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KIRSTEN MARGARET KERNAGHAN; DOUGLAS JOHN PATON BROWN; CHRISTOPHER JOHN WARNER AND STEPHEN CHARLES DAVEY AS TRUSTEES OF THE GRANT TRUST AGAINST CITY OF EIDNBURGH COUNCIL


Submitted: 18 July 2017

Web Blue CoS

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 102

 

A304/16

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

KIRSTEN MARGARET KERNAGHAN;  DOUGLAS JOHN PATON BROWN;  CHRISTOPHER JOHN WARNER;  and STEPHEN CHARLES DAVEY, as trustees of THE GRANGE TRUST

Pursuers

against

CITY OF EDINBURGH COUNCIL

Defenders

Pursuers:  Lindsay QC;  HBJ Gateley

Defenders:  Barne; Morton Fraser LLP

18 July 2017

[1]        The pursuers are the Trustees of the Grange Trust.  They are the heritable proprietors of a strip of land approximately 6 feet in width on the north side of Comely Bank Road in Edinburgh.  This action concerns a wall erected along on the north side of this strip and bounding land presently owned by Edinburgh Academical Club.  The defenders are the local roads authority.

 

Background
[2]        The Grange Trust was constituted in 1882 to hold property for a number of sporting clubs, including the Grange Cricket Club and the Edinburgh Academical Cricket Club.  (“Cricket” was later dropped from the Club’s name).  It appears that the Trust had conveyed to it land from the estate of Inverleith.  The Trustees were to hold the property conveyed to them in trust for the clubs and to continue to let the grounds at present in their occupation to the clubs.

[3]        In 1912 the Lord Provost, Magistrates and Council of the City of Edinburgh (the Council) wished to widen Comely Bank Road.  They entered into a Minute of Agreement with the Trust as heritable proprietors of the land and the Edinburgh Academical Club as the tenants of the land.  In terms of this agreement the Trust and the Club for no consideration “gave up” their respective rights and interests in a six foot strip of land along the frontage of the Academy Cricket Field.  The Minute provided that the Council would remove the existing boundary wall and erect a new boundary wall on the strip of ground along the frontage of the Academy Cricket Field.  The wall was to be at least 6 feet in height with a smooth face and serrated surmount to prevent climbing.  There was to be a cart gateway and gate, again constructed to prevent climbing.  The wall was to be maintained by the Council at their own expense “in all time coming”.  Additionally the Council were to erect along a line 3 feet on the field side of the wall a substantial screen of steel standards and strong wire netting to a height not less than 6 feet from the top of the wall.  This was to be maintained “in all time coming” by the Club.

[4]        In 1979 the pursuers disponed the Academy Cricket Field to the Club.  The southern boundary of the ground so disponed, was stated to be along “the north face of the boundary wall separating the subjects hereby disponed from Comely Bank Road”.  The effect of this disposition was to leave the pursuers as heritable proprietors of the 6 feet strip of ground which had been given up to the Council for road widening.  That includes the boundary wall the solum of which is part of the strip of ground.

[5]        The Disposition also included the following provision:

“AND FURTHER DECLARING that by their acceptance hereof our said dispones hereby acknowledge that the said The Edinburgh Academical Club has no further interest in the said Deed of Constitution of Trust and the Trust created thereby.”

 

Planning permission has recently been given for a development including the construction of retail, leisure and restaurant use along the frontage with Comely Bank Road.  The pursuers consider that the solum of the boundary wall is a ransom strip;  access to the development will require to be taken over the solum.  The pursuers aver that it has a capital value of £875,000.

[6]        The wall is listed on the list of public roads in Edinburgh maintained by the defenders under section 1 of the Roads (Scotland) Act 1984.  I was not told when it was first listed.  The listing is in the following terms:

“COMELY BANK ROAD From PORTGOWER PLACE westwards to the roundabout at CREWE ROAD SOUTH and ORCHARD BRAE (properties on the south side of the road only from COMELY BANK AVENUE westwards).  Carriageways and adjacent footways adopted for maintenance.  Public including wall at Edinburgh Academy playing field.”

