Leafrealm Land Limited Against The City Of Edinburgh Council And The Raeburn Place Foundation And Raeburn Place Development Limited
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2020] CSOH 34 |
| Date | 18 March 2020 |
| Docket Number | CA44/19 |
| Court | Court of Session |
| Published date | 18 March 2020 |
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 34
CA44/19
OPINION OF LADY WOLFFE
In the cause
LEAFREALM LAND LIMITED
Pursuer
against
THE CITY OF EDINBURGH COUNCIL
First Defender
and
THE RAEBURN PLACE FOUNDATION and RAEBURN PLACE DEVELOPMENT
LIMITED
Second and Third Defenders
Pursuer: Lake QC, Anderson; Gilson Gray LLP
First Defenders: Barne QC; Morton Fraser LLP
Second and Third Defenders: Mure QC; CMS Cameron McKenna, Nabarro and Olswang
18 March 2020
Introduction
Contested ownership of a strip of land
[1] A large area of unbuilt, green space lies to the north of Comely Bank Road in
Stockbridge in Edinburgh. This has long been used as playing fields for a number of clubs,
including the Edinburgh Academical Club (“the EA Club”). In 1979 the EA Club acquired
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ownership of land (“the EA Land”) by disposition (“the 1979 Disposition”) from the Grange
Trustees. The southern-most part of the EA Land is now being developed to build a stand
with seating for sports matches and to create a number of retail spaces (“the development”).
[2] The central question in this commercial action is whether the development is being
built on land owned or controlled by one or other of the defenders (the first defender qua
owner and the other defenders by virtue of contractual rights of access), or in respect of
which there is a public right of way - and in either of those circumstances the pursuer’s
action fails, or whether the development is taking place or impinging on a strip of land (“the
Disputed Strip”) - assuming it exists - running parallel to Comely Bank Road and owned by
the pursuer. On the hypotheses that the pursuer establishes that the Disputed Strip exists,
that the pursuer has acquired it and that no rights of way subsist in relation to it, there are
subsidiary questions as to whether the disposition in its favour, which has not yet been
recorded by the Keeper in the Land Register, is vitiated by a number of technical difficulties,
the effect of which would be to disentitle the pursuer from the first declarator it seeks as
owner of the Disputed Strip (“technical deficiency arguments”). The other conclusions were
for declarator that no public right of passage subsisted in the solum of the 1912 Wall, that the
solum of the 1912 Wall had not vested in the Council by virtue of listing Comely Bank Road
as a road, and for interdict against the defenders impinging on the Disputed Strip.
The parties
[3] The first defender (hereinafter “the Council”) is the roads authority. The second and
third defenders are (to simplify) the developers of the development. The second defender is
promoting the development to provide a sustainable income stream in order “to fund the
on-going provision of sport, recreation and associated sports programmes at the site and to
3
maintain the new sporting facilities to be provided”. The third defender is a wholly-owned
subsidiary of the second defender, and was established to carry out the development. The
second and third defenders instructed the same legal representation. (For ease of reference,
I shall refer to them collectively as “the developers” and to the Council and developers
collectively as “the defenders”.) The developers were the principal contradictors in this
action, in that they (unlike the Council) instructed their own expert, and they
cross-examined the pursuer’s witnesses and led their own proof before the Council did. On
certain chapters, the Council had no position (eg on the question of jurisdiction, any title and
interest of the developers to oppose the orders the pursuer seeks) or it otherwise adopted
the position of the developers.
Comely Bank Road, the old estate wall and the 1912 Wall
[4] Before setting out the legal issues (of which there are many) and the evidence on the
contested matters, it is helpful to describe the land to which the Disputed Strip relates.
[5] Comely Bank Road, a road in Stockbridge running on an east-west axis, lies
immediately to the south of the EA Land. The 1895 Ordinance Survey (“OS”) Plan for this
part of Edinburgh (“the 1895 OS Plan”) depicts a wall (“the old estate wall”) dividing the
playing fields to the north from Comely Bank Road to the south. The old estate wall runs in
a reasonably straight line along the whole length of the EA Land, apart from two openings
for gates. One of these was a larger opening at the west-most end and the other opening
was close to the eastern end of the old estate wall (hereinafter “the old estate wall
openings”). The approximate width of the old estate wall was 1 foot 8 inches. The
approximate length of the old estate wall along the southern boundary of the playing fields
was about 115 metres (per the GL Survey of 2000).
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