OPINION

Mrs Mehmoona Aslam (Appellant) v The Keeper of the Registers of Scotland (Respondent)

Subjects at: 257/2 St John’s Road, Edinburgh

Introduction

1. This is an appeal under section 103 of the Land Registration etc (Scotland) Act 2012. The Keeper rectified the appellant’s title on 24 November 2016 by deleting the words in the property description:

“Together with the garden ground pertaining thereto.”

Parties are in dispute as to the level of compensation.

Procedure

2. Parties represented themselves. The appellant produced a valuation report by Mr Donald Cameron MRICS and Mr Keith Watters MRICS of Messrs Graham & Sibbald dated 12 January 2017. The Keeper has produced a report by Mr Andrew Putland MRICS on behalf of the District Valuer dated 26 October 2017. With the agreement of parties the case is being determined by written submissions. The Tribunal members carried out a site visit of the subjects on 25 January 2017 as well as to one of the comparator sites.

Legislation

The Land Registration (Scotland) etc. Act 2012 (“the 2012 Act”) provides:

“Part 7 Keeper’s warranty

73 Keeper's warranty

(1) The Keeper, in accepting an application for registration, warrants to the applicant that, as at the time of registration, the title sheet to which the application relates—

(a) is accurate—

(i) in so far as it shows an acquisition, variation or discharge in favour of the applicant, …

77 Claims under Keeper's warranty

(1) The Keeper must pay compensation for loss incurred as a result of a breach of the Keeper's warranty.

(2) Liability to pay such compensation arises only if and when the inaccuracy giving rise to the claim for compensation is rectified.”

“Part 11 Miscellaneous and General …

103 Appeals

(1) An appeal may be made to the Lands Tribunal for Scotland, on a question of fact or on a point of law, against any decision of the Keeper under this Act.”

Schedule 4 provides transitional provisions:-

Bijural inaccuracies

17 If there is in the register, immediately before the designated day, an inaccuracy which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the register) then, as from that day—

(a) any person whose rights in land would have been affected by such rectification has such rights (if any) in the land as that person would have if the power had been exercised, and

(b) the register is inaccurate in so far as it does not show those rights as so affected

19 Where, by virtue of paragraph 17—

(a) a right is lost, compensation is payable under Part 7 as if warranty had been granted under section 73 in accepting an application by the person in whom the right was vested, …

20 Except that—

(b) any compensation so payable is to be reduced to the extent that, had the Keeper rectified the inaccuracy before the designated day, the amount of any indemnity would have been reduced by virtue of section 13(4) of that Act (reduction proportionate to the extent to which a claimant has contributed, by fraudulent or careless act or omission, to loss), …”

Case referred to

South Australia Asset Management Corp v York Montagu Limited [1997] AC 191

Background facts and circumstances

3. The appellant is proprietor of the westmost first floor flat 257/2 St John’s Road, Edinburgh. The property is registered under title number MID127234. She acquired it from her sister in an off-market transaction in November 2013. The property title had already been registered, having been first registered on 7 January 2010.

4. The flat is part of a tenement 253 – 261 St John’s Road on the south of the main road. The block comprises three shops, formerly four, on the ground floor. On the first floor there are two flats including the appellant’s flat. At the rear there are basement cellars.

5. Since first registration the description in the property section of the land register contained the words:

“Subjects within the land edged red on the title plan being the westmost house on the upper storey at 257 St John’s Road, Edinburgh EH12 7XD. Together with the garden ground pertaining thereto …”.

The description goes on to refer to certain rights in common (First) to (Fifth) with other proprietors of the block, including: “(Second) free ish and entry to the subjects in this Title by the passage and stair in said block leading from St John’s Road to the said two houses … (Third) … and with a right along with the proprietor of the east house to use the stair leading down from the balcony to the ground at the back of the said block as a means of access to the garden ground in this Title and (Fourth) free ish and entry along with the other proprietors in said block through the pend at the east of the said block as a means of access to the said garden ground.”

6. The appellant’s title plan shows an area edged red comprising the whole tenement block as well as a “white” area to the rear of the flats. We understand this is an example of the “steading” method of describing tenements adopted by the Keeper under the Land Registration (Scotland) Act 1979 (“the 1979 Act”). We gather this practice may involve the red line surrounding various pertinents in sole ownership of the flat as well as common areas of the tenement, and in some cases the red line may surround areas not pertaining to the flat or tenement at all. The plan shows no features on the “white” area, presumably because its actual features were not apparent on the Ordnance Survey plan used by the Keeper at the time of first registration.