 

[7]        The boundary wall has been taken down by the defenders.  The circumstances in which this happened are a matter of controversy but are not relevant for these purposes.  The pursuers wish the wall to be re‑instated, failing which they seek the payment of £185,569.20 which the pursers aver is the reasonable cost of building and re-instating the wall.  In the second conclusion of the summons the pursuers seek a declarator that the defender may only use the solum of the boundary wall for the purposes specified in the second clause of the minute of agreement and for no other purpose whatsoever i.e. that the solum may only be used for the erection of a wall.

 

The Issues at Procedure Roll
[8]        The pursuers sought decree de plano in terms of the second conclusion.  Parties were agreed that resolution of that issue depended on whether the wall is properly listed in the list of public roads.  The pursuers also submitted that certain averments in the defences should not be admitted to probation.

[9]        The defender resisted these motions and submitted that the pursuers could not enforce the Minute of Agreement without the conjunction of the Club.  Accordingly they had no title to sue.

 

Title to Sue
Submissions for Defender
[10]      Mr Barne submitted that the original trust deed records that the trustees were to hold land occupied by various clubs (including the Club) as bare trustees for those clubs.  The land given up in terms of the 1912 Minute of Agreement was therefore held in bare trust for the Club by the pursuers.  The pursuers and the Club were both signatories to the 1912 Minute of Agreement.  Clearly, he submitted, it is the Club, and not the pursuers, that has the interest in the maintenance of the wall.  Properly construed, the enforcement of the 1912 Minute of Agreement in respect of the enforcement of the maintenance obligation requires the consent and concurrence of the Club.  The contractual right contained in the Minute of Agreement was indivisible.  Accordingly all of the creditors required to conjoin in an action to enforce the obligation;  Gloag on Contract, 2nd edition at p202, Detrick and Webster v Laing’s Patent, etc., Sewing Machine Co. (1885) 12R 416.  It is only if the obligation is divisible that only one creditor may sue;  McBryde, The Law of Contract in Scotland, 3rd Edition, p 299.

[11]      The only party that had a real interest in the enforcement of the obligation was the Club.  That must have been in the reasonable contemplation of the parties at the time.  The proposition could be tested by asking whether the pursuers could unilaterally waive the obligation on the Council to erect the wall.  The wall was for the benefit of the Club, not the pursuers.

 

Submissions for Pursuers
[12]      Mr Lindsay QC submitted that the right in the Minute of Agreement was one which was capable of enforcement by the pursuers alone.  He submitted that the Club now had no interest to enforce the obligation.  They had entered into the agreement as tenants but their position had now changed as a result of the 1979 disposition.  They were the proprietors of the cricket ground.  They did not own the solum of the boundary wall.  The obligation to maintain and repair the wall was one that fell on the pursuers, not the Club, albeit that the defenders had a contractual obligation to maintain the wall.  The Club had no ongoing relationship with the pursuers since that had been given up in the 1979 Disposition.  Accordingly the Club had no right to enforce the obligation in the Minute of Agreement.

 

Decision
[13]      One remarkable aspect of this case is the absence of the Club from the process.  The action at the instance of the pursuers is based solely on the Minute of Agreement entered into by the Trustees, the Club and the Council.  The pursuers deny that the Club now have any interest in the Minute of Agreement and therefore, it must be assumed, in the boundary wall but for reasons I will set out I do not accept that proposition.  I should also note however that there is no plea of “all parties not called”.

[14]      Had this been an action at the instance of both the Trustees and the Club as joint pursuers there seems little doubt that it would be competent.  Both parties would be aggrieved by the same act and thus an action at the instance of both together would be competent;  see Gray and Others, His Majesty's Feuars in Orkney v Sir James Stewart of Burray, June 5, 1741, M. 11,986, quoted by the Lord President in Killin v Weir (1907) 7F 526;  McBryde, p299;  Gloag p202.

[15]      The question is whether the pursuers have title to pursue this action at their own hand.  The defender submits that the obligation is not divisible and therefore all the creditors must conjoin in the action.  Gloag (at p203) states:

“If the action is for the enforcement of a contractual right which is in its nature indivisible, all those entitled to enforce the right must join in the action, no one creditor having a title to sue separately, and without the authority of the others.”

