Pursuer: Walker; Gateley (Scotland) LLP

Defender: E Robertson; DWF LLP

25 March 2014

Introduction

[1] The pursuer is the owner of the Gyle Shopping Centre, Edinburgh. The defender is the tenant of subjects in the shopping centre which were leased to it in 1992 by the City of Edinburgh District Council ("EDC"), a predecessor in title of the pursuer. The pursuer avers that it has entered into an agreement with Primark Stores Ltd for the erection and leasing of a new retail store building which would abut the existing shopping centre and would be constructed on currently unbuilt-upon land including part of the car parking area. In this action the pursuer seeks declarator (i) that the defender has given its unqualified written consent to the use by the pursuer of this land for the construction of a new building to be leased to Primark; (ii) that it is entitled to construct the building and would not be acting unlawfully or in breach of the defender's lease in so doing; and (iii) that the defender would be barred from taking any action to prevent construction on the ground that there is absence of agreement complying with the terms of either the Requirements of Writing (Scotland) Act 1995 or the defender's lease. The defender contends that it has not given its agreement in probative writing to the construction of the building and accordingly that the pursuer is not entitled to commence construction. The matter came before me for debate of the parties' respective pleas to relevancy. It was agreed by the parties that if I were to find in favour of the defender on the issues debated, further procedure would be required in order to address the pursuer's case based on personal bar.

The defender's lease

[2] The lease by EDC in favour of the defender (who is referred to therein as "M & S") is for a period of 127 years from 1 October 1990. It was executed on 24, 26 and 27 February 1992 and recorded in the Register of Sasines on 23 March 1992, at a time when the site was still in course of development. It is an intricate document drafted with meticulous care and attention to detail, and provides much by way of context for the issues of interpretation that arise in these proceedings. It consists of three parts and a schedule. Part I contains recitals, definitions of 59 expressions to some of which I shall return, and a few general interpretative provisions.

[3] Part II, comprising only eight clauses, contains the operative provisions for the letting of land to the defender. Clause 2 states as follows:

"EDC hereby lets to M & S ALL and WHOLE the said subjects shown coloured blue on the Boundary Plan together with (a) the building(s) and structure(s) (or part(s) of building(s) and structure(s)) to be constructed thereon from time to time and (b) a one-third pro indiviso share of and in the Shared Areas; all subject to and with the benefit of the following terms and conditions of this Part II of these presents and also subject to (so far as comprising obligations on M & S or relating to the M & S Subjects), and with the benefit of, the terms and conditions set out in Part III of these presents."

Clause 6 made provision for the substitution by agreement of a redrawn Boundary Plan for the plan annexed to the lease. This reflected the fact that the lease was being executed at a time when details of the layout of the development had not been finalised. In due course, a revised Boundary Plan was indeed substituted by a Minute of Variation of Lease executed by the parties and recorded later in 1992. No further amendment has been made to the Boundary Plan.

[4] Part III is entitled "The Mutual Conditions". The context of this part was the intention of EDC and other parties, narrated in Recital C, that the shopping development should consist of three separate but connected buildings being (1) a retail store for M & S, (2) a retail store for Asda, and (3) a shopping mall between and directly adjoining these two stores to be let by EDC for multiple occupancy by retail traders. Provision was to be made in relation to each of the three buildings for possible future expansion within specified areas. Recital C also narrated the parties' desire that the site should include a petrol filling station for Asda, car parking spaces, roads, pedestrian routes, landscaped areas and other services and facilities. Recitals F, G and H stated:

"(F) It is necessary that M & S and Asda should each have (as pertinents of their respective Stores) interests in land in, and common rights to, parts of the remainder of the said development and the ground on which it is to be constructed;

(G) For the benefit of all of the parties hereto and their respective successors and the tenants or other occupants from time to time of the said property between the two Stores, and for the purposes of maximising and preserving the value and amenity of the asset to be produced by the said development (and any future redevelopment of the Site) and the value and amenity of the respective properties comprised and to be comprised therein it has been agreed that mutual obligations shall be imposed as hereinafter written so as to be binding on EDC and persons deriving right from them and also on M & S and Asda;

(h) These presents comprise the Lease in favour of M & S and incorporate the said mutual obligations. The Lease in favour of Asda is granted contemporaneously herewith and also incorporates the said mutual obligations."

