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Cite as: [2005] CSIH 6, [2005] ScotCS CSIH_6

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South Lanarkshire Council v. Taylor [2005] ScotCS CSIH_6 (14 January 2005)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Macfadyen

Lady Cosgrove

[2005] CSIH 6

XA86/04

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

APPEAL

From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark

in the cause

SOUTH LANARKSHIRE COUNCIL

Pursuers and Respondents;

against

MAUREEN TAYLOR

Defender and Appellant:

_______

Act: Kinroy; Simpson & Marwick

Alt: Sutherland; Balfour & Manson

14 January 2005

[1] In this action in the sheriff court at Lanark the pursuers seek a declarator that the defender has no right or title to occupy three areas at Lanark Racecourse, or alternatively that her right and title was validly revoked. The pursuers also seek removal. The defender has counterclaimed for declarators to the opposite effect.

[2] The defender has appealed against an interlocutor of the sheriff at Lanark in which, after hearing parties in debate, she granted decree in terms of the second and third craves of the initial writ, and dismissed the defender's counterclaim. The decision of the sheriff was based on her conclusion that the defences were irrelevant, in respect that the defender could not on her averments establish that she was the tenant of the areas under a lease.

[3] It is not in dispute that for some years the defender has been the tenant of certain of the pursuers' land at the racecourse, where she has an "Equi complex". The defender's claim that she was the tenant of the three areas to which the dispute relates is based on her averment that she accepted an offer made by the pursuers' predecessors, Clydesdale District Council, in a letter to her dated 16 July 1991. The letter was headed "MONTHLY GRAZING LEASE -LANARK RACECOURSE". It stated as follows:

"Further to your request to the Council for grazing land in connection with the operation of your Riding Centre at Lanark Racecourse, I have to advise you that the Leisure Services Committee agreed to your request subject to the following conditions:-

The specific areas are:

(a) The 'D' shaped grazing field at the southern end of the Racecourse.

Access to this area to be taken along the line of the sand track and racecourse crossing only.

(b) Arena 4. Access to this area to be taken along the line of the sand

track and racecourse crossing only.

The area between the clock tower, SRC pavilion, the small stand and

the inner rail of the racetrack. Access to this area to be taken across the racetrack crossing only.

2. Your use of the racetrack is to be subject to separate approval by this Department for each occasion. Each booking will be subject to availability and ground conditions. Requests should be made at least three days in advance and will be subject to cancellation at the time of use due to changing weather or ground conditions.

The tenant is responsible for maintaining all fences and gates enclosing grazing areas in a stockproof condition and must ensure that livestock is not permitted to stray into other areas of the Racecourse.
The tenant must vacate any or all of these grazing areas within 24 hours notice to permit other events to take place.
Rental for these grazing areas and your use of the track has been set at £60 per month to be paid by monthly Bankers Order, the first payment being due on 25 July 1991.
Annual rent review will take place each June with one month's notice of any change required.
This monthly lease can be terminated by either party giving one month's notice in writing".

The defender avers that since the time of that agreement in 1991 she has used the three areas for grazing horses.

[4] It is not in dispute that, apart from any implication from the terms of clause 4, the letter is consistent with being an offer of a lease, and that the use of land for grazing was a normal subject of a lease. The fact that the letter does not specify a date of entry or the duration of the agreement is not inconsistent with the existence of a lease.

[5] The pursuers' contention that the defender could not establish that she was a tenant under a lease is based on the terms of clause 4 of the letter. For the pursuers Mr Kinroy emphasised that if a person was a tenant he or she had the power to exclude all other persons, including the landlord during the whole period of the tenancy. However, the effect of clause 4 was that the pursuers could interrupt the defender's occupation of any or all of the grazing areas. Thus, for example, the defender could be required to share the occupation of the unit formed by the three areas to which the agreement related.

[6] For the defender Mr Sutherland maintained that this was too narrow an approach. He accepted that exclusive possession was part and parcel of the landlord's obligations and the tenant's rights under a lease. However, that did not mean that a lease could not provide for the landlord reserving the right to occupation in certain limited circumstances. In his submission the question was whether the rights of the defender were so limited by the rights of the pursuers that the agreement could not, despite its terminology, be regarded as a true lease. He pointed out, under reference to passages in Hunter on Landlord and Tenant at page 212 and Rankine on Leases, third edition, at page 211, that in a lease there was considerable scope for reservations in favour of the landlord. In the present case the reservation was akin to a power of resumption. It was to be noted that the pursuers and their predecessors were not given an unlimited right to displace the defender from occupation of any of the areas. Clause 4 merely obliged the defender, on due notice being given, to vacate one or more of the areas temporarily and for a limited purpose (which was different from the purpose of her occupation). The defender would be entitled to resume her occupation after that limited purpose had been achieved. Reference was made to Article 5 of the Condescendence in which the pursuers aver that in the years prior to July 1991 events were regularly held at the racecourse, and that these events included the Ladies Scottish Cross-Country Championships, the Scottish Horse Show, Pony Club events, Rugby and Cricket Club open days, gala events for the Lanimer week and gymkhanas. The pursuers also aver that the defender and the author of the letter knew of these events, and that the reference to "other events" in clause 4 was to sporting and social events to be held with the consent of the pursuers' predecessors as proprietors of the racecourse. Mr Sutherland also pointed out, under reference to Rankine at pages 1-2 and a passage in the opinion of the Lord Justice Clerk (Ross) in Brador Properties Ltd v British Telecommunications plc 1992 S.C.12 at pages 19-20, that in Scotland the definition of a lease was wider than that in England, so that in Scotland it may be enough that the alleged tenant receives the right to certain uses only of the lands, as opposed to the entire control of them.

[7] In the light of these arguments we consider that it would be going too far and too fast to decide that merely by reason of the terms of clause 4 the defender could not establish that the character of her occupation under the alleged agreement was that of a tenant under a lease. The authorities to which we have been referred indicate that a limited reservation in favour of the landowner or a limitation in the nature of the use to which the occupier can use the land would not necessarily be inconsistent with the existence between them of the relationship of landlord and tenant. Plainly, however, it would be a matter of degree, according to the circumstances of the individual case. In the present case it is clear that the alleged agreement was reached against a background of an existing practice in accordance with which various events took place on the areas of land from time to time. The significance which should be attached to clause 4, in connection with the question whether the was a lease, would depend on the parties' common understanding in regard to the prospective events to which the clause referred. In these circumstances we are satisfied that the appropriate course is for the issue with which this appeal is concerned to be determined after hearing proof.

[8] Since parties were in agreement that all other matters in dispute would require to be the subject of proof, we will allow the appeal, allow to the parties a proof before answer of their respective averments in the action and the counterclaim, and remit to the sheriff to proceed as accords.