 

The authorities suggest that is the correct approach when the pursuer holds a pro indiviso share and the other shareholders are not party to the action.  In Detrick and Webster v Laing’s Patent, etc., Sewing Machine Co 1885 R 416 several owners of a patent made an arrangement with the owners of a similar patent providing for the mutual use of patented parts and payment of royalties.  By the time of the reclaiming motion only Webster was left in the process.  He held a six twelfth share of the patent.  The court held that all parties must conjoin in the action.  The Lord President said that where the action is founded on an agreement and nothing else when it came to enforcing the agreement all those who form one party must conjoin in bringing the action.  In actions of removing all the proprietors must conjoin in the action; Gloag p203;  Crozier v Downie (1871) 9M 826.  The same rule applies in a lease granted by a liferenter and fiar;  Gloag supra; Buchanan v Yuille (1831) 9 S 843.

[16]      The issue then is whether or not the Trustees and the Club can be separated out as having different interests or whether they are to be regarded as one party in construing the rights under the Minute of Agreement.  

[17]      The starting point is a consideration of the Trust Deed.  It narrates the history that led to the setting up of the Trust.  On 12 July 1881 there was a meeting attended by members and friends of a number of sporting clubs viz:  the Grange Cricket Club, the Edinburgh Academical Cricket Club, the Coates Curling Club and the Edinburgh Lawn Tennis Company.  That meeting was to consider proposals regarding the acquisition of portions of the Inverleith Estate from the proprietor “to secure to said Clubs and Company permanent possession of the ground they then as now occupied”.  That was followed up by a meeting on 21 June 1882 which resolved to enter into missives with the proprietor of the estate and to establish the Trust.

[18]      The objects of the Trust include inter alia the:  “holding of the property conveyed to them in trust for the several clubs and company … as at present possessed by them respectively” and to continue to let the grounds to the various clubs.  Provision is made for the winding up of the clubs and for them being unwilling or unable from any cause to remain as tenants of their respective grounds.  In that event they may deal with the ground so vacated in any manner they deem most advisable by letting to someone else or appropriating the ground for other purposes not inconsistent with the terms of the title under which the whole subjects are held.  Clause ninth provides that in the event of the whole debt on the grounds and others being eventually cleared off it shall be in the power of the Trustees to make over the grounds to the respective club or company.

[19]      Accordingly at the time they entered into the Minute of Agreement the Trustees were holding the property at the Edinburgh Academical Club, including the strip of ground, in trust for the Club and only for that purpose.  The Club were the tenants.

[20]      The object of the minute of agreement was for the first and second parties “to give up” for their respective rights a strip of land for the purpose of road widening.  The Trustees and the Club thereby constitute one side of the agreement.  That is made clear by the structure of the preamble to the Minute of Agreement.  In return for the Trustees and Club agreeing to give up the strip of land the third parties (the Council) agreed to do a number of things.  First they agreed to remove the existing boundary wall and erect a new boundary wall along the new frontage of the Academy cricket ground to certain specifications.  Secondly they agreed to maintain the wall in all time coming.  Thirdly they agreed to provide a cart gateway and gate into the cricket ground.  Finally they undertook to erect a substantial screen three feet on the cricket ground side of the wall and at least six feet higher than the top of the wall.

[21]      The benefit to the Council from this arrangement is clear; they obtained the right to use the 6 feet strip of land for the widening of Comely Bank Road.  They may also benefit from the construction of the wall and screen by preventing cricket balls hitting people using the road.

[22]      On the other side of the agreement the only beneficiaries are the Club.  They got a new boundary wall.  The specification of the wall and the gate is such as to ensure that people cannot climb over it.  

[23]      In contrast it is difficult to see what benefit the Trustees as a distinct body gain from this Agreement.  At the time the Minute of Agreement was entered into they did so in their capacity as proprietors of land in trust for the club.  It seems to me that the only persons who benefit from the existence of the boundary wall are those persons whose land is bounded by it; on one side the land owned and occupied by the Club and on the other the land which forms part of the road.

[24]      Accordingly I conclude that at the time the Minute of Agreement was entered into the Trustees and the Club were effectively one party to the agreement.  As Mr Barne points out it seems inconceivable that the Trustees could at their own hand have agreed to waive the obligation on the Council to build the wall.