7. On the ground the white area mainly comprises a parking area which is subject to the present dispute. There is no longer any garden. The parking area is informally delineated on the ground by boundary fences to the west and south, by a rear path and staircase to the north, and by the continuation of the pend access drive as it runs southwards which forms a line to the east. The existence of the pend itself can be inferred from the title plan as the space between the two tenements. The boundary fences are consistent with the red line boundaries.

8. The pend continues as an access drive to the parking area. It also leads to another, separate, parking area to the rear of the adjacent east tenement. It also accesses at least one property to the south. The path mentioned above runs adjacent to the rear of the 253 - 261 block and gives access to rear cellar doors. The path also links to a substantial external staircase to the rear of the building leading to the first floor flats and balcony. The staircase bridges the rear path and its structure is in effect a wall which separates part of the path from the parking area. The pend and stairs are expressly mentioned in the verbal description of the title sheet quoted above. The rear path is implied as part of the “means of access to the garden ground.” We note that the pend access, rear path and stairs were measured and marked on a title plan to one of the previous sasine deeds, but it would appear that the registration procedures did not update the ordnance plan for these items.

9. Subject to an issue about definition we mention later, there is no dispute that what is described as “garden area” is now used as a car park. At some point, we infer in or after 2010, a title overlap came to the fore with certain other proprietors claiming rights to the same area. The Keeper accepted that there had been a clerical error during the first registration process in 2010. She accepts the reference to the garden ground in the appellant’s title had no basis in respect of the prior titles. The Keeper rectified the appellant’s title on 24 November 2016 by deleting the words “Together with the garden ground pertaining thereto.” She also made minor consequential modifications to clauses (Third) and (Fourth) by removing reference to the “garden ground.”

10. The Keeper has set forth in her pleadings and correspondence a detailed narrative of the progress of prior sasine titles. According to a feu charter recorded 28 August 1928 (not produced to us) the “garden ground” was described as being bound on the east by a mutual fence separating it from garden ground pertaining to the eastmost upper flat. This would suggest that only half of the garden area ever pertained to the westmost flat, 257/2. It would appear that the “garden ground” pertaining to 257/2 was last vested in the same owner as the flat by a disposition recorded 29 November 1948. Following a subsequent disposition recorded 8 December 1948 by the then owner, the garden ground was expressly excluded from the title of the flat. The southmost part of the garden was sold to a company in 1954. Another adjacent part was sold to South East Scotland Electricity Board in 1954. These two areas are not comprised within the red line boundary of the appellant’s property and would not appear relevant for present purposes.

11. A third area to the rear of the block was sold to another company in 1958 which, according to the Keeper, was conveyed as a common area to various properties at 247-249 St John’s Road being the tenement lying to the east. The documents lodged before us are not complete, or indeed fully legible and we do not seek to make a formal finding in fact on this point, but we are prepared to accept the Keeper’s narrative for present purposes. The Keeper did not suggest that any of the other 253 – 261 units in the appellant’s tenement retained rights to this area.

12. This third area has helpfully been identified and shaded in yellow in an illustrative plan produced by the Keeper. That yellow area, or most of it, is the area now being used for car parking within the red line boundary. It was the Keeper’s intention that the rectification should remove this area from the appellant’s title. The yellow area does not include the rear path and staircase. There is very small part of the yellow area comprising part of the access to an electricity substation which does not lie within the red area. This small part does appear relevant for present purposes.

13. It is the yellow area as used for parking which the appellant believed she owned in terms of the entry in the land register.

Valuation evidence

14. The Graham & Sibbald report values the parking area at £50,000 as at 12 January 2017. The report indicates that the subjects lie within a mixed commercial and residential locality to the rear of one of the main arterial routes into Edinburgh City Centre from the west. The subjects lie approximately three miles to the west of Edinburgh City Centre and would be primarily of interest to local neighbouring proprietors rather than the larger surrounding populous.

15. The subjects comprise a regularly shaped, relatively level area of land benefiting from a hard core surface, being unbounded in nature and having a shared access from St John’s Road. The land lies immediately to the rear of residential dwelling flats and ground floor commercial premises, and adjacent to a substantial electricity sub-station. The subjects extend to an area of approximately 0.028 acre or 114.89 sq.m or 1,237 sq.ft. In their opinion the site is capable of accommodating about five cars in a clear configuration. The report describes the site’s current use as a sui generis car parking use in terms of the Town and Country Planning (Use Classes) (Scotland) Order 1997.

