OPINION

Leehand Properties Limited - Applicants

Subjects at
Bracken Wood, Gatehouse of Fleet, Castle Douglas

Introduction

1. The applicants are owners of land at Bracken Wood, Gatehouse of Fleet, Castle Douglas. Their land register title number is KRK155. Burden 2 in the title sheet refers to a feu disposition by James Neil Murray Usher to the applicants recorded GRS (Kirkcudbright) 10th November 1994 (“the 1994 feu disposition”). The applicants seek a determination to the effect that Clauses (First) to (Sixth) of the feu disposition are unenforceable. This part of the application is accordingly in terms of s.90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act” or “the Act”).

2. Clause (Seventh) provides for certain servitudes, including what is shown as a footpath tinted blue on the title sheet plan. The applicants seek variation or discharge of the blue line servitude with reference to s.90(1)(a)(i), s.98(a) and the factors mentioned in s.100 of the 2003 Act.

Procedure

3. The application has been intimated to the 17 proprietors of existing properties at Bracken Wood, which have been removed from the original KRK155 title sheet but which may be benefited properties for the purposes of the Act. The application has also been intimated upon the 17 proprietors of a neighbouring development, namely Ramsay Wood, in case they might also be benefited proprietors.

4. No interested party has opposed the application. Nevertheless, we are unable to grant the application as of right insofar as referring to clauses (First) to (Sixth) in terms of s.97(1)(a) of the 2003 Act. This is because the relevant subsection does not apply to applications to determine any question as to validity, applicability or enforceability of a real burden under s.90(1)(a)(ii). Nor are we able to determine the application for the variation or discharge of the servitudes under clause (Seventh) as a matter of right, since s.97(1) only applies to real burdens and not servitudes: cf definition of “title condition” in s.122 of the Act.

5. Accordingly we require to be satisfied, at least prima facie, that clauses (First) to (Sixth) are unenforceable and that the servitudes specified in clause (Seventh) should be varied or discharged having regard to the relevant factors.

6. The applicants were represented by Mr Andrew Upton of Harper Macleod, LLP. We held an unaccompanied site visit on 19 June 2019. The case has been dealt with by written submissions.

Title conditions

7. The 1994 feu disposition refers to James Neil Murray Usher and his successors as “the superiors”. The feu disposition is granted to the applicants “and their successors and assignees (all, whether as proprietors of the whole of the subjects hereinafter disponed, or as proprietors of individual plots forming a part and portion thereof, being hereinafter referred to as ‘the feuars’)”.

8. The full entry is reproduced in Appendix 1 hereto. In summary, clause (First) provides that the feu is conveyed for development purposes of self-contained dwellinghouses, restricted to 22 in number without the prior written consent of the superiors. Sub-clause (d) provides that the superiors shall permit the construction of additional houses, up to a maximum of 8; i.e. to a total of 30 properties on the feu, subject to the feuars making payment of £5,000 to the superiors for each additional dwellinghouse as well as the superiors’ legal costs incurred in granting a minute of waiver.

9. Clause (Second) amongst other things provides for the majority of the dwellinghouses to be of single or one and half storey construction. The feuars are permitted with prior approval of the superiors to construct two storey dwellinghouse properties “where the height of such structures would not impact adversely upon the overall appearance of the development of the Feu …”. The clause provides for a mechanism for arbitration between the superiors and the feuars in the event that the superiors refuse to give consent for the larger structures. The clause indicates that the arbiter is required to have due regard to the appearance of the adjacent site occupied by subjects known as 1 to 15 Ramsay Wood.

10. Clause (Third) provides detailed specification for the style of construction and finish of the dwellinghouses in terms of materials, and the pitch of roofs. It also operates as a no-subdivision clause and a user clause for private residential accommodation only. Many of the provisions may be relaxed by consent of the superiors.

11. Clause (Fourth) provides for the feuars to present a feuing plan prior to commencing development indicating the division of the feu into plots. This may be subject to variation by the feuars subject to the approval of the superiors. The clause continues to specify certain types of boundary features, namely drystone walling, or a particular type of fencing or hedging. The clause provides for the maintenance of the boundary features where mutual.

