This is an application made under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 ('the Act') for the discharge of certain land obligations burdening property owned by Mrs Maureen MacTaggart at 14 Rowantree Grove, Currie, Edinburgh. The relevant effect of the obligations is to prevent the erection of a conservatory at the front of the dwelling house at the subjects.
The application is opposed by Mr Edward and Mrs Audrey M Campbell the proprietors of 12 Rowantree Grove and Mr John R A Peacock 31 Rowantree Grove. The question of whether Mr and Mrs Campbell were affected persons or benefited proprietors was in dispute.
We heard the application on 7 December 2001 and also carried out a site inspection on that date. The applicant was represented by Mr D Wilson, solicitor, who led evidence from the applicant and her son Mr William J MacTaggart. The objectors were represented by Mr A J S Kennedy, solicitor, who led evidence from Mr Campbell.
The relevant obligations are to be found in a Deed of Conditions by Walker Homes (Scotland) Limited recorded in the Division of the General Register of Sasines for the County of Midlothian on 11 August 1969, and are in the following terms:-
“(SECOND) the said lots of ground shall be used solely for the purposes of the erection on each of the said lots of not more than one dwellinghouse with kitchen or kitchenette and bathroom with relative offices, and if desired, one garage only erected thereon which said garage must be erected on the site reserved by us for this purpose and the plans of which said relative offices and said garage with details of materials shall be submitted to us or our successors for approval as Superiors before erection; …
(THIRD) the said houses shall be used solely as private dwellinghouses and for no other purpose whatsoever and none of the said houses shall ever in any way be sub-divided or occupied by more than one family at a time and no additional buildings of any description shall be erected on said lots of ground without the written consent of us or our foresaids and no alterations or additions shall be made on or to the building erected or to be erected without our written consent as aforesaid and which buildings shall conform in all respects to any Local Authority Acts and Town and Country Planning (Scotland) Acts or otherwise and in particular, no building of any kind shall at any time be carried out or erected on the lots of ground in front of the building line; …
(FOURTH) the fences or walls or retaining walls between adjoining lots of ground (except in front of the front building line where no fences or walls of any nature (other than where screen fences adjoin a public footpath, open space or off-street parking area and are erected by us) shall be erected or permitted) shall be erected as to one half on each of the adjoining lots and shall thereafter be maintained by the adjoining feuars jointly in all time coming, and the feuars quoad their respective lots shall relieve us of all claims in respect of mutual walls or fences or retaining walls, and no boundary walls and/or fences shall be permitted in front of the front building line fronting the respective lots towards the street or streets bounding the same, and no alteration or addition shall be made to the said fences or walls or retaining walls without our written consent, … , nor shall the said walls or retaining walls be used in any way as a support or strengthening or base for the erection of offices or garages referred to in Clause (SECOND) aforesaid:”
Also relevant in this case is Clause 15 of the Deed which states:-
“(FIFTEENTH) IT IS HEREBY EXPRESSLY PROVIDED and DECLARED that there is hereby retained power to us and our foresaids to make whatever alterations or deviations we may consider proper upon any of the feuing plans of the said lots of ground or even to depart entirely therefrom and we expressly reserve to ourselves and our foresaids the right to dispose of any part of our said property for such purpose as we or they may think fit, or to alter or modify in whole or in part the foregoing conditions, and in the event of our or their so doing the feuars shall have no right or title to object thereto and shall have no claim in respect thereof:”
Walker Group (Scotland) Limited are benefited proprietors as superiors. They were notified of the application but did not enter the process.
Rowantree Grove is a cul-de-sac in an estate built in the late 1960s. The estate comprises the two streets of Rowantree Grove and Rowantree Avenue. The houses were built of similar designs using the same materials and colours. Most are single storey two bedroom detached houses. Although a small number of houses on each street share a common front building line the layout of the estate is informal with most houses being at varying distances form the heel of the pavement in each street. It was not disputed that the houses were all subject to the same Deed of Conditions although we heard no specific evidence of this.
The subjects are located on the north side of the head of the cul-de-sac where there is a parking and turning area for cars. Rowantree Grove is curved, and on the north side of the street the houses are generally set back from each other. The house at 12 Rowantree Grove is almost entirely in front of the house at 14 Rowantree Grove because the head of the cul-de-sac pushes number 14, and its neighbours 16 and 18, back to the north. Numbers 14 to 18 are in a straight row facing the parking area and have their building frontages in alignment. Another effect of this arrangement is that the eastern half of the front garden at 14 Rowantree Grove extends alongside number 12 to the street while the western half of the front garden is restricted in depth by the intrusion of the parking area. Effectively number 14 has an L-shaped front garden.