[5] The Mutual Conditions begin with clauses (10 and 11) in terms of which the parties bind themselves to one another to implement and observe the provisions of Part III, to the intent and effect that M & S, Asda and EDC and its successors shall be entitled to enforce these provisions against one another. Clause 12 notes that the terms of Part III of the M & S lease and of Part III of the Asda lease are identical. The M & S lease was executed by Asda as well as by EDC and M & S; no doubt the same applied to the Asda lease. The tenant's interest in the subjects leased to Asda is now held by Safeway Stores Ltd, trading as Morrisons. Sub-clauses 13.1, 13.2 and 13.3 are in similar terms mutatis mutandis as regards each of the parties; by way of a representative example, Clause 13.3 provides:

"The rights and obligations of EDC under this Part III and under the Management Regulations shall endure in respect of the Letting Currency and accordingly shall remain enforceable after the Letting Currency insofar as they relate to the Letting Currency."

"Letting Currency" means whichever is the longer of the currency of the Asda lease and the M & S lease.

[6] A number of clauses in Part III are potentially of relevance to these proceedings. I need not take these in strictly numerical order.

Use of the premises

[7] Clauses 61 to 71 impose restrictions on use of the various elements of the site. Except to the extent that Asda and M & S give prior written consent, Clause 61 permits the use of the shops in the shopping mall only as a complex of separate retail shops and other separate premises providing services for consumers. Clauses 62 and 63 permit the use of the M & S store and the Asda store respectively only for retail purposes and certain other consumer services. Clause 64 concerns use of the mall itself and provides inter alia:

"Except to the extent that the Represented Parties may otherwise agree in writing, the Mall shall be used only:-

64.1 For the following purposes during Normal M.O.B. hours:-

64.1.1 For the purposes of pedestrian access and recourse to and from the M & S Store, the Asda Store and the premises from time to time let by M.O.B. Leases;

64.1.2 (Subject to Clause 66 hereof) for the purposes of such exhibitions, displays or events as the Management Committee may from time to time decide...

64.1.3 (Subject to Clause 66 hereof) for the purposes of such (if any) leisure-related or community-related activities as may from time to time be agreed among the Represented Parties as appropriate to be held in the Mall..."

"M.O.B." stands for Multiple Occupancy Building, i.e. the building containing the mall and retail units located between the M & S and Asda stores. References in the lease to "M.O.B Proprietors" are to EDC and its successors in title (i.e., for present purposes, to the pursuer); references to "M.O.B. Tenants" are to the grantees of leases or licences in respect of retail units within the M.O.B. For an explanation of the references to the Management Committee and the Represented Parties, see paragraph 11 below. Clause 66 is not material for present purposes.

[8] Clause 65 is similar in structure to Clause 64 but concerns the car parking areas. It provides:

"Except to the extent that the Represented Parties may otherwise agree in writing, the Car Parking Areas shall be used only for:-

65.1 Car parking for customers and staff of the Shopping Centre...

65.2. For the purposes of such exhibitions, displays or events as the Management Committee may from time to time decide...

65.3 (Subject to Clause 66 hereof) for the purposes of such (if any) leisure-related or community-related activities as may from time to time be agreed among the Represented Parties as appropriate to be held in the Car Parking Areas.

65.4 For access to and egress from the Mall and access to and egress from any separate door of either Store..."

"The Car Parking Areas" are defined in Clause 1.9 as the areas shown coloured purple on the Boundary Plan or such other areas within the Shared Areas as shall from time to time be agreed in probative writing among the Represented Parties to be the parts of the Shared Areas on which car parking shall be permitted. In terms of Clause 1.52, "the Shared Areas" means the Site and the buildings and structures from time to time thereon, under exception of the M & S Subjects, the Asda Subjects, the Filling Station Subjects and the EDC Subjects (the latter being in essence the mall and shops therein, including the designated space for M.O.B. expansion).

[9] Clause 67 provides that the Roads shall be used for vehicular access to the Shopping Centre or any part thereof, and to the Car Parking Areas, by service vehicles and by the vehicles of customers using the Shopping Centre or any part thereof. Obstruction of the Roads is prohibited. The clause also provides that the Pedestrian Routes shall be used for pedestrian access to and egress from the Shopping Centre or any part thereof. In terms of Clause 1.50, "the Roads" means the roads to be constructed on areas shown coloured orange and unhatched on the Boundary Plan or such other roads within the Shared Areas as shall from time to time be agreed in probative writing among the Represented Parties to be available for use among M & S, Asda and the M.O.B. tenants. There is a similar definition mutatis mutandis of "the Pedestrian Routes", referring to such other routes as shall from time to time be agreed in probative writing among the Representative Parties.

