1.Name and Address of Applicant

FORM TC 90(1)(a)

Application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 to discharge or vary a title condition and/or for the determination of a question as to the validity, applicability or enforceability of a title condition if it is a real burden or rule of a development management scheme.

1.Name and address of applicant.

Michael Joseph Marriott and Jean Catherine Marriott

28 Rowan Crescent

Menstrie

FK11 7DS
2.Applicant's connection with land subject to the title condition.

The applicant is the owner of the land subject to the purported title condition in terms of Title Number CLK10963 as said title condition is set out in Burden Entry 9 of the Title.

3.Particulars of title condition.

(a) Nature of title condition.

The Title Condition was createdby a Deed of Conditions registered on 6 November 2003 by Bett Limited and Alan Hamilton Muirhead and later incorporated into the applicants’ Title. The title conditionpurports to make the Applicants bound and obliged in all time coming to contribute pro rata to the whole costs of the Management Operations incurred by The Greenbelt Group of Companies Limited in relation to the “Open Ground” as defined in the Deed of Conditions being the area of amenity woodland, landscaped open spaces, play areas and others to be provided on the whole subjects in terms of the Planning Permission.

(b) Property burdened by title condition (describe the burdened property sufficiently precisely to enable it to be identified).

28 Rowan Crescent, Menstrie, FK11 7DS more fully described in Title Number CLK10963.

(c) Manner and date of creation of title condition (describe the deed in which the title condition was created by reference to the names of the parties and date of registration or recording, or, if it was not created in a deed, provide reasons for thinking that a title condition exists).

The Title Condition is created by a Deed of Conditions by Bett Limited and Alan Hamilton Muirheadregistered on 6 November 2003. The Deed of Conditions has been incorporated in the Applicants’ Title Number CLK10963 atBurdenEntry 9.

Greenbelt Group Limited is purportedly entitled to the benefit of the title condition in terms of Title Number CLK14121 Burden Detail Entry Number 5.

(d) Owners of the burdened property (state names and addresses).

Michael Joseph Marriott and Jean Catherine Marriott

28 Rowan Crescent

Menstrie

FK11 7DS

with entry on 29/04/ 2005 and registration on 16/06/ 2005.

(e) Persons entitled to the benefit of the title condition (here state names and addresses of benefited proprietors and/or holders of the title condition).

Greenbelt Group Limited (“GGC”)

Registered Office

McCafferty House

99 Firhill Road

Glasgow

G20 7BE

entry on 20/12/2010 and/or date of registration on 30/12/2010

If your application is for discharge or variation, complete part A.

If your application is for the determination of a question as to the validity, applicability or enforceability of a title condition which is a real burden or rule of a development management scheme, complete part B.

Note that it is not normally necessary to complete both parts of this form.
Part A

[Not applicable]

Part B

7.Nature of application (here state whether the application is for a determination of the validity, applicability or enforceability).

The application is for a determination of the validity and/or enforceability of the title condition at Burden Entry 9 of the Applicant’s Title Number CLK10963.

8.Basis of application (here give a statement of the reasons for believing that the real burden or rule of a development management scheme is valid or invalid, applicable or inapplicable, enforceable or unenforceable).

The applicants contend that the said title condition is invalid and or unenforceable for one or more of the reasons set out below. The applicants’ obligation in terms of the Burden Entry 9 is that they “are hereby taken bound and obliged in all time coming to contribute to the whole costs of the Management Operations … incurred by GGC on a pro rata basis …”. GGC is defined as ““GGC” means The Greenbelt Group of Companies Limited, incorporated under the Companies Acts (Registered Number 192378) having its Registered Office at 189 St. Vincent Street, Glasgow or its successors in title to the Open Ground; ….”.

Reasons:

1.The said Burden Entry 9, in so far as it purports to be a Manager burden as defined in section 63(1) of the Title Conditions (Scotland) Act 2003 Act (the 2003 Act),is now extinguished.

a.Section 63 provides inter alia:

(1) A real burden (whenever created) may make provision conferring on such person as may be specified in the burden power to—

(a)act as the manager of related properties;

(b)appoint some other person to be such manager; and

(c)dismiss any person appointed by virtue of paragraph (b) above,

a real burden making any such provision being referred to in this Act as a “manager burden”.

