Communities often have a keen interest in what goes on in their neighbourhood, particularly when that involves development, or a change of use of local facilities.
However, while any interested party can make representations about a planning application, the position is quite different when the proposed change is to a title condition, as the recent Lands Tribunal case of Scottish Ministers v Brechin Healthcare Group, City of Brechin and District Community Council and the Don Centenary Trust demonstrates: only those having title to enforce a title condition are entitled to make representations against an application to discharge the condition. That is to say, the Tribunal may consider the benefit a title condition confers on the public only if relevant representations are made by a party having title to enforce.
In the case referenced, the Scottish Ministers own an infirmary, health centre and field in Brechin. Title restrictions limited the use of the land to a hospital, infirmary and dispensary. The Scottish Ministers applied to the Lands Tribunal to discharge the burdens to allow them to sell off the infirmary building and the field, and be free to deal with the health centre should it become surplus to requirements in the future.
Two community groups and a community council objected to the restrictions being removed. The Title Conditions (Scotland) Act 2003 requires that those making representations to the Tribunal against an application to discharge a burden must have ‘title to enforce’ it. Scottish Ministers argued that these community bodies did not have the requisite title to enforce.
Does the public have ‘title to enforce’?
None of the respondents owned any property that specifically benefited from the burdens. Brechin Healthcare Group suggested that they held a right to enforce the burdens as representatives of the neighbouring community. The core theme of their objection was that the obvious beneficiaries of the title conditions were the public; the land should be used for healthcare purposes in keeping with the title conditions and these clearly benefit the local community. In dealing with other applications for discharge of title conditions in the past, the Tribunal has taken into consideration the original purpose of the burdens. It was submitted that, in the absence of any benefited proprietor, the Tribunal is entitled to look to matters of public benefit.
The legal requirements of title to enforce
The burdens were imposed in feudal deeds meaning that they were enforceable only by the original superiors. Following abolition of the feudal system in 2004, the enforcement rights of superiors were extinguished, unless they had registered a notice preserving the rights by nominating other land to be the property that benefited from the title restriction. No notice preserving these burdens had been registered. No other route was put forward through which any of the respondents could be said to have title to enforce the burdens. Accordingly, the Tribunal concluded that none of the respondents had the necessary title to enforce the burdens, as they did not own any benefited property. It therefore had to treat the application as unopposed and granted Scottish Ministers the discharge they sought. The Tribunal was also clear that, while it is correct that it may require to consider the benefit that a title condition confers on the public, it can do so only once relevant representations have been made by a party having title to do so.
The Lands Tribunal’s decision is not surprising. Its principal concern is with private burdens created by contract, which (usually) run with the land. These are a feature of Scotland’s landownership system that should not be confused with the planning system, in which members of the public can play an express part. However valid a community body’s concerns are about the sale of land benefiting the community, unless they can demonstrate that they have the requisite title to enforce the burden (which is unlikely), the Tribunal cannot take these into account.
All may not be lost for the community body as the planning process may provide a legitimate platform on which to raise these objections.
A reminder of the mechanisms by which a feudal burden could have been preserved can be found in our article here.