12. Clause (Fifth) is a prohibition on selling spirts etc within the feu and a prohibition upon shops or the practice of work, business or manufacture.

13. Clause (Sixth) requires the feuars to ensure that dogs are kept under proper control and not to be permitted to trespass or stray on the adjoining ground. The feuars were also bound not to shoot game within the feu or attract game on the adjoining lands of the superiors.

14. Finally clause (Seventh) refers to the roadways and footpaths to be constructed by the feuars and reserves to the superiors and to members of the public generally, a servitude right of passage, for pedestrian use in all time coming over and across all of the said roadways and footpaths including specifically “the footpaths tinted blue on the said plan”. The plan in fact shows only one footpath tinted blue, which is discussed in more detail later.

15. We should point out at this stage that the applicants themselves laid out a deed of conditions recorded GRS (Kirkcudbright) 20 December 1996 (“the 1996 deed of conditions”) over the same land. This is noted in entry 3 of the applicants’ title sheet, and repeats or contains similarities to many of the detailed conditions in the 1994 feu disposition, but not the first two. So the 1996 deed of conditions does not contain a restriction upon the number of dwellings or the height of dwellings, or mention the neighbouring Ramsay Wood development in context. Thus it might be inferred that the 1994 feu disposition was aimed more at providing contiguity between neighbouring development sites and covering relations between the two respective developers. On the other hand the 1996 deed of conditions was aimed at maintaining uniformity within the Bracken Wood development alone.

16. Clause (Sixth) of the deed of conditions mentions that the superiors (i.e. the applicants) have the right to vary the route of any of the roadways or footpaths if it proves expedient for the purposes of facilitating the development.

17. Clause (Seventh) of the deed of conditions reserves to the superiors, the over superiors, feuars and members of the public generally, a servitude right of passage for pedestrian use only in all time coming over the roadways and footpaths within the development including specifically the footpaths tinted blue on the said plan. This is the same footpath tinted blue for the purposes of the 1994 feu disposition. The applicants do not seek the variation or discharge of any of the conditions mentioned in the 1996 deed of conditions.

Legislation

Title Conditions (Scotland) Act 2003

Background facts and circumstances

18. Gatehouse of Fleet was a planned town in the eighteenth and early nineteenth centuries. The traditional landowner played a major role in its development. The buildings in the centre and other parts of the town are of a traditional and regular appearance. The town has an attractive appearance and has been used, we understand, as a film location.

19. The Bracken Wood development lies about half a mile north-west of the town, connected by the Old Military Road. The red line area of the applicants’ title plan extends to 7.1 ha, now being subject to the removal of 17 individual properties developed since 1996. As the name suggests, the area is wooded. There is a good number of deciduous trees. The applicants have fenced off a number of further building plots - we counted 9 - including one house nearing completion.

20. The Bracken Wood access road runs from the main road southwards with the developed properties on either side. There is a westward spur which turns north with more properties on either side. The southern point of the Bracken Wood access becomes a hammerhead. This leads to the southern point of the ground where we understand it is intended to build three houses on approximately 0.85 ha of ground . The applicants have constructed an access to the southern ground from the hammerhead. This access is made of stone chips and roughly follows the western boundary of the site. The boundary is marked by a drystone dyke. It is at this south-most area where the blue access is drawn on the title plan. The plan shows the blue access running north to south, roughly bisecting the southern ground. The blue access has not however been constructed. Unlike the blue access, the actual access does not bisect the relevant part of the site, and nor does it travel all the way to the boundary at the south most tip.

21. The Ramsay Wood development lies to the east of the Bracken Wood development. The access for Ramsay Wood also runs south from the main road, roughly parallel with Bracken Wood, until it stops shortly before the southern tip described above. There are houses on either side of the Ramsay Wood access.

22. We were shown the title sheets for the Ramsay Wood properties. In general these were feued off by Elizabeth Evelyn Murray Usher in the 1970s to individual proprietors. The feuing conditions contain certain conditions which are similar to the conditions in the 1994 feu disposition and the 1996 deed of conditions, particularly relating to the construction and design of the houses.

