Christopher Hugo Niall Burgess-lumsden And Another V. Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Sheriff D.J. Cusine |
| Court | Sheriff Court |
| Docket Number | A332/08 |
| Date | 03 April 2009 |
| Published date | 15 April 2009 |
A332/08
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
| JUDGMENT of SHERIFF DOUGLAS J CUSINE | ||
| in causa | ||
| CHRISTOPHER HUGO NIALL BURGESS-LUMSDEN, residing at Pitcaple Castle, Pitcaple, Aberdeenshire and DAVID PATON, residing at Grandhome, Aberdeen, as Trustees and Executors-Nominate of the late the Right Honourable Michael Canning William John Keith, Thirteenth Earl of Kintore, late of the Stables, Keith Hall, Inverurie, conform to Confirmation in their favour granted by the commissariat of Grampian Highland and Islands at Aberdeen on 4th July 2005 and an Eik to the Confirmation in their favour granted by the Sheriff Principal of Grampian Highland and Islands on 19th January 2007. PURSUERS | ||
| against | ||
| ABERDEENSHIRE COUNCIL, having its offices at Gordon House, Blackhall Road, Inverurie, AB51 3WA. | ||
ABERDEEN, 3 April, 2009.
The Sheriff, having resumed consideration of the cause, Sustains the Defenders' first plea-in-law and dismisses the action; Certifies the debate as suitable for the employment of junior counsel; Finds the Pursuers liable in expenses to the Defenders including those of the earlier diet of debate and the amendment procedure; Allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and to report.
NOTE:
This came before me on 2nd February 2009 as a debate on the Defenders' first plea-in-law, viz:-that the Pursuers' averments are irrelevant, lacking in specification and accordingly the action should be dismissed. The Pursuers were represented by Mr Holmes, Solicitor and the Defenders by Mr Stuart, QC.
In this case, the Pursuers seek payment from the Defenders of £225,000 which they say represents the market value of subjects at Leylodge, Kintore ("the subjects") as at 3rd April 2003. The subjects were feued in 1855 by the Earl of Kintore to the Kirk Session of the Parish of Kintore under the School Sites Act 1841 ("the 1841 Act.") That was by a Feu Charter recorded 3rd July 1855 ("the Feu Charter.") The subjects were to be used as a school and the head teacher's residence. The payment sought is under section 86(2)(a) of the Title Conditions (Scotland) Act 2003 ("the 2003 Act.") which deals with rights of reversion under the 1841 Act.
The Defenders' statutory predecessors sold and conveyed the subjects to Mr & Mrs Payne by Disposition recorded 21st May 1979 ("the 1979 Disposition."). That Disposition referred to the Feu Charter for a description and for burdens. The subjects, which are now registered in the Land Register, are a private dwellinghouse.
The Pursuers aver that when the subjects ceased to be used for the original purpose, they ought to have reverted to the estate of which they formed part, but it is admitted that for more than 20 years since the cessation of the use of the subjects as a school in the 1970's, no demand was made by the estate to the Defenders or their statutory predecessors for a reconveyance of the subjects. It is also admitted that for the same period, no relevant acknowledgement was made of any obligation by the Defenders to reconvey the subjects, but the Pursuers aver such an acknowledgment was unnecessary.
Submissions for the Defenders
The Defenders submitted that any right of reversion had prescribed prior to coming into force of section 86 of the 2003 Act on 4 April 2003. Furthermore, and in any event, the purchasers under the 1979 Disposition acquired a real right to the subjects at the latest by 1989 by the operation of positive prescription which therefore defeated any right of reversion.
Reference was made to the School Sites Act 1841, section 2, the third proviso thereto which states:-
"[U]pon the said Land ... or any Part thereof, ceasing to be used for the Purposes in this Act mentioned, the same shall thereupon immediately revert to and become a Portion of the said Estate held in Fee Simple or otherwise,...as fully to all Interests and Purposes as if this Act had not been passed."
It was accepted that that provision had been replaced by an Act in 1945, but that the 1945 Act did not affect any land conveyed prior to its coming into force.
Reference was then made to the 2003 Act, section 86(1) of which replaces section 2 of the 1841 Act. Section 86(2)(a) deals with a sale prior to the coming into force of the 2003 Act and provides for open market value at the date of that sale. It was submitted that it is a precondition of section 86(2) that the land would revert or has reverted and that the purchaser has not completed title.
