This is an application by Mr Smart as executor of his late mother seeking discharge of various land obligations to permit the construction of four dwellinghouses in the west part of the garden ground of 6 Barnton Avenue West. The application is opposed by Mrs Shrivana McConnell proprietor of 4a Barnton Avenue West and by Philip John Myerscough and Anjali Dholakia, proprietors of 4b. The application is brought under heads (a), (b) and (c) of section 1(3) of the Conveyancing and Feudal Reform (Scotland) Act 1970.
It was agreed by parties that we should proceed on the basis that the effect of the relevant titles was that the respondents were benefited proprietors in relation to a servitude right preventing the erection of houses in what was described as the 30 metre strip alongside the west boundary of No. 6. In terms of the title the strip in fact extends to about 109 feet at the north west and reduces to about 98 feet at the south east, but nothing turned on the specific measurements and it is convenient to take a broad approach to compass direction. The respondents would also be affected by discharge of certain other obligations limiting use of No. 6 and were opposed to such discharge. We shall touch on these burdens and on the titles in relation to various aspects of the case but it is unnecessary to set them out in detail.
At the hearing the applicant was represented by Sir Crispin Agnew, QC, who led evidence from Mr Smart and from Mr Michael Scott Ramsay, FRICS, a partner with D M Hall & Son, Chartered Surveyors. Reference was also made to reports by Kevin A Murchie, ARICS, a partner with Messrs Graham & Sibbald and Lindsay S Duguid, FRICS, a partner in Messrs McNeill Maguire & McCreath, Chartered Surveyors. Both respondents were represented by Miss Catherine MacColl, Solicitor, Edinburgh. She led evidence from both Mr Myerscough and Mrs McConnell and from Mr John Dixon, BSc, MRICS, a partner in the firm of Dixon Heaney, Chartered Surveyors. We heard evidence on 7 and 8 February 2002. We carried out a site inspection in the company of parties and their solicitors on 8 February.
It appears that in the 1920s, the proprietors of land at Easter Barnton arranged for construction of Barnton Avenue West with the intention of feuing plots for construction of substantial houses on both sides of the road. In any event, by about 1966 when the late Mrs Smart and her husband built their house at No. 6 (together with a gardener's cottage to the immediate north of it, now No. 8) there were some six houses on the south of the road lying between the road and the Royal Burgess golf course. Five houses had been built on the north. The houses were set in extensive garden grounds. The grounds of No. 6 and the "Levitt feu" to the west of it were the largest, originally extending to 3.774 and 4.05 acres respectively. The respondents' subjects are part of the original Levitt feu.
When these two areas were initially feued, each was subject to various real burdens enforceable by, or only with the consent of, the superior. Broadly speaking these burdens reflected the intention of building substantial houses on the plots and enforcement of them was under the control of the superior. There were restrictions on building and alteration and a restriction on removal of trees. In the feu of No. 6 there was a right to subdivide and erect houses on plots of not less than one acre. The application seeks discharge of all the burdens relating to No. 6. The applicants found on the history of the superior's dealings with the burdens over on the Levitt feu as having a bearing on this and we shall return briefly to these dealings although, as will appear, we have not required to attach great significance to them. For the present, it is enough to say that the superior does not resist the present application and does not consent to any attempt to enforce the burdens. Plainly development for further housing was contemplated by the feu contract and, in substance, the issue before us turned on the impact of building within the 30 metre strip. For reasons covered by those to be discussed in relation to the servitude, we are satisfied that the other burdens should be discharged. One exception relates to the restriction on type of development to be permitted. In response to objections by Hanover (Scotland) Housing Association Limited the applicants agreed that discharge was only required to the extent necessary to allow construction of the dwellinghouses proposed. Our order reflects this agreement.
When the original feu of what is now No. 6 was granted in 1926, it included 1.23 acres to the east now occupied by the house and grounds of No. 10. In 1938 when arrangements were made for that part to be split off, a further plot of land was feued to be added to the original feu on the west side. That plot was conveyed subject to conditions similar to those in the original feu and subject to the servitude now in issue. The servitude was in favour of the proprietors of the lands to the west which were then about to be feued to Mr Levitt.
The house built for Mr and Mrs Smart in 1966 is situated in the north east corner of their grounds. The intention is to divide the grounds so that the house and garden will occupy about 1.630 acres. Nothing will be built between the house and the golf course. The westmost part will be used for the construction of four substantial dwellinghouses. The intention is that the land will be divided so that each sits in an area of at least a third of an acre. Outline planning permission has been granted for this development. The proposal is to arrange the four houses with two on each side of a cul-de-sac access road to be created from Barnton Avenue West. A detached triple garage is proposed for each house. Although the development could go ahead on a speculative basis it may be decided to give potential purchasers a chance to build houses of their own choice. The design of each house will, of course, be subject to planning control. The expected selling prices will be in the range of £750,000 to £1,000,000.
The north west house would probably lie on the same east-west axis as No 4. The gable would be about 8 metres from the boundary. It was agreed to be unlikely that planning consent would be given to a design which would give this, or the other house on the west side, a usable window to the west. However no other aspects of detail were discussed before us.