16. The report refers to the following comparable evidence:-

Subjects at Gogarloch Road, Edinburgh;
Garage, Craigmounthill, Corstorphine, Edinburgh;
Garage, 16 Roull Road, Corstorphine, Edinburgh;
Garage, Old Kirk Road, Corstorphine, Edinburgh;
Garage 4, 88 Saughton Road North, Corstorphine, Edinburgh;
Garage, Forrester Road, Corstorphine, Edinburgh; and
Garden area, 149 St John’s Road, Edinburgh.

17. Based on the above it was surmised that single car lock-up garages within the general vicinity were achieving values in the range of £15,000-£20,000. In the authors’ opinion, the value of clear car parking spaces within the general vicinity, but not within garaged accommodation would be in the order of £10,000 for an individual space. Based on the ability to park five moderate vehicles in a clear configuration, this would result in a value for the site of £50,000.

18. The District Valuer’s report for the Keeper valued the subjects as at 24 November 2016. The report described the relevant area as an area of land which is currently used as an informal car parking area and is an undefined area of ground. It estimates the “garden ground” to the rear of the property as extending to about 0.027 acre or 113 sq m. The report notes that potential uses suggested by the appellant for the site were for retail accommodation or a beauty salon. Mr Putland did not consider such a use to be viable in terms of the access or likely to receive planning permission. The report, however, notes that the area of ground is currently used for car parking and since other land to the rear of residential accommodation within the area is similarly used, accepts that car parking is an appropriate use.

19. Mr Putland took the view that the rate of £10,000 per car parking space was overly simplistic in that the site has poor access through a narrow pend and the car parking area is neither finished with hard standing nor is secured with fencing or bollards. He took the view that the Graham & Sibbald report did not address the likely level of demand for car parking in the area which would be limited to local residents or business owners and employees seeking a car space close to their residence or place of work. He also considered that the report did not fully appraise what he described as the ambiguous title situation in terms of marketable title. Finally he considered that the Graham & Sibbald report should have adopted a “stand back and look” approach for the full value arrived at, since at best Mr Putland considered that the spaces might sell on an individual basis over an extended period of time.

20. The report goes on to discuss the erroneous title and correspondence between the Keeper and the appellant. Although written from the perspective of valuation of land with a defective title, the report touches upon complex legal issues which we will discuss later. The relevant part of the report concludes:-

“It is unclear whether a solicitor investigated the title position on the appellant’s behalf at the time they (sic) acquired the flat but given the obvious ambiguities above, I do not see how they could be completely sure that they had acquired ownership of all of the garden ground. On this basis, I agree with RoS that a valuation, or indeed any marketing of the interest in the garden ground would be impossible to undertake. This essentially means that their loss is unable to be quantified.”

21. The report mentions that it was unclear whether the apparent acquisition price of £125,000 from a connected party reflected market value. There was however an uplift of £5,000 from the previous sale in 2010. The price would be very low for a two bedroom flat with five car parking spaces if those spaces were worth £50,000 alone. The report therefore surmises that the appellant knew she was buying a flat with some garden ground attached, with no premium value reflecting car parking use. It was suggested that it was odd that the appellant was now seeking compensation for something which was not paid for in the first place.

22. Amongst other things the report suggests that the appellant should have realised that she would only have had a part share in the garden ground, which would have been no more than half the area valued in the Graham & Sibbald report. It was also surmised that the ground was being used by others for car parking at the time of the purchase. The title sheet mentioned a common right of access to the garden ground in the context of the pend and the rear staircase. Hence there was ambiguity about the extent of garden in the title sheet.

23. The report proceeds to value the area as garden ground on the assumption that the appellant had a right to 50% of the land; i.e. 57 sq m. It was accepted garden ground could attract a premium for providing access to car parking. A figure of £8,550 was suggested for garden ground on this basis.

24. The report then values the area for car parking. The report indicates that in central Edinburgh car spaces close to prime office areas, most notably the West End, have been known to sell for anywhere between £10,000 to £50,000 each. The market at this level drops off as one moves away from the town centre. This was illustrated by a transaction in September 2016 in Bread Street Lane analysed at £10,100 per space, and in February 2016 in respect of a 22 space car park in Constitution Street, Leith for £26,500 or £1,200 per space.