“(2) A power conferred by a manager burden is exercisable only if the person in whom the power is conferred is the owner of one of the related properties.

(4) A manager burden shall be extinguished on the earliest of the following dates–

(a) …;

(b) the relevant date;

(c) the ninetieth day of any continuous period throughout which, by virtue of subsection (2) above, the burden is not exercisable; and

(d) …

(5) In this section, the “relevant date”–

(a) …;

(b) …; and

(c) in any other case, means the date five years after the day so specified.

…

(7) The day is that on which the constitutive deed setting out the terms of the burden is registered (and if there is more than one day on which such a constitutive deed is registered in respect of the related properties, then the first such day).”

b.“Related properties” is defined by section 66 of the 2003 Act –

66 The expression “related properties”

(1) Whether properties are related properties for the purposes of sections 63 to 65 of this Act is, subject to subsection (2) below, to be inferred from all the circumstances; and without prejudice to the generality of this section circumstances giving rise to such an inference might include–

(a) the convenience of managing the properties together because they share–

(i) some common feature; or

(ii) an obligation for common maintenance of some facility;

(b) it being evident that the properties constitute a group of properties on which real burdens are imposed under a common scheme; or

(c) there being shared ownership of common property.

(2) For the purposes of section 63(2) of this Act, the following are not related properties–

(a) …

(b) …; or

(c) any facility which benefits two or more properties (examples of such a facility being, without prejudice to the generality of this paragraph, a private road and a common area for recreation).

c.As a Manager burden, Burden Entry 9 has been extinguished inter alia because:

i.The Deed on Conditions was registered on 6 November 2003. In terms of section 62(4)(c), 64(5)(c) and 64(7) of the 2003 Act the said Burden was therefore extinguished on 6 November 2008; and/or

ii.In terms of section 63(2) of the 2003 Act the “power conferred by a manager burden is exercisable only” by a person who is the owner of a related property. GGC is proprietor of the Open Ground in terms of Title Number CLK14121. Section 66(2)(c) provides that any facility which benefits two or more properties, such as a common area for recreation are not related properties. Burden Entry 9 purports to provide a common area for inter alia amenity and recreation. Accordingly GGC’s property is not a related property as defined by section 66 of the 2003 Act. Therefore, at least from the date of GGC’s entry on 20/12/2010 and/or date of registration on 30/12/2010, if not earlier, the power conferred by Burden Entry 9 has not been exercisable continuously for ninety days under section 63(2) and accordingly the burden has been extinguished in terms section 63(4)(c).

2.In any event, the said Burden Entry 9 does not qualify as a real burden in terms of the 2003 Act. Section 3 of the 2003 Act provides:

“(1) A real burden must relate in some way to the burdened property”

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

The applicants have no property interest in the property owned by GGC. It is not common property for 28 Rowan Crescent. In so far as the Property Section of the applicants’ Title refers to the “Subjects within the land edged red … Together with the rights specified in the Deeds of Conditions at Entries 9 and 10 of the Burdens Section”, Entry 9 in fact confers no rights on the applicants as owners of 28 Rowan Crescent in the “Open Ground” now owned by GGC. In these circumstances the burden does not “relate in some way” to 28 Rowan Crescent.It relates to works done on property over which the proprietors of 28 Rowan Crescent have no property rights.In so far at the works on the GGC property may affect the view/amenity of 28 Rowan Crescent, there are substantial parts of the land owned by GGC that are outwith any area that affects the said view or amenity.Accordingly the burden is ineffective.

3.In any event, the said Burden Entry 9 is unlawful as contrary to the provisions of section 3(7) of the 2003 Act in that it creates a monopoly in favour of GGC. It effectively provides that GGC are to provide services, called Management Operations, in relation to the Open Ground to be paid for pro rata by the applicants “in all time coming” and effectively to create GGC the Manager of the GGC property, in all time coming. That creates a monopoly in favour GGC because the proprietors are unable to dismiss or replace GGC or to put the Management Operations out to competitive tender.

