Andrew Wilson And Others V. Against A Decision Of Lands Tribunal For Scotland
| Jurisdiction | Scotland |
| Judge | Lord McCluskey |
| Date | 08 June 1999 |
| Docket Number | 0111/17 |
| Court | Court of Session |
| Published date | 08 June 1999 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord McCluskey Lord Prosser Lord Milligan
| 0111/17/16a/1998 OPINION OF THE COURT delivered by LORD McCLUSKEY in APPEAL by ANDREW WILSON & OTHERS Appellants; against THE DECISION OF LANDS TRIBUNAL FOR SCOTLAND by R.A. EDWARDS, W.S., to refuse allowance of an Appeal under section 25 of the Land Registration (Scotland) Act 1979 _______ |
Act: Party
Alt: Crawford, R. Henderson for 1st Respondent; McIlvride, Solicitor, Bennett & Robertson for 2nd Respondents; Connal, Solicitor, McGrigor Donald for 3rd Respondents
8 June 1999
The appellants are British subjects, members of the community of Inverclyde, and registered members of the electorate. As such, they seek to vindicate what they assert are rights belonging to the citizens of Greenock, being rights formally vested in trustees to hold inalienably for the citizens. The relevant trust, they maintain, was created by a Feu Contract in 1772, when funds obtained from the citizens by local taxation were used to purchase what was to become harbour land. Since 1772, the local community has, it is said, provided further funds through local taxation for harbour improvements on the trust lands and for additional acquisitions. It is averred that that trust endures, "remains active", down to the present time. The appellants aver that they are "beneficiaries and heirs to the rights both Corporeal and Incorporeal heriditaments of the Community of Inverclyde". These rights are said to include "inalienable rights of navigation and rights on the foreshore". We were informed at the bar that the appellants have been interdicted from attempting to exercise such rights over what is averred to be the trust property. The interdict was obtained some six or more years ago at the instance of those who are registered in the appropriate title sheets in the Land Register of Scotland as the proprietors of the heritable subjects specified in the title sheets REN 42086 and REN 43834. We were told that in opposing the grant of interdict the present appellants submitted that those registered in the Lands Register as proprietors of the subjects were not in fact or in law the true owners; they had no valid title to the subjects, and should not have been registered as proprietors; accordingly, it was argued, they had no title to obtain the interdict sought. However, the court in the interdict proceedings granted interdict, we were told, on the basis that until the Lands Register was altered by the statutory process of rectification, it fell to be treated as conclusive evidence of the ownership of those registered as proprietors therein.
In these circumstances the appellants invoked section 9 of the Land Registration (Scotland) Act 1979 (the 1979 Act) and called upon the Keeper to rectify what they conceive to be inaccuracies in the register pertaining to the subjects described in the property sections of the title sheets and respective Land Certificates REN 42806 and REN 43834. They did so by lodging with the Keeper an application dated 15 May 1997 in the form prescribed by Rule 20 of the Land Registration (Scotland) Rules 1980. The Keeper, by letter of 27 May 1997, refused the application to rectify the register. The appellants appealed against that refusal to the Lands Tribunal for Scotland under the provisions of section 25 of the 1979 Act. A decision dismissing the appeal was issued on 29 July 1998 by R.A. Edwards, W.S., sitting as the Tribunal. The appellants have now appealed to the Court of Session. The respondents in this appeal are the Keeper; Scottish Enterprise (statutory successors to the Scottish Development Agency); and The Scottish Metropolitan Property plc (whose title, or claim to title, to part of the subjects derives from that of the SDA).
A copy of the application of 15 May 1997 by the appellants to the Keeper is produced as No. 6/22 in the appellants' list of productions. It contains inter alia the following:
"Title No
REN 42086 & 43834
| Short description of subjects | GREENOCK WATERFRONT, CUSTOMHOUSE QUAY AND EAST INDIA HARBOUR |
We apply for rectification of the Title Sheet for the above Title No. as follows:
WE WISH TO STATE THAT THE KEEPER WAS MISINFORMED/MISLED BY THE INFORMATION SUBMITTED ON FORM 1 AND FORM 4, FOR FIRST REGISTRATION FOR THE ABOVE SUBJECTS.
THE FORM 4 WHICH IS ENCLOSED WITH THIS APPLICATION SHOWS A TRUE RECORD OF PROGRESS OF TITLES, CONTAINING RIGHTS AND BURDENS AFFECTING THESE SUBJECTS SINCE FIRST DISPONED FROM THE SUPERIOR AND OTHERS, ALL DULY RECORDED IN SASINE BETWEEN 1772 AND 1842.
