SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Osborne

Lord Emslie

[2005CSIH62]

P425/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in

PETITION

of

INVERCLYDE COUNCIL, qua Trustee of the BIRKMYRE TRUST

Petitioner;

against

ROBIN DUNLOP

Respondent:

______

For the petitioner: Howie, QC; Simpson & Marwick, WS

For the respondent: Lindhorst; The Anderson Partnership

24 August 2005

The petition

[1] The petitioner is the trustee of a public trust now known as the Birkmyre Trust. The principal asset of the Trust is the Birkmyre Park in Kilmacolm. The petitioner seeks (1) the authority of the court in terms of section 5 of the Trusts (Scotland) Act 1921 (the 1921) Act) to grant a lease or leases of a specified area of the park, and (2) the approval of the court in terms of section 9 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (the 1990 Act) of a scheme for the variation of the purposes of the Birkmyre Trust.

[2] The respondent is a local resident. Although he is the only person to have lodged answers, there is widespread local opposition to the petitioner's proposal. The court appointed Mr D H Campbell, WS to enquire into and to report upon the facts and circumstances of the petition. We shall refer to his report later.

The Birkmyre Trust

[3] By a Trust Disposition granted on 1 November 1897 and recorded in 1908, Adam Birkmyre, a resident in Kilmacolm, conveyed to himself, his wife and the survivor, and to the Parish Council of Kilmacolm, as trustees for the inhabitants of Kilmacolm, an area of ground known as Birkmyre Park, together with four cottages known as the Park Cottages and some related areas of ground and other subjects. Mr Birkmyre's testamentary trustees conveyed further ground to the Parish Council, as trustee of the Park, by two dispositions recorded in 1908 and 1916 respectively.

[4] By interlocutor dated 7 July 1995 the court granted a petition by Inverclyde District Council, the petitioner's immediate statutory predecessor as trustee, for authority under section 5 of the 1921 Act to dispose of certain of the buildings erected within the park and for approval in terms of section 9 of the 1990 Act of a Scheme for the future administration of the Trust. The provisions of the Trust, as amended by the Scheme, are now referred to as the Birkmyre Trust. One of the material amendments made by the 1995 Scheme was to extend to the inhabitants of the District of Inverclyde the rights that had been granted by the truster to the inhabitants of Kilmacolm. After 1995 the buildings referred to in that petition were sold off.

The provisions of the Trust

[5] The Trust Disposition of the park and associated subjects was granted subject inter alia to the following declaration:

"(FIRST) that it shall not be in the power of the said Parish Council to sell, alienate or burden the same or any part thereof."

The Trust Disposition was subject also to the following conditions.

"First. The said park as ... enlarged shall be kept open and free (except as hereinafter mentioned) every day Sundays and holidays included for the use, benefit, enjoyment and recreation of the public in all time coming.

Second. The area of the park so far as not occupied by walks, trees, buildings and other fixtures shall be devoted to the purpose of games and the inhabitants of the Parish of Kilmacolm shall have the sole use of the said area for that purpose.

Third. Should any difficulty arise as to how the area available for games shall be apportioned the preference in all cases shall be given to those inhabitants of the Parish of Kilmacolm who live in houses having no garden attached. In order to increase the revenue it shall be in the power of the Trustees to prohibit free entrance to the park and make a charge for admission or let of the said park or part thereof for such public games and exhibitions as shall not destroy the park or spoil it for the purposes above set forth on not more than six days in each year ...

... 'The Chalet', 'Broomknowe Cottage, 'Gorse Cottage', 'Garth Lodge' and 'Rosemount Villa' fourth fifth and sixth above disponed are disponed in order that they may be let at such annual rents as can be obtained for them and the income thus obtained from them and from the letting of the Park Cottages shall be applied in the maintenance of the park ..."

The Park Cottages referred to in this last provision formed a single building in the centre of the Park. Many years ago they were amalgamated and converted to create what is now the Pavilion.

Clause 8 of the 1995 Scheme provides as follows.

"From and after the operative date the Trustees shall have power to levy charges on persons for the use and let of the recreational facilities provided at said Birkmyre Park for organised games, without limitation as to the occasions on which such charges may be levied.

The present state of the park

[6] The park consists of walks, trees, some outdoor pitches for team games and the Pavilion. The Pavilion has some changing rooms. It also accommodates a children's nursery.