The area of the development at present includes an old tennis court but is for the most part woodland. The central area will have to be cleared to allow construction. It is a condition of planning consent that all other trees, including a line of trees down the west boundary and a stand of trees to the south, will be retained.
It is plain that any south facing windows of the north west house would permit occupiers to overlook part of the respondents' garden ground. The proposed house to the south would not overlook the respondents' properties. It might be reasonably screened by trees in summer but would be visible from their garden and from their windows in winter.
We are satisfied that the proposed layout is a sensible one, making appropriate use of available space at No. 6. It will preserve the style and amenity of the existing house and leave it with garden ground of appropriate scale. The four houses will also have garden ground appropriate to their size. By modern standards this will be a low density development.
Although we heard some evidence and submission bearing on the proposition that the houses could be kept away from No. 4 and out of the 30 metre strip by building one or more in front of the house at No. 6, we are satisfied that this would not make best use of available land for residential purposes.
The real questions, of course, relate to the impact of the proposed development on the respondents' subjects at No. 4. For proper assessment of this it is necessary to look in some detail at the history of the development of the land feued to Mr Levitt in 1938 on which these subjects now stand.
The Feu Contract creating the servitude in 1938 narrated the intention to feu the adjoining land to Henry Joseph Levitt and a Feu Contract later in that year shows the feuing of 4.05 acres to Mr Levitt. It included a narrative reference to the servitude. The lands feued comprised the whole ground lying between Barnton Avenue West and the golf course and extending from the present Whitehouse Road to the west boundary of No. 6. The burdens included an obligation to erect one single dwellinghouse with liberty to erect a garage, dwellinghouses for a gardener and chauffeur and related offices. All buildings required to accord with plans approved by the superior. Other building was prohibited except with written consent of the superior. The contract contained elaborate provisions for boundary walls and for effective sanitation and drainage. It is apparent that Barnton Avenue West was a private road at the time and the title contained provision for the vassal to take appropriate responsibility for it. Further detailed provisions included express restrictions on use similar to those applicable to No. 6. For the sake of amenity, the vassal agreed, so far as possible, to preserve the trees. Unlike the No. 6 feu there was no express power to divide the subjects conveyed into smaller building plots.
The actual dates of construction were not established but it is clear that by 1966 the respondents' house - then known as Almond Lodge and now referred to herein as "No. 4" - stood in the north east corner of the site and a lodge was situated at about the north west corner. It may be assumed that these buildings were erected soon after 1938. In any event, it appears that they accorded with the restrictions imposed by the title.
We did not have a history of the timing of the various developments of the land from 1966 to date but it is plain that the subjects now bear no resemblance to the single house and grounds contemplated at the time of the feu. It is unnecessary for the purposes of this case to narrate the changes in title which allowed that to happen. It is sufficient to note that in a Disposition of the dominium directum of Almond Lodge, granted to a building company in 1976, the superior agreed that the "whole burdens and conditions" contained in the original Feu Contract would cease to be enforceable by her. She agreed not to give any consent to allow any other proprietor of Easter Barnton Estate to enforce conditions over any part of that estate. One effect of this was that the proprietors of No. 6 would be unable to resist development of any part of the Levitt feu. The disponees agreed - by their acceptance of the deed - that they would not enforce against any other proprietor any condition or restriction contained in any feu writ granted by the superior or her predecessors of any part of the estate of Easter Barnton. Parties were agreed that we should proceed on the basis that this agreement did not affect the servitude over the 30 metre strip. As far as the Levitt feu was concerned the effect was to allow development without the restriction of title conditions.
The original lodge building at the west end has now been developed by the addition of a block of flatted dwellings for sheltered housing. Between it and No. 4 a new roadway has been created serving eight two storey dwelling houses set in communal grassland and known as Riding Park. The roadway leaves the Avenue towards the east end of Riding Park. There is a grass area between it and the present boundary of the original house.
No. 4 has been divided to create 4a, the eastern half, and 4b to the west. In the south east corner of the original ground a two storey detached villa with integral motor garage has been constructed. It is known as 4c. A strip of land between 4a and the boundary with No. 6 is now used as an access drive to 4c. In effect, that has been created in what would otherwise have been the garden ground of 4b so that the original ground between the house and the golf course is divided with the westmost half being part of 4a and the eastmost section divided between 4b and 4c.
Because of the natural contours of the land, 4a and 4b are at a higher level than 4c. They are also in an elevated position relative to houses in Riding Park. The effect is that while the house No. 4 can be said to overlook 4c to the south east and several of the houses in Riding Park to the south west, these houses do not have a view into No. 4. They do overlook the garden grounds but part of the garden of 4a is well screened by cypress hedging. No. 4 has a view over 4c and the golf course to a tree lined horizon.
Outline planning permission exists for construction of a dwelling house in the garden ground of 4a. The site will be partially screened from that house by the cypress trees. If that development goes ahead the density of development of the houses at No. 4 will be of the order of 3 per acre.
