This is an application made under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 ("the Act") for the discharge of a land obligation which prevents the development of a dwellinghouse on an area of ground now known as Saddler's Crook, Legge's Acre, North Latch Road, Brechin.
The applicants as burdened proprietors are Mr Robert W Stevens and Mrs Pamela Stevens. The benefited proprietors are Mr Robert Smith and Mrs Margaret Smith, Westbank House, 19 North Latch Road, Brechin, who object to the application.
At the hearing the applicants were represented by Mr D R L Francis, advocate, who led in evidence Mr Stevens, Mr Douglas R Ogilvie, a chartered surveyor, Mr Donald G Coutts, a chartered town planner, and Mr John F Graham, a chartered architect. The respondents were represented by Miss L J Dunlop, advocate, who led in evidence Mr Smith, Mr Robert Fraser, a chartered architect and valuer of residential properties, and Mr James P Wallace a contract gardener.
In 1954, 1.123 hectares (2.774 acres) of the original feu of Westbank House was sold by Disposition by John William Manson in favour of Dr Eric G Jenner, dated 1 April, and recorded in the General Register of Sasines for the Division of the County of Angus on 23 April both 1954. The sale of that land to Dr Jenner was for the purpose of his building a house there. The house, which was built in 1955, is 17 North Latch Road.
The disposition set out the relevant land obligation in the following terms:-
“Declaring further that for the preservation of the amenity of Westbank House [Dr Jenner] and his [heirs and assignees whomsoever] shall not erect any buildings directly to the South and Southwest of the frontage of said Westbank House unless with the prior written consent of me or my successors”.
The applicants seek variation of this obligation to enable them to build a dwellinghouse in accordance with outline planning permission which they hold.
The burdened subjects lie adjacent to North Latch Road which is an unclassified road running due west from the two centre and leading from Brechin to its rural hinterland. Over the years development has occurred on both sides of North Latch Road. There are a variety of types of houses along each side of the road which have been built individually at different times. They are mainly older houses each with its own garden fronting on to the road. The impression given is that of a mature, well established suburb.
As North Latch Road reaches the edge of Brechin it turns to run in a northwesterly direction. At the bend two large houses were built to the south of North Latch Road in the late Victorian period. Rosehill, which is a large mansion house with substantial policies extending to several hectares, is located to the east of the bend. To the west is Westbank House which is a large two storey villa built, like Rosehill, some 30 metres back from the road to which it has a frontage of some 100 metres. It was built in the northwest corner of an original feu running some 300 metres south from North Latch Road. Between Rosehill and Westbank there is now a third large house of more modern design, being that built by Dr Jenner at number 17. This is also located well back from the road to which it has a frontage of 16.6 metres, at the apex of the bend.
This part of the south side of North Latch Road, at the bend, is distinct in character from the rest of the road. It is different in appearance because it comprises a large area of wooded ground with three houses at very low density. There is an ambience attaching to this corner which enables the group of three houses and their grounds, extending to several hectares, to be described as an enclave different from the neighbouring residential areas.
To the west of this enclave there are two small cottages right in the northwest corner of the feu of Westbank. Next to these, to the northwest, are three single plots with houses on them and then pen countryside. To the north of the original linear development along North Latch Road a substantial modern housing estate has been developed. The houses fronting on to North Latch Road to the east of Rosehill have plot depths of some 35 metres and three modern houses have been built behind them on land which formerly formed part of Rosehill, so that the belt of developed land running along the south side of North Latch Road and curving round the bend is, approximately, 100 metres deep. The southern edge of this belt represents the separation between the built-up area of Brechin and open countryside beyond. To the south of that developed strip the land is all agricultural.
The application subjects are located in what was the southern part of the original feu of Westbank. Westbank House was built on an area of land of about 1.5 hectares which runs south from North Latch Road. That part of the land nearest North Latch Road is square in shape and at right angles to the road. On the southwest side of this square the application subjects, now known as Saddler's Crook, take the form of a much narrower and longer strip of ground which is orientated on a north-south axis and therefore at about 45 degrees to the square. It varies in width from approximately 25 metres to 50 metres and is some 250 metres long.
Along the length of the western boundary of the original feu is a hedge, about 3 metres high, with deciduous trees planted at intervals. Beyond that boundary to the west there is open farmland. The boundary to the west has a line of mature trees running along its length. The northern part of that marches with Rosehill. On the Rosehill side of the boundary there is a large stand of mature exotic trees which are subject to a Tree Preservation Order. The southern part of that boundary, running down the strip, is adjacent to cultivated fields. To the south of the strip there is a copse of trees on the boundary and agricultural land beyond.
Westbank was constructed on the highest part of the original feu, to the northwest, and it is orientated so that its front elevation looks directly south, all the way down to the end of the strip and beyond. The land slopes south from the house along its whole length. The difference in level from north to south is about 10 metres giving a slope of about 1:30. However, it slopes more steeply near the house for 50 metres south to a boundary hedge. The difference in level over that distance is about 3.5 metres giving a slope of about 1:14. The boundary hedge is on the southern boundary of the present feu of Westbank. The hedge is old and in parts has collapsed and is now supported. It has recently been severely pruned and is now some 2 metres in height, having previously been 2.5 metres, or even 3 metres.