[7] In recent years the cost of providing the recreational facilities at the park has been increasing while the facilities themselves have deteriorated.

[8] The central problem in this case concerns the Pavilion which is now in a dilapidated state. There is no dispute that the Pavilion is affected by condensation, rising damp, wet and dry rot and frost attack. Roof repairs are urgently required. The electrical system is unsafe and there is a minor asbestos problem. The petitioner has obtained expert reports and costings. It avers that at today's prices the cost of restoration of the Pavilion would be 750,000. The cost of restoration and upgrading would be 1,610,000. The trust funds are at present 385,000. The expert advice obtained by the respondent is to the effect that a scheme of restoration only would cost 386,000.

[9] The provisions of the Trust entitle the petitioner to charge for the use of the facilities for "organised games", but only for that. The petitioner avers that in modern conditions there is a greater public demand for indoor recreational facilities for fitness and training. This change in leisure habits, the lack of a gymnasium in the park and the deterioration of the Pavilion have resulted in a declining use of the Park. The petitioner avers that without a usable Pavilion, the use of the park for organised games will decline further and the revenue available to fund the maintenance of the park will be correspondingly reduced. According to the petitioner, the revenue from such charges is insufficient to finance even a restoration of the Pavilion.

The petitioner's proposal

[10] The petitioner proposes to rebuild the Pavilion, extend it to provide a modern gymnasium, re-equip it to modern standards, upgrade the changing rooms and provide a club room and a sun lounge. The petitioner avers that the income that could be raised from these facilities would be sufficient to finance both the capital cost and the running costs; but that this could not be done if the Pavilion were merely to be restored to its former state.

[11] The petitioner proposes to lease the Pavilion, when restored and upgraded, to Inverclyde Leisure Limited, an independent company limited by guarantee that has charitable status. Inverclyde Leisure Limited was established to manage the leisure and recreation facilities of the petitioner. Several of its directors are councillors of the petitioner. The majority are outside directors nominated by relevant bodies. The petitioner has not sought open market tenders for the management of the Pavilion. The petitioner proposes to lease the Pavilion for a period of about 30 years. The petitioner and Inverclyde Leisure have not drawn up a draft lease, nor agreed on a proposed rent. In the course of the debate, counsel for the petitioner amended the petition by adding a provision that the proposed lease should be on terms and conditions to be approved by the District Valuer.

[12] The nursery has no lease of its part of the Pavilion. It is likely that its occupation would be terminated if the petitioner's proposal were to go ahead. In that event, its future would be uncertain.

The Reporter's conclusions

[13] The Reporter is in general agreement with the petitioner's averments about the state of the Pavilion, the declining use of the Park and the further decline that would follow if the Pavilion were to be lost. He finds that on balance the extension of the Pavilion as proposed by the petitioner would not destroy or spoil the Park for the purposes envisaged by the truster. In relation to the relocation of the nursery, he does not accept that the proposed variation of the Scheme would permit the letting of unbuilt-on ground for a purpose other than games. He has not come to a conclusion on the financial justification of the proposal. He suggests that the court should seek evidence from the petitioner that the cost is within the means of the Trust.

The statutory framework

[14] Section 5 of the 1921 Act, so far as material to this case, provides as follows:

"5. It shall be competent to the court, on the petition of the trustees under any trust, to grant authority to the trustees to do any of the acts mentioned in the section of this Act relating to general powers of trustees, notwithstanding that such act is at variance with the terms or purpose of the trust, on being satisfied that such act is in all the circumstances expedient for the execution of the trust ... "

Section 4 of the Act, which sets out the general powers of trustees, includes the following:

"4.-(1) In all trusts the trustees shall have power to do the following acts, where such acts are not at variance with the terms or purposes of the trust, and such acts when done shall be as effectual as if such powers had been contained in the trust deed, viz

...

(c) To grant leases of any duration (including mineral leases) of the

heritable estate or any part thereof and to remove tenants."

Section 9 of the 1990 Act provides inter alia as follows:

"9.-(1) Where, in the case of any public trust, the court is satisfied -

...

(d) that the purposes of the trust, whether in whole or in part, have since

the trust was constituted-

...

(iii) ceased in any other way to provide a suitable and effective

method of using the property available under the trust, having regard to the spirit of the trust deed or other document constituting the trust,

the court, on the application of the trustees, may ... approve a scheme for the variation or reorganisation of the trust purposes.

