Smith v Strathkelvin District Council
| Jurisdiction | Scotland |
| Judgment Date | 11 February 1997 |
| Docket Number | No. 16. |
| Date | 11 February 1997 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Heritable property and conveyancingSuperior and vassalDischarge or variation of land obligationApplication to vary condition prohibiting erection of more than six housesWhether Lands Tribunal erred in allowing variation where declaration existed in feu charter that feuar not to be entitled to divide the said plot or area of ground into more than six parts and that declaration not discharged or variedTribunal and Inquiries Act 1992 (cap 53), sec 11 and sched 1
Administration of justiceNatural justiceLands Tribunal for ScotlandDischarge or variation of land obligationChairman of tribunal formerly partner in firm of solicitors and consultant in firm where two partners were brothers of the solicitor who represented a party in application for discharge or variation of land obligationParty applying for discharge or variation of condition in feu contract but failing to apply for discharge or variation of similar declaration in feu contractAgent in subsequent application claiming solicitors liable to party in negligenceLands Tribunal stating that however convenient combination in one application of the subject matter of the two applications it was not any basis for action of negligence against the party's agentsWhether expression of such an opinion when tribunal not hearing evidence on the matter constituted biasWhether breach of natural justice
A feu contract contained a condition which prohibited the feuar and his successors from erecting more than six houses or villas on a particular plot or area of ground. A declaration also existed in the feu contract which stated that the feuar and his successors shall not be entitled to divide the said plot or area of ground or the said feuduty into more than six parts. A local authority acquired the superiority of the feu and their successors consolidated the superiority with the dominium utile. Thereafter they granted planning permission to developers for the erection of seven two-storey detached houses on the subjects. Objectors complained against the grant of planning permission on the ground that the development would be in breach of the condition in the feu charter that not more than six houses should be erected and that that change would affect the amenity of the one of the objector's property. The council thereafter applied to the Lands Tribunal for Scotland for variation or discharge of the condition, but not of the declaration. The tribunal found that the land obligation subsisted, despite the fact that the superiority and dominium utile had been consolidated and varied the land obligation to the extent of permitting the erection of seven two-storey detached dwellinghouses and relative offices in accordance with the planning permission granted by the authority. They ordered payment of compensation to the objector whose amenity would thereby be impeded. The chairman of the tribunal was formerly a partner in a firm of solicitors and was a consultant in the firm at the time of the tribunal's decision. Two of the partners in his former firm were brothers of the solicitor who represented the council in the application to the tribunal. Before the council would require to apply to discharge the declaration and that any such application would be bound to fail because it would be met with a plea of res judicata. This would render the authority's solicitors liable to an action of negligence. The tribunal stated that, however convenient it might have been to combine in one application the subject matter of the two applications, that was not any basis for an action of negligence against those agents. In those circumstances the objector appealed to the Court of Session and argued (a) that in light of the declaration that had not been discharged or varied the proposed development could not go ahead since it necessarily involved the subjects being divided into more than six parts and that no reasonable tribunal would have granted the council's application to vary the land obligation in light of that fact; and (b) that by the tribunal expressing the opinion that there was no basis for an action of negligence when they had heard no evidence on the matter the tribunal had given an appearance of bias in favour of the council's agents which amounted to a breach of the rules of natural justice.
Held (1) that the declaration preventing the subjects being divided into more than six parts had to be considered in its context and was found in the part of the feu contract dealing with feuduty so that the purpose of the declaration was to prevent the feuar subdividing the subjects to an extent which would make it difficult for the superior to recover his feuduty; (2) that that...
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