The view from Westbank due south down the strip presents itself as a tree lined paddock. That view is to a minor extent foreshortened by the boundary hedge. There are two individual trees spaced well apart down the centre line of the paddock. Above the trees at the end of the paddock there is an extended view out and across the valley of the South Esk to Burghill some 3 kilometres to the south, over open country. There are further panoramic views looking southwest or west out across agricultural land. Within the enclave already referred to, the location of Westbank, with completely open land to the south and west, is such as to afford it an almost rural location.
Although numbers 21 and 23 North Latch Road, which are two semi-detached cottages, are located only some 10 metres from the rear wall of the house, the cottages are screened from the house by a 2 metres high wooden fence and a garage building. There are other outbuildings and a service area behind Westbank House. On the north side of North Latch Road, opposite Westbank at a higher level, there is a substantial nursing home. Despite the trees to the rear of Westbank, and its distance from North Latch Road, it is tied in to the urban fabric of Brechin on that side. However, being orientated to the south, and deriving most of its amenity from that aspect, Westbank may be fairly described as semi-rural in character. It is not an isolated country house.
Mr and Mrs Smith purchased Westbank in May 1985. In 1993, having failed to obtain planning permission for the erection of a swimming pool at the rear of the house, they constructed it in a detached building to the west of the house and forward of its front elevation. The effect of this is to limit views to the southwest from the ground floor of the house, but the principal views to the south remain. A conservatory has been added to the south elevation of the swimming pool and views to the south, over the paddock, and southwest and west, over the fields, can be had from there.
As detailed above, part of the original feu of Westbank was sold in 1954 to Dr Jenner for the purpose of his building a house there. The house, which was built in 1955, is 17 North Latch Road, lying between Rosehill and Westbank as already described. The house and the garden surrounding it were built on a plot of about 0.323 hectares to the southeast of Westbank. At its nearest point the house is some 35 metres from Westbank. The remainder of the land conveyed was left undeveloped. That is the paddock comprising the narrow strip of land running down from the boundary hedge at Westbank. It continued to be used as a paddock for horses so that Westbank retained the views south and west that it had enjoyed before. Although some additional tree planting has been carried out between Westbank and number 17, the latter is partially visible from the former, and due to its physical presence the exclusive aspect of the amenity of Westbank has plainly been, to some extent, diminished by it. That, however, was plainly a circumstance within the direct contemplation of the original parties in 1954.
It is not in dispute that the purpose of the land obligation, set out above, was to preserve the amenity of Westbank including the views out to the south already described.
In 1995 number 17 North Latch Road and its 1.123 hectares of ground, including the paddock, was in the ownership of a Mr and Mrs Gibson. They sold the house and garden ground extending to 0.253 hectares to Mr G W M Stevens and Mrs L D Stevens, the son and daughter-in-law of the applicants, for the sum of £165,000. By Disposition dated 19 January 1995, and recorded in the General Register of Sasines for the Division of the County of Angus on 22 February 1995, the remainder of the land, principally the paddock, known as Saddler's Crook and extending to 0.870 hectares, was sold to the applicants' in consideration of a price of £45,000.
The applicants had been searching for many years for a site in @Brechin on which to build a substantial house suitable for their retirement. Mr Stevens doubted whether there was any other suitable site in Brechin. He believed this to be the last piece of land in the town suitable for a house of the quality which they propose to build. At the time of the purchase it had been used as a paddock and the applicants were aware that there was a condition prohibiting building to the south and southwest of Westbank when they acquired the property. In late 1994 they met the respondents on site to discuss what development might be acceptable. The respondents were prepared to consider a dwellinghouse at a location more distant from then, or one out of sight to the southeast in front of number 17. They did not accept one in the location favoured by the applicants which was directly to the south of Westbank and close to the boundary hedge. Despite this lack of agreement, and at that stage without planning consent, the applicants continued with the completion of the purchase of Saddler's Crook.
Saddler's Crook consists essentially of the paddock. The area on which the applicants wish to build a house and lay out a garden is at the north end of the paddock. It comprises a rectangle of ground immediately to the south of the hedge on the southern boundary of Westbank. There is an additional small area of ground, to the south of number 17 over which access is to be made to the track running along the boundary with Rosehill, and thence to North Latch Road. That track was formerly the access to number 17 which will now have a separate access to North Latch Road. The small area of ground to the south of number 17 was a location suggested by the respondents as an alternative that they were prepared to consider for a dwellinghouse. At the hearing a location further south, down the paddock and another at the southern end of the paddock were also suggested.
