Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 131
CA139/12	OPINION OF LORD MALCOLM   in the cause   HILL OF RUBISLAW (Q SEVEN) LIMITED   Pursuers;   against   RUBISLAW QUARRY ABERDEEN LIMITED AND OTHERS   Defenders:   ________________

 

Pursuers: Lake QC; Burness Paull & Williamson LLP

Third, Fourth and Fifth Defenders: Ellis QC; ADLP Solicitors

 

6 August 2013

 

[1] This action concerns a minute of agreement entered into in 2005 relating to a proposed development of land known as the northern quarry subjects at Rubislaw Quarry, Hill of Rubislaw, Aberdeen. The developers sought the cooperation of those with an interest in nearby office blocks, including allowing access to the development site. Much of the agreement concerns the detail of the rights given in this regard. The preamble records that the neighbouring proprietors and tenants were concerned that an office development on the new site might inhibit their ability to let vacant space, or impact adversely upon the rental value of their buildings. As a result it was agreed that there would be "certain restrictions with regard to office space within any development of the northern quarry subjects", the benefit of which "should transmit to the respective successors of the property interests held by the parties to this minute of agreement".

 

The proper construction of the contract
[2] This action involves the successors to the original parties to the agreement, plus the pursuers, who now wish to proceed with the development, and have entered into missives for the purchase of the site. For present purposes the relevant restriction is contained in clause 2.1, and is in the following terms:

"The northern quarry proprietors undertake (to the relevant parties) that the maximum net lettable floor area of Office Space which may be provided within the northern quarry subjects at any given time shall not exceed 2,025.29 sq. m. (in total)."

 

[3] The pursuers and the third, fourth and fifth defenders (hereinafter referred to as "the defenders") are in dispute as to the meaning of this restriction. The defenders are Rubislaw House Limited, Marathon House Limited, and Seafield House Limited. The pursuers claim that the restraint relates only to making office property available for let, and has no relevance to vacant or owner‑occupied office space. Thus the amount of office space which can be built on the subjects can exceed that specified in the clause. Thereafter, office floor area up to the limit can be let or offered for let. The pursuers seek a declarator designed to reflect this interpretation of the agreement.

[4] By contrast, the defenders, who now own the relevant interests in neighbouring office blocks, contend that clause 2.1 restricts the amount of office floor space in the development. Thus if 3,000 square metres of office space is constructed on the subjects, all of which is lettable, the restriction has been breached, even if only 2,000 square metres is in fact let or offered for let.

[5] For the defenders, Mr Ellis QC pointed to the terms of clause 2.4, which requires that, amongst other steps designed to ensure compliance, the developers must, if requested prior to the commencement of any works, supply floor plans showing internal layouts, and, on completion, exhibit "as built" drawings. Counsel submitted that none of this would be required if the restriction related only to office space actually let or offered for let. He claimed that the intention was to set a maximum floor area for office space which was capable of being let. If additional offices could be sold for owner occupation, that would be contrary to the purpose of the agreement as narrated in the preamble.

[6] On behalf of the pursuers, Mr Lake QC stressed that both parties want the issue to be decided now, without a proof, should that be possible. He observed that, in general, there is a presumption in favour of freedom of use of property. He drew attention to the definition of "Office Space" in the agreement, namely "the gross floor area let under a lease or leases in respect of which the user clause permits use as offices..." This made clear the context of clause 2.1, namely the market for leased office premises. Reference was also made to clause 2.3.5 - though it simply specifies how "net lettable floor area" is to be measured. I was told that in 2005 the primary development concept was for residential development. (One of the relevant plans refers to a "residential development" at the quarry.) Any ambiguity in clause 2.1 should be construed in favour of the burdened proprietors.