A feature of the amenity of the estate is that front gardens are open, fences or walls in front of the front building line being prohibited by Clause Fourth. This gives a sense of 'openness' along the streets, which helps to compensate for the closeness to each other of the houses. The houses have front doors to the side and these typically face the blank wall of the neighbouring house across a rear access way about 2.5 metres wide. Most houses have garages located in the rear gardens which take access through this gap between the houses.
Mrs MacTaggert and her late husband purchased the subjects in 1980. Alterations have been carried out to some of the houses in Rowantree Grove since then. Five houses in the two streets have been converted to two storey dwellings. These include 18 Rowantree Grove and numbers 27 and 35 Rowantree Grove which are located across the street from the subjects. Other dwellings have had extensions built. These include conservatories, such as that built by Mr and Mrs Campbell, which is at the rear of the house. None of the extensions is to the front of any house although some are clearly visible from the street.
Mrs MacTaggart wishes to build a conservatory on the front elevation of her house. The east elevation lies on the boundary line with number 12 and she proposes to place the conservatory on that boundary line and in the angle of her L-shaped front garden. Her husband had obtained planning permission for a conservatory in this location from the City of Edinburgh Council on 2 February 2000, a building warrant having been previously granted on 8 December 1999. Mr Campbell had made objection to the planning application.
The existing house at the subjects is single storey with facing brick and roughcast finished walls and a pitched roof. The conservatory is to be built in similar materials. It will have a solid brick wall on the eastern boundary to number 12. That wall will be carried forward in front of the proposed conservatory to provide an additional screening affect. The upper parts of the south and west facing walls will be glazed and it will have a low-pitched glazed roof. The ridge will be at about the same height as the eaves of the existing building. The wall will be about 0.4 metres lower. The proposed conservatory will connect with the existing lounge in the house by means of French doors to be formed in the front wall of the house. The overall area of the proposed conservatory is about 12 square metres.
Before obtaining planning permission for the proposed conservatory Mr MacTaggart had sought the permission of the Walker Group as superiors. By letter dated 25 October, and signed by their sales and marketing administrator, consent was given subject to the exterior brickwork being to the same specification as on the existing house and 'all necessary statutory approvals and permissions from owners of adjoining property' being obtained. Although nothing turns on this it was accepted that this might be ambiguous. It was suggested that it meant that the consent was conditional on permission being obtained from such owners. However, it was accepted that the reference might simply have been to such permissions as were 'necessary'. In any event, the solicitors acting for Walker Group wrote to the solicitors acting for Mr MacTaggart on 27 March 2000 stating that the consent had been given in error. The consent was withdrawn because it was the policy of the Walker Group not to allow buildings to be erected in front of the building line.
The application to the Tribunal is made under all three parts of section 1(3) of the Act. Written objections were made by Mr J R A Peacock of 31 Rowantree Grove. His is a semi-detached house immediately opposite number 12. He contended that a breach of the building line would lead to various extensions in Rowantree Grove, which in his opinion would be detrimental to the appearance of the whole area. He expresses concern that 'the agreed building line' is to be broken. Mr Peacock did not appear at the hearing but wished his objection to be considered.
In their written pleadings Mr and Mrs Campbell objected on the bases that the amenity of the estate would be adversely affected if buildings were erected between the front line of individual houses and the road and that, if the present application were granted, a precedent would be set leading to a proliferation of additional buildings. It was asserted that each proprietor expected the estate to remain unchanged from the original layout to retain the amenity provided. In evidence, however, it appeared that their main reason for opposition was that the proposed new wall would be an unattractive barrier to their view to the west. They had bought their house, it was said, in reliance on the openness of its situation compared with other houses on the estate.
From the evidence, and from the site inspection, it was established that the front garden of the subjects was lined to the west and south with mature evergreen trees, pruned at a height of some 3 metres. The trees present a solid barrier screening the front windows entirely from view from these directions. More recently a line of similar evergreen trees had been planted on the eastern boundary of the garden from the front of the house to the pavement with the effect that in a few years time the front of the house at the subjects will be totally screened from that direction. Some of these trees would require to be removed from that boundary in order for the wall of the conservatory to be built. The screening effect would be similar.
The existence of the hedges of trees on the boundaries to the front of the subjects, where walls and fences cannot, and have not, been built is a direct visual intrusion into the 'openness' of the street as already described. The full impact of this on the street is modified because the front garden of the subjects is to some extent hidden by the situation of the house at number 12.
Mrs MacTaggart gave evidence that it would not be practical for her to build a conservatory at the rear, as others had done, because her living room and kitchen were at the front and her bedrooms were at the rear. The conservatory would be in the shade. She was concerned that if she built a conservatory in the back garden then there would not be much garden left, while, on the other hand she positively wanted to reduce the size of her front garden. She considered that the solid wall of the conservatory would afford a greater degree of privacy to both herself and Mr and Mrs Campbell. She would retain all the trees round the boundary of her front garden.
