The applicants seek discharge of a land obligation affecting the subjects, presently used as a field, lying to the west of Manse Drive, Biggar. The obligation referred to in the application appeared in a Deed of Servitude of 1938. It prevented building on the subjects and was expressly in favour of the proprietors of a piece of ground now occupied as part of the garden of No. 4 Manse Drive. (All unqualified references to house numbers in this note are to houses in that drive).
The application was brought under the provisions of section 1(3) of the Conveyancing and Feudal Reform (Scotland) Act 1970. For reasons discussed briefly below, and considered at length in the decision of the Tribunal in George Wimpey East Scotland Ltd v Fleming and Others, we have concluded that it falls to be determined by reference to the provisions of the Title Conditions (Scotland) Act 2003.
Although no reference was made to it in the application, nor in the detailed consolidated statement of objections, it was contended on behalf of the proprietors of No. 10 that they were benefited proprietors of a separate land obligation which also prevented building on the subjects. There was apparent agreement between the parties that we should deal with that matter as part of the present application. This was a sensible approach, to be commended, although, as will appear, the lack of explicit pleading gave rise to some waste of time and effort.
At the hearing the applicants were represented by Ms Susan J Leslie, Solicitor, who led evidence from Mr Ord, himself; and also from Mr John Leighton, FRICS; Mrs Monica Ward, a planning officer; and Mr Joseph M Walker, a local builder with an interest in the subjects. Mr John W S Macfie, Solicitor, for all the respondents, led evidence from Mrs Tina Mashford, No. 4, Mrs Jeanette Manock, No. 10, Mrs Gwyneth Scott, No. 6, and Mr Norman Lauritsen, No. 8. He also led evidence from Mr Harry Lukas, MRICS.
Anderson v Trotter 1998 SC 925
Bolton v Aberdeen Corporation 1972 SLT (Lands Tr) 26
Donaldson's Trustees v Forbes (1839) 1D 449
George Wimpey East Scotland Ltd v Fleming & Others (unreported) LTS/LO/2004/19
Gorrie & Banks Ltd v Musselburgh Town Council 1974 SLT (Lands Tr) 5
Kemp v Magistrates of Largs 1939 SC (HL) 6
Main v Lord Doune & Others 1972 SLT (Lands Tr) 14
McArthur v Mahoney 1975 SLT (Lands Tr) 2
McLean v Kennaway (1903) 11 SLT 719
Mercer v MacLeod & others 1977 SLT (Lands Tr) 14
Murrayfield Ice Rink Ltd v Scottish Rugby Union 1973 SC 20
Ness v Shannon & Others 1978 SLT (Lands Tr) 13
Railtrack plc and ors. v Aberdeen Harbour Board (LTS/LO/2001/13)
Robinson v Hamilton & Others 1974 SLT (Lands Tr) 2
Stevens v Smith LTS/LO/1996/16 — unreported
Smart v Myerscough & Others LTS/LO/2001/32 & 33
Tailors of Aberdeen v Coutts 1840 1 Rob. App. 296
Union Bank of Scotland Ltd v Daily Record 1902 10 SLT 71
Gretton & Reid, Conveyacing (3rd edition)
Halliday, Conveyancing Law and Practice (2nd edition)
Abolition of Feudal Tenure etc (Scotland) Act 2000
Conveyancing and Feudal Reform (Scotland) Act 1970
Interpretation Act 1978
Title Conditions (Scotland) Act 2003
Lands Tribunal for Scotland Rules 2003 (SSI 2003 No. 452)
Nothing turns on the precise detail of any of this material but it is convenient to set out the following provisions:
Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 provide:—
"98. An application for the variation, discharge, renewal or preservation, of a tile condition shall, unless it falls to be granted as of right under section 97(1) of this Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that —
(a) …it is reasonable to grant the application;
…
"100. The factors mentioned in section 98 of this Act are —
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);
(b) the extent to which the condition —
(i) confers benefit on the benefited property; or
(ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(d) if the condition is an obligation to do something, how —
(i) practicable; or
(ii) costly,
it is to comply with the condition;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
(j) any other factor which the Lands Tribunal consider to be material."
Rule 31 of the Lands Tribunal Rules is in the following terms:
"Transitional provisions
31. Where before the date on which Part 9 of the Act of 2003 comes into operation, proceedings have been commenced under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 then
(a) where the hearing has not begun at that date, anything done for the purpose of determining any question, dispute or other matter shall be treated, so far as practicable, as if it had been done for the purpose of an application under these Rules and shall be dealt with by the Tribunal in accordance with the provisions of these Rules; and
(b) [not applicable]"
For present purposes Manse Road can adequately be described as running north at right angles to Broughton Road on the east side of Biggar and our descriptions proceed on that basis although, in fact, it runs somewhat to the west of north and lies at an angle of about 45 degrees to the main road. The subjects can be described as a field of rectangular shape lying on the west of the drive and, approximately, 18 x 65 metres in size. Although it is, at present, occupied as a field and has been cropped by sheep, at times in the past it has been left to become overgrown. When the applicants acquired it, it was a disused market garden and set out in rows of raspberry canes.
Houses have been built on the east of the drive. No. 2 was built facing Broughton Road and the proprietors took no part in the present case. The next house to the north is No. 4. The contours are such that this house sits at a higher level than the Drive. There is a substantial beech hedge along the front boundary and the field area is substantially hidden from the ground level of the house. From the upper floors the field will be plainly visible but the wider view from there would not be greatly affected by developments within the field.
The house at No. 4 has ground in front and behind sufficient in extent to provide an adequate — though not a generous — garden for such a house. However, the house also enjoys the benefit of the adjacent plot to the north. This is occupied as the main garden of No. 4. It is this plot, described in its titles as "39 poles", which has the benefit of the land obligation which is explicitly referred to in this application.
No. 6 lies farther to the north and is the last house running alongside the Drive. At the north end of the Drive there are, in effect, two gateways. One serves no. 8 which lies to the north of No. 6. This house is well screened by hedges and there is no significant view of the field from the house itself. Part of the field is visible through the gateway from much of the garden.