There is a history of planning applications having been made for residential development on the application subjects, without success. The applicants' original outline application had been refused. The reasons for refusal had been that it would detrimentally affect the character and amenity of the surrounding area and that it would be out of character with the linear form of existing development, being an unsatisfactory form of backland development; and that it would create a precedent for applications of a similar nature. There had been objections made by the respondents to the planning application which mirrored the reasons for refusal. They also objected that the site was outwith the area designated for housing in the relevant local plan and that the proposed house would adversely impinge on the outlook from Westbank.
The applicants appealed to the Secretary of State against the decision of the local planning authority. In giving his decision the Scottish Office Reporter concluded that granting the application would be in accord with the development plan and the district council's policy regarding backland development contained in their Advice Note 6. Having regard to the criteria established for the backland policy, he considered that the proposed development would be in sympathy with the character of the surrounding area and that given the low level of density in the vicinity of the proposed development there would be no significant impairment to the amenity of neighbours in respect of privacy and outlook: he accepted that, "… the owner of [Westbank] may, from his upstairs window, be able to see the roof of a single storey house as proposed on the appeal site, but only to a limited extent, and at a distance which I consider would not significantly impair his amenity".
The Reporter also observed that its location between Westbank and number 17 would be, "defensible as a logical infill". That meant that a house and garden in this location could be accepted as being within the belt of developed land to the south of North Latch Road, and that a notional demarcation line between the built-up area of Brechin and the surrounding open countryside could be drawn round the proposed development, at the elbow represented by the bend in the road, to include it within the built-up area. The supposed corollary of that, is that proposals for development to the south of the line of demarcation, in this case, the paddock, would be refused as being in open countryside and outside the built-up area. The respondents dispute this assumption and claim that the development proposed by the applicants could be sited elsewhere in the paddock and that planning permission could be obtained for these alternative locations.
In finding the site suitable for development the Reporter specified that it was so only for a single house of one storey, this being a condition of the planning consent. In accordance with that condition the original design of the house was modified. All of the accommodation is now on the ground floor. The pitch of the roof has been reduced and the ground level of the house lowered, with the cumulative effect of reducing the ridge height by almost one metre. The height of the house from ground level to its ridges varies from 4.5 metres to 5.5 metres. The number of windows in the rear elevation has been reduced to a minimum. The applicants are also prepared to carry out such planting to the rear of the house as may be necessary to screen it from view from Westbank and are prepared to accept a further condition in their title prohibiting any further development of the paddock.
Full planning permission for the proposed house was obtained from Angus District Council on 21 February 1996. That permission is for a single storey dwelling with a pitched roof clad with natural slates. The house which is to be built is unusually large in area. It is designed around a courtyard which contributes to the size of its 'footprint'. Because of this feature the building does not have a net usable area as great as the footprint would suggest. Nevertheless the mass, or more properly the volume, of the building is exceptional for a modern house. It will be about three times the size of a typical modern bungalow. The accommodation comprises three bedrooms, lounge, dining area, kitchen, swimming pool and laundry. It is orientated to face south and has very few windows on the north elevation at the rear, facing Westbank. From the front, it will enjoy an attractive open outlook south down the length of the paddock. Essentially it will enjoy the same views as Westbank but being observed from a lower elevation they will be to some degree restricted compared to those obtainable from Westbank. The particular location of the house is the most natural within the paddock. As Westbank has been placed towards the rear of its original site, so the positioning of the proposed house at the north end of the paddock follows the same rationale and takes advantage of the southern orientation and the views out. The boundaries of the paddock allow a comfortable area of garden all round. The house will enjoy a high degree of seclusion similar to that presently had by Westbank.
The rear elevation of the house will be some 60 metres from the front elevation of Westbank and will be some 28 metres in length. The width of plot there is some 37.5 metres. The rear of the house will be some 13 metres from the boundary hedge. It is proposed that this space will be used for establishment of a screening belt of trees or shrubs and be laid out in such a way as to discourage recreational use and thus limit noise. There is agreement that the horizontal line of vision of a person standing at ground floor level in Westbank will pass over the ridges of the roofs of the proposed house, and only a single chimney pot will interrupt that plane of vision. Because of the height of the present boundary hedge the same observer would see the whole of the roofs but nothing of the walls below the eaves. A hedge of evergreens 5 metres high behind the house would totally screen it from the observer on the ground floor of Westbank.
From the viewpoint of someone observing the paddock from the first floor bedroom windows in Westbank, the proposed house will be visible over the boundary hedge from about half way up its rear elevation. Even if a 5 metres solid screen were planted, nearly all of the extensive roof areas would remain visible to that observer. A solid screen at a height of just over 6 metres would obscure all the building except the chimneys.
The application subjects and the whole surrounding area are within the area of the Brechin Local Plan, dated September 1984, which is the extant development plan. There are no proposals in the development plan for zoning land for development in the North Latch Road area. The policy proposal of the plan for the area is 'no significant change'. The application subjects have been used for the grazing of horses. There are pony shelters against the boundary hedge. The two single trees in the middle of the paddock are protected from grazing animals by fences. The existing use rights of the application subjects are agreed to be agricultural and the use of land for grazing horses is an agricultural use. Mr Stevens' evidence was that if the application subjects were not to be used for building they would only be used for an agricultural purpose. The most probable use is agreed to be for the continued grazing of horses.