The house at No. 10 still sits as a single house in its original garden. The subjects to the immediate east of it consisted, in 1966, of a house adjacent to the road in spacious garden ground. That ground has since been extensively developed. There are now four houses along the road and four others along the golf course side. Since 1966 some eleven houses have been built on plots on both sides of the road at the east end of the cul-de-sac. These are set in small gardens relative to the house sites. Vehicular access to Cargilfield School is taken at that end and an informal one way system is said to be observed as the school also has access on to Gamekeeper's Road. At the west end two culs-de-sac have been created on the north side with rows of terraced houses.
The respondents laid stress on the fact that in the centre part of the Avenue five houses still sit in their original grounds. These are Nos. 6 and 8 and the three lying opposite and to the east of them. It may be noted that opposite the house of No. 6 a further cul-de-sac leads off to the north. Some five houses have access from it. Although they are not readily visible from Barnton Avenue West, vehicles from this cul-de-sac require to pass No. 4 as do vehicles from all the various dwellings mentioned in this and the preceding paragraph and also vehicles from the plot immediately opposite the ground upon which the development is proposed. This plot had one house in 1966. There are now two houses each standing in grounds of about one acre.
We heard helpful submissions bearing on matters of fact and the inferences to be drawn from the evidence, and we have taken this material into account in our general assessment of the likely impact on amenity discussed below. For the applicants, Sir Crispin's submission on the merits started by consideration of the effect of the picture presented by the title deeds. It was clear that the purpose of the land obligations related to the situation that there were to be two large neighbouring feus with a large house in each. The obligations were to protect the amenity in that situation. There could have been no intention to protect small units within the single feu. In relation to ground (a) of section 1(3) Sir Crispin dealt with the evidence supporting the contention that there had been relevant changes in relation to the character of the burdened land, the neighbourhood, and other circumstances. The neighbourhood should be taken to be Barnton Avenue West as a whole. That was the Easter Barnton Estate referred to in the title. Relevant circumstances included the evidence from the titles and in particular the agreement with the building company that the various obligations should not be enforceable. It was unreasonable that the occupiers of part of No. 4 should contend that there should be no building to preserve their amenity when that plot had, itself, been extensively built on. It would be inappropriate to enforce the burden in the circumstances.
He dealt briefly with evidence bearing on ground (b). The burden prevented reasonable development of No. 6 when a large garden without development potential would not be wanted in modern conditions. There was, he submitted, little benefit to No. 4 from the servitude. Houses could still be built at No. 6 and the trees removed even if the servitude over the strip was enforced.
Under ground (c) he submitted that the development was a reasonable use of the land. The grant of planning permission was an important element. In considering "all the circumstances" it was relevant to have regard to the fact that the original burdens had been intended to be mutual. The title to No. 4 showed how they had been departed from so that No. 6 could not control development in No. 4.
In relation to compensation, Sir Crispin reminded us that this could only arise in respect of the respondents as benefited proprietors. As such, their rights related only to the 30 metre strip. They could not stop development of No. 6 for housing. The only possible effect of the servitude was that the buildings would be further away. Section 1(4 ) gave the Tribunal a discretion but on the evidence he submitted that there was no "substantial" loss. No. 4 had effectively destroyed its own amenity.
Sir Crispin's submissions included reference to the following authorities: Crombie v George Heriot's Trust; Re Greave's application; Anderson v Trotter; Re Bradley Clare Estates; Miller Group Limited v Gardener's Executors; and Scott v Fulton.
For the respondents, Miss MacColl presented a helpful, well-structured submission on the merits. It is unnecessary for us to repeat her detailed submission on evidence. She stressed that although the respondents were merely affected persons in relation to most of the obligations, the Tribunal still required to be satisfied before granting a discharge. The respondents had rights as benefited proprietors in relation to the servitude. She submitted that the applicants had not established any of the statutory grounds. We should find the "neighbourhood" to be limited to plots 4, 6 and 10 and the houses directly opposite, on the basis that Mr Smart had accepted that these were what his parents had regarded as their "neighbours". In any event, the central part of the Avenue was a distinct neighbourhood. The houses there still sat in substantial garden grounds. The purpose of the restriction on building in the 30 metre strip was to protect the amenity of the Levitt feu or at least the amenity of the residents of the house to be built on the feu. It was accordingly still relevant. The references to mutuality of the burdens were irrelevant in relation to the servitude. The fact that other burdens had not been enforced was also irrelevant: Stoddart v Glendinning.
In relation to (b) she set out the evidence of benefit to the respondents contrasted with the burden which she submitted bore simply on the applicant's desire to maximise the financial benefit. This was not a relevant consideration: Bolton v Aberdeen City Council; Smith v Taylor.
Miss MacColl's submissions on (c) may be summarised as follows. The respondents enjoyed a high level of amenity which was greatly contributed to by the servitude. Even if houses could be built on No. 6, the 30 metre strip kept them from impinging and would be likely, in practice, to mean preservation of the trees. As it would be possible for a development to take place without using the 30 metre strip it was not reasonable to use it. The grant of planning permission was of value but was limited when questions of private right arose: Miller Group v Gardener's Executors. The evidence of Mr Myerscough should be preferred to that of Mr Smart in relation to their conversation about acceptability of the development. Neither Mr Myerscough nor Mrs McConnell had ever said the development was acceptable. In the whole circumstances the use proposed was not a reasonable use of the land.