(2) The court shall not approve a scheme as mentioned in subsection (1) above unless it is satisfied that the trust purposes proposed in the scheme will enable the resources of the trust to be applied to better effect consistently with the spirit of the trust deed or other document constituting the trust, having regard to changes in social and economic conditions since the time when the trust was constituted."

These are the provisions on which the petitioner founds.

The prayer of the petition

[15] In its original form, the prayer of the petition sought a power to lease that related to the whole Park and an unrestricted power to levy charges for recreational facilities of all kinds. The prayer, as now amended, craves the Court (i) to give authority to the petitioner to grant a lease or leases of a limited part of the Park, of which there is a full conveyancing description in the prayer, "on such terms and conditions as the petitioners may deem proper and be approved by the District Valuer of the Inland Revenue having responsibility for Kilmacolm; and (ii) to approve a variation of the 1995 Scheme by the deletion of paragraph 8 and the substitution of the words

'The Trustees shall have the power to levy charges on any person (whether a company partnership individual or otherwise) or body of persons for (a) the use and let of any of the recreational facilities provided in buildings at the said Birkmyre Park, or (b) for the use for the purpose of playing organised games thereon of any of the other recreational facilities provided at the said Birkmyre Park and that in each case without limitation as to the occasions upon which such charges may be levied.'"

The respondent's objections

[16] Some of the respondent's objections to the petition have been met by the petitioner's amendments; but counsel for the respondent has maintained the following objections, namely (1) that the petition, so far as laid under section 5, is unnecessary since the Trust Deed expressly authorised the trustee to let the Park Cottages which in due course became the Pavilion; (2) that restoration of the Pavilion is an option within the Trust's resources which would be self-financing; (3) that the latter solution would retain the nursery; and (4) that there are serious doubts as to the financial soundness of the petitioner's proposal, and as to the financial safeguards for the Trust, in light of a critical Report by Audit Scotland dated May 2005 regarding the petitioner's financial controls.

Decision

[17] It is important to define at the outset the nature and scope of these proceedings. This is not an inquiry into competing schemes for the redevelopment of Birkmyre Park nor is it an examination of the financial viability of the petitioner's proposal. Much of the case for the respondent is, in our view, beside the point since it relates to the merits of the proposal. We think that the petitioner has invited those objections by the excessive scope of the petition in its original terms and by the specification in unnecessary detail of its proposals for the restoration and upgrading of the Pavilion. Moreover, from the many representations lodged in process, we have the clear impression that some of the controversy in this case might have been forestalled if the petitioner had consulted more fully on its proposal with local residents and representative groups and established whether the leisure facilities proposed are what the residents of Kilmacolm wish to have.

[18] In our view, the only relevant question is whether the petitioner has made out the preconditions of section 5 of the 1921 Act and section 9 of the 1999 Act. If it has, it is not for the court to pass judgment on the merits of the proposal nor to judge whether the relevant deeds otherwise confer on the petitioner the power to achieve it. In particular, we cannot in this process resolve a possible conveyancing difficulty to which we shall refer later.

[19] If we grant the authority and the approval that the petitioner seeks, it will be for the petitioner to decide how best to exercise its enlarged powers, having regard to its duties as trustee, and to decide to what extent the relevant deeds permit it to carry out the proposal in accordance with the plans that it has lodged. It will also be for the petitioner to decide what implications, if any, the critical judgment of Audit Scotland may have for its proposed scheme, and to decide whether the terms and conditions of any lease that it may grant in virtue of its enlarged powers are in the best interests of the Trust. In this respect, ordinary planning constraints and the oversight of the District Valuer will be significant safeguards.

[20] On the information before us, it is clear that the restricted power to levy charges and the lack of any power to grant leases over any part of the Park are the immediate causes of the Trust's problems. If enhanced powers are not given to the petitioner, the Trust will almost certainly fail.

[21] As to section 5 of the 1921 Act, we do not accept the submission that the petitioner already has a power to lease the Pavilion. Such a power cannot be derived from the power given in the original deed to let the Park Cottages. That was a power to let residential property within the Park for the limited purpose of defraying its running costs. Those cottages ceased to exist many years ago. The power to let the area of the Park specified in the amended prayer of the petition is a power of a different kind. In any event, if the original power to let the cottages had any relevance to the petitioner's present proposal, that power would not cover any extended area on which the petitioner might develop the proposed gymnasium. Our conclusion is that the case under section 5 has been convincingly made out.