As we have said it became clear in course of the hearing that while Mr and Mr Campbell were concerned about the impact on the amenity of Rowantree Grove, and the estate as a whole, they were more acutely concerned with the impact on their enjoyment of their own property. Mr Campbell expressed concern that the presence of the wall of the conservatory would cause a tunnel effect where currently he had an open outlook to the west. The outlook was important to him and to his wife They enjoyed light and a view out through their front door. He said that they had paid £5,000 more than they would have paid for an identical house at 34 Rowantree Avenue because number 12, uniquely, had this open outlook to the side. Now they would look out on to a blank wall. He agreed that the view, and light, would be obscured as effectively, in time, by the newly planted trees, and that the conservatory, if built, would be screened from the street by the trees.
Mr and Mrs Campbell were concerned that if this proposed development were permitted then it could act as a precedent for other development to the front of houses in the estate with consequential damaging effect on the amenity of the estate for all residents. Mr Campbell said that he took the 'building line' to be the front line of each individual house.
It is convenient to note at this point that, although Mr Wilson disputed such a definition of 'building line' and, indeed, suggested that there might not be any relevant line in this case, it was clear that the basis of the application was that the practical effect of the obligations was to prohibit the proposed development. Although we would not be persuaded, without further submission, that the 'building line' intended by the obligation in this case was simply the front elevation of each individual house, it is unnecessary for us to reach a view on the matter.
The agents made full submissions on the merits which turned on the facts of the case. We have taken account of these in our assessment below. They were agreed that in the particular circumstances of this case, the question of the title of the respondents did not affect the merits and we have been able to accept that as a proper approach to the case. They submitted, however, that the issue of title was of importance in relation to expenses.
Mr Wilson said there was no dispute that the status of Mr and Mrs Campbell as either affected persons or benefited proprietors depended upon the interpretation of the Deed of Conditions. As there was no express grant the question was whether a jus quaesitum tertio had been created. Taking the conditions as a whole it was clear that the superior had reserved power to alter any conditions. This, he submitted, showed that there was no intention to create a jus quaesitum tertio.
The superior's reservation appeared in Clause 3 and also in Clause 15. In relation to the former, he submitted that there was no distinction to be made between the first part of the Clause, which prohibited building on the lots of ground without superior's consent, and the final part, following the words 'in particular', that no building should be carried out on the lots of ground in front of the building line. That provision was just an example, explicative of the general prohibition. The reference to the superior's consent applied to that example as well as to the prohibition as a whole. In any case, it was submitted that the significance of the term 'in particular' was academic because of the provisions in Clause 15 of the Deed. That Clause gave the superior an express power to modify all the conditions.
Mr Wilson referred to passages from Professor Halliday's Conveyancing Law & Practice (2nd Ed.) for the proposition that for a jus quaesitum tertio to exist there must be title and a praedial interest to enforce a condition sufficient to overcome the presumption that a proprietor has freedom to deal with his land. A right reserved to a superior indicated that there was no such intention: para 34-47. He also referred to observations of Professor Halliday in Opinions at page 520-524. However, he founded principally on Turner v Hamilton (1890) 17 R 494, for his submission that the general reservation was sufficient to exclude any implied jus quaesitum tertio.
Mr Kennedy contended that the Deed of Conditions had all the attributes of an implied jus quaesitum tertio. The question was whether it had characteristics which detracted from that. Clause 15 was a clause normally to be expected where new housing was being developed because it gave flexibility to the superior to keep his options open. It should be seen as a temporary power until the development was completely sold off. It did not detract from the intention to give the co-feuars long-term rights. The Deed of Conditions referred to many conditions which were clearly intended to be permanent. The conditions varied. There were things that co-feuars could not do without the consent of the superior, and other things that they could not do at all. Certain matters were plainly regarded as important and which would not be permitted even with consent. He described these as 'entrenched'. In his submission, the words 'in particular' identified something particularly important. It was such an entrenched condition.
Mr Kennedy stressed that the authorities for the proposition that the necessary mutuality was destroyed by the superior having retained the right to consent, were all old. They related to feu charters each having similar conditions. For that reason, statements in text books which relied on such authorities did not, in his submission, sit easily with the way in which houses are now conveyed. In the modern context of sales of houses on estates, purchasers relied on the Deed of Conditions as an assurance that neighbours were equally bound by the same burdens. The Deed of Conditions could be regarded as equivalent to the rules of a residents' club. If the applicant's submission was correct then the reassurance thought to be afforded by such a Deed of Conditions would be illusory. In the longer term the superior is typically absent, and may have no practical interest in enforcement. It was of great practical importance that the rules were capable of enforcement by co-feuars.