[10] Clause 68.1 provides that the Shared Areas (other than the Car Parking Areas, the Roads and the Pedestrian Routes) shall be used for landscaping in such manner as the Management Committee may from time to time determine and/or for access to and egress from the Mall or separate doors of the M & S and Asda stores, or for such other purposes common to the interests of M & S, Asda, the M.O.B. Proprietors and the M.O.B. Tenants as the Represented Parties may from time to time agree among themselves. Clause 68.2 deals with use of the Common Internal Parts and Shared Services. Clauses 69 and 70 respectively concern use of the Filling Station Subjects and of the Expansion Spaces in so far as remaining unbuilt-on from time to time; I need not set these clauses out here.

The Management Committee

[11] Clause 85 requires the M.O.B. Proprietors, M & S and Asda (collectively described as "the Represented Parties") to appoint a Management Committee to discharge functions given to it by the lease, and any other functions which the Represented Parties may agree to be appropriate to be given to the committee. The Management Committee comprises four members, two of whom are to be appointed by the M.O.B. Proprietors and one each by Asda (now by Morrisons) and by M & S. Each member of the committee has one vote and is referred to in the lease as a "representative" of the appointing party. The clauses following Clause 85 make detailed provision for the holding of meetings of the Management Committee, the appointment of managing agents etc. Clause 93 provides that

"any decision which is within the scope of the powers and duties given to the Management Committee pursuant to these presents shall be deemed to be a valid decision of the Management Committee, and to be binding on the Represented Parties as such, if and when copies of the Minute thereof are duly given to the Represented Parties pursuant to Clause 91 hereof..."

[12] Clause 77 sets out a list of 27 duties agreed to be imposed on the Management Committee as agents for the Represented Parties jointly. In summary, the duties relate to the maintenance and operation of the shopping centre. Clauses 80 to 84 impose further duties on the Management Committee with regard to refurbishment works. The Represented Parties are also required by Clause 99 to procure that the Management Committee shall operate and enforce regulations having the effect set out in Part I of the Schedule to the Mutual Conditions; these consist of detailed rules imposed upon M.O.B. Tenants regarding the manner in which they conduct business in the mall. No particular form of procedure is prescribed for any agreement among the parties giving additional functions to the committee.

Works

[13] Clause 24 contains provisions applying to any works within the Mall or the Shared Parts (i.e. the Shared Services, Shared Areas and Common Internal Parts). Clause 4.2 states:

"Except in case of emergency or where such works are carried out by the Management Committee pursuant to the duties of the Management Committee under Clause 77 hereof, such works shall not be carried out unless all of the Represented Parties either previously consent that they respectively accept that such works will not render the Mall or the Shared Parts materially less adequate, materially less commodious or materially less convenient to them respectively than the Mall and the Shared Parts as existing immediately prior to the commencement of such works (which consents shall not be unreasonably withheld) or previously confirm in writing that they do not object to such works."

Clause 24.10 provides:

"Except to the extent any of the Represented Parties previously agree in writing to the contrary, the visibility of and access to the property to which such party has right shall be no less after the completion of any works under this Clause 24 than before the commencement of such works."

Variation of the lease

[14] Clause 105 states:

"Neither the M & S Lease nor the Asda Lease nor any part of these presents shall be varied except in accordance with the provisions of these presents or by agreement (recorded in the Register of Sasines, Land Register of Scotland or other successor Register) among M & S, Asda and all parties comprised in the definition of 'EDC' at the time of the variation..."

Notices
[15] Clause 107 provides that any "notice, request, consent, approval, demand or intimation under these presents" is to be in writing.

The pursuer's averments of agreement to construction of a Primark store

[16] The pursuer has produced minutes of meetings of the Management Committee held on 24 February 2011, 24 March 2011 and 24 November 2011. In each case an employee of the defender (though not always the individual who attended the meeting) has, on behalf of the defender, signed a page annexed to the minute containing the following text:

"I confirm I have read the minutes of the above date and that they are an accurate reflection of the meeting. The proposals made therein are hereby approved."

[17] Paragraph 2.1 of the minute of the meeting on 24 February 2011 includes the following bullet points under a heading "New Lettings":

· "Units 33, 34, 35 & 36 - agreed to Primark. Letting will also require enlarged unit to be extended to circa 56,000 sq ft over 2 floors. Reconfiguration of service yard and some car parking spaces required.

· Notification of this letting was made to [the defender's representative] at a meeting on the 31 January attended by [initials of persons attending]...

Public consultation presentation to go on Mall in early March 2011.

The lease will be a term of 15 years."

[18] Paragraph 2.2 of the minute of the meeting on 24 March 2011 includes the following bullet points under the same heading:

· "Units 33, 34, 35 & 36 - agreed to Primark (as per Minutes 24 Feb 11). Letting will also require unit to be extended to circa 55,000 sq ft over 2 floors. Reconfiguration of service yard and some car parking spaces required. Plans enclosed. Lease to be 15 years.