 

Decision on the meaning of the contract
[7] The parties' rights and obligations are determined by an objective construction of the words used in the contract. The court must consider its whole terms in the light of the general setting and purpose of the agreement. The context and the aim of the transaction are revealed by the terms of the minute of agreement itself, including the preamble. The focus is upon clause 2.1. It provides:

"The Northern Quarry Proprietors undertake to the Benefited Proprietor and to the Rubislaw 5 & 6 Tenants, the Rubislaw House Tenants, the Marathon House Tenants and the Seafield House Tenants that the maximum net lettable floor area of Office Space which may be provided within the northern quarry subjects at any given time shall not exceed 2,025.29 sq. m. (in total)."

 

There is no specific reference to office space which is let or is being offered for let. The restriction relates to the maximum "net lettable" floor area of office space provided in the development. On the face of it, if office space is constructed, it remains lettable, even if it is vacant or the subject of owner occupation. Thus I consider that the terms of clause 2.1 support the construction proposed by the defenders. However, I require to have regard to the whole of the contract, therefore I turn to other relevant passages.

[8] Firstly I note the terms of preamble (iii). Amongst other things it states that the owner has agreed "to accept certain restrictions with regard to office space within any development of the northern quarry subjects..." Again this supports the defenders' submission. Clauses 2.2.1 and 2.2.2 restrict the amount of floor space which may be let to a single tenant and provide for a minimum rental level per square metre (all during the five years from 4 June 2001). None of this is inconsistent with the prima facie meaning of clause 2.1.

[9] The same comment applies to clauses 2.3.5 and 2.4.2/3. The first identifies a method for measuring "net lettable floor area". The others relate to the provision of information to neighbouring proprietors in respect of the advertising of office space for let and the completion of contracts and leases. This suggests that the anticipation was that the office space would be offered for let, but I do not consider that it alters the apparent meaning of clause 2.1. That construction is supported by clause 2.4.1, which requires the developers to exhibit copies of proposed floor plans and internal layouts and, on completion, plans showing the "as built" position. Such plans would be irrelevant if the only restriction was on letting office space, with no limit on the amount constructed on the subjects.

[10] The strongest argument for the pursuers concerns the definition of "Office Space" in the schedule to the minute of agreement. It provides:

"'Office Space' means the gross floor area let under lease or leases in respect of which the user clause permits use as offices, and such that, for the avoidance of doubt, the whole of the floor area let under any such lease shall be deemed to be comprised within the definition of 'Office Space' notwithstanding that part of the premises let under that lease may be used for purposes ancillary to office use."

 

The submission was that this means that clause 2.1 contains no restriction on the construction of additional floor area which may be used for offices, so long as, at any one time, the area under lease, or being offered for lease, complies with the limitation. While it is true that the definition concentrates upon premises occupied under a lease, I am not persuaded that it overcomes the impression created by the rest of the relevant parts of the contract. Again it suggests a general understanding that office floor space in the development would be marketed for letting, no doubt in line with the practice in the existing office blocks. (There was a suggestion that something might turn on whether the term "office space" appears in the agreement with or without capital letters, but I consider this to be doubtful.)

[11] In my opinion the principal purpose of the definition was to ensure that areas intended for some ancillary use counted in respect of the restriction. To my mind, it would not convey to a reasonable reader of the whole document that the clause 2.1 restriction is to be read in such a manner as to allow extra office space so long as it is neither let nor offered for let. Rather, the overall intention was to provide for a maximum floor area which was capable of being let for office use, thus the restriction is breached if in due course, for example, 3,000 square metres of office floor space are constructed. If attention is focussed on the purpose of these parts of the agreement, this supports the defender's construction. The aim was to protect the lettability and rental value of the neighbouring office blocks. For the above reasons I prefer the defenders' submissions on this issue.

 

Is the restriction a real burden?
[12] The pursuers also seek a declarator that clause 2.1 does not constitute a real burden over the quarry subjects. If this is correct the restriction will not be binding on them. This question depends upon an application of the relevant provisions in the Title Conditions (Scotland) Act 2003. Section 1(1) states:

"A real burden is an encumbrance on land constituted in favour of the owner of other land in that person's capacity as owner of that other land."

