[2023] UKUT 189 (LC)

Fecha: 08-Ago-2023

Conclusions

Discretion

62.

Had the applicants persuaded us at the jurisdictional stage, we would next have had to consider whether we should exercise our discretion and modify the restrictions as the applicant seeks. In the Caledonian case the Lands Tribunal for Scotland gave a second reason for refusing the application to modify the restrictions on the use of the cinema, based on the dual function of the objector as both private landlord and local authority responsible for securing development:

‘[T]he Tribunal would be slow to interfere where a local authority in maintaining private obligations was genuinely endeavouring to control a particular environment and that must be equally so in a case where the authority in question in maintaining such obligations is seeking to carry out a development which is part of their overall plan and which they have a statutory duty to carry out.’

63.

We agree with that approach. This Tribunal should be equally slow to interfere with a local authority which seeks to use its private rights as landlord to promote its strategic development plan, and to ensure that a desired development takes place. We would also be reluctant to use the Tribunal’s discretionary power in a manner which would be liable to disrupt continuing negotiations between a local authority and a commercial developer, both of whom are well able to protect their own interests. Having visited the locality and observed the results of recent and continuing development on adjoining land belonging to the Council we are in no doubt that the development of the Site is capable of being achieved through sensible commercial negotiations. If the necessary jurisdictional conditions had been satisfied in this case giving the Tribunal the opportunity to intervene in the parties’ negotiations, it would in our judgment have been unnecessary and inappropriate to have done so.

64.

For these reasons the application is dismissed.

Martin Rodger KC Mr Peter D McCrea FRICS FCIArb

Deputy Chamber President

8 August 2023

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.