· M&S and Morrisons both expressed their endorsement of the proposals stating that it was a positive move for the Gyle and will open up a new demographic to the scheme."

The pursuer avers that the plans referred to in the first bullet point above showed the use required of the Shared Areas, including Car Parking Areas, for the Primark store.

[19] Paragraph 2.1.3 of the minute of the meeting on 24 November 2011 repeated that Units 33, 34, 35 and 36 had been "agreed to Primark". It was noted that "Circa 100 car parking spaces will be lost. However planners have factored this into their decision making." It was further noted that planning approval for the project had been granted in November 2011: works were to commence in January 2012 with the store opening in February 2013. The minute states "General chat ensued detailing the scope, nature, extent and use of" inter alia the Primark development. The paragraph concludes with the observation "No objections raised to proposals".

Argument for the pursuer

[20] In support of the motion for decree granting declarator as set out above, the pursuer advanced two propositions. Firstly, it was submitted that any interest held by the defender in terms of the lease did not confer a right capable of preventing the pursuer from granting a lease to Primark and permitting the construction of a store on an area of ground presently forming part of the Shared Areas, including the Car Parking Areas. The subjects let to the defender, in the sense of the defender having a real right to those subjects, did not include any part of the Car Parking Area. Clause 2 of the lease, in so far as it purported to include within the subjects let "a one-third pro indiviso share of and in the Shared Areas" did not create a real right. It was acknowledged, under reference to the opinion of Lord Mackay of Clashfern in Pinkerton v Pinkerton 1986 SLT 672 (OH) that it was competent for the owner of land to grant a lease in favour of himself and others in common. The present case was, however, distinguishable from Pinkerton in two important respects: firstly, because the lease dealt only with a one-third pro indiviso share of the Shared Areas and, secondly, because even taken together with the contemporaneously-executed Asda lease, a one-third share remained unleased and, therefore, in the possession and control of the landlord, now the pursuer. The test of whether heritable subjects were capable of being let was whether they were of land or of subjects capable of being constituted as a separate tenement (Rankine, The Law of Leases in Scotland (1916), p 135). The right granted in the present case over the Shared Areas was more akin to a licence than the grant of a separate tenement. An essential feature of a lease creating a real right, transmissible against singular successors, was that the landlord surrendered possession to the tenant. Reference was made to Clydesdale Bank plc v Davidson 1997 SC (HL) 51 and South Lanarkshire Council v Taylor 2005 SC 182. Here the landlord did not cede either possession or control but retained it through the pro indiviso share not purportedly leased to anyone. This was not compatible with the creation of a real right. What, then, if anything, had been granted to the defender? This question would turn on whether the right was inter naturalia of a lease such as this: Optical Express (Gyle) Ltd v Marks and Spencer plc 2000 SLT 644 (OH), Lord Macfadyen at para.8, referring in turn to a dictum of Lord Moncrieff in Bisset v Magistrates of Aberdeen (1898) 1F 87 at 90 where the Latin expression is used. Reference was also made to The Advice Centre for Mortgages v McNicoll 2006 SLT 591 (OH), Lord Drummond Young at paras 37-40. The right to use of a car park was not inter naturalia of a lease and the defender did not offer to prove that it had been rendered inter naturalia through custom and practice. Rather, it was analogous to a personal right to enjoy the use of an area of land near to or adjacent to the subjects of let, as illustrated by Duncan v Brooks (1894) 21R 760 (Lord Young at p. 764) concerning a right to cut peat. The pursuer's only remedy for loss sustained (if any could be proved) as a consequence of a modest reduction in the number of spaces in the car park would be a claim against the original landlord, EDC, based on a personal right conferred by the terms of the lease. Even if the right in relation to the Shared Areas was inter naturalia of the lease (which was denied), it was one that could be renounced or altered by simple agreement such as that given by the pursuer's representative at the meetings of the Management Committee.