 

The encumbered land is known as the "burdened property", the other land as the "benefited property". Section 3 sets out further requirements for a valid real burden, including:

"(1) A real burden must relate in some way to the burdened property.

(2) The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.

(3) In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property.

...

(6) A real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal)."

 

In the main the statute reflects the pre-existing common law as set out in the leading case of Incorporation of Tailors of Aberdeen v Coutts (1840) 1 Rob 296 and subsequent decisions. The annotator in current law statutes observes that difficulty has always surrounded burdens which confer a commercial benefit.

 

Mr Lake's submissions for the pursuers

[13] Mr Lake submitted that clause 2.1 impedes competition for the letting of commercial office premises by curtailing the available supply, thus increasing rental levels. Clause 2.1 does not benefit the properties concerned. It benefits those with a commercial interest in them. It is an unreasonable restraint of trade which provides no benefit for the amenity of the neighbourhood. A quasi‑monopoly is created. As to the reasonableness of the restraint of trade, the defenders have no legitimate interest to protect. They simply seek to prevent and inhibit competition in the relevant market. There is no element of bad neighbour development. It is of no consequence that the pursuers come to the restriction. Reliance was placed upon Aberdeen Varieties Limited v James F Donald (Aberdeen Cinemas) Limited 1939 SC 788; 1940 SC (HL) 52. As in that case, the purpose of the present restraint is unlawful, namely the prevention of competition. It does not relate to the amenity of the area, nor to the enjoyment of the neighbouring properties.

 

The submissions for the defenders
[14] On behalf of the defenders, Mr Ellis submitted that clause 2.1 does not restrain trade in the sense which has caused the courts to invoke public policy. It regulates the use of land, not the pursuit of trade. If it is a restraint of trade, it is not unreasonable. The clause was the outcome of a negotiation conducted between equal parties with the benefit of legal advice. It conferred rights and obligations on both sides. The minute of agreement and other contemporaneous related agreements were created in the context of a deal which permitted the owner of the northern quarry subjects to develop the land. The land burden was accepted in exchange for valuable rights. It was an agreed balance which avoided harm to the value and use of the neighbouring office blocks, and provided benefit to the burdened property.

[15] Regarding Mr Lake's submission on amenity, Mr Ellis contended that the restriction protects "the fruits that can be gained from the neighbouring office blocks". Reference was made to Vancouver Malt and Sake Brewing Company Limited v Vancouver Breweries Limited [1934] AC 181. Absent the restriction, it would be more difficult for the defenders to sublease the office premises to oil companies. Reference was also made to Nordenfelt v Maxim Nordenfelt [1894] AC 535.

 

Discussion and decision on the question of real burden
[16] The classic statement on the law of the constitution of real burdens is to be found in Incorporation of Tailors of Aberdeen in the opinion of the judges at pages 306/7:

"To constitute a real burden or condition, either in feudal or burgage rights, which is effectual against singular successors, words must be used in the conveyance which clearly express or plainly imply that the subject itself is to be affected, and not the grantee and his heirs alone, and those words must be inserted in the sasine which follows on the conveyance, and of consequence appear upon the record. In the next place, the burden or condition must not be contrary to law, or inconsistent with the nature of this species of property; it must not be useless or vexatious; it must not be contrary to public policy, for example, by tending to impede the commerce of land, or create a monopoly. The superior, or the party in whose favour it is conceived, must have an interest to enforce it. Lastly, if it consists in the payment of a sum of money, the amount of the sum must be distinctly specified."