Compensation should be given if there was to be any variation. Miss MacColl accepted that the proper basis of assessment was the drop in market value of the respondents' subjects. She founded on the evidence of Mr Dixon. This gained some support from Mr Ramsay who had accepted that the option to secure an unbuilt strip might attract a premium. She submitted that we should place little weight on the written reports which had not been spoken to. If Mr Dixon's figures were not acceptable because they assumed no development, we should accept his evidence that development beyond the 30 metre line might effectively halve the assessment he made. On the other hand, Mr Smart had been uncertain as to whether any development would go ahead if they were limited to land beyond the 30 metres. In practice, therefore, the servitude gave protection against development and the full sums should be awarded.
Both respondents gave evidence bearing on amenity and what they expected to be the effect of development at No. 6. The expert witnesses also spoke to this and we return to their evidence in our discussion of compensation. The respondents' evidence did not initially attempt to distinguish between the impact of building within the 30 metre strip and a development in which the houses were kept to the east of that strip. Attempts to clarify their views on this matter were not altogether successful. However, as far as the direct effects of development are concerned, this is a case where we consider it necessary to rely to a large extent on our own findings and impressions, derived from inspection. At inspection we, of course, were able to have regard to the various matters addressed in evidence.
Mr Myerscough spoke in broad enthusiastic terms to the pleasure he and his wife had derived from their purchase of the house. This is understandable. Their renovations have produced a most attractive home. In particular he spoke to their enjoyment of wide views, of sunlight, and of birds and wild animals including deer. They enjoyed the mature trees in No. 6 and the general quietness and privacy of the area. They liked the feeling of looking into a wood. Although he accepted the probability that planning permission would not be given for adjacent houses on No. 6 to have windows facing west, he was concerned that the house proposed for the higher north west corner of the site would have a view over their garden ground. Some parts were partially screened by bushes but other parts would be in open view. The line of trees to be left on the boundary would be unlikely to be an effective screen. He accepted that this would depend upon the precise position of the house and the extent of any infill planting on the boundary line.
Mrs McConnell laid considerable emphasis on her enjoyment of birds, particularly owls, and wild animals. She had derived great pleasure from her garden and valued the quiet and privacy of its setting. She enjoyed the view of the woodland in No. 6. She was greatly concerned by the prospect of increase in traffic both from the aspect of noise and danger.
The extent to which these various concerns are likely to be justified must be a matter of impression. In relation to wildlife, for example, it is clear that trees will remain. The adjacent wooded golf course will remain. There are trees situated to the west within Riding Park. The thick hedging within the grounds of 4a can remain. It can be accepted that the existing woodland is a desirable habitat for birds and that the development will have a significant adverse impact on that particular habitat. However, that is not to say that birds will disappear from the neighbourhood. There was no suggestion that any particular species would be lost to the area.
We are satisfied that the 30 metre wooded strip is a dominant aspect of the view from several windows of 4b. It is also very obvious from the garden. We think that the line of trees along the boundary is the most important aspect of this but there is no doubt that the impression of a depth of woodland also contributes to the view to the east. We did not examine the view from inside Mrs McConnell's house. However we considered the matter from various points in her garden and by comparison with similar views from 4b. It is obvious that her view of the woodland is more distant. However it is clear that from the upper window she too will have an attractive view of the boundary trees with a depth of woodland behind.
Amenity, however, turns on more than the view in one particular direction. We accept Mr Ramsay's evidence in cross-examination, that important factors in valuation include privacy, an impression of green space, and a sense of seclusion. We are satisfied that the presence of No. 4c in the original garden ground of No.4 has a significant impact on these characteristics. Although that impact is less dominant on site than might be expected from plan, it is an important factor bearing on valuation. The present occupiers may have become used to it because it sits below the level of No. 4 and the existence of the woodland to the east and the wide views to the south tend to distract attention from it. Nevertheless any potential purchaser would be very well aware of it. It is plainly a significant factor in assessment of the effect on No. 4 of any additional intrusion. Once the initial privacy and seclusion of a property are breached, the essential characteristics are lost. Further intrusion may, in practice, be of little significance.
In relation to issues of seclusion and privacy, any objective assessment must also have regard to the fact that No 4 is already a divided house. Although the respondents may have got used to each other as neighbours and have made common cause in relation to this application, they cannot be regarded as one. A purchaser of 4b, prepared to accept two adjacent neighbours at 4a and 4c would be unlikely to be much concerned by the impact of houses through the trees to the east.
