Battle on the ice: Murrayfield Curling Ltd v Murrayfield Ice Rink Ltd
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The Lands Tribunal for Scotland has refused an application by Murrayfield Curling Ltd to relax title conditions restricting summer use of its rink, holding that predictable control of shared access and event planning justified their retention.
The ice rink was built at Murrayfield, Edinburgh, in the 1930s, and is operated by the respondent. In 1980 it built a curling rink as an adjoining, linked building, sharing one of the ice rink’s entrances. In 2004 the curling rink building was conveyed to the applicant, with servitude rights to use the shared entrance and the adjoining car park, which is owned by the Scottish Ruby Union.
The curling rink’s title is subject to two conditions. Condition 3 restricts its use to curling, and prohibits competition with the ice rink without the respondent’s consent. Condition 4 requires the respondent’s consent to works to the curling rink, while expressly providing that it is not to be withheld unreasonably. The conditions were first agreed between the parties in 1988, and registered against the title in 2008.
The application was for the conditions’ discharge or variation. The curling rink is presently used principally by curling clubs. The applicant wished to be free to use it for public events other than curling, particularly from April to September when there is no ice on the rink over the summer.
The Lands Tribunal refused the application in respect of both conditions.
Lord Duthie and tribunal member Craigie Marwick FRICS held that no material change had taken place to the character or use of either building since the conditions had been registered. The applicant had relied partly on increased energy costs, but that was not significant for the purposes of an application for discharge. In any event it affected both properties.
Whether the conditions were taken to date from 2008 or from 1988, the length of time which had elapsed did not favour the application.
As for the benefit of Condition 3 to the respondent, the Tribunal said that:
“A title condition directed to the protection of a commercial use may meet the praedial requirement in a defined neighbourhood comprising premises with mutual reliance where it serves to preserve or enhance value. In the commercial sphere, a burden fulfils that requirement when it maintains rental and capital values by managing the consequences of competition, and its reasonableness falls to be assessed in that commercial context: Hill of Rubislaw (Q Seven) Ltd v Rubislaw Quarry Aberdeen Ltd 2014 CSIH 105. [Here] the relationship between the benefited and burdened properties, which occupy parts of the same building and rely upon shared operational systems, renders those principles directly applicable. The two buildings share a single principal entrance, an internal corridor and stair, and adjoining car parking and service areas. Large events at the ice rink require predictable control of the shared external and internal circulation spaces and coordinated planning over many months with the police, fire service, licensing, public safety and other agencies. On the evidence, simultaneous public events at the curling rink could prejudice those preparations. The density of shared access, emergency egress and operational overlap renders some degree of control over non-curling uses reasonable. That benefit arises from the physical and operational configuration of the two properties and not from any purely personal commercial preference. This benefit relates to the land: it secures safe, predictable use of shared access, egress and service routes within a single complex and is not a merely personal or commercial preference. … the respondent’s operational dependence on predictable use of these shared areas for major events gives rise to a legitimate praedial benefit”.
With regard to the burden on the applicant:
“The wish of the applicant to secure an additional income stream of offset increased operating costs is eminently understandable. However, the point remains that Condition 3 was imposed at the point of purchase and reflects the arrangements then contemplated by both parties. The curling hall can still be used for the purposes for which it was purchased. The burden does not prevent the applicant from making curling use of the premises, nor does it foreclose all other uses, since a mechanism exists to seek consent for non-curling activities. As the respondent correctly conceded, consent may not be held without reason or capriciously. We do not accept the applicant’s submission that Condition 3 represents a uniquely severe or disproportionate impediment. On the evidence, even modest additional non-curling uses would materially affect the predictable operation of the shared access, egress and car parking arrangements.”
“The applicant characterised the condition as functioning as a restraint of trade, but the evidence does not support that view. The burden is directed to the management of shared space within a single building complex.”
Moreover:
“no specific proposed programme of uses was advanced and the application was cast in general terms. The evidence demonstrates that the applicant has made very limited use of the existing consent mechanism … [and] has not demonstrated that the existing consent route is unworkable.”
The application for variation of Condition 4 was refused for comparable reasons.
The applicant was represented by Alasdair Burnet KC, instructed by Morton Fraser Macroberts; Michael Upton, advocate, appeared for the respondent, instructed by Thorntons.
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