West Lothian Council Against The Executors Of George Clark
| Jurisdiction | Scotland |
| Judge | Sheriff Douglas A Kinloch |
| Neutral Citation | [2020] SC LIV 30 |
| Court | Sheriff Court |
| Date | 03 June 2020 |
| Docket Number | A59/16 |
| Published date | 21 July 2020 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
[2020] SC LIV 30
A59/16
JUDGMENT OF SHERIFF DOUGLAS A KINLOCH, ADVOCATE
in the cause
WEST LOTHIAN COUNCIL
Pursuers
against
THE EXECUTORS OF GEORGE CLARK
Defenders
Pursuers: Davie, Advocate
Defenders: Garrity, Advocate
Livingston, 3 June 2020
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or
proved:-
FINDS IN FACT
1. The Pursuers are West Lothian Council, having a place of business at
Civic Centre, Howden South Road, Livingston. The Defenders are
Thomas Aitken Clark, residing at West Muir Farm, West Calder, and
Turcan Connell (Trustees) Limited, as executors of the late
George Anderson Aitken Clark. The Pursuers seek an interdict in relation
to an alleged wrong relating to the said West Muir Farm, and this Court
accordingly has jurisdiction.
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2. By feu disposition dated 7 November 1985 and recorded GRS (Midlothian)
30 May 1986, Lothian Regional Council disponed an area of land, known as
West Muir farm, West Calder, to Mr George Clark.
3. The copy disposition number 6/2/6 of process is a true and accurate copy of
said feu disposition.
4. The said feu disposition contained a right of pre-emption in favour of Lothian
Regional Council.
5. The pursuers are the statutory successors to Lothian Regional Council by
virtue of the Local Government (Scotland) Act 1994.
6. West Lothian Council never registered any notice under section 18A of the
Abolition of Feudal Tenure (Scotland) Act 2000 in relation to the right of
pre-emption.
7. George Anderson Aitken Clark died on 23 November 2011.
8. By letter dated 17 December 2015 the solicitors acting for the executors of the
said George Anderson Aitken Clark wrote to West Lothian Council stating
inter alia that:-
“As required in terms of the Feu Disposition, we hereby give you notice on
behalf of the Executors, that the Executors desire to dispose of that part of the
Feu shown coloured red and brown on the plan annexed, by way of a sale.”
9. Number 5/3/1 of process is the said letter dated 17 December 2015 received by
the Pursuers. The plan attached thereto is the plan which was annexed to the
said letter.
10. By letter dated 23 December 2015, Wendy Richardson, a solicitor employed
by West Lothian Council, replied to the solicitors acting for the executors
stating inter alia that:-
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“I refer to your letter dated 17 December 2015 indicating that your clients
wish to sell the land shown coloured red and brown on the plan annexed to
your letter. The area coloured brown is not clearly visible on plan. Please
confirm where this is located.”
11. Number 5/1/3 of process is a true and accurate copy of said letter dated
23 December 2015.
12. There was no response on behalf of the solicitors acting for the executors to
the said letter of 23 December 2015 until 25 January 2016. In said letter of
25 January 2016 the solicitors for the executors indicated that the executors
were no longer bound by any right of pre-emption. Number 5/1/4 is a true
and accurate copy of the said letter dated 25 January 2016.
13. The brown area referred to in the letter from the executors dated 17 December
2015 was not visible.
14. It was not possible for West Lothian Council to ascertain where the brown
area on the plan was, even with the assistance of a consideration of said
disposition or the disposition plan attached thereto.
FINDS IN FACT AND LAW
1. A right of pre-emption was created in the Feu Disposition by Lothian
Regional Council in favour of George Anderson Aitken Clark dated
7 November 1985 and recorded GRS (Midlothian) on 30 May 1986;
2. That right continues as a contractual obligation between the original
contracting parties or their successors notwithstanding the Abolition of
Feudal Tenure (Scotland) Act 2000;
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