It was submitted that a right of reversion is not a real right but a personal one. The right to demand a reconveyance right arose in 1979 but prescribed in 1999. The Defenders' submission was that the right of reversion had prescribed at the latest in May 1999, 20 years after the recording of the 1979 Disposition, by virtue of section 7 of the Prescription and Limitation (Scotland) Act 1973. Accordingly, as at 4 April 2003 when the 2003 Act came into force, there was no right of reversion in existence.
Reference was made to Houldsworth v School Board of Cambusnethan (1904) 7F 291. In that case, the Lord Ordinary (Kyllachy), described the cessation of purpose under the 1841 Act as a "statutory irritancy" (p. 296). In the Second Division, Lord Young spoke of a resulting trust (p. 299), but the other judges, Lords Trayner and Moncrieff, simply spoke of a reversion under the Act (pp. 302, 303 - 304). It was submitted by the Defenders that Houldsworth does not assist in determining how in this present case the reversion is to be put into effect. Reference was then made to Hamilton v Grampian Regional Council (First Division, unreported 20 Dec. 1995) in which the pursuer claimed land in terms of a right of reversion under the 1841 Act. His counsel had submitted that "the effect of the statutory reversion was to restore the right of property in the school immediately to the grantor, and that no further steps required be taken by him to be restored to his position as the heritable proprietor." That submission was, however, rejected by both the Lord President and Lord Milligan by reference to the decision of the Inner House in Sharp v Thomson. (1995 SLT 837) The Lord President said of the proviso to the 1841 Act, "Its effect is to enable the grantor, on the basis of the personal right given him by the reversion, to enforce that right against all parties acting in conflict with it...and to obtain a recorded title to the property by the registration of his interest as proprietor on the Register of Sasines." (p. 17)
In his book Abolition of Feudal Tenure in Scotland, Professor Reid says of a right of reversion, by reference to Hamilton, "It is thought that a reversion cannot occur automatically but must always involve a reconveyance on the part of the current owners." (para. 1.23).
It was submitted that when the subjects ceased to be used as a school, the estate was entitled to demand a reconveyance and in the event that the local authority failed to execute the necessary deed, the remedy available to the Pursuers was a declarator of the right of reversion coupled with an order on the local authority to grant the requisite deed. It was accepted that the local authority was obliged to grant such a deed, but it was submitted that that obligation is governed by the long negative prescription in terms of section 7 of the 1973 Act.
Schedule 1 of the 1973 Act deals with obligations which are governed by the five-year prescription and one of these is the right of reversion under the third proviso to the 1841 Act. However, it is stated in para. 2(ee) that the prescription does not apply to, "extinguish, before the expiry of the continuous period of five years which immediately follows the coming into force of Section 88 of the Title Conditions (Scotland) Act 2003, an obligation mentioned in sub-paragraph ab of paragraph 1 of the schedule." It was submitted therefore that while the five-year prescription applies after the Act came into force, that short prescription does not apply in relation to the rights of reversion arising prior to its coming into force.
It was submitted therefore that an obligation to grant a reconveyance is covered by section 7 of the 1973 Act and reference was made to Stewart's Executors v Stewart 1993 SLT 440 and Macdonald v Scott 1981 SLT 128.
Reference was also made to Article 5 of Condescendence, (line 8) where it is admitted that for a continuous period of 20 years no demand for a reconveyance had been made but that is subject to an explanation that paragraph 3(e(iii) of schedule 3 to the 1973 Act applies. That relates to imprescriptible rights, the argument being that the Defenders "are liable to account."
It was submitted that, if it were to be argued that the free proceeds are held in trust, the only basis for a trust is in terms of the Feu Charter and the trust must relate to the local authority as owners of the subjects. The issue then became what were the trust purposes and in terms of the 1841 Act, these are to provide a site etc., for a school, but it was submitted that the Feu Charter does not impose any trust purpose in the event of cessation of use of the subjects as a school. The obligation to make over is a statutory obligation and that right of reversion arises only if the trust purposes fail. It was submitted therefore that it is misleading to look at the matter as one of trust, because once the trust purposes under the Feu Charter have ceased, the statutory reversion applies and accordingly there was no trust. The obligation to hold the subjects for the grantors, i.e. the estate, rested upon the disponees under the Feu Charter. In May 1979, the subjects had been disponed to Mr and Mrs Payne, but they were not obliged by the disposition in their favour to hold the subjects as...
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