It is accepted by the respondent that the land could be put to more active agricultural or forestry use, without the need for planning consent. The paddock could be used for growing crops or grazing animals. Trees could be grown there. It was suggested on behalf of the applicants, with reference to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 that agricultural buildings could be built there. However, Class 18(1) of the Order, while permitting building and engineering operations, contains exclusion clauses to protect neighbouring properties from uses such as the housing of pigs, poultry and the like. In any event, whatever use of the land is contemplated, the erection of any building on the application subjects is controlled by the land obligation with which we are here concerned. The possibilities of grazing animals or planting of trees were uses which could detract from the total amenity presently enjoyed by Westbank. The latter could obstruct at least as much of the existing view as the proposed buildings. Mr Smith's response to that possibility was that he would prefer to contemplate a view restricted by natural objects rather than by building, particularly when the occupation of a building brought with it the additional potential nuisances of loss of privacy and noise.
Counsel made careful and detailed submissions. These covered specific issues of fact and also the evidence bearing on compensation. We summarise briefly only the submissions bearing directly on the determination of the various grounds founded on by the applicants in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970, section 1(3).
Mr Francis reminded us that the application was brought under all three of the statutory headings. He recognised that his case under section 1(3)(a) was not his strongest point but he submitted that the development to the south of North Latch Road and the three bungalows built as "backland" development behind numbers 9 to 13 North Latch Road, could be a relevant change bringing the application within that heading. He submitted that the application was, however, best approached by considering firstly the material bearing on section 1(3)(c). This material was also relevant to section 1(3)(b).
He submitted that the proper approach to reasonableness for the purposes of the ground set out in 1(3)(c) was to ask whether what was proposed was out of place where it was proposed. The Tribunal had a wide discretion and could give weight to a number of factors. He stressed the dearth of single storey houses of high quality in Brechin. There was a real need for a site for that purpose. The design, location, and setting of the proposed house could all, objectively, be said to be reasonable.
He stressed various features of the proposed house which would minimise its impact on Westbank and submitted that the important views would be preserved. He referred to the effects of the existing dwellings at 17, 21 and 23 North Latch Road. They were all closer than the proposed house. Putting a house in the proposed location was a reasonable use of the site. Part of the purpose of the 1970 Act was to free land for the benefit of all. The proposals were a natural use for the site. He reviewed the evidence that planning permission was very unlikely to be granted on any other part of the site. The fact that planning permission had been granted for the proposed development was a very important factor.
Returning to the test of "reasonableness" Mr Francis submitted that this was not to be tested by the reaction of Mr Smith but by the test of people who might reasonably be expected to live there. (However he did not go so far as to make any submission that Mr Smith's attitude was outwith the range of expected attitudes). The benefited proprietor has no control over a wide range of potentially objectionable uses of the ground for agricultural purposes which might be thought to have greater potential impact than the proposed house. It was therefore unreasonable to object to the house. In relation to ground (b), the fact that the benefit of the obligation was limited to building and could not exclude trees or other offensive agricultural purposes meant that, in truth, the benefit of the burden was slight. It could, in practice, be removed at the will of the burdened proprietor. The matter should not be assessed by considering the high degree of amenity presently enjoyed but by considering the restricted degree of amenity which would be preserved if the burdened subjects were put to the full range of permitted use. On the other hand the burden on the applicants was palpable. The land was suburban in character. A restriction on building was a substantial burden.
At the conclusion of his submission, both Mr Francis and the respondents counsel, Miss Dunlop, were agreed that it would be sensible for us to give an indication of the substance of our proposed decision. If variation of the obligation was to be permitted the case should be continued to see if the parties could agree the detail of any construction. This would allow a joint approach to any tree screening and discussion about the nature of the use to be made of the ground between the house and the existing hedge.
For the respondents, Miss Dunlop dealt briefly with the nature of the land obligation. It was not an absolute prohibition but an obligation to consult and seek permission. The respondents had been prepared to discuss matters.
In relation to section 1(3)(a), she referred us to Halliday Conveyancing Law and Practice Volume 2 paragraph 19-745 and following, for a general summary of the relevant law. She stressed that the land had been sold as a paddock in 1954 and there was evidence that as recently as last year it was continuing to be used for this purpose. There was no change in the land itself. Any change derived from the change in ownership was attributable to the deliberate actings of the applicant. There was no evidence of any relevant change in the neighbourhood. The area of development behind properties to the east of number 13 North Larch Road related to a very different area from the one at issue.
Following the order of Mr Francis' submissions she turned to ground 1(3)(c). It was accepted that the grant of planning permission was a factor in favour of the applicants, but the real question was whether the proposed use was reasonable in all the circumstances. An important circumstance was the protection given by the land obligation to the amenity of Westbank. Her submissions on this matter included the following heads: (1) the Smiths had relied in part on the existence of the obligation when buying Westbank; (2) there had been no attempt to negotiate the two important factors of the siting and size of the proposed house; (3) in practice the house could not have been sited any closer to Westbank; and (4) at present Westbank enjoyed very considerable amenity from the open outlook and absence of building in front. She dealt, in detail, with various aspects of this amenity.