In relation to the view generally, the boundary line of trees will remain and the wide views will be in no way impaired. It is, of course, only a matter of impression but the dense wall of dark cypress trees across the middle of the garden ground of 4a can be regarded as obtrusive in giving a suburban cast to what might otherwise have been an open view over the golf course. It will, no doubt, prove a valuable screen if another house is built on the garden of 4a. Although Mrs McConnell referred to the pleasure she took in having a lovely house with a large garden, the visual effect of the hedge is to leave the house with only the northmost part of the garden. The rest, to the south behind the hedge, is laid in grass. Indeed from the terrace and lower rooms of 4a, the hedge as it already exists might well hide a single storey building.
Both houses are also affected by the obvious presence of the multiple dwellings within Riding Park to the west. This is, naturally, more apparent from 4a but it is, we think, difficult to accept that a purchaser would expect a feeling of rustic seclusion when these buildings are readily apparent to the west.
Both respondents expressed concern about noise. Barnton Avenue West was described as a quiet residential area. We accept the evidence of Mr Ramsay that there is no reason to expect that to change. It is of interest that Mrs McConnell's evidence was to the effect that she never noticed any noise from Riding Park. She told us that most residents walked to local shops. That may be so, but from the nature of the houses it is clear that most residents will have cars and are likely to use them for trips beyond these shops. We are satisfied that the reason that she has not noticed noise from such cars is that normal car use is not now regarded as intrusive. We have no doubt that residents of No. 4a will not be affected by any significant additional noise from any development of No. 6.
No. 4b will, of course, be more exposed to any risk of noise from that source. We doubt whether car noise will be detectable. We are satisfied that it will not be intrusive. In any event, we are satisfied that the proposed layout would be quieter in that respect than any alternative layout designed to avoid putting buildings within the servitude strip. If a development is to proceed with the buildings kept to the east, the obvious use of the 30 metre strip would be for roadways and garden ground. It was not disputed that comparatively little noise was to be expected from occupation of the houses as such. Noise would arise from outdoor activity. Although we heard no evidence of this, it is a matter of common experience that lawnmowers are a very significant source of domestic noise. Noise from children playing would not be reduced by restricting building to the eastern section.
In any assessment of noise in this location, the impact of aircraft noise cannot be ignored. We had heard that the main flight path to Edinburgh Airport was to the north of the subjects. However three noisy flights passed almost overhead in the course of our inspection. The evidence that residents no longer noticed such noise seemed to be confirmed when the first passed without anyone either commenting or looking up. When the second passed, Mr Myerscough noticed our attention to it and said words to the effect that residents simply stopped even noticing planes after a while. We found the intrusive effect to be grossly in excess of any car noise. We would expect it to be significantly louder than any potential noise from the proposed development - although the irritating effect of noise is, of course, a more subjective matter.
Both respondents expressed some concern about additional traffic on the road. Mrs McConnell, in particular, referred to speeding vehicles and we did notice that several drivers took advantage of the quiet nature of the cul-de-sac to drive at well over the speed limit. However, vehicles intending to turn into No. 6 would be unlikely to be at excessive speed passing No. 4. We are satisfied that the impact of additional traffic on Barnton Avenue West would be insignificant in relation to the occupiers of No. 4.
In relation to ground (a) we consider that there has been a significant change in the burdened land. Development of large houses set in gardens of 3 acres or more, which on the evidence we heard, was fashionable in 1938, would not be contemplated for a city development in modern times. It was noticeable that when Mr Dixon was asked to identify any examples of subjects in Edinburgh which would support his view that there would be a market for No. 6 with its existing ground to be used as a garden, he could only come up with an assertion that such houses existed in the Hermitage area which in his view "could be up to an acre". He did initially give an example of a house with a large garden being sold at Easter Barnton but accepted that this could have been under one acre. That said, we accept that it is likely that a buyer would be found for the subjects even if development appeared to be prohibited. It is unnecessary for us to speculate as to the level of price it would attract.
We are also satisfied that the benefited land has changed out of all recognition. Even if the purpose of the burden can be said to be the protection of the house rather than the house and grounds at No. 4, the nature of the enjoyment of that house has changed dramatically. The occupier can no longer regard himself as living in a secluded country house in extensive woodlands. The presence of the protected 30 metre strip would undoubtedly have been a significant feature of such seclusion. The reality is that each proprietor of the divided house has lost that seclusion and is one of a number of houses now standing on the former plot.
We do not consider it necessary in this case to make a definitive finding as to neighbourhood. We tend to the view that Mr Ramsay is correct in saying that it includes all of Barnton Avenue West. It is clear on the evidence that it was created as a "neighbourhood" and it is with changes in the original neighbourhood that we are primarily concerned. However, there may be some force in the argument that the development at the entrance to the Avenue can properly be treated as separate. In making an assessment of reasonableness for the purposes of ground (a) we can accept that the entrance to an estate may not properly be part of the neighbourhood of the estate itself. To the west of No. 4 the housing development on both north and south of the Avenue is much more dense than that further on. However Riding Park is part of the benefited subjects and it is not easy to hold that such subjects are not part of a relevant neighbourhood for the purposes of ground (a).