23. From our own observation it does appear that the title conditions have succeeded in providing for a similar theme of building on both the Bracken Wood and Ramsay Wood developments. Although the individual houses are of different shapes and sizes, they have pitched roofs and make use of white Sandtex (a form of render) material or similar, as provided for by the conditions. Both developments are of high quality. Although both developments are of more recent construction, it seems fair to comment that the foregoing “traditional” design and construction requirements appear to reflect a homage to the traditional design of the town itself.

Submissions for the applicants

24. The burdens are feudal in origin. It was submitted that clauses (First) to (Sixth) had been extinguished in terms of section 17 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 (“the 2000 Act”). There had been no notice of reallotment of burdens or other relevant notice under the 2000 Act. It was submitted that there was no common scheme in terms of sections 52 and 53 of the 2003 Act. The thrust of the burdens was to regulate those developing the ground subject to the 1994 feu disposition, namely the applicants. The superiors, in effect over-superiors, had retained an interest in the development of the adjacent Ramsay Wood and would not wish this to be detracted by the Bracken Wood development.

25. The Tribunal drew attention to paragraph [9] of the opinion in Franklin v Lawson 2013 SLT (lands Tr) 81 where burdens created by a feu disposition over a “to be sub-divided area” were considered to be imposed under a common scheme. As all the units in the estate were subject to the same set of conditions the situation was broadly similar to the example in s53(2)(c). The applicants accepted that if there was a common scheme in existence, there was no practical or legal difference between a deed of conditions or a feu disposition.

26. Turning to clause (Seventh) the applicants focussed upon the footpath coloured blue on the relevant title sheets. It was submitted that the applicants wished to redesign the development plots. The site contours and features impose limitations on the development not originally foreseen by the applicants. The applicants wished to build three houses in the area of the blue footpath. The applicants wished to clear what they described as scrubland on this area.

27. The servitude right had not been utilised since it had been granted. The area was overgrown. The footpath begins at land owned by a third party which was inaccessible without trespassing over that land, and ends at a drystone dyke which borders neighbouring farmland. In effect the footpath led nowhere and was of no benefit to any person.

28. With reference to factor (a) of s.100 of the 2003 Act it was pointed out that the original plan to develop on either side of the blue path had changed. Further, since the servitude had been created, the link between the public road on the neighbouring development, Ramsay Wood, to the servitude path had been cut off by the sales of 21 Ramsay Wood and Highview, Ramsay Wood. There was accordingly no way to access the servitude path from Ramsay Wood. In terms of factor (b) there was no benefit conferred on benefited properties. The footpath had not been built. The intended purpose (f) appears to have been to allow residents of Ramsay Wood to take access over a route leading from the south of Ramsay Wood, over Bracken Wood to neighbouring farmland over which access could be taken to parkland. However, the right had not appeared in any of the titles to property within Ramsay Wood. It did not confer any obvious benefit on the public given that it did not connect public places. The applicants were unaware of any planning permission or planning agreement making provision for public access that might explain the imposition of the blue line.

29. As we have indicated, the applicants pointed out that the access appeared to have been landlocked at the point where it meets Ramsay Wood. The Tribunal queried that this appears to have been brought about by the creation of two feus in Ramsay Wood by the superiors in the 1970s – namely Highview and 21 Ramsay Wood – all before the creation of the servitude in 1994. Nevertheless the applicants’ recollection was that the (over) superiors had wished to reserve an access through Ramsay Wood, so it could be inferred an error had crept in on the part of the superiors as to the correct title position. The applicants had themselves conveyed land adjacent to the access entrance to the owner of Highview in the mid 2000s. This had been for the creation of a garage, ultimately not built, but this fact did not appear to be relevant.

30. The Tribunal also queried that there appeared to be some visible sign of use of the access, at least at the point where the blue line meets Ramsay Wood. It was submitted that any such access could only have been by the proprietors of Highview for access to their own land, or by persons unknown purporting to exercise rights under s.1 of the Land Reform (Scotland) Act 2003.

31. With regard to factor (c) the condition prevented the applicants from developing the remainder of the site in the manner that they wished. The development was best developed according to the geography of the site. In terms of factor (e) the condition had been created in 1994 but no footpath had been constructed during the 24 years since the condition was created.

32. In terms of factor (j) it was again pointed out that there was no legal entitlement to take access from Ramsay Wood to the proposed path since two plots had been sold beyond the terminus of the proposed footpath.

