Scottish Court of Session Decisions

This is an appeal under Section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Lands Tribunal for Scotland granting the application of Woodside Building Services Ltd. ("the company") under the Conveyancing and Feudal Reform (Scotland) Act 1970 for the discharge of a land obligation. In fact the company had constructed a house on the land in question, in breach of the obligation, before the application was made. The application was opposed by Mr. Keddie who appealed to this court against the decision of the Tribunal.

At the hearing of the appeal Mr. Keddie, who appeared in person, began by moving the court to sist the appeal to allow him to apply for Legal Aid. Mr. Clancy, who appeared for the company, pointed out, however, that the proceedings had already been sisted for that purpose and that the sist had been recalled after the Legal

Aid Board first refused Legal Aid and then confirmed that decision on review. Mr. Keddie acknowledged that this was so. In the circumstances we refused the motion to sist and proceeded to hear the appeal.

Mr. Keddie addressed the court in respect of the three grounds of appeal and we heard Mr. Clancy in reply, after which Mr. Keddie made one further point in respect of a factual matter.

The appeal bears to be against the decision of the Lands Tribunal dated 10 November 1997, dealing with the substantive issues in the case and granting the application. As he developed his argument, it became clear, however, that in his first ground of appeal Mr. Keddie was really attacking the decision of the Tribunal dated 24 September 1997 to refuse the appellant's motion that the hearing set down for 29 September should be postponed. Mr. Clancy argued that this ground was therefore technically incompetent. In this case, however, the point is not merely of technical significance since, there being no appeal directed to the procedural decision of 24 September, there is no note from the Tribunal setting out the basis of that decision. In his Ground of Appeal the appellant alleges that, in refusing the motion for postponement, the Tribunal erred in law. In the absence of any specification of that ground and in the absence of any note by the Tribunal we have no possible basis for upholding that contention.

Even though the Tribunal refused to postpone the hearing, at that hearing they listened to evidence about the state of knowledge of various people in the company, about the existence of the land obligation, at the time when the house had been built. The motion for postponement had been advanced on the basis that the appellant wished to lead the evidence of a solicitor, Mr. Coutts, who had been the company secretary. It is plain from their opinion that the Tribunal found the issue as to the state of knowledge of individuals in the company to be one of some difficulty. It may therefore be that, had a motion been made at the hearing to adjourn to allow the evidence of Mr. Coutts to be led, that would have been granted. No such motion was made, however.

Before us the appellant accepted that he did not know what the evidence of Mr. Coutts would have been on the state of knowledge of other persons. In that situation it is impossible to say that the leading of Mr. Coutts as a witness would have made any material difference to the outcome of the case.

For all these reasons we are satisfied that there is no substance in the first ground of appeal.

The second ground of appeal presupposes that Mr. Coutts was at all relevant times aware of the existence of the land obligation. On that basis it is said that the company must be deemed to have had full knowledge of that fact when they built the house. For his part, Mr. Clancy explained to the court that the company had all along accepted that the company had had constructive knowledge of the existence of the obligation. What the Tribunal had required to consider, however, was whether, in proceeding with the construction of the house, the company had acted in a reprehensible manner which would be a sufficient basis for the Tribunal to exercise its discretion by refusing the application to discharge the obligation.

We heard an argument from Mr. Clancy as to whether the prior conduct of an applicant in proceeding to build in defiance of an obligation could ever be a proper basis for refusing an application despite the fact that a relevant ground had been established. In the course of that discussion we were referred to the decision of the Tribunal in Bruce v. Modern Homes Investment Company Ltd. 1978 S.L.T. (Lands Tr.) 34. There is no need for us to express any view on that point since in this case it was common ground before the Tribunal that the state of the company's knowledge at the time of the construction of the house was relevant.

Looking at the matter in that way, we are satisfied that on the evidence before them the Tribunal were entitled to take the view that, even if the company had constructive knowledge of the existence of the land obligation, the company had not acted in defiance of that obligation in building the house and that nothing in their actings was a sufficient basis for refusing to grant the application if the Tribunal were satisfied on ground (c) in Section 1(3) of the 1970 Act. For that reason the second ground of appeal is not established.

Finally, the third ground of appeal comprises two parts, one alleging that the Tribunal went contrary to the evidence in not accepting that the applicants acted in defiance of the land obligation. We simply repeat that, when the evidence as set out in the opinion of the Tribunal is considered as a whole, we are satisfied that the Tribunal were entitled to reach the view which they did. It follows that they did not act contrary to the evidence. In the second part the appellant alleges that the Tribunal erred in law against the principles of natural justice. Again there is no specification of this ground. To give it content, it must be construed as referring back to the supposed error of law of the Tribunal in declining to postpone the hearing and proceeding to deal with the application without the appellant being able to lead the evidence of Mr. Coutts. For the reasons which we gave in relation to the first ground of appeal we are satisfied that there is no substance in this point. The third ground of appeal must also be rejected.

For that reason we refuse the appeal. At the hearing Mr. Keddie indicated that he did not oppose the respondents' motion for the expenses of the appeal. We accordingly grant that motion.