25. The report refers to further comparables in the form of garden ground sale evidence and car parking rental evidence. The rental evidence included sites at Haymarket; Eildon Terrace Canonmills; Waverley Park, Abbeyhill; 10 Learmonth Terrace Lane and Leith Walk. Mr Putland was of the opinion that rental evidence reflected a value of £50 per calendar month per space as appropriate for the subject property.

26. Mr Putland suggests a value of £5,000 per space and assuming that the appellant had a right to 50% of the land, only two car spaces could be provided so the total value would be £10,000.

Submissions for the appellant

27. The appellant disputed the District Valuer’s report which appeared to endorse the Keeper’s position in the case. It was disputed that the access was not good to the land in question. In 2000 heavy vehicles had used the same access that leads to the garden ground. It was emphasised that the 2013 sale was not an open market sale.

28. The appellant also referred to comparable evidence of sales produced by herself. These appear to have been larger sites at 103 Drum Brae South, Edinburgh and 35 Drum Brae South, Edinburgh. The appellants had made their case on the basis of a report by reputable independent chartered surveyors and their valuation should be accepted.

Submissions for the Keeper

29. The Keeper relied upon the terms of her answers and the documents including the District Valuer’s report discussed above. In summary it was submitted that no loss arose in the case, but if it did, the loss sustained should be no more than the figure brought out by the District Valuer’s report.

30. As a preliminary point it was submitted that the appellant had not identified a decision of the Keeper, in terms of section 103 of the 2012 Act.

31. The Keeper’s position was that the land register had never identified an area of garden ground in the appellant’s title as being the area of ground which had been surveyed by Graham & Sibbald. The red line of the title plan “merely identifies the steading that the titles are part of. It does not guarantee that everything within the red edge will be relevant to the block”. Reference was made to a letter by the Keeper to the appellant dated 23 March 2017 stating that the most to which the appellant would have had title as either garden ground or parking space would be half the area valued in the Graham & Sibbald report. This position appears to be based upon the 1928 feu charter mentioned above which appears to have divided the garden ground between east and west upper flats at that time. It was suggested, via the District Valuer’s report, that the reference in the title sheet to common rights of access to the garden ground was inconsistent with sole ownership of the garden ground. The appellant was only entitled to be compensated for land which she could demonstrate she had lost as a result of the rectification. No loss had been demonstrated. Any compensation would result in a “windfall.”

Discussion by Tribunal

Legal points

32. We deal first with the argument that the appellant had not identified a “decision” of the Keeper in terms of section 103 of the 2012 Act. The section appears to be a little more narrowly worded than its predecessor, section 25 of the Land Registration (Scotland) Act 1979, (“the 1979 Act”) which allowed an appeal on any question of fact or law “arising from anything done or omitted to be done by the Keeper under this Act”. The 2012 Act refers to an appeal “on a question of fact or on a point of law, against any decision of the Keeper under this Act.” But as the 2012 Act provides for compensation payable by the Keeper, in principle any decision by the Keeper not to pay or to limit compensation would seem to fall under section 103. It is fairly clear that the Keeper’s position as reflected in the correspondence before us, culminating in a letter of 23 March 2017, implied a decision to restrict compensation to not more than one half of the area valued by Graham & Sibbald. This position was subject to the appellant’s particulars of claim. In these circumstances we consider that adequate notice has been given of the decision being appealed against.

33. The District Valuer’s report, which has been endorsed by the Keeper, has questioned the knowledge of the appellant in that it is suggested that the appellant or her solicitor could not have been sure that she had acquired ownership of all of the garden ground. Looking at the purchase price which both she and her predecessor paid for the flat relative to the contended value of the parking area, the respective values are disproportionate. In other words it is said she could not have thought she was buying the whole parking area.

34. At this point it is necessary to consider the statutory regime within which this claim is being made and what the pleadings actually say. The appellant’s title was a title registered under the 1979 Act. The rectification took place on 24 November 2016; i.e. after the designated day (8 December 2014) for the 2012 Act. The transitional provisions within Schedule 4 to the 2012 Act are accordingly in play. The effect of paragraph 17 is that where, immediately before the designated day, the Keeper had power to rectify an inaccuracy, then, on that day, the property rights of the relevant parties automatically become what they would have been had a rectification actually taken place. The title sheet necessarily remains inaccurate until rectification occurs. Where rights are lost by rectification, then in terms of paragraph 19 the losing party is deemed to have a warranty under Part 7 of the 2012 Act under which compensation is payable.