He contended that Turner v Hamilton could be distinguished on the basis that, in that case, the superior had in fact given consent. He accepted that in some circumstances that might change matters. He accepted that there were similar dicta in other cases but they did not take matters any further than the dicta in Turner v Hamilton: see, for example, Earl of Zetland v Hislop and Others; Walker and Dick v Park 1888 15 R 447; Thomson v Alley and Maclellan 1882 10 R 443.
In response, Mr Wilson stressed that the proper approach was to look at the deed as a whole. It was wrong to proceed on any assumption of an intention to create a jus quaesitum tertio and then look to see if there was a contra indication. Giving proper weight to clause 15 it was plain there was no intention to create any rights in favour of co-feuars.
On the matter of expenses Mr Wilson agreed that should the applicant be successful in her application no expenses should be awarded against Mr and Mrs Campbell if they were deemed to be benefited proprietors defending a right. However, on a proper view they were not benefited proprietors and should be found liable in the usual way if unsuccessful. Mr Kennedy's primary contention was that the respondents were benefited proprietors but he submitted that, in any event, in the circumstances of this case they should be treated as having acting properly and that there should be no expenses due to or by if the application was granted.
It was agreed in this case that in our assessment of the merits it did not matter whether the respondents fell to be regarded as 'benefited proprietors' or as affected persons. We return to that below. We think, however, that the concession can be taken as a clear indication of acceptance that the intention of the obligation was to benefit the residents of the estate, whether or not there was an intention to give all residents rights to enforce these benefits at their own hand. We have approached the merits on the basis adopted by parties. It may be noted that in most cases identification of the nature of the objectors' title will be an important part of identification of the purpose of the obligation. It is potentially of particular relevance in relation to ground (b).
In respect of paragraph (a) of subsection 1(3) it was not suggested that there was any change in the character of the land. For the applicant, it was submitted that the changes which had occurred in the surrounding estate, by houses being extended in various ways, meant that any intention to retain a uniform character had been overtaken by events. The small change proposed by the applicant would therefore be unreasonably restricted, the obligation had become unreasonable or inappropriate.
For the respondents it was accepted that there had been physical changes of the kind referred to, but none of these changes interfered with the absolute prohibition on building in front of the building line. In answer to questions from the tribunal Mr Kennedy expressed the view that the purpose of the obligation was to protect the amenity of the estate.
We do not accept that the changes that have occurred in the neighbourhood are sufficient to render relevant obligations unreasonable or inappropriate. While it is true that the appearance of the neighbourhood has altered by these departures from the original building designs, there has been no building in front of the front building line on any lot. The 'openness' of the estate has been preserved and the obligations continue to have a useful function.
Regarding paragraph (b) of the subsection, at the hearing it was accepted on behalf of the applicant that the preservation of the front building line at 14 Rowantree Grove was a benefit to any benefited proprietor of 12 Rowantree Grove. But it was submitted that it was unduly burdensome on the applicant not to be able to construct a conservatory, when other extensions had been added to houses nearby and within sight of number 12.
We are not satisfied of this. In particular, we note that although it was explained that the rear elevation would be less suitable for such an addition to the house because of the disposition of the rooms, we heard no evidence to support the proposition that the restriction was actually burdensome. Having a conservatory was something that the applicant desired but it was clearly not a necessity. There was no doubt that the property could continue to be used as a dwelling house. On the other hand the benefit to be obtained is clear. In considering ground (b) the Tribunal attempts to carry out a balance between the interests of burdened and benefited proprietors. In the present case we have had regard to the fact that the superiors are benefited proprietors who have not consented. We consider that the application under this ground has not been established.
In respect of ground (c) it was submitted on behalf of the applicant that the grant of planning permission could be taken to be persuasive in this case. The visual impact from the estate as a whole would be minimal because trees would screen the conservatory. The visual impact on number 12 would be minimal because there were no windows on the side elevation of that house other than the inside door and the frosted glass window to the toilet. The protection offered by the building line for the amenity of the street as a whole was at its weakest at the subjects. The rear extension at 5 Rowantree Avenue caused a greater degree of intrusion because it was built up to the heel of the pavement of Rowantree Grove. Because of the unique location of the subjects, with its relatively deep front garden, set back relative to number 12, there was sufficient space to build. The proposed development was smaller, and much less intrusive, than the alterations to other properties in the area. It would be impractical to build a conservatory in the back garden because that was smaller and the conservatory would be in shade. It would require the house to be reorganised internally. For all these reasons a reasonable development was being impeded by the obligation.