The other opening at the north end of the Drive allows access to No. 10 which is situated facing the short north side of the said rectangular subjects. The main garden of No. 10 lies to the west of the house and, indeed, to the west of the extended line of the subjects. It is screened from them by trees and shrubs. Along the whole west side of the subjects lies the property No. 19 Broughton Road. This property is in the shape of a long narrow rectangle. The semi-detached house at No. 19 presents a blank white gable towards the subjects. The extended line of the boundary between No. 4 and No. 6 would meet the gable near its north end.
All the relevant titles now appear in the Land Register and, with the exception of two writs relating to No. 4, the only deeds produced were the relevant land certificates. It appeared from references in these certificates that the properties were feued and developed in numerical order with the titles to the house and garden at No. 4 being dated 1910 and 1924 respectively. No. 6 and 8 were developed in 1925 and No. 10 in 1932.
The Feu Charter by Andrew Smail conveying what is now the garden of No. 4 provided that the disponee, Ms Katharine Stronach and her successors would have the privilege of using the ground as a garden and pleasure ground as long as it and the adjoining ground — accepted as being the house site at No. 4 — remained undivided. If the ground was sold separately, a villa with appropriate offices was to be built on it. In short, it was envisaged that the 39 poles of ground would remain as the garden of No. 4 or become a separate house site.
The Deed went on to narrate an obligation by the granter in the following terms:
"And I hereby bind myself and my foresaids not to allow the erection of a House on the feuing land lying to the West of the foresaid roadway, further south than directly opposite the land hereby feued".
It may be observed that a house built directly opposite the land conveyed would, in general terms, have fitted the staggered building line of Broughton Road.
It appears that in 1938 it was recognised that the terms in which the undertaking was expressed were indicative of a personal obligation only. In 1931 the Trustees of Andrew Smail had disponed the subjects to Robert Smail. In 1938, the Trustees of Robert Smail executed a Deed of Servitude which contained the following narrative:
"Further Considering that the said Feu Charter in favour of the said Katharine Glen Borron Stronach contains inter alia building restrictions on the said longitudinal piece of ground but that the same have not been constituted a servitude right and real burden in favour of the said Katharine Glen Borron Stronach affecting the said longitudinal piece of ground: And Now Seeing that it has been arranged that such restrictions should now be constituted a servitude right and real burden on the said longitudinal piece of ground by the granting of these presents by us as Trustees foresaid in favour of the said Katharine Glen Borron Stronach but without any price being paid to us therefor: Therefore we as Trustees foresaid bind ourselves and our successors that no buildings or erections of any kind whether permanent or temporary shall ever be built or put up on the said longitudinal piece of ground or any part thereof, which obligation and servitude right are hereby declared a real burden over and affecting the said longitudinal piece of ground in favour of the said Catharine Glen Borron Stronach and her heirs and successors whomsoever proprietors of the said piece of land containing Thirty nine poles hereinbefore described".
Although the use of the word "therefore" suggests that the narrative was intended to provide the full explanation for the formality which followed, the complete restriction on building patently went beyond that explanation. The substantive effect is that the garden ground at No. 4 has the benefit of an obligation preventing building on the subjects.
For completeness it may be noted that the property section of the Land Certificate of No. 4 makes express reference to the right specified in this Deed of Servitude and the Land Certificate relating to the subjects shows this right as a burden.
The Land Certificate for No. 10 discloses that the Feu Charter of 1932 contained extensive burdens controlling the use, style of building, nature of boundaries and drains etc. Within the list of such burdens the following appeared: "And in respect that with the feuing of the piece of ground hereby disponed the field of Stanehead is as fully feued as it is desirable that the same should be feued, I bind and oblige myself and my foresaids not to feu the unoccupied ground between the piece of ground hereby feued and Broughton Road, nor to allow the erection of buildings of any description thereon."
In proceedings before us there was no attempt to refer to the full text of that Feu Charter. The burdens provision as quoted in the Land Certificate shows that the narrative of reservations in the Feu Charter was introduced by the words "Reserving always to me and my successors". It accordingly appears that the reference made in the provision founded to the word "foresaids" was a reference to "successors". There was no evidence of the progress of titles to the subjects but it was established that the applicants had been proprietors of No. 10 at the time when they acquired the subjects. In other words they had been proprietors at the same time of the dominium utile of both No. 10 and the subjects.
We heard that various housing developments had been completed in the area since about 1985. These were all within about 250 metres of the subjects. We heard a good deal of evidence on the issue of whether particular witnesses would, or might, say that these developments were within the "neighbourhood" of the subjects. However, with the exception of some relatively low roofs at Dene Park none of the new housing is visible from any of the respondents' houses when looking at or in the direction of the field. We accept that they have changed the character of the situation of No. 4 to some extent. In 1936 the land to the east of the garden ground was largely unbuilt. It might, possibly, have retained something of a rural atmosphere. The impression now is of a location within a developed housing community although this is in no sense oppressive.
The applicants acquired the field with a view to building. They were aware of the title condition benefiting No. 4 but were also aware that if they could not negotiate a release they would be able to apply to this Tribunal.
In May 1990 outline planning permission had been obtained for erection of a single storey dwellinghouse on the subjects. This consent was renewed on four subsequent occasions. Although there was no statutory obligation to notify neighbours when seeking renewal, the applicants did serve neighbour notification when making their most recent application at the beginning of 2003. This attracted objections from the occupants of No. 2, from Mr and Mrs Mashford and from the occupier of No. 19 Broughton Road. These objections related largely to the proposed vehicular access, and the siting, design and external appearance of the house to be built, with some reference to the nuisance likely to be caused during construction. There is no record of objection on behalf of the proprietors of No. 6, 8 or 10.
The application satisfied the Policies of the Upper Clydesdale Local Plan, broadly favouring new housing within existing settlements and appropriate infill of gap sites. Outline consent was renewed on 11th June 2003 permitting development of a single storey dwellinghouse.
It may be added that we heard evidence of the personal circumstances of the applicant and of the possibility of sale of the subjects to a local builder, Mr Walker, who wished to build a home for his son. However, we are satisfied that nothing in the provisions of the 2003 Act requires or justifies any change in the approach to personal circumstances which was well established under the 1970 Act. These are irrelevant to the issues before us and it is unnecessary for us to make any findings on that matter.