Discussion by Tribunal

Validity

33. The feuing conditions in this case were imposed prior to the abolition of superiors’ rights. Although such rights have been “abolished” it is still necessary to ascertain whether they have been reincarnated by virtue of the transitional provisions of the 2003 Act. This will involve a consideration of s.52 and s.53 and include whether the burdens have been imposed under a common scheme.

34. As we have indicated in previous cases, the Act distinguishes between a common scheme and notice of a common scheme. The former is necessary to the operation of both s.52 and s.53, but the latter is only relevant to the operation of s.52. Furthermore, the fact that a common scheme might be unenforceable at common law or by virtue of s.52(2) does not alter the existence of a common scheme. There is nothing in the Act to suggest that s.53 is dependent upon the application of s.52, i.e. that it only applies where there is also an enforceable condition under s.52.

35. Looking for the moment at s.53, it is enough for a common scheme to exist where the same superior has imposed the same conditions upon several units. This was the case in Franklin v Lawson where, like here, the conditions were imposed under the same feu disposition. So we do not agree with the applicants that there is no common scheme in this case.

36. Turning to s.52(1), clause (Fourth) requires the feuars to present to the superior a feuing plan, indicating amongst other things the division of the feu into plots. This suggests a plan in respect of the whole development. This in turn tends to suggest an implied notice of the existence of a common scheme. All feuars would have knowledge from the deed of the need for a feuing plan over the whole area to be developed. However ss.(2) provides that ss.(1) applies only insofar as no provision is impliedly made such as, for example, a reservation to vary or waive the burdens. Under the burden the superiors had power to approve variations to the feuing plan by the feuars, which plan is said not to be definitive. This suggests if, say, one or more feuars subsequently sought a change to the plan, they could do so by obtaining the superior’s approval. This ability to vary tends to go against the idea of the conditions being mutually enforceable since, arguably – the clause is not entirely clear on this point - an individual feuar would be unable to prevent the alteration if proposed by other feuars and approved by the superior. There are other clauses - e.g. (First), (Second), and (Third) where the superior has power to approve derogations from the conditions. Absent arguments to the contrary, it appears that there is a reasonable argument that the conditions are not mutually enforceable by feuars – now proprietors - for the purposes of s.52.

37. We turn again to s.53, bearing in mind that we have found that a common scheme exists. The critical question is whether the individual properties are “related” in terms of the examples given by s.53(2). The applicants did not address this point. The concession they made as to a feu disposition being similar to a deed of conditions was in the context of the existence or otherwise of a “common scheme”, not the existence of “related” properties, and we do not think it would be fair to hold them to the concession. Just because properties are part of a common scheme does not make them “related” for the purposes of the section. In Franklin v Lawson the Tribunal was careful to point out that there were factors to support a finding that properties were related, and we infer that such factors went beyond the existence of a feu disposition common to the properties in question.

38. Ss(2)(a) – (d) gives examples of where properties might be inferred to be “related.” Paragraph (d) is inapplicable. On the face of it, we are doubtful that paragraph (a) applies since there is no apparent background of the properties being “managed together.” The conditions do refer in clause (Fourth) to maintenance of “mutual” boundary features, but this is not necessarily the same as “shared ownership of common property” in terms of paragraph (b). Paragraph (c) is more problematic for the applicants (“subject to the common scheme by virtue of the same deed of conditions…”) given the similarities between a deed of conditions and a feu disposition. However, strictly speaking a deed of conditions is not the same as a conveyance. The legislative history is different and the former could take effect immediately on recording (s.19 Land Registration (Scotland) Act 1979) and before any conveyance took place. In an unopposed application we are not disposed to give the words of the Act a broad interpretation. Moreover although the feu disposition does to an extent deal with relations between the ‘to be feued-off’ units within Bracken Wood, to a significant extent it was intended to manage the relationship with the adjoining development being operated by the over-superior. In this respect its content was not entirely typical of a deed of conditions. So, absent submissions to the contrary, and without seeking to establish a precedent, it is not clear that the individual Bracken Wood properties are “related” for the purposes of s.53. It follows, albeit with some hesitation, we are prepared to find that the conditions are unenforceable.

