Safeway Stores Plc Against A Decision Of The Lands Tribunal For Scotland V. Tesco Stores Limited
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Hamilton,Lord Kingarth |
| Date | 06 June 2003 |
| Docket Number | XA124/01 |
| Court | Court of Session |
| Published date | 06 June 2003 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Hamilton Lord Kingarth
| XA124/01 OPINION OF LORD OSBORNE in the Appeal to the Court of Session under Section 11 of the Tribunals and Inquiries Act 1992 by SAFEWAY STORES plc Appellants; against a decision of the Lands Tribunal for Scotland, dated 4 May 2001 and intimated to the appellants on 8 May 2001 and TESCO STORES LTD Respondents; _______ |
Act: Murphy, Q.C.; Archibald Campbell & Harley (for Safeway)
Alt: Martin, S.P.L. Wolffe; Brodies (for Tesco): Hodge Q.C., Crawford; R. Henderson (for Keeper of the Registers)
6 June 2003
The background to the appeal:
[1]In this appeal on a point of law, under section 11 of the Tribunals and Inquiries Act 1992, the appellants appeal against a decision of the Lands Tribunal for Scotland, hereinafter referred to as " the Tribunal", dated 4 May 2001 and intimated to the appellants on 8 May 2001, in which the Tribunal ordained the Keeper of the Registers of Scotland, hereinafter referred to as "the Keeper", in terms of section 9(1) of the Land Registration (Scotland) Act 1979, to rectify the Land Register of Scotland, hereinafter referred to as "the Register", (first) in respect of Title Sheet Number REN93746 by deleting from the Proprietorship Section the exclusion of indemnity set out under Note 2 therein, and by removing the blue tint from the Title Plan; and (second) in respect of the Title Sheet Number REN56654 by removing from the registered extent (Title Plan) that plot or area of land lying to the south of the medium filum of, and to the east of the footbridge over, the White Cart Water. The decision in question followed an application to the Tribunal by the respondents for an order requiring the Keeper to rectify the Register in the respects contended for and a related appeal under section 25 of the 1979 Act against a decision of the Keeper refusing to make the rectification sought. That application was opposed by the appellants; the Keeper resisted the appeal, but took a neutral position in relation to the application.
[2]The appellants are currently proprietors of extensive subjects known as the Anchor Mills site at Lonend, Paisley registered under the Title Sheet Number REN56654. There is no qualification of indemnity in relation to this title. These subjects lie within a wide loop of the White Cart Water. One part of the subjects, including the footbridge and an area immediately to the west of it, extends to the southern bank of the river. For the most part, however, the boundary on the south, west and north is the centre line of the river. The present dispute arises out of the fact that the Title Sheet Number REN56654 shows the south boundary of the subjects immediately to the east of the footbridge over the river on a line which is some 2 metres to the south of the centre line. The respondents are currently proprietors of subjects at Lonend, Paisley, which are registered under the Title Sheet Number REN93746. These subjects comprise a narrow irregularly shaped area of land lying to the south side of the White Cart Water and including part of the alveus of the river. It is bounded on the west by the east edge of the footbridge across the river. These subjects, as currently shown on the Register, extend on their north side to the centre line of the river. The northern boundary is about 5 metres long. They have been registered under express exclusion of indemnity. It will be apparent from what has already been said that, to the east of the footbridge mentioned, there is an overlap of titles REN93746 and REN56654. A small area in the middle of the river, immediately to the east of the footbridge appears in both titles. I shall refer to this area as "the overlap area."
[3]It is not a matter of dispute that the original Title Plan REN56654 did not include the overlap area. The boundary at the relevant point was initially and correctly shown as the centre line of the river. It is common ground that the current Title Plan, in one sense, is inaccurate. That inaccuracy results from the fact that, in about July or August 1997, the plan indicating the extent of the registered title REN56654 was altered, consequent upon the conversion of the map base to a digital electronic form. This error occurred internally in the Keeper's office. Unsuccessful attempts have been made to determine precisely what happened and when. It is clear that the Title Plan was revised and that that revision was consequent upon a change to the Ordnance Survey map base. As a result of this revision, the relevant part of the southern boundary of the subjects was shown on the Title Plan to lie some 2 metres south of the centre line of the river. The Title Plan, as held by the Keeper, is now in electronic form. There is nothing to suggest that anyone was aware that there had been a change to this boundary at the time when it occurred. It was common ground before the Tribunal that the inaccuracy described could not be rectified if rectification would "prejudice a proprietor in possession", within the meaning of section 9(3) of the 1979 Act. The main issue for the determination of the Tribunal was whether, in the particular circumstances of the case, the appellants were "proprietors in possession" of relevant subjects and, if so, whether rectification would be to their "prejudice".