 

[17] The issue debated can be summarised as follows: is the restriction on office space purely a trading condition, designed solely to protect the commercial interests of those interested in the benefited properties - or is there, in addition to the advantage to their personal interests, a material benefit attaching to the properties themselves? In traditional terms, is there a praedial element? In the Aberdeen Varieties case, the Lord Justice‑Clerk, Lord Aitchison, said (at page 801):

"We were referred to no case, and I have been unable to find any, in which a purely commercial or trading interest of this kind, unconnected with the value, or amenity, or protection, or the comfortable enjoyment of real property as such, has ever been held in our courts of law to be a sufficient interest to maintain a real condition so as to be binding upon singular successors,"

 

For there to be a valid real burden, his Lordship spoke of the need "for the securing of the dominant owner's rights and interests of ownership in his own subjects" (page 802). The properties must "stand to each other in some relation of neighbourhood in a proper sense." This could be contrasted with a restriction "which is not intended to protect the dominant property as such" but is simply "for the benefit of a trading or commercial concern." Professor Rankine (Law of Land Ownership 4^th edition at 369) distinguishes benefit to an individual as such, and benefit to an individual as the owner or occupier of adjacent premises. In short, as it was put by the Scottish Law Commission at paragraph 2.9 of the report leading to the 2003 Act, to gain the privilege of running with the land, a condition "must concern the land" (Report no. 181).

[18] There is no doubt as to the praedial element of the restriction on the burdened proprietor. The dispute concerns the benefit flowing from the restriction. Is it purely personal, or does it concern the neighbouring office blocks? One might hypothesise that had the adjacent lots been vacant undeveloped sites, and the owners inserted a restriction designed to protect the potential commercial benefit of selling them on for office development at some future date, it might be difficult to identify the necessary praedial element. However, the adjacent subjects are substantial office blocks, with premises rented to oil companies and the like. Their value and occupancy rates could be affected by an unrestricted office development on the burdened subjects. Does this make a material difference?

[19] Professor Rennie has recognised that it can be difficult to draw the line. In The Promised Land Property Reform at chapter 1.20, he says:

"It seems to me that the statutory definition (in the 2003 Act) takes on board the subtle distinction between a burden or restriction designed purely to protect a commercial personal interest and a burden which protects a commercial interest but also, possibly indirectly, a praedial interest".

 

Professors Gretton and Reid, Conveyancing 4^th edition at paragraph 13-07, mention an unreported case where it was held that an obligation to pay money could not be a real burden. They note that in practice the praedial rule can be difficult to apply.

"If a condition confers obvious benefit on a person it may be a matter of debate as to whether it confers benefit on a property as well."

 

[20] The case law suggests that an important element to be weighed in the balance is the proximity or otherwise of the benefited and burdened properties. The distance between the two theatres in the Aberdeen Varieties case was a key factor in favour of invalidity. The requirement of neighbourhood was missing. There is no such difficulty in the present case. The existing office blocks and the vacant development site present a distinct neighbourhood. The existing proprietors seek protection against reductions in rental values and potential vacancies arising from the introduction of additional competition within the neighbourhood. The restriction benefits the adjacent properties as commercial properties, in that it protects their rental value. Furthermore, any adverse consequences for the lettability of the offices may reduce their attractiveness to owners and users, and in the medium term potentially impact upon their appearance, fabric and environs.

[21] The discussion at the hearing also covered the issue of unreasonable restraint of trade. In a sense the topics are related, in that a praedial benefit to a neighbourhood may justify a trading condition. The potential overlap between the two requirements is succinctly encapsulated in the discussion at paragraph 2.25 of the Scottish Law Commission report, all under reference to the Aberdeen Varieties case and that of Co-operative Wholesales Society v Ushers Brewery 1975 SLT (Lands Tribunal) 9. The latter case is of particular interest, in that a restriction on a supermarket selling alcohol, which was designed to protect the trade of a nearby public house, was enforced as a real burden. It appeared to the tribunal "that the restrictive conditions were wholly connected with adjacent heritable properties which form part of a distinct small neighbourhood" (page 13). The Commission report continues:

"The strongest case (for validity) is where (the benefited property) is specifically adapted for the activity in question, so that it is likely to be used for the same purpose even by future owners. The restraint on (the burdened property) would then be reflected in the value of (the benefited property)".