4.In any event the said Burden Entry 9 is unlawful as contrary to the provisions of section 3(6) of the 2003 Act. Section 3(6) provides:

“(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).”

The title condition is contrary to the provisions of section 3(6) for the following reasons:

a.the said title condition is an unreasonable restraint of trade purporting to restrict the applicants and their successors in all time coming to using GGC to carryout Management Operations on the Open Ground. It is not a reasonable condition in the interests of both the applicants and GGC.

b.in that it is contrary to public policy to bind the applicants or their successors in the ownership of 28 Rowan Crescent into an obligation in all time coming for GGC to provide Management Operations in respect of the Open Ground in circumstances where the applicants are given no opportunity to replace GGC in the event that they fail to perform their obligations or perform them unsatisfactorily.

c.is it contrary to public policy that GGC should be entitled to determine the “reasonable estate management remuneration” that it may charge the applicants in circumstances where the burden provides no mechanism for determining those charges or for the applicants to be able to challenge the charges so determined. Further is it contrary to public policy that the “Landscape Implementation and Maintenance Specifications” should be so lacking in specification that the applicants or any other burdened proprietor cannot enforce them by action of specific implement. This is so particularly where the burden provides no mechanism for dispute resolution. Reference is made to Ground of Challenge 5.a. below.

d.it is repugnant to ownership for the reasons set out in a. and b. above, because the owner of land should be free to negotiate contracts in respect of that land and not bound into a contract.

5.In any event the said Burden Entry 9 is unlawful as contrary to the provisions of section 3(6) of the 2003 Act for the following additional reason. It is illegal in that it is a breach of section 18 of the Competition Act 1998 (“the 1998 Act”). Section 18 of the 1998 Act provides:

“18.— Abuse of dominant position.

(1) Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.

(2) Conduct may, in particular, constitute such an abuse if it consists in—

(a) directly, or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) …;

(d) …

…”.

a. In particular it is a breach of section 18 because:

i.GGC are in a dominant position in the market, which is in respect of the provision of services (called Management Operations) in relation to the Open Ground (as defined in the Deed of Conditions) for all the Plots within the Whole Subjects. No other provider is able to operate in the market because all other providers have been expressly excluded by the burden.

ii.There is an abuse of this dominant position because the burden directly imposes an unfair purchase price and/or an unfair trading condition on the applicants. For the reasons set out in paragraph 4 a. to c. above the applicants have no way in which they can negotiate or challenge the price to be paid for the services and/or the way in which the services are provided.

iii.There is a further abuse of a dominant position because the burden limits the market available to the applicants for the provision of these services and this is to the prejudice of the applicants as consumers in this market.

6.In any event the said Burden Entry 9 is void for uncertainty. The relevant terms of the burden cannot be determined within the four walls of the Title having regard to section 5 of the 2003 Act. Section 5 provides:

“5 Further provision as respects constitutive deed

(1) It shall not be an objection to the validity of a real burden (whenever created) that–

(a) an amount payable in respect of an obligation to defray some cost is not specified in the constitutive deed; or

(b) a proportion or share payable in respect of an obligation to contribute towards some cost is not so specified provided that the way in which that proportion or share can be arrived at is so specified.