[21] Secondly, and in any event, it was contended that whether or not the right in relation to the Shared Areas was a transmissible real right, agreement among the Represented Parties to the construction of a Primark store abutting the M.O.B. and extending into the Shared Areas, including the Car Parking Areas, fell within the scope of the functions of the Management Committee in terms of the lease, and had been reached. Properly construed, the lease required no formal variation in order to permit construction of the Primark store on land within the Shared Areas. Rather, the lease permitted the parties thereto, who were the three main players in the shopping centre, to reach agreement as to how the Shared Areas, and particularly the Car Parking Areas, were to be used. Clause 65, which applied to the Car Parking Areas, required any such agreement to be recorded in writing but said nothing about a particular form of writing being required; the absence of any reference to "probative" writing was significant. Clause 107 likewise only required consents or approvals to be "in writing". It was in accordance with business common sense to regard the signed minutes of the Management Committee as constituting the necessary writing. As regards the scope of responsibility of the Management Committee, the lease relied upon the Represented Parties to define the role of the committee through the use they chose to make of it. The minutes demonstrated that they had exercised their power to give the Management Committee this function. The court should give effect to the parties' clear agreement. So far as representatives' authority was concerned, it was implicit in the terms of the lease that the parties' representatives at meetings of the Management Committee would be at a level of seniority sufficient to manage the parties' relationship. The pursuer offered to prove that even if the defender's representatives did not have actual authority to bind the defender and sign documents, they had apparent authority to do so.

Argument for the defender

[22] On behalf of the defender it was submitted that, subject to the pursuer's argument founded upon personal bar, there was no basis in law for granting the declarator sought. As regards the nature of the defender's right, the lease was for a period exceeding 20 years and recorded in the Register of Sasines, and accordingly was clearly habile to create a real right by virtue of the Registration of Leases (Scotland) Act 1857, sections 1 and 2. The pursuer's assertion that a real right could not be created by the grant of a lease of a one-third pro indiviso share was wrong in law. In Brador Properties Ltd v British Telecommunications plc 1992 SC 12, Lord Justice-Clerk Ross cited with approval passages from Rankine, Leases, indicating that the word "lease" had a broader meaning in Scots law than in English law, and extended to "certain uses" of lands in addition to "the entire control of" lands. The lease in the present case had been drawn on this basis. A right of car parking was a condition of the defender's lease and necessary to it, and therefore bound the granter's singular successors. Reference was made to the discussion in Paton & Cameron, The Law of Landlord and Tenant in Scotland (1967) at p.95 and to the examples at p.96 of conditions which have been held to transmit or, alternatively, not to transmit against singular successors. Any shrinkage of the Shared Areas or increase of the area allocated to a party for expansion constituted an innovation on the heritable rights of the other parties.

[23] The consequence of the pursuer's Primark proposal would be the permanent loss of use of a substantial area of land from the Shared Areas, including part of the Car Parking Areas, and a re-allocation thereof, without consideration, to the pursuer's allocation of land available for expansion. On a proper construction of the lease, this would clearly constitute a variation. In terms of Clause 105 any variation required to be "in accordance with these presents" or by agreement recorded in the Register of Sasines or registered in the Land Register. For various reasons it would not be competent to record or register a "written agreement" consisting of the minutes and the signed pages annexed to them. The minutes recorded discussions and comments and did not use the language of offer and acceptance as between the parties represented at the meetings. The minutes themselves were not signed. The signatory was not a director, secretary or authorised signatory of the defender. The document was not self-proving; reference was made to the Requirements of Writing (Scotland) Act 1995, section 6. Moreover, section 2 of the 1995 Act required any contract for the variation of an interest in land to be in writing. The signed pages referring to the minutes did not constitute such a contract.

[24] In any event, variation of the terms of the lease was not within the scope of the functions given to the Management Committee. The committee was constituted to deal with matters concerning the day-to-day management of the shopping centre. The defender was represented appropriately at committee meetings by store managers familiar with daily management issues. Clause 93 was of no assistance to the pursuer because it applied only to decisions which were "within the scope of the powers and duties given to the Management Committee pursuant to these presents". That did not include varying the terms of the parties' rights and obligations under the lease or the physical areas to which they applied. Clause 65 was concerned only with use of the Car Parking Areas (for customer and staff car parking and other purposes e.g. for exhibitions, displays or events), and not the permanent removal of land from use for car parking; anything else required to be agreed in writing by the Represented Parties: significantly, not by the Management Committee. Clauses 67 and 68 were in similar terms.

Analysis

The nature of the defender's interest in the Shared Areas

[25] The starting point, in my opinion, is the correct characterisation in law of the interest in the Shared Areas granted to the defender by Clause 2 of the lease. In particular, the issue which has to be resolved is whether this interest is a real right enforceable against the pursuer as successor in title to EDC as owner of the subjects.