 

[22] The applicability of this sentiment to the present case, allied to the strong neighbourhood element, has persuaded me that the condition is enforceable as a real burden. There is praedial benefit, not merely personal commercial benefit for the defenders. I can identify no unreasonableness in the restraint on the use of the burdened subjects. The agreement unlocked the development potential of the vacant site. There is no restriction on its development for other purposes, for example housing, retail or leisure uses, and the owners of the burdened property are free to develop office premises elsewhere in the city. No monopoly is created.

[23] For these reasons I have concluded that the pursuers' arguments on this issue fall to be rejected. The overall result is that I shall refuse both declaratory conclusions and assoilzie the defenders.

 

Title to sue
[24] Although I have decided to refuse the declarators sought by the pursuers, it is nonetheless appropriate that I deal with another issue discussed at the debate. This concerned the defenders' plea that the pursuers have neither title nor interest to pursue the declaratory conclusions. The pursuers have entered into missives for the purchase of the quarry subjects, however, as yet they have no heritable real right. They want to know the correct legal position on the issues in dispute sooner rather than later, hence the present proceedings. The submission by Mr Ellis was that, until they own the land, the pursuers cannot raise the present action. There is "no legal nexus" between the parties. It is for the present owner alone "to vindicate the issue," otherwise there could be a multiplicity of actions. In the agreement, "the northern quarry proprietors" were described as the original owners and their successors in ownership. In addition to passages from textbooks, counsel made reference to D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7; Eagle Lodge Limited v Keir and Cawder Estates Limited 1964 SC 30; and Baillie v Seton (1853) 16D 216.

[25] For the pursuers, Mr Lake, under reference to the speech of Lord Dunedin in North British Railway Company v Birrells Trustees 1918 SC (HL) 33, stressed the "elasticity" of the remedy of a declaratory action. He submitted that the point at issue is a practical one, far removed from the kind of academic, hypothetical or speculative issues which are out of bounds in actions of this nature. Reference was made to Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2AC 438, and in particular the speech of Lord Dunedin at 447/8.

[26] Mr Lake submitted that Baillie v Seton was a special case on its facts, not least given the absence of a contradictor. Decree would, at best, have been in absence, whereas, in the present case it would be res judicata in respect of all parties with an interest. Reference was made to Fleming v McLagan (1879) 6R 588; Rae v Meek [1889] 16R (HL) 31, Lord Herschell at 33; Mackenzie's Trustees v Mackenzie's Tutors (1846) 8D 964; and Magistrates of Edinburgh v Warrender (1863) 1M 887. In Mackenzie's Trustees the Lord Ordinary (page 967) referred to Lord Stair's observation that declaratory actions are appropriate when "nothing is claimed to be done by the defender", and thereafter exclude the defender from any defence which could have been put forward in the declaratory action.

[27] According to Mr Lake, in D & J Nicol, Lord Dunedin made it clear that he was not setting a hard‑edged rule. The pursuers' right to become owners of the subjects gives them sufficient title and interest. Eagle Lodge can be distinguished on its facts. Reference was also made to Symington v Campbell (1894) 21R 434 (in the context that the missives of sale and purchase of the quarry subjects were made unconditional in the course of the current action).

 

Discussion and decision on title to sue
[28] In my view there would be something wrong with our law if the pursuers were unable to obtain a ruling from the court on the present dispute until after they have a registered title to the subjects. Echoing the observations of Lord Dunedin in Russian Commercial and Industrial Bank, the questions raised are real, not theoretical; the pursuers have a genuine interest to obtain answers; and they have secured proper contradictors, namely those with a true interest to oppose the declarations sought.

[29] The pursuers have a good reason for discovering the correct legal position now. With a view to the development of the site, they have entered into missives of sale and purchase with the current owners, who as a result have no interest in the matter. The court will refuse to entertain declarators concerning purely academic, speculative or hypothetical issues, or where the pursuer has no practical interest in the outcome. But this is very far from such a case. Why should the pursuers have to wait until the purchase is completed?