Miss Dunlop went on to submit that the land obligation did not sterilise the burdened subjects. They could continue to be used for their initial purpose as a paddock. They could also be used for agricultural purposes.
Although the full benefit of an open view of the paddock was dependent upon the present use to which the paddock was put, it would continue in absence of a positive decision by the owner of the paddock to take active steps to block the view. The Tribunal should not assume the existence of an owner who would act spitefully. The matter should be tested by reference to a reasonable owner. Similarly, although Mr Stevens had made clear that he would not wish to build at any other point in the paddock this was a matter of personal taste. The Tribunal should look to see whether there was another plot which might reasonably be used. Existing planning permission had been based on an application for that particular house and site only. There was no reason to assume that an application for another site would not have been successful. There were other positions which would satisfy the tests in the Advice Note 6. The reference to "rounding off" the notional demarcation line had been used to support the proposals for the applicants' house and site. There was no reason to assume that the same argument would be as persuasive in opposing another site. If the Smiths were positively supportive of a different site this too would make a difference to the planners who had, allegedly, already been unduly influenced by their opposition to the site in question. Miss Dunlop made reference to Solway Cedar Ltd v Hendry and Others (1992 SLT (Lands Tr) 42); McArthur v Mahoney (1975 SLT (Lands Tr) 2); and Miller Group Ltd v Gardner's Executors (1992 SLT (Lands Tr) 62).
In reply Mr Francis submitted that the rest of reasonableness was not to have regard to "all the circumstances" but only to "all the relevant circumstances". He submitted that for the purposes of ground (c) what was relevant was what impeded the reasonable use of the land. Accordingly the motivation of the parties; the circumstances in which Mr Smith came to acquire his property and, for example, the reasonableness or otherwise of negotiations between the parties were not relevant for the purpose of ground (c).
Although we have set out the background facts in some detail above, we consider that it is important to keep clearly in mind the circumstances in which the land obligation came to be imposed, and the circumstances leading to the present application.
In 1954 the proprietor of Westbank House sold an area of ground lying to the east and south of their house and garden for the purposes of enabling the house now known as number 17 North Latch Road to be built and providing it with a paddock. To protect their amenity it was agreed that there would be no building on the ground to the south and southwest of their house without their consent. This in effect precluded building on the paddock unless they consented. Westbank had an open rustic outlook to the south and west. This view has not significantly changed.
The purpose of the burden was to protect the amenity of Westbank but, when the land obligation was created, the parties plainly had in contemplation the dwelling to be created as number 17 and also the use of the burdened subjects as a paddock. We accordingly consider that the main purpose of the burden must be taken to have been to protect the visual amenity although we accept that this includes aspects such as the feeling of spaciousness which goes with an open outlook and the feeling of seclusion derived from a view which does not include human habitation.
In 1995 the owner of the whole subjects, number 17 including the paddock, sold these subjects in two lots, thus dividing the house and garden from the paddock. The paddock was sold as a site available for building a house.
It was known to the purchasers that in terms of the title, a house could not be built without consent of the owners of Westbank. Planning permission was, of course, also required. This was duly obtained. The owners of Westbank, however, were not prepared to consent to the house being built immediately in front of and adjacent to their garden. They suggested other sites on the paddock but these were not acceptable to the new owners.
In absence of consent, the applicants require to seek discharge or variation of the land obligation under the provisions of section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970. The application is presented under all three of the grounds set out in subsections 1(3)(a), (b) and (c) respectively.
It is now well established that the intention of section 1(3)(a) is to cover material changes such as changes in the character of the land or neighbourhood thereof which render the obligation unreasonable or inappropriate. It is accepted that there had been no change in the land itself. In the event, we have not been persuaded that there has been any relevant change in the neighbourhood since 1954. We consider that for the purposes of subsection (a), the three houses situated at the bend in North Larch Road, ie, numbers 15, 17 and 19, which form a distinct enclave, can properly be taken to be the "neighbourhood". There has been no relevant change in that area. However even if the "backland" development to the east behind the houses 9 to 13 North Larch Road, can properly be said to fall within the relevant neighbourhood, we do not think that this development is of any material significance in relation to the land obligation in favour of Westbank House. No other material changes were suggested. Whatever change might be identified, we are not satisfied that there has been any change which could properly be said to have made the obligation unreasonable or inappropriate.
We are satisfied that Westbank enjoys a high degree of visual amenity at present and that the proposed house would have a substantially detrimental effect on its amenity. We set out our reasons more fully below in relation to ground (c) but this finding is of importance in our consideration of both grounds (b) and (c).