It is unnecessary to set out the detail of parties' contentions on most of the issues which arose in this case. There was no dispute on any significant issue of fact. It was accepted that, in the exercise of our overall discretion, we would have to make our own assessment of the significance and weight of the various matters canvassed in evidence. The solicitors' submissions provided a helpful analysis of these matters.
Ms Leslie submitted that the case should proceed under the 2003 Act although she said that it would, in any event, succeed under the 1970 Act and she dealt briefly with the tests under section 1(3) of that Act. She relied on the decision in George Wimpey East Scotland Ltd v Fleming but stressed that there was no place for affected persons under the new provisions. Although seeking discharge of the obligation she confirmed that the applicant would be content with a variation in the same terms as the original feu charter of No. 4 and limited to the development of a single house.
Ms Leslie did cite various authorities in support of the proposition that no real burden had been constituted over the subjects in favour of No. 10. However, in the event, Mr Macfie did not attempt to suggest that there was such a real burden. He based his submission on the proposition that the restriction was a valid servitude. We do not know what communication had passed between parties prior to the hearing. We acknowledge their sensible co-operation. But the time spent dealing with the real burden issue might have been saved had there been explicit pleading on this matter.
In relation to the question of servitude, the applicants' first submission was that the language used did not adequately show an intention to create a servitude running with the land: Halliday 35.05. In any event, it was contended that any such servitude had been extinguished by the doctrine of confusion when Mr and Mrs Ord became proprietors of both No. 10 and the subjects. Ms Leslie acknowledged that this doctrine was not free from difficulty in its application to real burdens but submitted that the rule in relation to servitudes was clear: Halliday 35.27.
On the merits she dealt in detail with the evidence under reference to each of the factors referred to in section 100 and we have had regard to this material.
The preliminary contention for the respondents was that the application fell to be determined under the 1970 Act. Although it was recognised that the applicants had an option to raise a new application under the 2003 Act or to amend to come under that legislation, they had done neither. The matter was, therefore, one of statutory construction. In terms of section 16 of the Interpretation Act, the provisions of the older Act would apply "unless the contrary intention" appeared. In his submission there was no contrary intention. In particular Rule 31 was, he contended, directed solely at procedure and did not affect the substantive rights of parties.
In relation to identification of the relevant land obligations, he conceded that there was a doubt as to whether the proprietors of No. 10 were benefited proprietors but argued that, properly understood, the Feu Charter of 1932 as set out in the Land Certificate relating to No. 10, revealed the creation of a servitude non aedificandi by way of direct grant. The rules for creation of a servitude were more "lenient" than for real burdens. He cited Gretton and Reid 13.15; Halliday 35.12; McLean v Kennaway at page 720. He sought to distinguish the decisions in Kemp and McLean on their facts.
Mr Macfie pointed out that the failure of the Keeper to record this servitude as a burden in relation to the subjects or as a right in relation to No. 10 was understandable having regard to changes in the practice of examining a prescriptive progress of titles. He suggested that the omission could be rectified. To a question about overriding interests he suggested that this would be one way of analysing the matter.
Mr Macfie then dealt with the rights of affected persons under section 2(2) of the 1970 Act. The Tribunal should take account of the objectors views. He dealt with the proper approach under section 1(3) of the 1970 Act. He made submissions as to how the "neighbourhood" should be identified by the Tribunal for the purposes of that section in the circumstances of this case. Reference was made to Bolton v Aberdeen Corporation; Stevens v Smith; Mercer v MacLeod; Main v Lord Doune and Others.
In relation to possible changes which might be considered under section 1(3)(a) Mr Macfie dealt with the detail of the evidence under reference to Stevens v Smith and to Bolton. In relation to section 1(3)(b) he stressed that the Tribunal had said that for a case to succeed on this head the burden must have become a relatively pointless one giving no benefit: Stevens v Smith. It was plain that the personal circumstances of applicants were irrelevant: Bolton.
Mr Macfie accepted that under the 1970 Act objectors tended to face the greatest difficulty in relation to section 1(3)(c). But he stressed that the nature and purpose of the burden was important: Stevens v Smith. He made reference to Macarthur v Mahoney; Ness v Shannon and Others; Smart v Myerscough; Gorrie & Banks Ltd; Robertson v Hamilton & Others.
In case we accepted that the matter had to be dealt with under the 2003 Act Mr Macfie analysed the evidence under reference to the factors set out in section 100. He contended that it would not be reasonable to grant discharge.
In response to Ms Leslie's submission, he drew attention to the full text of Halliday at 35.04. It was important to recognise that there was a recorded deed in this case. In relation to the reference to Halliday 35.27, he submitted that the whole passage there made it clear that, in circumstances such as this, where Mr and Mrs Ord had bought No. 10 and the subjects at different times, confusione did not apply.
We are satisfied that this case should be disposed of under the provisions of the 2003 Act. Although we accept that Rule 31 of the 2003 Rules was intended to apply to procedure only, we agree with the views expressed by the Tribunal in the Wimpey case (at pages 19 and 20). We add only that the legislators can be taken to have had regard to the practicalities of the change. They can be taken to have recognised that an applicant would always have an option to rely on the new Act by making a fresh application. An applicant could bring about the same result by amendment. As a matter of procedural convenience the Tribunal would be likely to grant any application to amend because the alternative would be to force parties to go through much the same procedural steps again. The new Act was designed to make it simpler and easier for applicants to be free of inappropriate obligations — to put the matter in broad terms. When the Act is read in light of the practicalities of the situation, the indications of an intention contrary to the assumption set out in section 17 of the Interpretation Act are entitled to greater weight than they would have if the choice between old or new had any material consequences for either side.
Although we think it unlikely that there could be many situations where the change of Act would make a difference in substance, it is appropriate to make some general observations about the procedural implications of the change.
