarded a draft letter bearing to be in the name of the Earl dated 27th November 2018, and informed us that the Earl was happy for the letter to be referred to. The draft letter indicates that he supported an outcome involving some benefit accruing to health care facilities in Brechin for which the original gift was intended. We shall treat the draft letter as forming part of the first respondents’ submissions.

Discussion

[23] We cannot avoid the conclusion that the respondents do not have title to enforce the relevant title conditions, and that the applicants’ submissions are well founded. The title conditions were in the form of feudal burdens enforceable only at the hand of the superiors. Some positive action in the form of a competent notice under the 2000 Act, which may or may not have been possible, would have been required to prevent the extinction of the superiors’ rights before the appointed day of 28 November 2004. Since no notice was registered, any existing rights of the superior were extinguished. Nor is it apparent that there is any credible mechanism through which third parties might have rights of enforcement. No case has been made in terms of ss 52 and 53 of the 2003 Act as to the possibility of the existence of benefited property as part of a common scheme alongside the relevant subjects. There is no identification of any benefited property through any other mechanism under Part 4 of the 2003 Act. In short, no route appears likely or has been put forward through which any of the respondents can be said to have title to enforce the title conditions. It follows that they do not have title to make representations in terms of s 95.

[24] The first respondents’ position implies that there might be some form of community right of enforcement, and that they represent the community in some form or other. We have to point out that the system of title conditions in Scotland is largely based upon legally binding deeds between contracting parties. So long as certain conditions are met, the deeds or relevant obligations are entered in the sasine or land register so as to run against the land. It is a system incidental to landownership whereby, in the main, particular landowners may be obliged by, or are able to enforce title conditions. The system cannot be confused with, say, the planning system, which is conceived in the public interest and where members of the public have an express part to play in that system.

[25] The feu charters should not be confused with, for example, dispositions of land intended to form part of the common good. These may comprise deeds whereby officials of a Burgh would hold land for the common good of the people or community of the Burgh. Should a successor local authority seek to dispose of such land, then it may require to apply to the court in terms of s 75 of the Local Government (Scotland) Act 1973. It is not unusual for community groups to become involved in such cases. Although the matter was not really explored in argument we are clear that the conveyances in the present case were not in terms designed for the land to be held as part of the common good of a Burgh. As the applicants point out, the conveyances were in favour of specific public bodies for specific purposes. The disponees included assignees of the public bodies. There were also irritancy clauses in favour of the superiors. These factors all appear consistent with the creation of a conventional feudal relationship at the time.

[26] It is correct to say that the Tribunal when determining an application may require to consider the benefit to which a title condition confers on the public: cf s 100(b)(ii) of the 2003 Act. However, this is only once the stage of the case has been reached whereby persons entitled to make representations have made relevant representations on the matter. That stage cannot be reached in the present case.

Decision

[27] We conclude that the respondents are not entitled to make representations in terms of s 95(a) since they do not have title to enforce the title conditions. The application thus requires to be treated as unopposed in terms of s 97(1)(a). The applicants are accordingly entitled to the discharge of the burdens as of right.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 3 May 2019

Neil M Tainsh – Clerk to the Tribunal