For the respondents it was submitted that the proposed development was unreasonable. The conservatory could be constructed in the rear garden as other proprietors on this side of the street had done. There was enough ground there and the respondents had reorganised their house to build their conservatory in the rear garden. Considering the reasonableness of the use of the whole of the subjects development of the conservatory at the front of the house could not be considered reasonable when a conservatory could be built at the rear without infringing the terms of the Deed of Conditions. But in any event the proposed development was unreasonable because of the loss of amenity to the proprietors of number 12. It was also unreasonable because the amenity of outlook, light and sunshine obtained by restricting development of gardens in the estate would be adversely affected. The establishment of a precedent would make it difficult to regulate further development in the future which would also affect the amenity derived from the 'Garden City' layout in the estate.
Our main difficulty in this case has arisen from the stated reasons of parties for and against the development. It is clear from the productions and the site inspection that the rear garden at the subjects is as deep, and larger, than the front garden and not smaller, as given as a reason for not putting the conservatory there. There would be more space for the conservatory there than at the front. We are satisfied that the supposed desire of the applicant to diminish the size of her front garden is an irrelevant factor. The garden is relatively small as it is and presents no undue difficulty in terms of care. The desire for the conservatory to be situated in the sun is not easy to reconcile with the current arrangement of high hedge and, as we were told and saw at inspection the applicant's habit of keeping blinds drawn for privacy even in daylight hours. We were advised that the applicant intends to keep the hedge. In any case the orientation of the house is such that for much of the year sunlight will be available to a location at the front in the morning and at the rear in the afternoon and evening.
We also found the respondents' reasons for objection to be confusing. We are satisfied that the proposed conservatory, because of its particular position, would have little or no adverse impact on the estate as a whole. We require to assess each case on its own merits and are not persuaded that any weight should be given to the 'thin end of the wedge' argument when the layout of the estate creates a diversity of circumstances. On the other hand we had sympathy with the concern that the new wall would be a very obvious feature just across from the front door of number 12.
It was apparent that the parties were not on friendly terms. We did not explore the reasons for this but suspect these to lie deeper than the present dispute. The Campbells would not be the first neighbours to be frustrated by finding themselves impotent in the face of a dominating hedge. However, it is well established that the Tribunal is concerned with heritable rights and not with the rights and wrongs of disputes between neighbours. We are not normally concerned with motives which are entirely personal to parties.
We accept as relevant that to put a conservatory at the rear would require the reorganisation of the accommodation in the house. Mr and Mrs Campbell have effected such reorganisation, and by swapping bedrooms with their kitchen, they have arranged living accommodation at the rear that connects naturally with the conservatory built in the back garden. In context, that has been a major undertaking. It has been very successful in their case. But it would not suit everyone. They have lost one bedroom and gained a small dining area.
We accept it as sufficient evidence of the reasonableness of the proposed development from the view of the general public that it has obtained planning consent and building warrant. We also consider it entirely reasonable that a householder should wish to provide an extension to the living space by expanding from the lounge. We do not consider it reasonable to suggest that the house should be wholly rearranged in use and structural terms to accommodate a conservatory at the back.
We have to consider whether the adverse impact on the respondents or the other residents, including Mr Peacock, is of a character which detracts from that apparent reasonableness. We must consider that in the context of the land obligation in question. Identification of the purpose of the obligation is an important element in our assessment of the weight to be given to any adverse impact.
The restriction on development in front of the building line clearly envisages the protection of amenity by keeping open the front gardens of all of the houses in the street and the estate. That intention is reinforced by the restriction on the erection of walls and fences in front of the front building line on each lot. That policy has not been breached on the estate. We consider that Mr Kennedy had little option but accept that this open effect was the real purpose. He described it in terms of the 'garden estate'. Although he attempted to suggest that it was also concerned with maintenance of light and view we doubt whether that was in fact in mind.
The proposed development, by its scale and location, will not, in our opinion, cause any measurable harm to the general amenity. The openness of the street will not be prejudiced. It will be unseen in the general streetscape and will only be apparent to immediate neighbours. This is because it will be physically tucked in to the corner of the head of the cul-de-sac, as already described. It will also be hidden by the hedges of conifers. The existing hedge, in terms of scale and solidity, is more offensive to openness than the proposed development.
As far as the direct impact on the outlook from the door of number 12 is concerned, we are not persuaded that this was an intended purpose of the obligation. Most houses on the estate have doors which look out to the plain wall of the neighbouring house. In so far as the purpose might have been to maintain an open garden view from the windows, it can be said that the conservatory in question is not to be in sight from any window of the respondents' house, except the frosted glass one of the bathroom.