The approach of the Tribunal under the 1970 Act was complicated by the apparent need to make a finding that the circumstances fitted into one of the categories (a), (b) or (c) of Section 1(3) before taking the discretionary decision as to whether the obligation should be removed. This led to a raft of case law analysing particular situations and their place within the statutory structure. But the Tribunal evolved a method of dealing with category (c) which came close to the approach which now falls to be taken under section 100. Although that category might have appeared to require the Tribunal first to identify a reasonable use and then to consider whether such use justified the exercise of the broad discretion to vary or discharge, the Tribunal recognised that the "reasonableness" of a particular use could not be decided in abstract. This view was supported by the Inner House: Murrayfield Ice Rink Ltd v Scottish Rugby Union (at page 29). To decide whether a proposed use was reasonable the Tribunal had to have regard to all the circumstances. Once a decision was reached that a case fell within section 1(3)(c) there was little scope for exercise of any further discretion: see Railtrack v Aberdeen Harbour Board. So, in practice, the Tribunal decided whether it was reasonable to discharge an obligation having regard to any circumstances it considered material. Examples of factors considered material could be found in the decided cases but, as the Tribunal would take into account any factor which it thought relevant to particular circumstances, the guidance from previous decisions was not exhaustive.
The new Act adopts a similar approach. It requires the Tribunal to assess reasonableness. It assists litigants by identifying a list of factors which can be expected to be significant but makes it clear that the range of factors which might be relevant is not limited. Decisions on the reasonableness of removal of a benefited party's legal rights may still involve a difficult exercise of discretion but the approach can be expected now to be more straightforward. Decisions will be seen more clearly to turn on the analysis and weighing of fact rather than on comparison with previous cases. Even under the 1970 Act our experience had been that while a grasp of case law helped parties to understand the approach taken by the Tribunal to the inter-related provisions of section 1(3), the detail of previous decisions was seldom of assistance in the direct assessment of reasonableness.
One reason why reference to apparently similar previous cases tended to provide little real assistance is that it has been the experience of the Tribunal that a site inspection plays a significant part in many decisions. Even with the benefit of hearing oral evidence and studying maps, plans and photographs, the Tribunal has often been influenced by the impression derived on site. That element cannot readily be assessed from the text of reported decisions. Litigants seeking to make comparisons with previous cases usually do so without the benefit of plans and photographs. While broad guidance to our approach under the new Act will, we hope, be derived from our decisions as they emerge, we think it likely that attempts to rely on apparently close factual comparison will seldom be worthwhile.
One intention of the 2003 Act is to make the approach to be taken by the Tribunal more transparent on the face of the Act. However, some broad guidance may be derived from the previous case law. It may be noted, however, that in recent years, decisions of the Tribunal under the 1970 Act have seldom been reported, apparently on the view that as they would be superseded by the new Act, there was no point in doing so. Some of these decisions did clarify or modify the apparent effect of earlier cases. This has meant that even recent text-books may not accurately reflect the practice of the Tribunal under the former provisions. It may be helpful if we attempt to summarise some aspects of existing law which we think likely to remain relevant to our approach to sections 98 and 100, and to the present case.
It is clear that the Tribunal now has to exercise a discretion weighing a variety of issues of fact as the basis for a conclusion as to whether or not it is reasonable to grant the application: section 98(a). As was said in the Wimpey case: "Section 100 does not require consideration, under each head, of whether the application succeeds or fails under it. Rather … the task is to look at the evidence about the various factors and then weigh them up as a whole, judging, not, as it were, the result under each factor but rather the relative strength and weakness, in the overall issue of reasonableness in the circumstances of the case, of the various items of evidence in relation to the factors set out in the section, including of course the residual category".
Our experience under section 1(3)(c) is that some factors inevitably have more weight than others. Although each case will turn on its own particular combination of facts and circumstances, some very general points can be made.
We are satisfied that the purpose of the title condition, if it can be identified, will tend to carry weight. It will always be likely to be of greater significance than, say, the length of time which has elapsed since the obligation was first imposed. If the original purpose can still be achieved, the period of time which has elapsed may be of little significance. On the other hand, if the original purpose can no longer be achieved, the time may be a very minor consideration. Purpose is also of considerable importance in attempting to assess the significance of evidence of change of circumstances. Change will be of little weight unless it can be shown to be relevant to the obligation. Reference to purpose or intention will also play a part in weighing the impact of removal of the obligation.
Under the 1970 Act it was, of course, recognised that, prior to that Act, a land obligation gave a benefited proprietor an absolute right to enforce it for any purpose he wished including personal whims. It was not necessary to be able to spell out the purpose. Accordingly the absence of any identifiable purpose could not, in itself, be regarded as determinative. However, where a purpose could be identified it was often very helpful in an assessment of reasonableness. Where it could be seen that the intention of the original parties was to give the benefited proprietor an identifiable benefit or to protect him from an identifiable harm and where the effect of the use proposed would lead to loss of the very benefit or protection contemplated, this could be taken to add significantly to the weight to be given to that adverse effect. At the other end of the scale were land obligations where the original purpose could be shown to have had nothing whatever to do with protection from the type of use now proposed. In that situation, a use which was for the benefit of the burdened proprietor and consistent with the public interest was likely to be accepted as a "reasonable use". see Railtrack v Aberdeen Harbour Board (passim).
In the early cases under the 1970 Act, stress was often laid on the fact that planning consent had been given. In some cases much time was taken in exploration of the planning process. However, it was recognised that planning was primarily concerned with reasonableness in the public interest. Properly understood, reference in the older cases to a grant of planning consent as persuasive was frequently to be seen as equivalent to no more than that the use proposed would be accepted as reasonable from the viewpoint of the general public. In the Railtrack case our dicta were to the effect that a grant of planning permission could not be assumed to do more than establish that a proposed use was not contrary to public interest and that more would be required before planning permission could be given any significant weight in the assessment. In that case the issues were issues of a public nature relating to potential changes in rail and sea transport. The nature of public consents was, accordingly of potential positive significance. That will seldom be the case. We see no reason under the 2003 Act to assume an intention that we should give any different weight to grants of consent.
For completeness we confirm that under the 1970 Act it was well established that the Tribunal was concerned with matters of heritable rights and not with purely personal interests. Regard was focused on the attitudes of typical proprietors and the particular interests of individual applicants and respondents were regarded as irrelevant. Had there been any intention to change this approach, reference to personal circumstances would, we think, have been set out explicitly as a factor under section 100. Under the new provisions, as they stand, for example, we think it appropriate to continue to give no weight to purely personal matters. It is irrelevant that Mrs Mashford might wish to maintain the obligation to protect the interests of her friends at No 10.
As our concern is with the protection of private rights conferred by title conditions, it is essential first to identify the extent of the benefited interests. In this case, the claim of no 10 was asserted on the basis of a servitude having been created in the Feu Charter of 1932 as set out above. The applicants' primary contention was that any such servitude had been extinguished on the principle of confusion.