We do not accept that the centre part of the Avenue is a neighbourhood distinct from the east end. The only basis for this was the suggestion that there are five houses there, still in spacious grounds compared with more dense development to the east. However such a definition tends to beg the question. We attach no weight whatever to the concession by Mr Smart that his parents regarded the occupiers on either side and across the road as their "neighbours".
Put shortly, we are satisfied that there has been such a change of circumstances since the various burdens were imposed that they have become unreasonable and inappropriate within the meaning of ground (a). Being so satisfied, it is unnecessary for us to embark on an examination of the precise nature and effect of the disposition of the dominium directum of No. 4. We did not find it necessary to hear full submissions on that matter. We accept that, on one view of it, enforcement of any conditions including the servitude right would indeed be inappropriate.
The Tribunal has tended to limit ground (b) to situations where there is no real benefit to any benefited proprietor. It would, in any event, be rare for an application to succeed on that ground if it could not succeed under (c) which we deal with below. We can accept Mr Myerscough's evidence as indicative of some potential benefit and in the whole circumstances it is unnecessary for us to explore this ground further. We are not satisfied that it has been made out.
We are satisfied that the proposed development is a reasonable use of land within the meaning of ground (c). The grant of planning permission is evidence that the proposed use is reasonable from the viewpoint of the general public. There was nothing to contradict this. We are satisfied that the scheme represents a sensible use of available land at No. 6. We are not satisfied that there is sufficient weight in the interest protected by the obligation to make that use unreasonable. In assessing that weight, we have regard to the initial purpose of the obligation as being to preserve the character of No. 4 as intended in 1938. Although the prohibition on building within the 30 metre strip was obviously intended in a broad sense to preserve the amenity of what was built as Almond Lodge, we are not persuaded that the intention was to preserve a view as such. Rather it would preserve seclusion and privacy and an impression of surrounding woodland. The underlying assumption was that there would be a secluded house set in trees. We accept that the obligation can still achieve a contribution to amenity. But we do not think that the adverse impact is entitled to the weight it might have had had enforcement been able to implement the intention of the contracting parties.
Taking account of all the circumstances, including our assessment of the various possible adverse effects on Nos. 4a and 4b, discussed above, we are satisfied that the existence of the obligations referred to in the application impedes reasonable use of the land within the meaning of ground (c).
As we are satisfied that grounds (a) and (c) have been established, we consider it appropriate to discharge all the obligations affecting No. 6 except the restriction on the nature of use referred to above. We consider that it is appropriate in the whole circumstances of this case that the respondents rely on any protection they may have through the planning system. We do not think that the nature of their interest justifies giving them a dominant role in discussion about the design of the houses. We would, of course, hope that Mr Smart would give weight to reasonable representations and in particular be prepared to undertake to maximise infilling of intervening space by trees. However we do not consider it appropriate to make this a condition of our order.
Under section 1(4) we have power to award "a sum to compensate for any substantial loss or disadvantage suffered by the proprietor as such benefited proprietor in consequence of the variation or discharge". It was agreed that the appropriate measure of loss would be the drop in market value of the heritable subjects. This agreement can be taken to reflect parties recognition that we are not to attempt to compensate the existing proprietors for the personal effects of discharge as perceived by them.
For the applicants, Mr Ramsay spoke to his report which expressed the view that there would be no diminution of market value of 4a and 4b as a result of the proposed development. There was, on the face of the report, a failure to focus properly on the issue. It appeared that Mr Ramsay's opinion was based in part, at least, on the view that any purchaser would expect No. 6 to be developed at some time and would accordingly be relieved by the proposed development of four high quality houses. This is a misleading and irrelevant consideration where what is being assessed is the loss of the value of a right to prevent any development. However, Mr Ramsay in evidence expressed the view that having regard to existing development around 4a and 4b, development at No. 6 would not have any impact on their value. Asked by the Tribunal, he agreed that one way for us to look at the matter was to consider whether a purchaser of 4b would be likely to pay more if he could buy a guarantee of no development within the 30 metre strip. Mr Ramsay thought that a purchaser might pay a "nominal additional sum". He was not pressed to attempt to put a figure on this.
The applicants also referred to reports by Mr Murchie and Mr Duguid. Neither gave evidence. The former did not address the issue of valuation by reference to the existence of a land obligation. Although he expressed a conclusion that development of four substantial houses on No. 6 would not create any diminution of value of 4a and 4b, he did not explicitly set out any basis for this. However he followed his conclusion with the observation that, "the majority of potential purchasers would assume that there would be a likelihood of residential development in the future in any event". This is the same flaw as we have detected in Mr Ramsay's report. It is implicit in these observations that purchasers would always discount for the risk of development whether they knew of specific plans or not. This would tend to support the view that a right to prevent development would have a commercial value. However this report gives no guide to quantification and we consider it of no real assistance to either party.
Mr Duguid provided a more detailed report. He expressed the unqualified view that 4a was sufficiently far away from No. 6 for its value to be unaffected. He dealt in a little more detail with 4b. He noted that there would be a distance of 10.5 metres from the eastmost windows to the boundary. He thought there would be sufficient screen for little of the development to be seen except in winter months. He expressed the opinion that the value of 4b would not be affected. He went on to narrate his experience that people paid more for new houses. The development of new high value property tended to raise the level of value of properties in the immediate surrounding area.