[4]In this appeal, the appellants have tabled a number of grounds of appeal, which, after amendment, stand in the following terms:
"1The Tribunal erred in law by treating the issue of possession as a competition between Safeway and Tesco whereas the true issue to be addressed was whether or not Safeway was a proprietor in possession for the purposes of section 9 of the Land Registration (Scotland) Act 1979 ('the 1979 Act'). The Tribunal erred in law by adopting an approach apt for determining possession in the context of establishing a prescriptive right.
2The Tribunal erred in law by identifying the critical focus for evidence of possession for the purposes of section 9 of the 1979 Act as restricted to the 'overlap area' rather than as encompassing all evidence relating to the land contained in the appellants' Title Sheet. The Tribunal therefore erred by excluding from consideration relevant and competent evidence of possession.
3That, in any event, the Tribunal erred in law by holding that the evidence led in relation to the 'overlap area' was insufficient to amount to possession for the purposes of section 9 of the 1979 Act. In considering the requirements for possession in relation to corpus the Tribunal has given insufficient weight to the nature of the 'overlap area' being a small part of a river bed."
In addition it should be mentioned that the respondents have tabled a cross appeal, in which the single ground of appeal is stated as follows:
"The Tribunal erred in law by finding that a registered interest in particular land can be created solely by the placing of a boundary on a plan by the Keeper without his having received any application by any person for the registration of an interest in that land separatim by any person who had acquired or intended to acquire an interest in the land."
The submissions of the parties:
[5]When this appeal came before us, senior counsel for the appellants stated that, if the court found ground of appeal 3 well founded, the appeal should be allowed by the sustaining of pleas-in-law 2 and 3 of the appellants and recall of the decision of the Tribunal. If the court considered that either of grounds of appeal 1 and 2 were well founded, the decision of the Tribunal should be recalled and the case remitted back to them to proceed as accords. Prior to setting forth his submissions, senior counsel for the appellants sought to focus the matters which were in dispute. First, it was not disputed, he said, that the Tribunal were entitled to hold that the appellants were a "proprietor" in terms of section 9(3) of the 1979 Act, as they had done in their decision at page 34J to K in the report of it, which was conveniently to be found in the Scots Law Times (Lands Tribunal) Reports, 2001 starting at page 23. It was subsequently stated by counsel for the respondents that this proposition was disputed. Secondly, it was not disputed that the Tribunal were entitled to hold that, if the appellants were a "proprietor in possession", in terms of section 9(3) of the 1979 Act, they would suffer prejudice if rectification were to take place, as appeared from page 38K to L of their decision. Thirdly, standing these circumstances, the question was whether the appellants were "a proprietor in possession" in terms of section 9(3) of the 1979 Act. That question had to be answered as at the time when the Keeper had been asked to rectify the register, or, if not at that time, when he had decided to do so. Thus the appeal was essentially concerned with the understanding of the Tribunal of the concept of "possession", for the purposes of section 9(3) of the 1979 Act. In this connection three particular issues arose: (1) what was meant by "possession" in section 9(3) of the 1979 Act; (2) what it was that had to be possessed; and (3) what were the requirements to establish "possession", having regard to the fact that what was involved in the present case was an area of river bed and that the appellants were a corporate body.
[6]Senior counsel for the appellants next set forth nine submissions. First, the 1979 Act established a system of land registration distinctive to Scotland. Accordingly, the term "possession", used in section 9(3) was to be understood by reference to the law of Scotland, rather than similar provisions of the law of England. Secondly the term "possession" in section 9(3) of the 1979Act included civil possession; accordingly a corporate personality could establish possession by virtue of the actings of employees and agents. Thirdly, "possession" under section 9(3) of the 1979 Act required an act of...
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