[30] The answer suggested by Mr Ellis is that only then will the pursuers be in a direct legal relationship with the defenders. Only then will they be within the four corners of those envisaged as being bound by the agreement. Only then will they be able to enforce the terms of the agreement and vindicate any rights thereunder. I accept that, in general, a third party cannot enforce or sue under a contract. In most cases a summons is aimed at such a remedy, but the purpose of a declaratory action is different. The present pursuers are not attempting to enforce any provision in the contract. They are not vindicating a remedy thereunder. The submission for the defenders overlooks the true nature of the present proceedings. The pursuers are simply asking the court to determine and declare the proper meaning and effect of the agreement.

[31] In Fleming, Lord Ormidale observed that an action of declarator is appropriate when "it is calculated to serve a legitimate and useful purpose" (page 594). His Lordship noted that the Scottish procedure had been the subject of envious glances from judges south of the border. In the same case Lord Gifford said (page 596):

"The process of declarator whereby rights may be fixed and declared, although they are not capable of instant enforcement, is a very valuable process, and is deeply rooted in the law of Scotland and in the practice of its Supreme Court, and I should be very slow to diminish its usefulness in cases to which it is truly applicable."

 

The court rejected an argument that the action was incompetent because children as yet unborn might have an interest in the fund in question. It was sufficient that there was a real and present dispute, and that all parties to it had been called. Lord Young (page 598) referred to the pursuers having "a manifest and legitimate interest in obtaining the declarator sought." He continued:

"...an apprehended dispute or question regarding the validity or priority of almost any legal right may be anticipated and adjudicated upon in a declarator before it actually arises..."

 

In North British Railway Company, Lord Dunedin observed (page 47):

"One great merit of the Scottish action of declarator is its elasticity. No doubt its use must be guarded. It cannot be used for the mere purpose of declaring legal propositions, where no practical question or dispute lies beneath. But here there was a practical question..."

 

[32] There are practical questions in dispute between the compearing parties in the present action, and the pursuers have a manifest and legitimate interest in obtaining a ruling as to the meaning and effect of the agreement. All parties with an interest have been called, albeit only some have entered appearance. On the face of it, the pursuers have satisfied the test for title and interest to pursue an action of this nature. I therefore turn to the authorities cited by Mr Ellis in order to determine whether, nonetheless, they require the court to uphold the defenders' plea.

[33] Substantial reliance was placed upon Lord Dunedin's speech in D & J Nicol. The pursuers were a firm of shipowners who hired out excursion steamers. Their profits had been reduced because from time to time statutory harbour trustees, who were vested in a right of ferry within certain limits on the river Tay, hired out one of their ferries for excursions beyond the ferry limits. The pursuers sought to interdict this activity on the basis that it fell outside the powers of the trustees. The House of Lords held that the pursuers had no title to sue as rival traders, but did have title as ratepayers. Lord Dunedin observed (at pages 12/13):

"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's synopsis, I am not aware that anyone of authority has risked the definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies."

 

Later his Lordship added:

"I now turn to the circumstances of this case. As I said at the outset, I do not think any general pronouncement can be made as to when there is title and when there is not. But when I find that the respondents in the capacity of harbour ratepayers are members of the constituency erected by the Act of Parliament to elect the trustees, and as such are also persons for whose benefit the harbour is kept up, I cannot doubt that they have a title to prevent an ultra vires act of the appellants, which ultra vires act directly affects the property under their care."

 

[34] Mr Ellis claimed these passages as authority for the proposition that only the owner of the quarry subjects can "vindicate" the present issue. Potential purchasers should not be allowed to trouble the court and seek to interfere with the legal relations of others. However I note that Lord Dunedin was careful to avoid laying down any fixed rule on the subject. The phraseology of being "a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies" was invoked in the specific context of a party seeking to hold trustees to certain alleged legal restraints on their powers by way of an action of interdict. I cannot conceive that Lord Dunedin intended his observations to constrain the scope of the process of declaratory action, the flexibility of which he praised some three years later in the case already mentioned.