Mr Duguid's report raises various questions and in his absence we cannot attach much weight to his conclusions. We are not satisfied that the remaining boundary trees will necessarily screen the new houses in the summer months. In particular we think it likely that houses will be visible from the garden of 4b. Although Mr Duguid has assessed matters by reference to the eastmost east facing windows of 4b, there is a view of the woodland from south facing windows which are closer to the boundary. We also consider that bare woodland would have an amenity value in winter. The concession that the development may be visible in the winter months means that this element would be lost. In short we do not think that the report can be relied on as supporting either party.
For the respondents the opinion of Mr Dixon was that current values of 4a and 4b could fairly be stated at £800,000 and £750,000 respectively. These figures assumed that there would be no development on No. 6. If the proposed development went ahead the values would drop to £760,000 and £600,000 respectively. However we did not find Mr Dixon persuasive in setting out the basis of his opinion and considered that it was not consistent with other parts of his evidence. We found various elements of confusion and inconsistency in that evidence. His opinion was, of course, contradicted by Mr Ramsay, as we have seen. Mr Dixon spoke to a broad general experience in valuation of residential property in Edinburgh and the Lothians. On a matter of pure opinion evidence we would prefer that of Mr Ramsay who has specialised in valuation of the top end of the Edinburgh domestic market over the last 25 years and whom we found to be a clear and helpful witness.
In his report, Mr Dixon expressed the view that "the diminution in values can be justified on the grounds of loss of visual amenity, the increase in the general level of noise in the neighbourhood, increase in the volume of traffic". However in the following paragraph he went on to say that, in his experience, people who purchase houses at this level of price, "usually place a high level on privacy and seclusion, after all this makes up a large proportion of the price". We accept that privacy and seclusion are important. For the reasons expressed above, we do not consider that the 30 metre strip is of critical importance in relation to the respondents' subjects. Their privacy and seclusion have already been breached.
The matter does not end there. Certain figures emerge from Mr Dixon's evidence which gave a direct comparative basis for assessment. He told us that he had valued 4b for Mr Myerscough at the time of his prospective purchase - early in - at a figure of £600,000. He had not known of the proposed development and he told us that his value assumed there would be no development. We initially had some doubt that we had properly understood this evidence. We found it surprising that a surveyor who was of the opinion that development of No. 6 could affect value of 4b by 20%, could have given a valuation for a prospective purchaser which assumed, without investigation, that there would be no development. However, Mr Dixon confirmed explicitly that the whole difference between his current valuation of £750,000 and the said figure of £600,000 was explained by reference to the improvements carried out internally by Mr Myerscough and the upward movement of the housing market. In short both figures proceed on the same basis as far as development is concerned.
In fairness to Mr Dixon it must be said that we are satisfied that Mr Myerscough was advised of the basis of the valuation. He was able to make his own investigation of the likelihood of development and able to reflect that in his offer His own evidence was that he negotiated with the seller to lower the price. As it was an executry sale and because of the planning permission for Mr Smart's development, the seller settled for £590,000. In fact, Mr Myerscough indicated that there may have been other factors helping to lower the price. He was not asked what advice he had had in relation to the full market value but we must proceed on the basis that the figure of £600,000 spoken to by Mr Dixon was the figure he had in mind. No other figure was suggested. The discount attributable to the two main factors of the anxiety of the seller to sell and the existence of the adjacent development can be seen to amount to less than 1.7% of the assessed full market value.
Mr Myerscough was not asked to allocate weight to each factor, but it would not be unfair to the overall tenor of his evidence to say that the discount relative to the development was of the order of 1%. In short, if the seller had been confident of a right to stop the development completely the evidence before us indicates no more than that the price might have been £6,000 higher. It is clear on the evidence of both Mr Ramsay and Mr Dixon as well as being a matter of common sense, that right to keep the building development 30 metres away would not have attracted as high a figure as a right to stop development completely. On a very broad basis, and even allowing for a lift in prices over the last year, this evidence would not support more than a few thousand pounds as being the element attributable to development within the 30 metre strip.
This, of course, is a figure derived only from Mr Myerscough's dealings. It is not definitive of the attitude of all prospective purchasers. It does give some firm guidance. We consider that the level disclosed by this analysis supports Mr Ramsay's concession that a purchaser who was offered a right to stop building within the 30 metre strip would pay a "nominal amount" for it. The figure also seems to be within the broad scope of the intention of an expression used by Mr Dixon of "paying a more full price". We return to this below.