To support this application, We enclose the documents listed on the Inventory (Form 4)".
There was appended an inventory of writs (also in 6/22) which included the Feu Contract dated 6 July 1772 between John Shaw Stewart and Messrs James Gammell and others, then Magistrates, Baillies, Treasurer and Councillors of the Town of Greenock as Managers and Trustees of the Town's funds. By that Feu Contract John Shaw Stewart disponed the subjects specified therein "to the said Magistrates, Treasurer and Town Council of Greenock, and their successors in office, for the use and behoof of the community, heritably and irredeemably". The subjects were described as:
"All and Whole the Harbour of Greenock, and Piers, and Quays of the same, which have been all built and gained off the sea since the Year Seventeen hundred, consisting and comprehending eight acres, three roods, and ten falls, conform to a plan thereof signed by him of this date, with the anchorages, shore, bay, and ring dues, payable by all kinds of ships or vessels coming into the Harbour of Greenock, or into any other Harbour or Harbours that may be built betwixt the West side of the Kirk Burn, and the East side of the Royal Closs, in Greenock, whether belonging to strangers, or to the said JOHN SHAW STEWART, and his successors, their vassals and tenants, in the Burgh and Baronies of Greenock, together with the tolls, ladles, and customs in use, to be paid by the inhabitants of the Burgh and Barony of Greenock, or strangers coming into the said Harbour or Harbours, which may be built in manner before-mentioned, with coals and vivers of all kinds, for the coal barrel, weights and measures of the said Burgh".
The disponees were given specific power
"to improve and enlarge the said Harbour, and to erect and build other Harbours within the space above-mentioned, and gain ground off the sea for that purpose; and to apply to their own use the anchorages, shore, bay and ring dues, and other tolls and customs foresaid, payable by all kinds of ships and vessels, that shall come to the said present Harbour, or other Harbours to be built, as said is, and for coals and vivers foresaid".
There followed a provision in the following terms:
"But that it shall not be lawful nor in the power of the said Magistrates, Treasurer, and Town Council, nor their successors in office, to sell, alienate, or dispone, either irredeemably, or under reversion, nor to wadsett, or burden with infeftments of annual rent, or any other servitude or burden, the said Harbour with the anchorages, shore, bay, and ring dues, &c., whereby the same may be evicted, or adjudged; and that all such dispositions, conveyances, wadsetts, or other deeds, so to be granted by them or their foresaids, conveying, or burdening, the said subjects, with any real diligence following thereon, shall ipso jure be void and null, and shall only be effectual against the granters of such deeds and conveyances; and that notwithstanding of such conveyances, or other deeds so to be granted, the right of property of the said Harbours, and others hereby conveyed, shall for ever remain with the said Magistrates, Treasurer, and Town Council, and their successors in office, for the use and behoof of the said community, and for the purpose of building, enlarging, and improving the said Harbours".
Although there has been no formal proof at any stage in this process we have been referred to the writs, titles and other documents founded upon by the appellants and we must treat their averments of fact pro veritate in so far as they are truly averments of fact which might be apt to be proved by evidence; some of the averments made are either arguments or submissions as to the meaning or effect of documents relating to the subjects. For the purposes of the appeal, however, it is not in dispute that the grantees, and later their successors, became infeft in the said subjects and in other adjacent subjects disponed in a Feu Charter granted by Lord Cathcart and dated 31 March 1819. Nor is it in dispute that the said subjects are included within the subjects described in the property sections of the title sheets to which Land Certificates REN 42086 and REN 43834 refer.
The essence of the appellants' submission to the Keeper was that when, in 1987, the Scottish Development Agency (now represented by their statutory successors Scottish Enterprise) obtained conveyances from the Clyde Port Authority and James Lamont & Co. Ltd., and applied for first registration under the 1979 Act as proprietors of the subjects in question the applicants misinformed and misled the Keeper as to the true and full facts bearing upon the ownership in law of substantial parts of the subjects constituting the two parcels of heritage in respect of which the applications for registration were made and registration was granted. It was submitted that a study of the documents listed in the inventory, of the relevant legislation, and of the material produced by those who sought, and eventually obtained, first registration was certain to reveal that the said trustees (the magistrates and others and their successors) had never ceased to be infeft in the subjects disponed to them including very substantial parts of the subjects now described in the property sections of the two Land Certificates. It was submitted that it followed that there were clear, material and very...
To continue reading
Request your trial