Mr Francis stressed that, in this case, the factors bearing on consideration of these grounds were closely related. It is clear that at the heart of his submissions was the proposition that the burden did not give the objectors complete control over development of the burdened subjects. Use could be made of them which would destroy the present foreground and might have greater adverse impact on amenity than would be created by the proposed house. However, although the evidence covered a range of possible uses we are not satisfied that any change was likely which would have significant adverse effect on the amenity of Westbank. On the whole evidence we are satisfied that if the burden remained the open rural outlook would probably remain. Certainly no likelihood of change in the short to medium term was established.
It is not disputed that a scheme of planting of the nature suggested by the applicants to hide the house would, itself, be a permitted use. If a 5 metre hedge could be established it would hide the proposed house from the ground floor and a screen of about 6 metres would hide all but the chimneys from upstairs in Westbank. The same effect could, in theory, be achieved by some scheme of staggered planting which would look more natural than the hedge. If the proposed house was to be further south a substantial belt of woodland could be established. We think it obvious that there could be infilling at a lower height which would be helpful as a screen to attenuate any effects of noise and disturbance. Although such planting might effectively eliminate any concern over loss of privacy, noise and disturbance, the obvious effect would be loss of the foreground view; restriction of distant view; and loss of the benefits of an open outlook.
If we were to attempt to assess the impact of the proposed house on the amenity of Westbank on the basis of a hypothesis that the applicants had already established a thick high screen of evergreens at the top end of the paddock, it is clear that there would be no direct loss of visual amenity as that would have to be assumed to have occurred. (Indeed if a positive attempt was made to establish a proper screen other than by agreement between the parties, it is likely that both the foreground and distant views to the south from Westbank would ultimately be cut off by it.) Such a screen would also be likely to prevent the house having any significant impact on privacy or disturbance from noise. There might be thought to be no real sense in which the original purpose of the application would continue to be served by preventing the construction of a dwelling such as that proposed by the applicants. Although the benefit of a sense of seclusion and the sense of a substantially rural ambience might be adversely affected by the mere knowledge of the presence of a house on the south side of such screen, we consider that if such a natural screen was in existence, and if a tribunal could be satisfied that arrangements could be made to allow it to be treated as effectively permanent, the benefit from the obligation might be thought to e slight and different in character from that originally envisaged. On such hypothesis the burden might be thought to have become unduly burdensome compared with the benefit. Use for a house might well be held to be reasonable in all the circumstances.
However, we are satisfied that our function under section 1 requires a realistic appraisal of current circumstances and not one based purely on a theory of what might be done. It is clear that creation of a suitable screen would take time, expense and care. It was not suggested that there would be any deliberate attempt to create such a screen simply as part of the permitted agricultural use of the subjects if the present application failed. Plainly there would be no reason for such a screen unless a house was to be built behind it. Accordingly the practical effect of a complete prohibition on building is not only to prevent the building itself but also to eliminate any reason for dense planting immediately to the south of Westbank.
It is no doubt true that a proprietor of Saddler's Crook might make a judgement that if he could establish a substantial planting at the north end of his site, there would then be no reason for the proprietors of Westbank to be in any significant way affected by housing development to the south of such planting. Although the present proprietors might not be inclined to take the time to carry out planting and then make a further application to this Tribunal, another proprietor might well do so. Accordingly such planting might be said to fall within the range of foreseeable future uses of the ground.
However, we are not satisfied by the evidence in this case that a suitable screen is likely to be established if the burden is not removed. There was no evidence of any intention to create such a screen if the land obligation was not now varied. The applicants suggestion was simply to provide a screen for the house. They offered to meet the reasonable requirements of the respondents. The proposal was of the nature solely of something to hide the proposed house.
Further, and in any event, although we were satisfied that a screen could ultimately be created which would obscure a house built at or near the proposed site, we are not satisfied that this could be done in just a few years. Nor are we satisfied that such screen could be regarded as equivalent to a permanent fixture. The applicants did not lead expert evidence on this matter. The only specific evidence of tree growth came from Mr Wallace who said that cupressus planted out at a normal height of 3 feet could, once established, grow at 1 to 1 ½ feet per annum. Older trees might take longer to establish. We accepted his evidence of the difficulties of establishing and maintaining an adequate screen. He considered that a cupressus hedge would be very prone to wind damage in the proposed location. Although we heard some evidence of the possibility of using mature trees, we were not satisfied on the whole evidence that this was a solution which would work in practice with evergreen trees. Mr Wallace was extremely doubtful about such a process. He was not an expert in this field but he had general experience of hedges. We did not have evidence from anyone with direct experience or expertise. Indeed the evidence given on behalf of the applicants by Mr Coutts gave some indirect support to Mr Wallace. Mr Coutts had been advised of some problems in relation to the establishment of a solid fast growing evergreen hedge. This led him to suggest that a mixture of rowan, maple and birch would be better although he considered that this was a matter for discussion with the respondents. Plainly a stand of trees of mixed type would, in itself, be likely to be more attractive but would not provide a screen to obscure the house for a substantial part of the year.
