Petition Of Phg Developments For Rectification Of Deed Of Conditions
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2020] CSOH 58 |
| Date | 09 June 2020 |
| Docket Number | P897/19 |
| Court | Court of Session |
| Published date | 09 June 2020 |
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 58
P897/19
OPINION OF LORD TYRE
In the petition of
PHG DEVELOPMENTS SCOT LIMITED (IN LIQUIDATION),
Petitioner
for
an order under section 8(1)(b) of Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
rectifying a Deed of Conditions granted by the petitioner dated 3 December 2014 and
registered in the Land Register of Scotland under Title Number MID51821 on 12 May 2015.
Petitioner: Lindsay QC; Ennova Law LLP
No appearance for First to Fifty-Sixth or Fifty-Eighth Respondents
Fifty-Seventh Respondent (Lothian Amusements Limited): Thomson QC; DLA Piper Scotland LLP
9 June 2020
Introduction
[1] The petitioner (“PHG”) is a company in members’ voluntary liquidation which was
formed to complete a development of 55 residential apartments on a site, to which I shall
refer as the Kilns site, to the south-east of Harbour Road, Portobello. In this petition, PHG
seeks rectification of a Deed of Conditions executed by it in 2014 to grant and regulate,
among other things, common ownership of a boundary wall, and rights of access to and use
of parking spaces in a car park in the basement of the apartment building. The 55 apartment
2
owners, a company called Danvic Scotland Limited which is currently the proprietor of the
basement car park, and the Keeper of the Registers of Scotland were called as respondents
but none has entered appearance. The only respondent to enter appearance and contest the
petition is Lothian Amusements Limited (“LAL”), the proprietor of an adjacent
development site (“the Arcade”). The stated purpose of the rectification is to enable PHG to
implement obligations under missives entered into between an associated company and
LAL in 2013, in relation to access to and use of some of the car parking spaces by owners of
apartments in the Arcade.
[2] The action came before me on the procedure roll for debate of the relevancy of the
parties’ respective averments. Due to Covid-19 restrictions, the debate was conducted by
means of written submissions and a telephone conference.
Background
The Car Parking Missives
[3] In 2013 the Kilns site was owned by a company called The Kiln’s Development
Limited (“KDL”) under the control of Mr Daniel Teague. It was originally intended that the
Arcade site would be developed as apartments immediately adjacent to the Kilns site,
although in the event the Kilns site development proceeded and the Arcade did not. In
contemplation of the Arcade development proceeding, KDL and LAL entered into missives
(“the Car Parking Missives”) on 9 August 2013, in terms of which KDL sold to LAL 18 car
parking spaces, identified on a plan annexed to the missives, in a car park to be constructed
in the basement of the Kilns site development. The sale price was £400,000. The missives
provided for the grant by KDL to LAL of various rights of pedestrian and vehicular access to
the car park and to the spaces being sold. Those rights included a servitude right of
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