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New Ingliston Limited -v- The City of Edinburgh Council

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New Ingliston Limited -v- The City of Edinburgh Council

15 March 2017

Lord Tyre found, in the main, for the defender following a debate in this action, which arose out of the compulsory purchase by the defender of 22 acres of land from the pursuer at Gogar, Edinburgh, for the purpose of the construction of the tram line to Edinburgh airport. Agreement was later reached between the parties that 13.65 acres of that land would be reconveyed to the pursuer. Missives and, later, a settlement agreement were entered into between the parties in respect of that reconveyance.

The pursuer has concerns that two areas of ground on the land are contaminated, and seeks decree ordaining the defender to implement what are said to be its obligations under the settlement agreement regarding remediation of the two areas, decree ordaining the defender to implement its obligations under the missives, and declaratory that the defender remains obliged in terms of the missives to give the pursuer entry to the whole of the land free of material stored upon it.

After debate as to the relevancy of both parties’ pleadings, Lord Tyre considered the proper interpretation of the parties’ contract, in terms of the missives and the settlement agreement. He rejected the pursuer’s contention that the pursuer has an unfettered discretion to determine what remedial works are to be carried out. In practical terms, the defender’s obligation in respect of the area known as “the mound” is, if it is found to be contaminated, to remove it. The test to be applied is what a reasonable person, having all the background knowledge which would have been available to the parties when concluding the settlement agreement, would have understood.

Lord Tyre held that there was no contractual basis for the extensive orders sought by the pursuer in terms of the first and second conclusions. Submissions are required on whether the fourth conclusion should be left standing pending the carrying out of remedial works, and whether the fifth conclusion has any practical utility. Decree de plano was refused.

Otherwise, the pursuer succeeded in persuading the court that a personal bar argument insisted upon by the defender should fail.

James Mure QC and David Thomson act for the pursuer
Mark Lindsay QC and Susan Ower act for the defender