[25]      Mr Lindsay submits that the Club gave up any right to enforce the obligation in the Minute of Agreement in the 1979 Disposition.  I cannot accept that proposition.  The wording of the disclaimer, quoted above, relates to the constitution of the Grange Trust and it’s affairs.  The Trustees each represent one of the individual clubs or companies for whom the Trustees hold land.  One of them is the Edinburgh Academical Cricket Club.  Clause sixth provides that vacancies are filled by nomination from the individual club.  The disclaimer in the 1979 disposition would have removed the right of the Club to nominate a Trustee to the club and to take any part in the affairs of the Trust.  However in my opinion it does not affect obligations separately entered into by the Club.

[26]      For these reasons in my opinion the Trustees do not have title to pursue this action without the concurrence of the club.  I shall sustain the first plea in law for the defenders and dismiss the action.

[27]      Notwithstanding my decision to sustain the defender’s first plea in law I require to address the further arguments.

 

The Wall
Submissions for Defender
[28]      Mr Barne submitted that the listing of the wall under the 1984 Act was conclusive.  It brought with it a basket of rights and obligations.  The inclusion of the road on the list of public roads vests the roads authority with various powers but does not confer any heritable rights.  Any private right that existed prior to adoption is suspended or superseded by that adoption.  The roads authority may erect or maintain walls where it considers it necessary and may be erected on the carriageway or verge but still form part of the road.  Accordingly it is not necessary that the public have a right of passage over the entirety of the road.  A public right of passage was not the same as a public right of way;  Faulds, Craggs and Saunders, Roads Law in Scotland, 2nd edition, paragraph 4.4.2.  A public right of passage did not necessitate the public to pass over every part of the road;  David Runciman & Sons v Scottish Borders Council 2003 SLT 1405 at paragraphs 6, 9 and 10.  He referred me to a number of other authorities including Elmford Limited v Glasgow City Council 2001 SC 267;  Morston Whitecross Limited v Falkirk Council 2012 SLT 899;  Hamilton v Nairn 2011 SC 49 and in particular paragraphs 18 and 20.  One way of looking at the question of whether the wall was part of the road was to consider who had the management and control of the wall;  Hamilton v Nairn, paragraph 20.

 

Submissions for Pursuers
[29]      The purpose of the boundary wall was to keep people out of the playing fields.  That was apparent from the terms of the Minute of Agreement.  That was the antithesis of a public right of passage as defined in section 1 of the Act.  There was no right of passage over the solum of the wall.  A road was the whole area dedicated to public passage from fence to fence or building line to building line;  County Council of Perth and Kinross v Magistrates of Creiff 1933 SC 751 at 761;  David Runciman & Sons v Scottish Borders Council, paragraph 5.  It did not include a boundary wall.  The fact that the Minute of Agreement had been entered into for the purposes of providing land for road widening did not mean that all of the 6 foot strip of land had to be dedicated to a right of passage;  Elmford Limited v City of Glasgow Council, paragraph 19;  It is the use character and function of the land that is important;  Morston Whitecross Limited v Falkirk Council at paragraph 27.  So far as the entry in the list of public roads was concerned it had clearly not been drafted with precision.  It was ambiguous and should be interpreted in accordance with the statutory definition.

 

Decision
Is the Listing Conclusive?
[30]      In my opinion the fact that mention is made of the wall in the public list of roads kept by the defender under section 1 is not conclusive that it is part of the road.  The authority to list a road and carry out works on it comes from statute.  It would be wrong in principle to hold that the listing was conclusive where it could be demonstrated that the roads authority had exceeded its powers in making the listing.  Moreover the purpose of listing is not to define the limits of the land used for the road but to list the roads which the authority is to manage and maintain.  As appears from the submissions of Senior Counsel for the defenders in Elmford Limited v City of Glasgow Council, at paragraph 15 there is no common practice in listing.  He accepted that the statutory listing description could not be regarded as conclusive as to the precise extent of the road in every case and for all purposes.  Nevertheless the inclusion of the wall on the public list of roads for Edinburgh may be a factor in determining whether or not it forms part of the public road.