The submissions on the matter of extinction of servitudes ex confusione were expressed in simple terms and without detailed examination of the progress of titles. Our conclusion on this matter is based essentially on these submissions. Both sides relied on the passage in Halliday at 35.27 without specific reference to the authorities there cited. We have, however, thought it proper to consider these authorities. We are satisfied that the conclusion we reach is supported by them and by the passage from Halliday. It is in the following terms: "A servitude is extinguished confusione when both the dominant and servient tenements come into the ownership of the same person — sua res nemini servit. If the tenements subsequently come into the ownership of different persons, the former servitude does not revive but has to be reconstituted. There is an exception, however, where the estates are held on separate titles and a subsequent separation of the two tenements is to be anticipated independently of the will of the proprietor. If there are no separate titles, reconstitution of the servitude may occur on subsequent severance of ownership of the two tenements by implied grant."
It was clear from Mr Ord's undisputed evidence that the applicants had held both titles together. There was no question of the separation of the tenements being against their will. If their will had any bearing on the matter it may be said with some degree of certainty that they would not have intended any such servitude to continue. It may also be noted that they clearly had had it in their power to extinguish any servitude explicitly by waiver. Ms Leslie contended that it was sufficient the two tenements were in the ownership of the same person. Mr Macfie contended that this was an example of the estates being held on separate titles.
In Donaldson's Trustees v Forbes a proprietor of lands at Dunottar acquired, by purchase, lands at Barras including the Muir of Barras. From time immemorial, the proprietor of Dunottar had, through his tenant farmers, enjoyed a right of pasture over the Muir. When the estates of Dunottar and Barras were later sold to separate parties, a question arose as to whether the right of pasture had been extinguished during the period when both estates had been held by the one proprietor. It was held that as the proprietor had a full title to both subjects, she could have done what she wanted with them. The servitude had, accordingly, been extinguished confusione.
The Court considered and explained the exception which arose where a proprietor held two estates by "two distinct titles". This did not depend on the progress of titles but on the capacity in which the land was held. Thus, for example, an estate held on an entail would not necessarily merge with an estate held absolutely. We are satisfied that Professor Halliday must have intended the reference to "separate titles" to be, not a reference to the progress of titles relating to each subject, but a reference to the capacity in which each title was held by the proprietor.
Dicta in the Union Bank of Scotland Ltd v Daily Record are to the same effect and it may be noted that the facts in that case were broadly the same as the present in that the servitude in question was a negative servitude limiting the height of building. Both subjects were held under dispositions of the dominium utile. Lord Lowe said: "There is no doubt that the general rule is that servitudes are extinguished when the same person becomes owner both of the dominant and servient tenement and that the servitude does not revive upon the ownership of the tenements being again divided unless it is constituted de novo". He then cited Bell Principles, section 997 as an exception to the general rule: "Wherever a separation or disunion may be anticipated, the effect seems to be to produce rather a combination of the two rights, as if the proprietor had divided into two persons, with a suspension rather than an extinction of the servitude". Lord Lowe then continued: "That has been recognised as a sound statement of the law where the two tenements are held under different titles, the necessary or probable result of which will be a separation by the proportion, as when the one is held under an unlimited title and the other under an entail, or where both are held under entails with different destinations.
"I know of no case, however, in which, where the dominant and servient tenements have been acquired by the same person as absolute owner, a negative servitude has been held to be revived upon a subsequent separation of the properties without express constitution de novo".
There is no suggestion of anything in the circumstances of the present case which might bring it within any exception to the rule as set out by Lord Lowe.
Accordingly, we conclude that any servitude in favour of No. 10 was extinguished by the doctrine of confusion when the applicants were proprietors of both the dominant and servient lands. Mr and Mrs Manock do not fall to be treated as benefited proprietors for the purposes of the present application.
In the circumstances, we do not need to express a concluded view on the nice question of whether the provision in question was apt to create a servitude. This turns essentially on whether the particular provision in the Feu Charter fell to be interpreted as intended to create a personal right or as a right running with the land.
It seems plain that, until some point in the present litigation, it had not occurred to anyone over the last 70 years that it might have been intended to have this latter effect. It was not relied upon by Mr and Mrs Manock when they bought the house. It was not treated by the Keeper as a right enjoyed by No. 10. It does not appear in the title to the subjects themselves as a burden — although that, in itself, is not remarkable and would not prevent a negative servitude from having effect as an overriding interest.
It appears from the quotation from the Feu Charter as set out in the current Title Sheet of No. 10 that the provision was included in the original Charter of the supposed dominant tenement as part of a narrative of burdens imposed on that property. In its terms, it appears in conjunction with an undertaking by the granter not to feu. The granter went on to bind "himself and his foresaids" not to allow erection of a house. However, if the land was feued the granter himself would not be in any position to allow or prevent building. The first undertaking is accordingly the governing one. Of significance, may be the meaning of the word "foresaids". The portion of the Feu Charter quoted in the Title Certificate does make a reference to the granter and his "successors" and the "foresaids" appears to refer back to this. However the expression "successors" is not further defined in the material before us. It first appeared in the context of a reservation of minerals. It might be limited to successors as superiors of No. 10, or include successors in some other wider capacity. This and the fact that the provision in question was set out as part of the narrative of burdens on No. 10 itself, leaves open a possible ambiguity on this issue.
Ms Leslie also pointed out that the form of wording used in No. 10 was not dissimilar to the wording in the original Feu Charter of No. 4 which had been recognised, at the time, as creating no more than a personal obligation. It was not positively contended that the undertaking not to feu could be any more than a personal obligation. This matter could have been clarified in the 1938 Deed of Servitude had that been the intention of the granter at that time.
As a negative servitude could be created by grant without need for any formal or technical terminology, the question may be a narrow one. Although it may be right to say that the rules of construction applicable to such servitudes were, in a sense, "more lenient" than those applying to real burdens we are not persuaded that this is relevant in relation to the question of whether the intention was to create a servitude. We consider that something more is needed for this than that the obligation can be described as falling into a familiar category — in this case non aedificandi. We are not persuaded that the provision in question goes far enough to move from a personal undertaking to one with real effect.