We conclude that, if the burden remains, the amenity of Westbank is protected by prevention of building of an intrusive house. The high level of amenity presently enjoyed is at risk from the possible creation of a substantial belt of trees immediately to the south of the garden but there is no evidence which would allow us to hold that this would probably happen. Even if it did, the change would be gradual and rustic in nature. If the burden was removed in anticipation of the establishment of a suitable screen, the respondents would be exposed to the impact of the house construction and the obtrusive effect of the house for a significant period of years before effective screening was established. That screen might not prove to be totally effective. There would be likely to be constant awareness of the presence of a house even if the bulk of it came to be concealed. The semi-rural nature of its location would be substantially compromised by its becoming more urban in character.
An application under section 1(3)(b) requires the Tribunal to be satisfied that in all the circumstances: "(b) the obligation is unduly burdensome compared with any benefit resulting or which would result from its performance".
As was observed by the Tribunal in Lothian Regional Council v George Wimpey & Co (1995 SLT (Lands Tr) 2) at page 3, "for a case to succeed under section 1(3)(b) the relevant land obligation must, in practice, have become a relatively pointless one giving no benefit", In the present case, it is clear that the benefit is not to be assessed by assuming that the present outlook is to be preserved in perpetuity. A range of permissible uses of the burdened subjects might be made, some of which could reduce the present level of amenity. Nevertheless, we have no hesitation in holding that the practical effect of the land obligation is to give a substantial benefit. The impact of possible agricultural uses of the paddock as a whole would be quite different from the impact of a dwellinghouse and would be likely to be consistent with a rural outlook. As discussed above, the impact of attempts to establish a positive screen at the north end would be gradual and also rustic in nature. We have no reason to anticipate any significant reduction for the foreseeable future, in the amenity afforded by the obligation.
The burden which it imposes is exactly the same as existed when it was imposed. We see no basis upon which it could have been argued that the burden as imposed was unduly burdensome. Although the voluntary actings of the burdened proprietor have led to a divided ownership so that the field or paddock has been viewed on its own, there is no evidence that this land has in any way been sterilised or rendered unusable. It remains of value for its original purpose. It is available for a range of agricultural purposes.
Since the degree of burdensomeness has not changed and the benefits remain significant, we find no grounds for varying the obligation in terms of section 1(3)(b). In reaching this view we have not required to have regard to the possibility of building on other parts of the paddock. We accept, however, that it is unlikely that planning permission would be available for building significantly further to the south down the paddock. The possibility of planning permission being available for construction of a dwelling of some description to the southeast was not, in our view, excluded on the evidence but this is not material to our decision.
We turn now to the submissions under section 1(3)(c) which requires the applicants to establish that "the existence of the obligation impedes some reasonable use of the land". In Murrayfield Ice Rink Ltd v SRU (1973 SLT 99) at page 106 the Lord Justice Clerk (Grant) said: "Reasonableness is something that depends on the whole surrounding circumstances. In considering whether a particular proposed use of certain land or buildings is 'reasonable' within the meaning of (c) it is, in my opinion, essential to look at the whole picture and not at 'reasonableness' in the 'abstract'." He went on to give an example of something which was reasonable in one context but stressed that in considering reasonableness it remained essential to take account of "the effect of the amenity of the land" held by the benefited proprietor. Accordingly although it may be convenient in some contexts to start by describing a particular use as "prima facie" reasonable and then assessing it against the burden, we consider that this is no more than a method of appraising the evidence. A use cannot relevantly be said to be reasonable until all the circumstances are assessed.
A wide variety of circumstances can rise in relation to applications under (c). Parliament has not attempted to lay down any principles governing the approach to "reasonableness". However, we consider it implicit in the scheme of section 1 that the proper approach is based on recognition of the right of parties to enforce their private agreements unless the Tribunal is satisfied that these ought to be changed. The Tribunal is not concerned with reasonableness from the viewpoint, for example, of planning control or, say, design of one proposed building as compared with what might have been proposed. In the example posed by the Lord Justice Clerk in Murrayfield Ice Rink Ltd (supra) the essential feature referred to by him was "the effect on the amenity". That was appropriate to the type of obligation there under consideration. However, other obligations may seek to preserve other interests including commercial interests. It seems clear to us that it is essential in assessing reasonableness, to have regard to the nature and purpose of the contractual right. As it was put in Miller Group Limited v Gardner's Executors (supra) at page 68, the issue is whether the use proposed is "a reasonable use of the ground in the context of this land obligation".
The nature of the obligation and its underlying purpose are fundamental factors. The existence of a grant of planning permission will be important, if not persuasive, evidence of reasonableness where the issues of amenity are of a type which can be regarded as primarily public in nature, such as preservation of the character of a neighbourhood or the prevention of traffic problems. Where, however, the issue relates to private amenity of one particular property, a grant of planning permission is simply another factor to be considered. We are free to form our own conclusion as to the impact on amenity although, of course, we note the reporters view. In deciding whether a use is "reasonable", the Tribunal must look at the nature and purpose of the obligation and assess the relative merits of the proposed development against the obligation freely undertaken by the original party.