 

Is the Boundary Wall Part of the Road?
[31]      “Road” is defined in the Act as “any way …over which there is a public right of passage…and includes the road’s verge”;  section 151(1).  The statutory definition includes the verge;  it does not include any boundary walls or fences.  Lord Hardie, giving the opinion of the Extra Division in Hamilton v Nairn in a question over whether the verge formed part of a public right of passage said “As observed in Faulds, Craggs and Saunders (para 4.7.2):  The statutory definition of a road includes the verge which means that the right of passage extends to the verge” (paragraph 21).  At paragraph 20 he said that one way of approaching the issue is to consider whether the verge is under the management and control of the roads authority.  Mr Barne placed some reliance on Lord Hardie’s approach;  he suggested that applying the test in this case one could conclude that the wall formed part of the road as it was under the management and control of the Council.  I am not convinced by this argument.  The definition of a road includes the roads verge.  The issue in Hamilton v Nairn was not whether a verge could be part of a road but whether in that case it formed part of the road.  It did not involve an expansion of the definition of a road. 

[32]      In County Council of Perth and Kinross v Magistrates of Creiff Lord Murray said that road:

“means and includes the whole area dedicated to public passage from ‘fence to fence’ (or it may be ‘building line’ to ‘building line’) including the area, if any, occupied by footways of any kind”.

 

That was followed by Lord Drummond Young in David Runciman & Sons v Scottish Borders Council where he held that the road extended to the road face of the trunks of the shrubs or trees making up a boundary hedge.  He rejected an argument that the road ran to the centre line of the line of shrubs and trees.

[33]      In my opinion boundary walls or fences along the side of the road will normally define the limits of the right of passage and hence the limits of the road.  On these authorities I would have been inclined to the view that the boundary wall does not form part of Comely Bank Road.

[34]      I am not satisfied that the inclusion of the wall on the listing of public roads and the obligation to maintain it contained in the Minute of Agreement alters that position.  I have already indicated that I do not believe that listing is conclusive.  If, ordinarily, a boundary wall would not form part of the road then it should not be included in the list of roads.

[35]      However the defenders aver that the boundary wall provided a retaining function and protected pedestrians and traffic from the activities occurring on the sports ground which presumably would include stray cricket balls.  These averments were not admitted by the pursuers and Mr Lindsay submitted that they should be excluded from probation.

[36]      Mr Barne submitted that the Council as roads authority have wide powers to maintain and improve roads.  Many of these powers are today to be found in part IV of the 1984 Act.  Under section 24 the roads authority may raise or lower or otherwise alter the level of a public road.  They can provide footways (section 25).  Section 28 provides for the construction of raised paving, pillars, walls, rails, fences or barriers for the purpose of safeguarding persons using a public road.  The circumstances in which such erections might be made are quite prescriptive.  They include at (d) “along the sides of bridges, embankments or other dangerous parts of the road”.

[37]      Mr Barne submitted that similar powers existed at the time of the construction of the road.  Section 130 of the Burgh Police (Scotland) Act 1892 provides that fences and posts may be placed and maintained on the side of footways as may be necessary for the protection of passengers.  Whether that would include a boundary wall of the type in issue here may be a moot point.

[38]      However the important point is that there may be an issue as to whether or not the boundary wall had a retaining function and/or protected people on the street from activities on the cricket ground.  In that connection I note the obligation on the Council under the Minute of Agreement to erect a steel fence or barrier three feet in from the wall and 6 feet higher than the wall.  That indicates that the parties to the agreement were alive to the possibility of harm as a result of cricket balls coming onto the street.  But it is not clear how far the protective function may have been provided by the wall as well as the fence.

[39]      If, contrary to the pursuers’ denial, the wall did provide these functions then I think it might be possible to conclude that the boundary wall did form part of the road and hence was properly listed in the list of public roads.  That cannot be decided on the averments as they stand without evidence.  Accordingly had I found that the pursuers had title to sue without the concurrence of the Club I would have allowed a proof before answer on these averments.

[40]      There is one further point on the averments.  Mr Lindsay referred to an averment in Answer 8 to the effect that the obligation under clause 3 of the Minute of Agreement to maintain the wall did not extend to reconstructing the wall.  He submitted that such an argument could not be maintained.  He argued that if the wall fell down for any reason the obligation to maintain the wall would extend to rebuilding it.  I note that the obligation is to build the wall and maintain it “in all time coming”.  In my opinion that includes rebuilding if that becomes necessary.  Accordingly I would have excluded the averment “It does not extend to reconstructing the wall” from probation.

[41]      Accordingly I shall sustain the first plea in law for the defender, repel the first plea in law for the pursuers and dismiss the action.