Before looking briefly at the main material bearing on the factors set out in section 100, it is right now to stress that our concern in making this evaluation, is with the interests of the benefited proprietors. Under the 2003 Act there is no place for affected persons. Although this might appear to be a significant change, it must be recognised that affected persons had no "rights" under the 1970 Act. The Tribunal could consider their views. We might give considerable weight to them if this appeared to fall within the intention of the obligation. Frequently, however, they added little to the process.
The objections in this case must be assessed on the basis that, as owners of the subjects, the applicants have the right to do what they want with them as far as the owners or occupiers of Nos. 6, 8 and 10 are concerned. These owners have no right to any say in the matter. As members of the public they, of course, had, and have, the right to try to preserve the perceived amenity of their property by objecting to unsuitable development. Any such objections would be taken into account by the Planning Authority as part of their assessment of matters in the public interest. But, we were not obliged to give any weight to such objections under the 1970 Act. We find nothing in the circumstances of this case to suggest that the interests of these parties would have called for special protection under that Act. We are satisfied that we are not entitled to give any weight to them under the 2003 Act.
The absence of any rights in such other owners would become immediately apparent if the owners of No. 4 decided — for whatever reason — to consent to development of the subjects. This could be illustrated, often with a somewhat brutal suddenness, under the 1970 Act. Neighbours would make common cause to object to an application. Feelings would be roused and harnessed to the cause. If, perhaps at the very last minute, the benefited proprietor reached agreement and granted a waiver, the complete absence of any rights in the other objectors would then be sharply exposed.
We venture the hope that the new Act, by making this more transparent, will help avoid the false hopes and misplaced sense of grievance which were frequently engendered in relation to applications under section 1(3). It should be said that, although the objectors in the present case all expressed very strong feelings about the adverse impact of the proposed development, we did not detect any feeling that Mr and Mrs Ord were in some way acting improperly or unethically in seeking to be free of the obligation. There was no grievance in that sense. However, there might have been less disappointment and upset if these residents had simply accepted the risk of development from the day they bought their houses. The prospect of objecting has allowed them to become attached to something to which they never had any right.
The position of No. 4 is quite different. Mr and Mrs Mashford do have rights and our task is to ensure proper protection of their interests in weighing the reasonableness or otherwise of the discharge of such rights.
Their rights are in respect of their garden ground but Ms Leslie appeared content to have matters assessed by reference to the interests of the occupiers of the house at No. 4 and Mr Macfie, of course, had no need to make anything of the point. No attempt was made, in the leading of evidence, to deal with the impact of any new development on the enjoyment of the garden ground but in the circumstances we have made our assessment as if the owners of the house, as such, were benefited proprietors. We note simply that the nature of the benefited subjects may possibly have to be addressed more closely as part of any assessment of compensation.
Although the first factor listed under section 100 relates to change, we are satisfied that the order of listing cannot be taken to imply any order of ranking. The weight to be given to any factor will always depend upon the particular circumstances. Change is likely to be important but, to determine the relevance of any identified changes, it will usually be necessary to have regard to the purpose or intention behind the obligation at the time it was imposed. As we have seen, purpose also has an important role to play in determining the weight to be given to the benefit which the condition confers. We accordingly follow our practice under the 1970 Act of looking first at the purpose or intention behind the original imposition of the title condition: now, factor (f).
This case is a somewhat unusual one in that the purpose of imposing the land obligation purports to be spelled out explicitly in the title. It is certainly unusual in that the careful narrative of intention does not in fact provide an explanation for the obligation as imposed. The intention was said to be to give effect to certain restrictions which had not been properly constituted. The nature of these restrictions was clear. No building was to be permitted on the subjects to the south of directly opposite the garden at No. 4. An understanding that there would be building north of that point can be taken to be implicit in the original obligation. The Deed of Servitude precluded all building.
There is some basis for believing that this was a mistake. The Deed contains a full narrative which would have been expected to make some mention of the change had it been deliberate. However, we recognise that, in conveyancing practice prior to 1970, the purpose of an obligation was of little or no relevance to its enforcement. It is appropriate to proceed on the basis that there was a deliberate imposition of an unqualified restriction preventing building.
It is not easy to see why such an obligation was imposed in favour of the 39 poles at No. 4 and not in favour of No. 4 itself or, for example, in favour of all neighbours. The restriction may well have been to accommodate some personal wish of Miss Stronach. We can, however, take a realistic view of this. The original proprietor of the house site at No. 4 seems to have been content to acquire it without any right to control development in the field. But it may be assumed that Miss Stronach was proprietor of No. 4 by the time the adjacent plot came on the market. She may well have sought the burden to preserve the open space in front of her house. Such a purpose would explain the terms of the feu charter by which the garden ground was acquired. Although the condition set out in that deed was explicitly in favour of the garden ground only, this would not have been significant at the time. Her control over any land obligation would have been absolute. It may be noted that the Deed of Servitude created the odd situation that if the proprietor of No. 4 ever decided to sell off the whole garden plot as a house site — and this was plainly contemplated by the original title — he or she would lose the right to prevent development in front of the house.
For simplicity, we have assessed this application as if the purpose of the obligation was to protect the amenity of No. 4 as a whole. We shall, however, have to have regard to the nature of that amenity. It was not seen as necessary to have it preserved when that property was first purchased in 1910.
We turn now to deal with the various factors in the order set out under section 100.
(a) The new provision places emphasis on change in circumstances generally without placing weight on specific aspects. However, it is convenient to look in turn at the matters which are specifically mentioned.
We heard no evidence of any relevant changes in the benefited subjects. It is likely that the character of the garden in Miss Stronach's day put less emphasis on children's recreation but this is speculation. Treating the house as the benefited subject, it may be said to be likely that the character of the front hedge has changed. It is now a dense hedge almost 10 feet high. While the house itself may have enjoyed an open aspect in 1910 or 1938, the hedge is now a dominant feature.
It is probable that there has been little change in the burdened subjects. Although they were occupied by rows of raspberry canes in 1990 it is likely that they were just a field when the houses were built. There are references to a "field" in the titles. The evidence of the raspberry canes is significant only as a reminder that the benefited proprietors are not entitled to a picturesque image of grazing sheep. Had the canes remained, the subjects would, by now, have been an overgrown eye-sore.