Where the use proposed is precisely the use contemplated and restricted by the parties to the original agreement; where it is not suggested that the nature and purpose of the obligation were itself in any way unusual or unreasonable; where the use to which the ground can continue to be put is not demonstrably different from that contemplated by those parties; where there has been no significant change of circumstances; and where there is nothing unreasonable in seeking to enforce the obligation, the Tribunal will be slow to be persuaded that the use proposed is reasonable. Change in the sense of increased demand for a particular use would, of course, be a relevant factor. An established need for particular facilities would be an important element. However we did not find that any particular need was established by the evidence in this case. The applicants had apparently found a scarcity of land suitable for their purposes in Brechin. However we do not accept that the desire of a particular applicant, even if strong, genuine, and reasonable, can be treated as a weighty element in our assessment.
Although we accept that the applicants' architect had done his best to minimise the impact of having a house directly in front of Westbank, we were in no doubt that the proposed house would have a substantial impact on the visual amenity of Westbank. It would dominate the middle distance view from upstairs and would be quite obvious from downstairs. The distant view would be preserved but the quality of it would be changed by being viewed over the roof of the proposed dwellinghouse rather than in an entirely natural or rustic setting. Intrusion of a house into the foreground of an essentially rural outlook must be accepted as significantly detrimental to visual amenity and to the sense of privacy and seclusion which is a significant aspect of that amenity. The visual aspect in this case includes not only the existence of wide distant views but also an attractive foreground and an open outlook. This has the additional benefit of wooded characteristics which provide seasonal variety of view. The feeling of open countryside which arises from the absence of urban development to the south is plainly an important factor which can be characterised as an aspect of amenity going beyond the purely visual. It might be referred to as the sense of seclusion.
We did not conclude that the additional noise and disturbance arising from the presence of the proposed house would be of major importance but in any event we did not consider that to be an important element in the burden. The new house would face away from Westbank and the distances were such that objectionable levels of noise were unlikely. Further we recognise that the presence of the house and garden at number 17 creates a potential for a degree of noise, disturbance and loss of privacy. Use of the subjects as a paddock could, itself, give rise to a degree of disturbance of this nature. Use of the subjects for residential purposes would no doubt add to the noise and disturbance. However, there is room for a belt of trees and bushes which would, in our view, soon provide a barrier or sufficient density to reduce the elements of noise and disturbance to an insignificant level when taken with the fact that the house is to face away from Westbank and that the applicants are prepared to accept certain restrictions on the layout which would also minimise the extent of the exposure of Westbank to noise and disturbance.
We consider that in determining whether the proposed use is reasonable in the context of section 1(3)(c) there is nothing about the nature, quality, or characteristics of the house itself which would outweigh the effect on the amenity which the land obligation was designed to protect. Planning permission has, of course, been granted but this is a clear example of a case where the grant of planning permission is of limited importance. Without such grant there would, of course, be no question of building such a house. However the grant of planning permission requires a balancing of many factors in the public interest. The task for the tribunal is to balance factors in relation to private interests. In considering reasonableness we also accept the applicants desire for a luxury home in Brechin and that they have been unable to identify another site. However such personal considerations cannot be given any significant weight.
Planting to the extent necessary fully to screen the house would greatly reduce the foreground view and the sense of openness presently enjoyed by Westbank. Although this would not be prohibited by the land obligation, we are satisfied, for the reasons discussed above, that there would, in practice, be no real risk of similar obtrusion if there was no prospect of building a house. However, in assessing the reasonableness of the applicants' proposed use we must consider what would happen if the house was to be built. We have no doubt that a stand of trees would be established between the house and the north fence. However, we have concluded that inevitably there would be a lengthy period when the occupants of Westbank would be exposed to the unscreened or partially screened bulk of the new house. We are satisfied that this would have a significant adverse affect on their amenity.
Although the fact that the adverse impact of the house would be expected eventually to be superseded by the screening is an important factor, the weight to be given to this in our assessment depends on how long this process would take and whether the ultimate screening could properly be regarded as permanent in character. If we were satisfied that a screen of the type which could properly be treated as having the necessary characteristics of permanent woodland could be established in a matter of a year or two, this would, in the whole circumstances of the present case, have been a factor of major significance in assessing the reasonableness of the proposed use. However, we are not so satisfied. We are, at best for the applicants, left in doubt as to how long it would take to complete a screen. On the growth figures given by Mr Wallace, the substantial bulk of the roof of the proposed house would be expected to continue to dominate the foreground from the bedroom windows of Westbank for at least 12 years even if unaffected by wind damage. Quite apart from our doubts about the permanency of such screen we think that, in terms of a span of occupancy of a house such as Westbank, this is too long a period to be treated as supporting the reasonableness of the proposal.
Accordingly the applicants have not satisfied us that in the context of the amenity protected by the obligation, their proposed use of the burdened ground is a reasonable use.
For all these reasons, accordingly we are unable to vary the obligation. In the circumstances it is inappropriate to say anything about the evidence and submissions bearing on compensation. Parties were agreed that submissions on expenses and certification of witnesse3s would be made in light of our decision. All such matters are therefore reserved meantime.