We have considered the evidence bearing on the impact of the new wall on the respondents in their use of the front door. We are satisfied that it will be of little significance to their day to day use of the door as an entrance to their house. It will enhance the privacy of their house and although this may not have been an attractive feature to them on acquiring the house, it may attract other potential occupiers. We heard of their habit of leaving the front door open in the summer to maximise light in the house. A harled wall is likely to reflect as much light as a conifer hedge. Mr Campbell said they would prefer a hedge as being 'more natural'. It is perhaps fortunate that they take that view of the conifers. Although we have attempted to assess the adverse impact of the development on the basis that the trees will not necessarily provide a permanent screen, we consider that, when assessing the comparative effects on the neighbours, the fact that the hedge is there and that they have no easy means of controlling it are relevant factors. The wall will at least provide certainty in that respect.
Having regard to all the circumstances we are satisfied that that the application succeeds under reference to paragraph (c) of section 1(3) of the Act and we shall vary the obligation to the extent of permitting the proposed development.
As we have said parties were agreed that in the particular circumstances of this case assessment of the merits of the application did not turn on whether the respondents were to be regarded as benefited proprietors or affected persons. This was an implicit recognition that, whether or not a formal title had effectively been given to co-feuars to enforce the obligations, the obligations were intended for their benefit. However, the formal status was recognised by parties as having a potential bearing on the question of expenses.
There is no doubt that a distinction does fall to be drawn between benefited and affected persons in relation to expenses. In the normal course, an unsuccessful party taking a stand on his rights as a benefited proprietor, will not be found liable in expenses provided he has acted reasonably. An affected person does not have any legal rights in relation to the obligation and the rule of expenses following success must be given more weight in that case. It is, however, important to bear in mind that in both cases the ultimate result depends upon the exercise of a discretion by the Tribunal. Our decision is not declaratory of pre-existing rights. Accordingly the exercise of our discretion in relation to expenses does not require a sharp distinction to be drawn between benefited and affected parties at least where it can be seen that a land obligation was intended to benefit co-feuars and to protect them from the type of intrusion which might result from the proposed development.
In the present case the obligations were plainly in that category. Although we have not accepted that the intention was to give protection in respect of the precise matters which, as it turns out, were of most concern to the respondents, we are satisfied that all the submissions made were properly advanced. We are satisfied that in the circumstances of this case it is appropriate to find no expenses due to or by either party.
It was suggested on behalf of the respondents, at the close of the hearing, that if the application was to be granted, the property at number 12 would be prejudiced. It was said that Mr Campbell's evidence that he had paid £5,000 more for this property than he would have done for an identical property without the same outlook was indicative that the property would suffer a reduction in value if that outlook was lost. The tribunal could make some award in acknowledgement of this.
This claim was, of course, dependent on the respondents having the status of benefited proprietors but we are, in any event, satisfied that even if they had that status no award of compensation should be made in this case. No notice of any such claim had been indicated prior to submissions. The applicant did not therefore have any opportunity to lead evidence on the matter. Although we do not take a strict view of pleadings and in such 'domestic' cases expect to be able to deal with most issues which arise, we consider it inappropriate to attempt to assess compensation without notice.
It may be added that had we been able to accept the respondents as benefited proprietors and had we thought, in our experience of these matters, that there was a realistic prospect of the respondents establishing a claim of any significant value we might have been persuaded to make arrangements for further hearing. However, even at best, it is unlikely that any claim would have justified the expense of further procedure. The evidence that Mr Campbell paid more for this house than he would have been prepared to offer for another house on the estate would not be directly relevant to the question of the difference in value with or without a conservatory in the next door garden. The valuation would consider the risk of all potential uses of the house next door, including, for example, intrusive hedges or intrusive use of the garden.
As appears from the above, the pragmatic approach of the agents to the merits in this case has meant that it has been unnecessary for us to determine whether the respondents have title as benefited proprietors. However, in deference to the full and careful submissions which we have summarised in brief form above, it is appropriate that we should give an indication of our views.
Put shortly, we are of the opinion that although Mr Kennedy's main submission might well have been persuasive had we been looking at the matter of new, seeking to interpret the Deed of Conditions for ourselves, we consider that it does not give sufficient weight to the existence of the decision in Turner v Hamilton and its apparent acceptance in subsequent decisions and academic writing. We consider that the wide terms of Clause 15 must be regarded as clearly indicative of the intention not to create rights in co-feuars.
Although Mr Kennedy submitted that the relevant part of Clause 3 fell to be regarded as a separate prohibition introduced by the words 'in particular' to emphasise the importance attached to it, we are satisfied that the normal meaning of these words is to introduce specific examples of a class previously specified. The prohibition on building in front of the 'building line' refers back to the prohibition on additional building without written consent. But we do not think that this would have been fatal had it been possible to support his main submission.