[26] The argument presented by the pursuer focused to a significant extent on whether a self-standing grant of a purported tenancy of a one-third pro indiviso share of an area of land could, according to Scots law, meet the requirements of a lease conferring a real right upon the grantee. The case law cited in this connection was largely concerned with the quality of possession necessary to satisfy the requirements of a lease of land, as opposed to some lesser right such as a licence which could confer only a personal and non-transmissible right upon the grantee. That, however, is not the situation in the present case. The purported grant to the defender of a lease of a one-third pro indiviso share of and in the Shared Areas does not stand alone: it is an adjunct of the grant of a 127-year registered lease of the area of land, coloured blue on the Boundary Plan, upon which the defender's store has subsequently been constructed, that area having been leased "together with" the one-third share of the Shared Areas. It is not suggested that the lease has conferred anything other than a real right in respect of the area coloured blue; the question is whether the same can be said for the right that was granted together with it.

[27] In my opinion, authoritative guidance is provided by the decision of the House of Lords in Campbell v McLean (1870) 8M (HL) 40, one of the cases cited by Paton & Cameron, in the passage to which I have referred, as examples of conditions that have been held to transmit against singular successors. It concerned a 99-year lease of a building lot granted by the British Fisheries Society when the town of Tobermory was laid out in about 1791. The lease in favour of the original tenant (and his heirs, executors and assignees) was granted

"together with the right and privilege of digging, winning and carrying away peat for fuel to his said house, but not for sale... from any of the society's mosses... at Tobermory";

and also with

"a right by his tack to pasture one cow during the summer season... on such parts of the said society's muir lands as shall not be set off in lots for cultivation, or inclosed or improved from time to time..."

A singular successor of the Society contended that the right of grazing granted to the defender and other tenants was a personal right which had not transmitted against him. At first instance (reported along with the opinions of the Inner House at (1867) 5M 636, sub nom Campbell v McKinnon), the Lord Ordinary (Kinloch) held that the grant of the right of pasturage fell to be regarded as if it were a grant contained by itself in a separate deed and that the right which was attempted to be created was an innominate right resting on merely personal contract. The Lord Ordinary's decision was reversed by the Inner House. The following observations by Lord Deas at p.651 are representative of the opinions expressed:

"The Lord Ordinary, no doubt, seems to hold, that if the privilege in dispute could not, by itself, have been made the subject of a lease binding on singular successors, the privilege must be held ineffectual against the pursuer, although the lease, in other respects, is to stand good. I am not prepared to assent to that doctrine. It appears to me that where the privilege is, as it is here, purely of a pertinential nature, the privilege must remain effectual against the singular successor, if the lease be effectual against him as respects the principal subjects let... Many things may be let as pertinents which a singular successor cannot take away, although he might not have been bound by a lease which let only these things themselves."

[28] The judgment of the Inner House was affirmed by the House of Lords. Lord Westbury stated (p.47):

"My noble and learned friends who have preceded me have pointed out... that it is impossible to come to any other conclusion than this - that the thing granted, in respect to the grazing of a cow, is ejusdem generis with the right of cutting peat and the other rights which are made incident to the enjoyment of the tenement, which is the principal subject of the demise, and which, therefore, may be called the dominant tenement. That has been so clearly pointed out that it is unnecessary for me to state it again. It is impossible to come to any other conclusion; because the words are that the tenant McLachlan and his foresaids, to whom the first grant was made of the principal tenement, shall, by virtue of this tack, hold and enjoy the cow's pasture. Then, undoubtedly, if they do enjoy it by virtue of the lease, it is part of the lease itself. It is a thing made incidental to that which is granted by the lease. Common sense would be outraged if we did not hold that it is substantially part and pertinent of the principal thing granted, and made an accessory to the thing so granted; and, if so, it becomes a servitude. It goes with the principal thing so granted, which, with reference to the servitude, is to be considered the dominant tenement."

[29] The use of terminology derived from the law of servitudes would not now be regarded by Scots law as appropriate with regard to the interest of a tenant, even under a registered lease (see e.g. Cusine & Paisley, Servitudes and Rights of Way (1998) at para 2.12). Nevertheless the principle is clear: a right which is granted as a pertinent of a lease conferring a real right upon the tenant, transmissible against the granter's successor, is itself enforceable against that successor. In my opinion the circumstances of the present case fall within this principle. The grant of a one-third pro indiviso share of the Shared Areas carried with it the benefits, as well as the obligations, set out in Parts II and III of the lease. These included benefits incidental to, and essential to, the enjoyment of the principal grant: car parking facilities for customers and staff, rights to use access roads and pedestrian routes, and so on. In my view, the right granted to the defender in respect of the Shared Areas within the South Gyle shopping centre site is properly to be characterised as "substantially part and pertinent" of the principal grant of the area coloured blue on the Boundary Plan, in much the same way as the right to graze a cow on muir land owned by the British Fisheries Society was held to be pertinential to the grant of a building lease in the planned new town of Tobermory. Indeed this is precisely how the parties to the lease chose, in Recital F which I set out at paragraph 4 above, to describe the right that was about to be granted.