We are satisfied that in the context of the scheme of section 100 (a) it is unnecessary and inappropriate to approach change by seeking first to determine the extent of the neighbourhood. If change in a local area is relevant we can take it into account without the need to characterise it in any particular way.
Indeed, an illustration of the simplification afforded by the new Act can readily be found in relation to the question of change in the "neighbourhood". Certain dicta under the old Act had given rise to the understanding that in every case based on section 1(3)(a) it was necessary to identify or define the "neighbourhood" as a first step. Only once it was known what the "neighbourhood" was, could it be decided whether there had been relevant changes. This gave rise to a great deal of examination, cross-examination and debate. However, this can now be seen as essentially sterile material. Even under the 1970 Act the critical issue was whether there had been relevant change. A physical change having a bearing on a view might well be described as a change in the neighbourhood even if it was at some distance from the benefited subjects. On the other hand, if the relevant issue was protection of quiet or light, the focus would necessarily be on a much smaller area.
Although we heard in evidence more than a hint of dispute as to the proper meaning of "neighbourhood" in the present case, it was ultimately recognised that precise definition would be unlikely to assist even if the case was to be determined under the 1970 Act and would be of no real relevance under the 2003 Act. Section 100(a) puts the emphasis firmly on "change in circumstances".
We are not persuaded that the housing developments in the neighbourhood or locality have any material impact on the direct amenity provided by the subjects. From No. 4 the relevant view is to the west. The various sections of a roof at the first house in Dene Park are the only new developments visible. But there are, in any event, many other buildings visible to the west. The gable of No. 19 Broughton Road is very obvious. These roof sections, while extensive, are discreetly positioned and partly screened by trees. They are of no visual significance.
The housing to the east is of possible significance. Although it does not impinge on the burdened subjects, it means that any sense of No. 4 as being situated in open countryside has been lost. When the house was built there was one substantial dwelling to the east and No 2 to the south, but nothing to the north east. The open field might have contributed to an impression of fairly wide open space. That, if it did exist, has been largely lost despite the open nature of the subjects at present.
One change demonstrated by these various developments is indirect. They show the greatly increased demand for housing. Reference to this was made by Mr Lukas in his report. The developments in the vicinity also demonstrate the diminishing role of garden ground. The days of villas set in their own extensive grounds are largely passed. It is inconceivable that a developer now would leave the field unbuilt simply because he thought there were enough houses. By modern standards No. 4 has extensive grounds of its own. There is no need for restriction over the subjects to preserve any sense of openness or to be a "green lung".
(b) Although it may appear that this factor is essentially a repetition of section 1(3)(b) of the 1970 Act, we think it important to recognise that it plays a completely different role in the context of assessment for the purposes of section 98. Under the old provision it was used in the context of a balance of "undue" burden against benefit. It was well established that little benefit was needed to persuade the Tribunal that an application under that section should be refused: see, for example, Steven v Smith. Now, factor (b)(i) will have a major role as being likely to be the main, if not the sole factor pointing against the grant of an application. But for this factor, it would normally be reasonable to discharge the condition. As discussed above, factor (f) may have an important supporting role in this part of the assessment but identification of the present benefit is fundamental.
We heard no evidence that the condition conferred any significant benefit on the garden property as such but, as explained, we make our assessment of factor (b) treating the house as the benefited property.
We do not accept that the burden preserves any special view or that it is necessary to preserve any necessary sense of spaciousness. We entirely accept that the occupiers of No. 4 enjoy looking out at a green field from their upper windows and enjoy the feeling of being in a little rural enclave. This particular view would be lost. But it is not guaranteed. The field might be left to become overgrown. It might be used for a non-agricultural purpose which did not involve building. Residents might or might not be happy, for example, with a conifer plantation but such a development would completely change the nature of the amenity presently enjoyed. Use of the land for any form of public recreation would change things in a different way. On the other hand, a house with normal level of attention to garden care would preserve many aspects of the amenity currently enjoyed.
It was recognised that questions of amenity were to some extent, subjective. We do not go as far as to share the view that construction of a single dwelling with properly tended grounds would positively enhance the amenity of the local residents although we do not doubt the sincerity of Mr Ord when he expressed that view. What can be said with some confidence is that the proposed development will not have any great adverse impact. Whatever the opinions of the current occupiers, our assessment of the overall amenity of the house at No. 4 does not lead to a conclusion that a house on the land would make it a significantly less attractive place to live. Much might depend upon the size, appearance, and precise positioning of any house. But any well planned garden would be no worse than a neglected field.
There is, of course, no absolute guarantee that the garden grounds will be well tended. We must also have regard to the fact that there is no positive evidence of what would happen to the ground if building was not permitted. The probability on the one side is high that any garden would be adequately maintained. It may be that the field will remain more or less as it is but this is by no means certain.
We are satisfied that a house could be positioned on the subjects where it would have no great visual impact from No. 4. The gable of No. 19 is very obvious from the house and a single storey dwelling on the same line of vision would not significantly alter the nature of the view in that direction. It would, of course, change the detail. Some of the immediate openness would be lost. This would not be significant from the ground levels of No. 4 because the hedge is a dominant feature. The view from the upper windows of No. 4 would change from the familiar prospect of looking down on a field with sheep to looking down on suburban garden ground. The present occupiers would be acutely aware of this change. But , objectively viewed, it can be seen as switching one relatively open outlook for another outlook of a sort which many would find entirely acceptable.
A house further to the north would have still less impact. Housing is visible in that direction at present. From the second floor of No 4 the wider view of hills would remain.
(c) Under the 1970 Act the question of the effect of the burden fell to be addressed under section 1(3)(b) and it was the practice of the Tribunal to stress that if there was any significant benefit, an application under that provision would not be likely to succeed. It was seldom necessary to identify the precise nature and effect of the burden. The section required the burden to be "undue". In that context, the Tribunal expressed views to the effect that it was not unduly burdensome for a proprietor of burdened subjects to be prevented from maximising his profit. However we are no longer to carry out any direct balancing exercise. We must look at the impact of the burden as a factor to be weighed in the overall balance. The ultimate weight to be given to that impact, will, of course, depend on the circumstances of each case.