There is no doubt about the practical importance of the matter from the viewpoint of the co-feuars. The obligations were plainly imposed for the benefit of the residents on the estate. The practical interest of the superiors to enforce seems minimal. They may be prepared to allow co-feuars to litigate in their name on suitable undertakings as to expenses, (e.g. Hislop v Macritchie's Trs at p100) but the co-feuars cannot compel this. There is no essential reason why a superior should not retain a power to give written consent to variation of conditions while giving co-feuars the right to enforce the conditions as they stand. (We observe, for completeness, that enforcement of conditions after they have been varied by written consent may possibly raise different issues.) In the interests of the estate as a whole it would be entirely sensible for the superior to reserve the right to be sole judge of whether and to what extent any change should be allowed, but for residents to have the right of enforcement.
It would seem clear that this can be done expressly: Laurence v Scott 1965 SC 403. We see no reason in theory why a fundamentally different approach needs to be taken in relation to the creation of rights by implication. A power to a superior to consent to change would not necessarily be inconsistent with an intention to create a limited right in third parties. The question must be one of construction.
In Laurence v Scott the right of the third party to enforce was given expressly. A relevant obligation was that the ground unbuilt on should be used "exclusively for garden or pleasure ground … unless a deviation from this provision shall be specially authorised in writing" by the superiors. No such deviation had been authorised. The Lord President considered that the special authorisation from the superior would not prevent the third party from insisting on the primary obligation to maintain the ground for garden or pleasure only. Lord Guthrie seemed to be to the effect that both provisions could be read together. We respectfully agree with the views of Professor Halliday (Opinions, page 522, that the views of the latter are to be preferred. What is clear is that both sets of dicta were obiter, the Court was agreed that the express rights of the third parties were not removed simply by reservation of a power in the superior to consent. The doubtful question related to the effect of exercise of that power. We see no reason not to read the obligation according to its terms. Unless and until the superior authorised deviation in writing, the obligation could be enforced. Such a provision would meet the needs of the superiors to maintain control and flexibility over the development but would give co-feuars an effective power to enforce at a stage when the superiors interest had, in practical terms, disappeared.
It is unnecessary, for present purposes to analyse further the way in which matters are expressed by Professor Halliday. It may be noted that the 'second principle' as set out at page 522, is potentially misleading when the question is whether or not a jus quaesitum tertio has been created as opposed to the separate issue of whether a right has ceased to be enforceable. The 'principle' must be seen in context of an 'opinion' on a specific problem and, of course, in light of the learned author's discussion of the matter in the paragraph which followed.
We tend to the view that a reserved power to consent to variation of specific conditions would not necessarily be fatal to an implied intention that co-feuars could enforce conditions as they stood. As it seems to us, the difficulty arises from the much wider provisions of clause 15 and the context in which these provisions were adopted. Conveyancing can be regarded as the art of creating deliberate legal consequences by the use of appropriate language. Where particular words and phrases have an established connotation it may reasonably be supposed that parties intended that to apply. It is important in conveyancing questions not to depart from what has been established: per Lord Blackburn in Hislop v MacRitchie's Trustees at 99.
In Turner v Hamilton and Others it appeared that the burdens relied on had in fact been departed from with the tacit consent of the superior. It can be argued that the Court was concerned with that situation and not with the problem of enforceability where a superior had simply retained a right to consent. However the dicta went beyond this. At page 499 the Lord President, Lord Inglis, put the matter as follows: "It appears to me that in every case where there is a community and mutuality of obligation and of right between feuars, the superior must also be bound, and that arises from the existence of a feuing plan, and from a consideration of the whole circumstances under which feus are granted. Suppose a feu is granted to (a) and the superior inserts a condition in the title, that is a condition between (a) and the superior alone, and no one else, unless the superior is placed under an obligation to insert the condition in the other feus to be granted by him. If he is, then a right is thereby created in the person of each feuar as he takes his feu to found upon the jus quaesitum so acquired by him. But where it is left in the option of the superior to insist upon the restriction or not, there can be no ground of the kind hitherto recognised for holding that the feuars have mutual rights and obligations inter se arising out of their feu contracts. It appears to me clear to demonstration in this case that the feuars with whom we are dealing could not (our emphasis) have enforced this restriction as a matter of right against their neighbours". This dictum can be read as a statement of principle, independent of the fact that the superior had impliedly consented. The very fact that there was no obligation on the superior to insist upon the restriction was regarded as the fundamental factor.
Lord McLaren, at page 504, said that, '[to give the co-feuar a right to enforce] two conditions are necessary. In the first place, the restriction which is sought to be enforced must be of a strictly obligatory character; and in the second place, it must be one which the Court hold to have been inserted for the benefit of the community of feuars.' He accepted that the case before the Court fell into the latter category. The question related to the obligatory character. He considered situations where the superiors right to consent might be in some way fettered by reference to the wishes of the feuars. "But where the obligation is one that may be enforced or dispensed with according to the pleasure of the superior, I cannot hold that the clause gives rise to any right which the feuars as a body have a title to enforce. It is an obligation which may be terminated at any moment by the consent of the superior, because he is not debarred by any agreement with the other feuars from giving his consent to the desired variation of the conditions of feu".