[35] In the public law field it is now clear that issues of title are not determined by Lord Dunedin's speech in D & J Nicol - see AXA General Insurance Company Limited v The Lord Advocate [2011] UKSC 46. Just as the emphasis in the discussion in AXA was upon interests, as opposed to legal rights, it seems to me that over many years similar thinking has influenced the development of the Scottish private declaratory action. In the public law context the test is "directly affected" or "standing based upon a sufficient interest" (AXA per Lord Reed at paragraphs 171/2). This rules out the mere busybody or the interested academic. Having regard to the discussion of these criteria in AXA, it strikes me that they are not so very different from the requirements for a competent declaratory process in the private law sphere.

[36] Mr Ellis relied upon the decision in Eagle Lodge. In a feu-disposition the superior prohibited his vassal from building on a feu, except in so far as consented to by him. The vassal let the subjects. The tenants raised an action seeking a declarator that they could build upon the land without the superior's consent. (The superior had demanded payment of £1,000 in return for his consent.) The court was told that the vassal had given his consent to the tenants' plans. The superior pleaded no title to sue, incompetency and irrelevancy, all on the basis that the tenants had no proprietary rights in the subjects.

[37] The judges of the First Division emphasised that the tenants were never going to be in a position to build upon the land without the superior's consent. The question of the enforceability of the conditions in the feu‑disposition was for the superior and the vassal alone. In short the objection lay only in the mouth of the vassal, and would never be open to the tenants. In these circumstances, the dismissal of the action was unsurprising. In the present case, the only complaint is of alleged prematurity, namely that the pursuers must obtain a heritable title to the subjects, rather than rely on the missives to purchase. It was accepted that if and when the current personal right is converted to a real right, there will be no objection to proceedings of the present nature. I consider this to be an important point of distinction between this case and Eagle Lodge. If the present pursuers could never be in a position to develop the subjects or properly raise the present issues, different considerations would arise.

[38] Baillie v Seton was an unusual and particular case. A married woman raised a declarator against her children and grandchildren, seeking to have it found that, in virtue of her marriage contract, a right to certain property had vested in her children. The Lord Justice‑Clerk, Lord Hope, noted (page 221) that a declarator is useful for ascertaining the rights and interests of parties in many cases, even "although the period of actual enjoyment may not yet have arrived." He stressed that it was important not to restrict the operation of this form of action, however the court should not be asked to adjudicate upon eventual rights at the instance of a party having no proper interest in the conclusions. Lady Baillie had asked for nothing for herself. She simply wanted the comfort of a judgment of the court as to the effect, after her death, of any deed of distribution which she may now make of the funds liferented by her. That understandable desire was not of itself a legal title on which to raise a declarator of right. His Lordship observed that the action was framed in favour of the defenders and to obtain a decree in absence which would benefit them, not the pursuer. A decree in the absence of the children settled nothing against them. The action was dismissed on the basis that the pursuer had no legal title or interest to insist on the conclusions. In my view the decision is so far removed on its facts and reasoning from the present case as to be of no assistance to the defenders' submission.

[39] For the above reasons I am satisfied that the plea of no title to sue should be repelled. I agree with judges who have praised the flexibility and practical utility of our process of declaratory action, which was once described as "the triumph and pride of our judicial system" - Lord Jeffrey in Edinburgh & Glasgow Railway Company Limited v Meek (1849) 12D 153 at 162. That said, I also concur with the many cautionary remarks warning against the potential for abuse of the process. For example in Magistrates of Edinburgh v Warrender, Lord Neaves (page 896) stressed that the process "should be reserved for the determination of matters of present and pressing controversy". He complained that the conclusions in the action before him were unnecessary, or too speculative and distant to require a solution now. Declaratory actions "are designed for the purpose of making that clear which is at present doubtful and which it is necessary to make clear." I am satisfied that the present case falls into that category. However, for the reasons given earlier, I will refuse the declarators sought by the pursuers.