There were other passages of evidence which cast doubt on the reliability of Mr Dixon's report in relation to No. 6. When asked to consider the hypothetical question of what the impact of 4c would have been on the value of 4b he referred to a figure of about 10%. He accepted that back land development usually had a greater impact than neighbour development but the development was ameliorated in this case by the difference in ground levels. While we accept that 4c is less intrusive than it would have been had the site been level, we are entirely satisfied, on the evidence of Mr Ramsay, and our own findings on inspection, that the impact of the building of 4c in the garden ground directly in front of 4b would have had a much greater impact in terms of loss of privacy, seclusion, noise and traffic than any possible impact from development of No. 6, in whole or in part. The drive of No. 4c runs immediately alongside the first respondents' house and garden. The gardens abut. From their garden 4c is in plain view. The garden is overlooked by windows of 4c. From their house it is possible to see into the windows of several rooms of 4c. Any development of No. 6 will be separated from 4b by the drive of 4c, the fence, a row of trees and a further strip of the order of 9 metres. Traffic from No. 6 will simply be part of ordinary Avenue traffic before it impinges on 4b. We recognise that valuation figures given in response to hypothetical questions in the witness box must be approached with caution. However if 10% is in any way appropriate for the impact of 4c, we consider that the figure for No. 6 must on any view be very significantly less.
We were also struck by the nature of Mr Dixon's evidence under cross-examination about the effect on 4a of the building contemplated by the outline planning permission for the south part of the garden. In evidence-in-chief he said that he had included £50,000 as part of his valuation of 4a, to reflect the fact that there was planning permission for such a development. We understood that this figure represented the net balance allowing for sale of the plot on the one hand and the loss in value of the remaining part of 4a on the other. Mr Dixon accepted that the value of the plot if sold for building purposes could be of the order of £200,000 - although he said that he would need to know what type of house was proposed to be able to assess value. Under cross-examination he said that the adverse impact on the value of 4a if a house was built in its garden might exceed the value of the plot. He was very reluctant to concede that it was likely that the value of the plot would exceed the drop in value. This reluctance was, no doubt, consistent with his express opinion that new development at No. 6 would have a serious impact on value. Faced explicitly with the proposition that his figure of £50,000 was a positive valuation of the net gain he conceded that "there was a prospect that she could gain". The reluctance to make a concession in cross-examination was difficult to reconcile with his initial evidence.
For present purposes, the most telling passages of Mr Dixon's evidence related to attempts to explore the difference in impact between development of No. 6 as currently proposed and development with the buildings being kept east of the 30 metre strip. That had not been addressed in his report. At one point, in response to Miss MacColl, he expressed the view that if, instead of the proposed development, the houses were sited to the east of that strip, that would produce about half the diminution in value he had quoted in the report. However, several questions later, in accepting that a potential buyer of No 4b would regard having the houses kept 30 metres away as a benefit, he observed that this "would tend to influence them to pay a more full price". When the Tribunal picked up that answer and asked if that was a fair way of putting it, Mr Dixon affirmed that he thought that was right.
We consider that this expression can be taken to reflect much the same broad view as Mr Ramsay's reference to paying a "nominal figure" to preserve the 30 metre strip. In other words it would have a benefit which would tend to influence the price. The price might be "more full". This idea of an element tending to encourage a buyer to be more generous in assessment of a full price rather than as a distinct valuable element in the package, is consistent with a subsequent comment from Mr Dixon. He said that having the buildings on the 30 metre line with gardens and drives to the west of it could be "just as much of a problem as the proposed development".
We agree with the view that such a development could be just as much of a problem as that proposed. If that is so, however, it is impossible to accept that prospective purchasers would be willing to make a significant payment to favour the former. In short, we are unable to rely on the figures put forward by Mr Dixon in his report and spoken to by him.
We accept that a right to prevent building on the 30 metre strip would have a value. That will be lost by our discharge of the obligation. But we are not persuaded on the evidence that any such value could be regarded as "substantial". As it was agreed that loss ought to be measured by reference to market price, we consider it appropriate to assess "substantial" by the same test. For the various reasons discussed above we are satisfied that any increase in price would not be substantial by comparison with the purchase price. Indeed the evidence suggests a level of no real practical significance.
For completeness it may be added that we have placed no weight on the fact that Mr Myerscough bought his house knowing of the intended development. That might possibly have had a bearing on the merits but we accept that it has no bearing on compensation. We accept that he was not aware that a servitude appeared in the title of No. 6. His own title would not necessarily go back to the 1938 feu contract which had narrated the benefit. We have to consider loss by comparison with values as they would have been at present had parties been fully aware of their rights. We have used the history of the transaction only as a comparative guide. We are entirely satisfied that no issue of double recovery arises. We also add that in the circumstances it is unnecessary to make any findings as to the detail of the conversation between Mr Myerscough and Mr Smart. What may have been said as to acceptability in ignorance of a right to object has no real bearing on the assessment we have had to make.
Authorities referred to:
Anderson v Trotter 1998 SC 925;
Bolton v Aberdeen City Council 1972 SLT (Lands Tr) 26;
Crombie v George Heriot's Trust 1972 SLT (Lands Tr) 40;
Miller Group Limited v Gardener's Executors 1992 SLT (Lands Tr) 62;
Re Bradley Clare Estates (1988) 55 P & CR 126 ;
Re Greave's application (1965) 17 P & CR 57;
Scott v Fulton 1982 SLT (Lands Tr) 18;
Smith v Taylor 1972 SLT (Lands Tr) 34