39. That said, we consider that most of clause (Fourth) (i.e. from the words in the sixth line of the Appendix “and no later than the commencement of the development…” to the end) relates to the maintenance of boundary features. It is accordingly in the nature of a facility burden which would have survived feudal abolition in terms of s.56.

The servitude

40. We have no reason not to accept the applicants’ position that the servitude over the blue footpath was intended to give access from the Ramsay Wood development to the Bracken Wood development and to the fields beyond. One curiosity is that the servitude is expressed as being reserved “to the superiors, and to the public generally…” We conceive that the superiors could, at one time, have given the benefit of the servitude to anyone to whom they intended to feu land. However, by 1994 they had already feued-off most or all of the Ramsay Wood development without having taken any obvious steps to preserve such a right in the relevant titles. It is conceivable that proprietors of Ramsay wood, qua members of the public, could claim a right of servitude following the 1994 feu disposition. However, by this time the (over) superiors had effectively landlocked their own access by feuing the relevant ground for the creation of Highview. No burden of servitude is reserved in that title. It is therefore very possible, as the applicants say, that the deed reflects some mistaken view of the titles. So in considering factor (f), it does appear that the purpose of the condition was always likely to fail from the time when the condition was imposed.

41. Turning to factor (b) our own observations indicate that the only use made of the blue route is at the Ramsay Wood end, and such would potentially involve a trespass on the Highview title. We do not know how much use is made of it, but we note that there is no objection to the discharge from residents of Ramsay Wood, and it is such residents who would be most likely to be affected by a discharge of the servitude. The only long-term benefit in keeping the access alive would be to allow access through the yet to be developed southern end of the Bracken wood development and thence to fields and parkland beyond. However the blue access route stops at the stone boundary wall. There is no sign of any formal or informal access over or through the wall. The adjoining field, in common with much of the agriculture nearby, is used by cattle. There would no doubt be safety issues in opening up an access at this point, even if the titles required this.

42. Turning to factor (c) the subjects are part of a development site. We do not know the planning background. Nevertheless we accept that the blue route is likely to restrict the applicants’ development options. The way the route bisects the southern tip is bound to restrict the amount of space available when compared to the existing route which runs close to the site boundary.

43. We think the foregoing factors are the most relevant, and on balance point in the direction of allowing a discharge of the blue servitude mentioned in clause (Seventh). We think it would be reasonable to do so.

Conclusion

44. It follows that we are prepared to find clauses (First), (Second), (Third), (Fifth) and (Sixth) of the 1994 feu disposition to be unenforceable, on the basis that no benefited property has been clearly identified in terms of s.52 and s.53, and there having been no argument to the contrary. We do not reach such a conclusion with regard to clause (Fourth) on the basis that for the most part it constitutes a facility burden in terms of s.56.

45. We are also prepared to vary clause (Seventh) to the extent of discharging the servitude marked blue on the plan. For the avoidance of doubt this discharge relates only to the blue servitude as specified in the 1994 feu disposition.

46. A formal order will be issued comprising the above.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 5 September 2019

Neil M Tainsh – Clerk to the Tribunal


Appendix 1

Feu disposition, containing (1) Feu Disposition by James Neil Murray Usher (who and whose successors are hereinafter referred to as “the Superiors” to Leehand Properties Limited and their successors and assignees (all, whether as proprietors of the whole of the subjects hereinafter disponed, or as proprietors of individual plots forming part and portion thereof, being hereinafter referred to as ‘the feuars), recorded GRS (Kirkcudbright 10 Nov. 1994, of the land edged red on the Title Plan (hereinafter referred to as “the Feu”), contains the following burdens:

(FIRST)

The Feu is conveyed for development purposes and the Feuars, in developing the Feu by the erection thereon of self-contained dwellinghouse properties, shall not erect and complete in excess of Twenty two such properties within the whole of the Feu, without the prior written consent of the Superiors; Declaring that

(a) the Feu shall not be used for any purpose other than for the construction thereon of self-contained dwellinghouse properties, with relative offices;

(b) until the Feuars shall develop all or part of the Feu, as aforesaid, the Feu, or such parts thereof as are not being developed, shall be left in its present condition, save that nothing contained herein shall be deemed to restrict or impede the Feuars in the formation of all roads and footpaths, amenity areas and others to be formed and constructed within the Feu, and in the laying, and installation, of all services and the like required for the purposes of the development of the Feu;