[30] Reliance was placed by the pursuer upon a view expressed by Lord Young in Duncan v Brooks (above), that in the circumstances of that case a tenant's right to take peat from another part of the landlord's estate did not fall under the Leases Act 1449. Lord Young's observation is expressly stated to be obiter and no reason is given for it, although one sees that Campbell v McKinnon (sic) had been cited during argument. It is not apparent that it attracted the concurrence of the other members of the court and, when set against the clear authority of Campbell v McLean, I do not consider that I ought to place weight upon it.

[31] Nor am I persuaded that the present case turns to any extent on the question whether a particular condition in a lease transmits against a singular successor on the basis that it is inter naturalia of the lease. The issue here is not the characterisation of a condition in the lease; it is rather the more fundamental question of the extent of the grant. This, in my opinion, places the instant case in a different category from those in which the court has required to consider whether conditions such as an option to purchase, or an exclusivity clause prohibiting the letting of nearby premises to a business competitor, were to be regarded as inter naturalia of the type of lease in question. As the right granted to the defender in relation to the Shared Areas is properly to be regarded as a pertinent of the real right created by the lease, it is, in my view, unnecessary to consider further whether or not it transmits against singular successors. If, however, I were wrong in that view, I would have no difficulty in holding that the right granted in relation to the Shared Areas is transmissible as being inter naturalia of this lease. In Montgomerie v Carrick (1848) 10D 1387 (cited to the court in Bisset v Magistrates of Aberdeen, and referred to in Paton & Cameron (loc cit) and by Lord Drummond Young in The Advice Centre for Mortgages v McNicoll at para.38), Lord President Boyle observed at p.1395, without employing Latin terminology:

"It is no doubt most plain and obvious, as maintained by the pursuers, that there is a distinction between those stipulations which are extrinsic to the lease, and do not transmit against singular successors, and those other stipulations which are of the essence of the contract, and do therefore of necessity transmit against them."

In my opinion, I would not have required to hear evidence of custom and practice in order to decide that it was of the essence of a 127-year lease of ground, on which a large retail store was to be constructed to provide one of the two focal points of an out-of-town shopping development, that the grantee would acquire rights enabling it to offer car parking facilities and pedestrian and vehicular access to its customers, staff and service vehicles.

Practical consequences

[32] I turn now to address the consequences of my conclusion regarding the nature of the defender's right in the circumstances of this case, i.e. the desire on the part of the pursuer to erect a building on an area of land extending into the Shared Areas, with the intention of leasing it to Primark. For the reasons given above, I accept the defender's submission that such a grant would constitute an interference with the rights conferred upon the defender by the lease which, being real rights, are enforceable against the pursuer. In other words, the proposed grant to Primark would, in my opinion, constitute a variation of both the M & S lease and the Asda lease. I have already noted that Clause 105 of the lease prohibits variation of either the M & S lease or the Asda lease, subject to two exceptions. One of these is variation by agreement, recorded in the Register of Sasines or the Land Register, among M & S, Asda's successors as tenants under the Asda lease, and the pursuer; clearly, that has not occurred. The leases may also, however, be varied "in accordance with the provisions of these presents". The next question for determination is whether, as the pursuer contends, approval by all of the parties represented at meetings of the Management Committee, recorded in writing in minutes subsequently signed on behalf of these parties, constituted variation in accordance with the provisions of the lease.

[33] In my opinion it did not. I accept the defender's submission that there is nothing in the lease that confers upon the Management Committee a power to agree to a variation of the defender's lease. The primary function of the Management Committee seems to me to be the day-to-day (and longer term) management of the shopping centre. The duties imposed on the committee "as agents for the Represented Parties" by Clause 77 are clearly all concerned with the routine management of the subjects for the mutual benefit of the Represented Parties and the pursuer's other tenants. It is worthy of note that special conditions are imposed by Clauses 81 to 84 on the decision-making powers of the committee in relation to refurbishment works. In my view this illustrates the carefully-defined scope of powers and duties delegated to the Management Committee.