[22] As to section 9 of the 1990 Act, we consider that an enhanced power to levy charges is plainly necessary for the survival of the Trust. The presently restricted power to levy charges prevents the petitioner from raising sufficient revenue to maintain the Pavilion and from embarking on any scheme to restore it, let alone upgrade it. We are satisfied that the purposes of the Trust have ceased in this respect to provide a suitable and effective method of using the property available under the Trust. In our view, the predominant motivation of the truster was the establishment of a Park with the opportunities that that gave to the inhabitants of Kilmacolm for outdoor recreation (cf 1908 Disposition, condition Third, supra). Having regard to the elusive concept of the spirit of the trust deed, we consider that the petitioner has made out the requirements of section 9(1)(d)(iii).

[23] The question then is whether we are satisfied that the proposed amendment to the scheme will enable the resources of the trust to be applied to better effect consistently with the spirit of the trust, having regard to changes in social and economic conditions since the constitution of the trust (cf s 9(2), supra). The truster envisaged that buildings might have to be let, and that charges might have to be levied, to generate additional income for maintenance.

[24] Under the amended proposal, only a limited additional area of ground would be affected. The area of the existing recreation pitches will remain intact. We accept the Reporter's finding that the development of indoor recreational facilities in the area proposed would not destroy or spoil the Park for the purposes laid down by the truster, particularly since it would not impinge on the existing areas that are used for outdoor games. We therefore consider that the words "recreational facilities provided in buildings" in the proposed variation of paragraph 8 of the Scheme represent an appropriate extension of the petitioner's powers. In all the circumstances, we are satisfied that the proposed amendment of the scheme to permit the levying of charges for the use of such contemporary recreational facilities as may be sited in the restored and extended Pavilion would be consistent with the spirit of the trust and would enable its existing resources to be applied to better effect.

[25] We therefore consider that the petitioner is entitled under section 9(1)(d)(iii) and 9(2) (supra) to the approval that it seeks.

[26] We do not regard the issue of the nursery as being material to our decision. We recognise that the nursery may be seriously disadvantaged by the petitioner's proposal; but it must be recognised that the nursery's tenure of the Pavilion is precarious and that those who operate the nursery have no title to object to this petition. What may now happen in relation to the nursery is not a matter for us in these proceedings.

[27] There is however a question as to the extent of the petitioner's powers to build the extension to the Pavilion and the associated accesses and carparking on any part of the Park. For the reasons that we have given, we consider that this question cannot properly be decided in these proceedings. Nevertheless, since it seemed to present a possible difficulty for the petitioner, we invited parties' submissions on it. The difficulty arises from the terms of the disposition of 1908 by which the truster conveyed seven areas of ground. Three of these, the areas First, Second and Third conveyed, appear to be the areas affected by the petitioner's proposal; but the plan annexed to the disposition has been lost. These areas correspond reasonably well in location and acreages with the areas shown on the plan of the petitioner's proposal as being affected by it. On the assumption that these are the same areas, it appears that on the areas Second and Third conveyed, there is a prohibition on building, but that on the area First conveyed, which includes the site of the proposed extension, there is not. The position is further complicated by the fact that in the description of area First in the disposition, the truster refers to a letter dated 21 December 1889 from him to the chairman of the Parochial Board of Kilmacolm in which he stated that this area was a gift to the Parish of Kilmacolm. This letter, too, is unavailable. We do not know what significance, if any, it may have to the present question; and, in particular, whether it imposed any prohibition or restriction on building on area First.

[28] It is clear, however, that on the assumption to which we have referred, the proposed resurfaced and upgraded access road which leads to the proposed parking area may encroach on area Second; and that in area Third a grass verge will be constructed on the existing Broomknowe Road to bring it up to adoption standard and a bell-mouth will be constructed on Broomknowe Road at its junction with Knockbuckle Road.

[29] Counsel for the respondent submitted that we should dismiss the petition since the petitioner could not satisfy us that it had the power to carry out the proposal. In our view, the resolution of that issue is not essential in this process. The fact that it must remain unresolved does not, in our view, prevent us from granting the amended prayer of the petition if, as we consider it has done, the petitioner makes out its case under the 1921 and 1990 Acts.

[30] We shall therefore grant the prayer of the petition as amended