(c) without prejudice to the foregoing, the development of the Feu shall be subject to the whole conditions and others afterwritten and

(d) the Superiors shall, on the application of the Feuars, permit the construction of additional self-contained dwellinghouse properties within the Feu (but subject to a maximum of eight such additional properties being permitted to thereby result in the total number of all of the self-contained dwellinghouse properties within the Feu being increased from Twenty two to thirty) on the basis that the Superiors shall grant to the Feuars a Minute or Minutes of Waiver (as the case may be) to permit the construction of each such additional self-contained dwellinghouse property, subject to the Feuars making payment of (i) a capital sum of Five Thousand Pounds (£5,000.00) to the Superiors, in respect of each additional dwellinghouse property for which the Feuars seek from the Superiors permission to construct in terms hereof and (ii) the Superiors’ legal costs incurred in the granting of the relevant Minute or Minutes of Waiver;

(SECOND)

Each self-contained dwellinghouse property to be erected within the Feu shall be completed by the Feuars within Two years of the foundations of each particular dwellinghouse having been laid, and once such a dwellinghouse, with its relative offices, has been completed the Feuars shall be found to maintain the same in all time thereafter, and the majority of such dwellinghouse properties shall be of a single storey construction in height, or of one and a half storey construction in height (allowing for the use of attic spaces, and of under building, where appropriate) but, in certain locations, the Feuars shall be permitted, with the prior approval of the Superiors, to construct two storey dwellinghouse properties where the height of such structures would not impact adversely upon the overall appearance of the development of the Feu, under declaration that in the event of the Superiors refusing to give consent, as aforesaid, for the erection of a two storey dwellinghouse property and subject to the Feuars having been able to obtain an indication that planning permission for the property in question would be granted by, or having received formal permission for that particular property from, the Department of Physical Planning to permit the construction of the dwellilnghouse, it shall be competent for the Feuars to refer the matter, or to refer any other area of dispute with the Superiors concerning solely a difference of opinion between the Superiors and the Feuars relating to the plans and specifications of any particular dwellinghouse, to an Arbiter, appointed, failing agreement on his appointment, by the Chairman of the Institute of Chartered Surveyors, whose award shall be final and binding, and who shall be instructed that in making his award he must not make a finding inconsistent with the whole terms and conditions of these presents and, in relation to any proposed two-storey dwellinghouse property, that he must have due regard as a guide, to the appearance of the adjacent site now occupied by subjects known as 1 to 15 (inclusive) Ramsay Wood, in safeguarding the character of the whole development within the Feu and, specifically, to such matters as roof heights and the like which could impact adversely upon the overall appearance of the said whole development;

(THIRD)