[34] It was contended by the pursuer, however, that in accordance with Clause 85, which provides for the Management Committee to be given "any other functions which the Represented Parties may from time to time together agree to be appropriate", the committee had in fact been given power to take decisions on matters such as approval of the construction of the proposed Primark store. This contention was founded upon Clauses 65, 67 and 68, which concern agreement among the parties as to use of the Car Parking Areas and other parts of the Shared Areas. I am unable to accept it for two reasons. Firstly, the clauses founded upon clearly require agreement by "the Represented Parties", as opposed to the Management Committee, and contain nothing to support the proposition that the parties have agreed that this function is appropriate for exercise by the Management Committee. Secondly, it is in my view quite obvious that these clauses are concerned only with uses of the various elements of the Shared Areas which are consistent with their respective designations as car parking areas, roads, pedestrian routes or otherwise. They are not concerned with a permanent re-allocation of an area of land to some entirely different use which would thereafter preclude its being used for car parking or access, as the case may be. Clauses 65, 67 and 68 must in my view be read in context: taken as a whole, Clauses 61 to 71 regulate the use of all of the various constituent elements of the shopping centre. It is noteworthy, in particular, that Clause 65, concerning the Car Parking Areas, bears a close resemblance to Clause 64, concerning the pedestrian mall within the M.O.B. Having stated in each case the principal use (pedestrian access to shops in Clause 64, car parking in Clause 65), the clause goes on to provide for use, by agreement in writing, for other purposes such as exhibitions, displays, events, and leisure-related or community-related activities. It would not, in my opinion, accord with commercial common sense to interpret Clause 64 as encompassing agreement among the parties to the demolition of the shopping mall in order that the land may be used for a different purpose; equally, it does not accord with common sense to interpret Clause 65 as extending to agreement among the parties to the destruction of all or part of the car park in order that the land may be used for a new building. Similar considerations, in my view, apply mutatis mutandis to Clause 67 as regards roads and pedestrian routes and to Clause 68 as regards the landscaped parts of the Shared Areas.

[35] For these reasons I conclude that variation of the defender's rights in the Shared Areas, to the extent of permitting the construction of new retail premises on a part of that area, was not within the power of the Management Committee. Whatever may have been approved, endorsed, or not objected to, by the parties' representatives on the Management Committee, such approval, endorsement or absence of objection did not in my view constitute agreement "in accordance with the provisions of these presents" to the construction of a new building on part of the Shared Areas and the granting of a lease thereof in favour of Primark.

[36] That is sufficient to dispose of the issues which formed the substance of the debate. It is unnecessary for me to address the defender's argument that for various reasons the signing of pages attached to minutes did not fulfil the requirement of the lease that certain agreements be in writing, still less probative writing. Those arguments may be relevant to the pursuer's contention, which remains outstanding, that the defender is personally barred from preventing the pursuer from constructing a building and leasing it to Primark, and it is perhaps better that I say no more about them at this stage.

[37] It may, however, be helpful if I were to express a view on whether there is a method "in accordance with the provisions of these presents", other than by the second of the Clause 105 alternatives (i.e. recorded or registered agreement), whereby the defender's lease may be varied. Although I was not specifically addressed on it, it seems to me that an appropriate procedure may be found in Clause 24, which applies to "works within the Mall or the Shared Parts" that are not carried out by the Management Committee under Clause 77. Provision is made by Clause 24.2 for the giving of consent - or of written confirmation that they do not object - by the Represented Parties. At paragraph 13 above, I set out the terms of Clause 24.10. I mention this sub-clause in particular because it appears to me to make clear that the parties intended Clause 24 to be capable of applying inter alia to works which effect a permanent alteration to the layout of the shopping centre.

[38] There remains the question of whether agreement among the parties to the carrying out of works which effect a permanent change to areas allocated to car parking, roads, and/or pedestrian routes requires any particular formality. In my opinion, the effect of the definitions in sub-clauses 1.9, 1.42 and 1.50 respectively of the Car Parking Areas, the Pedestrian Routes and the Roads is that probative writing is necessary for any agreement that has the effect of altering the area within the site which is allocated to any of these uses. I recognise that in each sub-clause the expression used is "such other areas... as shall from time to time be agreed in probative writing" to be available for the use in question. It would not, however, in my view, be consistent with business common sense to construe these words as meaning that probative writing is required if land is to be added to an area allocated to one of these uses but not if it is to be taken away. Rather, in my opinion, it accords with business common sense to construe the word "other" as meaning "different from the layout in the Boundary Plan". The requirement of probative writing, which I take to mean a document which affords proof of its own authenticity, must now, in my view, be applied in accordance with the provisions of section 3 of the Requirements of Writing (Scotland) Act 1995, whose enactment post-dated the execution of the lease.

Disposal
[39] Having regard to the outstanding issue regarding personal bar, it does not appear to me to be appropriate either to sustain or to repel any of the parties' pleas in law at this stage. In accordance with the parties' suggestion, I shall put the case out By Order to discuss further procedure. Expenses are reserved in the meantime.