The obvious beneficial use of the land is as a dwellinghouse. But for the title condition, the applicants would be able to use it for that purpose. Enjoyment of property includes the right to sell it and enjoy the proceeds. We heard that if building was allowed the subjects might expect to be sold for something in excess of £80,000 — although these figures were not given in the context of compensation and were not tested. If no building was permitted the agricultural value would not exceed £3,000.
As matters stand, the owner of the subjects can make little or no practical beneficial use of them. The unit is too small to derive any worthwhile rent for agricultural purposes. We are not persuaded that there is any use he could make of them to derive an economic return if he is not able to build. There was faint reference to use for market gardening but no evidence that this would be economical. He might plant trees but, again, there is no evidence that this would be economical. We can speculate that there would be space for development of a sports, or play, area of some sort but we heard nothing to suggest that this could possibly be a profitable exercise as a private initiative or that it was required as a public one. We heard evidence of the advantage of having a public park in the vicinity. Our site inspection disclosed that this was some way from the residential areas. Use of the subjects as a public park might well be an appropriate use, if no building is to take place but, here again, there was no evidence that this was in contemplation, far less that it was a use from which the applicants might derive any economic benefit.
The burden clearly impedes the owners' enjoyment of the property. However, we do not think this a factor which can be expected to carry much weight. It must not be forgotten that the burden must have been accepted, initially, as part of a negotiated arrangement. The applicants, of course, bought the land at a price which reflected the existence of a restriction.
(d) This provision seems irrelevant to a negative servitude.
(e) The burden is some 70 years old. However, mere duration tells us little as to whether it can be regarded as out of date, obsolete or otherwise inappropriate. At first blush, therefore, there might be little weight to attach to this factor. One possible effect of this provision is to direct attention to the need to have regard to the impact of gradual change in attitudes over time. We have attempted to give some expression to this element in our discussion under (a) above and need not repeat it.
It may be observed that, had we regarded No. 10 as having the benefit of a servitude, we might properly have had regard to the fact that it was long forgotten.
(f) We have dealt with the significance of purpose as a preliminary issue. The intention must have been to preserve the amenity of No 4 but it must be said that there is no particular aspect of that which might be thought to have needed special protection in 1938. The intention might have been to prevent over-development as was hinted at in the title to No.10. We are satisfied that there will be no sense of over-development at Manse Drive from another house having its access on to the main road. It is unlikely that there was any positive intention to preserve a "green lung" for No. 4. It can hardly have been thought necessary simply to provide adequate space when that property had the benefit of the full garden plot. There was no particular view to preserve, particularly towards the north. The open space and view, such as it is, to the front of their house would have been preserved by a restriction on the lines of the original Feu Charter.
Consideration of the purpose of the obligation at the time it was imposed does not point clearly to any particular benefit but as we are in no doubt that the general purpose was to preserve amenity, this can be taken to add some weight in assessment of the significance of factor (b)(i).
(g) It is a factor in this case that there is consent by a planning authority for use which the condition prevents. As discussed above, our concern is with private rights created by contract. The planning system deals with the public interest. We do not consider that there are any special circumstances which would allow the grant of planning permission in this case to be of any particular weight. We see it as a relatively neutral factor.
(h) It is not clear what role willingness to pay compensation is expected to play in the overall assessment. It may be assumed in every case that an applicant is prepared to pay such compensation as may be determined by the Tribunal and we would not expect to hear evidence of this. We heard no submissions dealing with any wider implications of this provision. The solicitors both dealt briefly with the evidence in the present case. There was some evidence of an offer to buy a waiver from Mr and Mrs Mashford but no evidence that the sum proposed was based, in any way, on assessment of compensation for any perceived or assessed loss of amenity or loss in value of the benefited subjects. We do not consider that this material has any bearing on the question now before us.
(i) This factor is irrelevant in the circumstances of the present case.
(j) The Tribunal must take into account any other factor which they consider to be material. Ms Leslie referred to a number of matters under this head.
We have touched on changes in demand for housing. We accept that evidence of a public policy of developing suitable gap or infill sites could be taken into account as a positive factor but, in the present case, reference to this does, to some extent, beg the question. If the site serves a useful purpose at present it would be misleading to bring it into the category of "gap" site without sound understanding of the way that term was used in the planning context. In any event, use in that context might have little bearing in the context of private right.
We do accept as important the contention that the proposal does not involve loss of all the open space. This is not a proposal to replace an open site with a block of flats. Building of a single storey development on the subjects would leave a substantial amount of open garden or recreational space. Although Mr Macfie was correct to point out that there was no positive evidence that all trees would be preserved, there is every likelihood that the number of trees and shrubs would increase. In any event, the objectors have no right to compel the applicants to retain the trees at present.
We are aware of the importance the various objectors attach to the preservation of the present state of affairs and do not doubt their sincerity. A single storey dwelling on the site will change the character of the outlook. It will make quite a difference to No. 10. But, for the reasons we have discussed, the focus of our attention is the impact on No. 4. Taking all the factors discussed above into consideration, we consider that it is reasonable to vary the title condition. The impact of development of a single storey building to the north of the extended line of the drive at No. 4 would be modest in its effects on the amenity of that property.
As it happens, a variation on these lines would be similar in effect to the obligation undertaken by the Feu Charter. That, however, is coincidental. Our assessment has been based on the single storey development sought. We shall deal with this by imposing a height limit appropriate for construction of a single storey building. This reflects the existing planning consent but that, too, may be regarded as coincidental. The case must be continued to allow us to receive evidence of an appropriate height. This should be specified relative to some identifiable benchmark. It may be noted that levels in the field vary and reference to existing ground level will not be sufficient.
This continuation will also allow parties to consider the question of compensation and to address the basis of any such claim, if agreement cannot be reached.
| Representation: | ||
|---|---|---|
| for the applicants: | Ms S J Leslie, solicitor, Messrs Morton Fraser, Solicitors, Edinburgh | |
| for the respondents: | Mr J W S Macfie, solicitor, Messrs Bennett & Robertson, Solicitors, Edinburgh | |
| Heard: | Edinburgh, 2 & 3 February 2005 | |
| Sitting: | Lord McGhie I M Darling, FRICS |
|
| Decision issued: | 10 March 2005 | |
LTS/LO/2004/16
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 10 March 2005.
N M Tainsh — Clerk to the Tribunal