The dwellinghouses to be constructed within the Feu shall be built either of Colt style timber construction, the walls to be finished in white Canadian Colorlok boarding, or of brick (the expression “brick”, for this purposes, being deemed to include a ‘timber frame’ kit type construction with a brick finish) and in the case of a brick built dwellinghouse the walls, plinths and chimney heads shall be rendered off the carpet float and finished in white, and kept white by treatment with white Sandtex, or other similar material to be approved of by the Superiors should white Sandtex be no longer available, and in either case the dwellinghouse shall be roofed with dark grey or black tiles or slates unless otherwise authorised in writing by the Superiors, with black chimney cans and ridged tiles, and, where applicable, with grey cement skewstones, the pitch of said roofs to be not less than Thirty two and one-half degrees; all in accordance with plans and specifications approved or to be approved by the Superiors, as well as any other buildings which may be erected at any time in substitution for, or in addition to, any particular dwellinghouse, shall be erected upon a site, and in conformity with elevations, sections, specifications, block and other plans, and be of such materials, as shall have been submitted to the Superiors, and approved of in writing by or on behalf of the Superiors before the building is commenced, subject to the foregoing provisions relative to arbitration declaring that, once a dwellinghouse property, with relative offices, has been completed no external alterations thereto of any kind, whether temporary or permanent, shall be erected without the consent in writing of the Superiors; And declaring further that no naked bricks or red tiles or other red or green roofing or red or green walling shall show on the exeternal wall or walls, or chimney stacks, of any of the said dwellinghouse properties, or the walls surrounding the same, and the Feuars shall be bound to keep the external walls, if of brick, rendered regularly and painted with white Sandtex or such other appropriate material as shall be approved, and the Feuars shall also maintain the external woodwork and ironwork of the same regularly painted with good quality paint of a coloured to be approved by the Superiors; And all dwellinghouse properties erected within the Feu shall be self-contained, and shall not be divided up for the accommodation of, or occupied by more than, one family at any one time without the written consent of the Superiors; And the whole buildings to be erected upon the Feu shall always be appropriated to, and used for the uses and purposes of, private residential accommodation, and offices in connection therewith, with areas of garden ground, amenity ground and the like, and for no other use or purpose whatever, under declaration that none of the existing trees may be felled without prior consultation with, and the written permission of, the Superiors, which permission will not be unreasonably withheld or delayed for the necessary purpose of the Feuars in developing the Feu; And the Feuars shall keep each dwellinghouse property constantly maintained and insured against loss by fire with an established Insurance Office, for the full value thereof, and, further, shall be bound to restore any one or more individual dwellinghouse property or properties should the same be damaged or destroyed, to at least its or their full value, as aforesaid, and that within two years of such destruction or damage, utilising in so doing the whole sum received from the Insurance Company concerned, and whatever further sums that may require to be expended thereon, all to the satisfaction of the Superiors in re-erecting the building or buildings concerned, or repairing the damage done, and that all in accordance with plans, specifications and others, to be approved of, as aforesaid, declaring always that no buildings shall be erected or repaired in a style or manner or of materials different from or inconsistent with those hereinbefore specified for the original buildings;

(FOURTH)

The Feuars shall be bound and obliged to present to the Superior, before commencing with the development of the Feu, a Feuing plan, indicating the division of the Feu into plots, which Feuing plan will not be deemed definitive and may be subject to variation by the Feuars subject to the approval of the Superiors and, if so required by the Superiors, to identify the main boundary points of each plot with marking posts set in concrete, and no later than the commencement of the development of any particular plot to enclose the individual plots with drystone walling, or with fences consisting of Bryland Sheep Netting with two strands of seven gauge plain galvanised wire supported on stobs seven feet apart, and suitably strained, with hedges of a variety to be approved by the Superiors, and the said walls, fences and hedges erected or planted or to be erected or planted shall, where mutual, between individual plots, be erected, maintained and renewed by the adjoining proprietors thereof in good and sufficient order and repair at mutual expense in all time coming, and where gates are required the same shall be of timber ranch type construction and painted white, all under declaration that so far as regards the existing boundary walls, fences, hedges, tykes and the like of the Feu the obligation upon the Feuars for the maintenance and renewal thereof shall be the same as rested previously upon the Superiors;

(FIFTH)

The Feuars shall not sell spirits or malt liquors on or within the Feu, and shall not erect or set up shops or practise any work, business or manufacture of any kind upon the Feu;

(SIXTH)

The Feuars shall take all reasonable steps to ensure that any dogs kept on the Feu shall be kept under proper control, and shall be kept under proper control, and shall not be permitted to trespass or stray on the adjoining ground, or to disturb farm stock or game, and the Feuars shall be bound and obliged not to shoot game within the Feu nor to do anything within the Feu to attract the game on the adjoining lands of the Superiors, or on the adjoining lands belonging to the Superiors’ successors in title, excepting always the right of the Feuars to destroy pigeons and rabbits within the Feu;

(SEVENTH)

With reference to the roadways and footpaths to be constructed by the Feuars within the Feu there shall be reserved to the Superiors, and to members of the public generally, a servitude right of passage, for pedestrian use in all time coming, over and across all of the said roadways and footpaths including specifically, the footpaths tinted blue on the said plan, under declaration that the said servitude right shall be exercisable, in relation to the roadways, following upon the initial formation of the said roadways, and not before;

and (2) Assignation by the Executors of Elizabeth Evelyn Murray Baillie or Murray Usher to said Leehand Properties Limited of their rights of drainage specified in the Feu Disposition in Entry 1.