(2) Without prejudice to the generality of subsection (1) above, such specification may be by making reference to another document the terms of which are not reproduced in the deed; but for reference to be so made the other document must be a public document (that is to say, an enactment or a public register or some record or roll to which the public readily has access).”

a.In paragraph 1 “Definitions”, the definition of “Open Ground” is by reference to the “terms of the Planning Permission” which itself is defined as the planning permission “issued by the Scottish Ministers under Reference No. 00/00129OUT on 7 March 2002 together with any variation thereof or supplementary permission issued in respect thereof”. The extent of the “Open Ground” or its constituent parts is not defined in the burden and accordingly the applicants do not know the extent or the constituent parts of the “Open Ground” from the terms of the Burden. Section 5(2) of the 2003 Act does not apply to such a definition of “Open Ground” because it refers only to some document that is relevant to “such specification” as is set out in subsection 5(1) to determine the amount or proportion of an amount payable. In any event, section 5(2) only applies to a document that is specified and described in the burden. It cannot refer to a document that might or might not be produced after the burden is constituted such “any variation thereof or supplementary permission issued in respect thereof”.

b.Under paragraph 3.1 the costs to which the applicants have to contribute are “the whole costs of the Management Operations, together with insurance premiums, reasonable estate management remuneration and charges incurred by GGC … which pro rata share shall be payable in all time coming annually in advance …”. There is no mechanism set in the Burden for determining the “reasonable estate management remuneration … incurred by GGC”. Accordingly the said amount cannot be determined within the four corners of the burden and there is no reference to any external document in terms of section 5(2) from which the specification of said sum can be determined. Further the obligation is to pay “the whole costs of the Management Operations, together with insurance premiums …incurred by GGC”, but said sum is to be paid “annual in advance”. Accordingly at the purported time of payment in advance none of the said costs will have been “incurred by GGC” and there is no mechanism in the burden to determine in advance what those sums might be.

c.The terms of Landscape Implementation and Maintenance Specifications are void from uncertainty. It is not enforceable by the applicants by way of action of specific implement because of this uncertainty. Without prejudice to the generality, in particular:

i.“Removal of litter” – this is to be “through a regular programme” where the meaning of “regular” is uncertain. The litter clearance is to “be carried out in accordance with the Code of Practice on Litter and Refuse …”. It is not legitimate to refer to said Code in a burden; section 5(2) does not apply in these circumstances. Accordingly the meaning of “regular” cannot be determined from the four corners of the burden. Esto it is legitimate to look to the Code Appendix 4 of the Code sets certain time limits, but “regular” is not linked to any time limit in Appendix 4. The meaning of the word remains uncertain.

ii.“Grass cutting and turf maintenance” – the provision refers to “additional maintenance visits”, “the frequency of cuts shall remain flexible in order to accommodate growth rates and weather conditions” and “From time to time the application of selective herbicides … may be required should deficiency symptoms indicate.” These phrases are vague and uncertain and leave matters to the discretion of GGC. A burden that leaves matters to the discretion of a party is unenforceable.

iii.“Football/Kick Pitches” – With regard to the cutting regime for these areas, reference is made to ii. above. Further the provision that “The following items will be undertaken once usage of the areas has been established with the aim to maintain a good and safe playing surface; - Weed and fungal control … Annual checks will be made of the performance of any drainage system.” Said provisions are void for uncertainty and in any event leave matters to the discretion of GGC. A burden that leaves matters to the discretion of a party is unenforceable.

iv.“Shrub bed maintenance” – The pruning regime, the requirement to remove “Any dead, dying or diseased plants which are evidence during any maintenance visit …”, the requirement that “Where deficiency symptoms indicate a suitable compound granular fertiliser shall be applied are void for uncertainty and in any event leave matters to the discretion of GGC. A burden that leaves matters to the discretion of a party is unenforceable.

v.“Maintenance of fencing” – The provision that “During each maintenance visit all fencing will be inspected briefly” – there is explanation of what is meant by briefly. There is reference to “minor repairs” but no reference to major repairs or replacement of fences that are beyond repair.

vi.“Preparation, sowing and aftercare of grass areas” – Seed mixtures are to be as “detailed in the approved Landscape Drawings”, but there is no explanation of what these drawing are or who is to approve them. In any event it is not legitimate to refer to such drawings in a burden; section 5(2) does not apply. Further there is reference to “Watering shall be carried out as necessary”, “grass will be cut at appropriate intervals”. Said provisions are void for uncertainty and in any event leave matters to the discretion of GGC. A burden that leaves matters to the discretion of a party is unenforceable.