Similar expressions of opinion can be found in certain other cases to which we were referred although it was agreed that none took the underlying theory any further. In Walker & Dick v Park at p485 the Lord Justice Clerk, Lord Moncrieff, said, 'The superior reserves to himself the right to discharge these restrictions whenever he chooses. . . . [The co-feuar] is not in the position of a coterminous feuar entitled to appeal to the restrictions because the clause in his own title enables the superior to discharge that obligation.' In Earl of Zetland v Hislop at p47, Lord Watson said, ' The inference is equally obvious that . . . .it was not intended to create any mutuality of interest or of right as between Simpson and his successors and the other feuars in the town. The qualification attached to the prohibition, making it removable, in the option of the superior, is inconsistent with the idea of any such mutual right."
In modern times the matter has been expressed in various ways. Gordon, Land Law, at paragraph 22-60, refers to facts and circumstances which can be relied on to establish that there was or was not an intention to give a title to sue. One of these was the familiar example, found in the present case, that common conditions had been imposed on the properties in question. However after this reference, the learned author goes on, at 22-61: "On the other hand, it was emphasised in Hislop v MacRitchie's Trustees that the existence of a common superior and a common plan or set of conditions is not in itself enough to establish a jus quaesitum. One must look for further indications.
(c) A further important indication of such a right is the existence of an obligation on the common author to insert similar conditions in future grants, or to adhere to a building plan or scheme. This clearly shows that the grantees have the community of interest required.
(d) Conversely, an indication that there was no intention to give a title to sue in respect of all or some conditions is given by the express reservation to the common author of power to waive compliance with these conditions.
(e) It is probably more difficult to establish title to sue in respect of positive obligations than in respect of obligations not to deviate from a common scheme.
(f) Where reference is made to a plan, it must be shown that there was an intention to adhere to the plan. There has been a great deal of litigation on the question whether plans exhibited to intending feuars or referred to in their titles were meant to be relied on by the feuars and to be binding on the superior or were merely an indication of the development which the superior had in mind but which he did not bind himself to carry out".
In the present case the deed of conditions provided that it had been executed "so that the … conditions … may (insofar as applicable) be imported by reference to these presents into all feu rights, conveyances or other writs to be hereafter granted by us as aforesaid". Although this passage was referred to as indicating an intention of parties that the conditions would be imported in all titles, no obligation to do so was placed on the superior. Further, the provisions of Clause 15 made it very clear that no such obligation could be implied. It is also plain from the terms of Clause 15 that the superior was in no sense binding himself to carry out any particular development.
Clause 15 is not expressly restricted to the short term, and on the face of it, is a provision such as described by Gordon at (d) above.
The various text books to which we were referred post date the transactions in issue but it was not suggested that there had been any change in academic opinion. We observe that in Burns Conveyancing Practice, fourth edition (1957) at p228, the matter is expressed in bald terms: 'There is no mutuality if the superior is entitled to discharge the conditions.'
Although Mr Kennedy stressed the 'modern' practice of conveying of whole estates under reference to a deed of conditions, we are not satisfied that this is in any relevant sense a departure from practice in the later years of the nineteenth century. Further enquiry might then have been required to be satisfied of the same state of affairs - that is, the intention to impose common conditions - but the need for such conditions is not new. Indeed, in the days before our present planning controls, the need was more acute. There can be no doubt that purchasers acquiring their property in knowledge of the terms of the deed of conditions would assume that their rights would be protected in the sense that the superiors would not consent to variation without good reason. Beyond that, however, we think that Mr Kennedy's scenario of purchasers confidently acquiring title in reliance on the conditions being mutually enforceable adds nothing to the argument. If any of such purchasers gave conscious thought to the question of whether they themselves could enforce the various conditions they would realise that no express right was conferred. If they considered the matter further they would have been bound to recognise that the express reservation of power to consent was of significance. Although it can be argued that on a proper understanding of clause 15 it is directed only at a temporary situation, it is expressed in wide terms. No purchaser could, confidently, have relied on the narrow construction as sufficient to avoid the established rule.
It may further be noted that a construction which limits the number of parties entitled to enforce is consistent with the presumption for freedom. This gives some support to our conclusion. As indicated above our views on title are not, in the event, essential to the decision in this particular case. We accept Mr Kennedy's contention that for co-feuars to be unable to enforce directly is in many ways unsatisfactory. Some comfort may be taken from the fact that the whole matter of title conditions is currently being reviewed by the Scottish Parliament.