35. Paragraph 20(b) of the Schedule provides that any compensation is to be reduced to the extent that it would have been reduced by virtue of section 13(4) of the 1979 Act, that is a reduction proportionate to the extent to which a claimant has contributed, by fraudulent or careless acts or omission, to the loss. Section 13(4) accordingly required something causative, i.e. an act or omission leading to the loss. This can be contrasted with the somewhat lower threshold of section 78(b) of the 2012 Act. Under this provision the Keeper has no liability to pay compensation by virtue of section 77(1) where the existence of the inaccuracy was, or ought to have been known to the applicant or legal adviser at the time of registration. It is important that for the purpose of the transitional provisions applicable to this case, section 78(b) has been disapplied by paragraph 20(c) of Schedule 4.

36. In these circumstances it seems to us that the state of knowledge of the appellant and her legal advisor when she acquired the property in 2013 is nothing to the point. The points made by the District Valuer about what the appellant or her solicitor might have known, may or may not have been relevant to a defence under section 78(b) of the 2012 Act, but this subsection is not relevant for present purposes. Nor was any case made against the appellant in terms of section 13(4) of the 1979 Act, as incorporated via paragraph 20(b) of Schedule 4. As the title had already been registered in the Land Register some years before the appellant acquired the property, we find it difficult to see how a case could have been made against her that she had contributed to a loss brought about by rectification of an already registered title. We should add that had such a case been pled in terms we would not have agreed to determine it on the basis of written submissions.

37. Looking at the District Valuer’s approach another way, he is suggesting there is no real “loss” because the appellant had never paid for a property with a value commensurate to a two bedroom flat and five car parking spaces. If the appellant knew she was probably not acquiring or paying for that number of spaces in the transaction, she cannot be said to have “lost” them by rectification. This argument, which as we have said the Keeper appears to endorse, seems to confuse a common law claim for damages with a claim for breach of warranty. The Keeper’s deemed warranty in section 73(1) warrants that the title sheet is accurate insofar as it shows an acquisition by the appellant. The Keeper must pay compensation for loss incurred as a breach of the warranty.

38. In this context, although not cited to us, it is helpful to recall the distinction drawn by the House of Lords in South Australia Asset Management Corp v York Montagu Limited in which Lord Hoffman said at p261:-

“In the case of a breach of a duty of care … one asks what element of this loss is attributable to the inaccuracy of the information. In the case of a warranty, one compares the plaintiff’s position as a result of entering into the transaction with what it would have been if the information had been accurate. Both measures are concerned with the consequences of the inaccuracy of the information but the tort measure is the extent to which the plaintiff is worse off because the information was wrong whereas the warranty measure is the extent to which he would have been better off if the information had been right.”

39. In this case, the warranty is that the description of the subjects as including the garden ground is accurate. The appellant’s loss is therefore the extent to which the appellant would have been better off had the information been right and the title not been rectified. Had the description been accurate the appellant would have had a real right in the garden ground: cf s3(1) of the 1979 Act. On the face of it, therefore, the loss is simply the value of the land removed from the title sheet by the rectification. We do not think it is correct to get into a common law damages approach by seeking to ascertain an “overall” loss by reference to what the appellant might have paid for the property in the first place.

40. We now turn to the final thrust of the Keeper’s legal arguments to the effect that the area of “garden ground” in the appellant’s title was undefined and so no particular area could be established as having been lost. We should say that the implication in the argument that the “lost” area might require to be assessed in some way, for example, by reference to a 1928 feu charter, was unpersuasive. The idea that the property section of the land register should be interpreted by reference to a long superseded sasine deed, if that was what was being suggested, seems to undermine the basic purpose of land registration, namely for there to be a mapped system readily showing the extent of land ownership. In terms of section 4(2)(a) of the 1979 Act the Keeper should not have accepted an application for registration if the land was not “sufficiently described” so as to be identified by reference to the Ordnance Map. So it comes somewhat ill from the Keeper to argue that no claim can be made because the “lost” area is undefined, where the Keeper appears to have accepted a registration without mapping the details of the land such as the garden area in the first place. By not mapping the details in 1979 Act registrations and by resting upon a potentially ambiguous verbal description it is hard to avoid the conclusion that the Keeper was accepting an increased risk of future problems with the registration in question. But we accept of course that the Keeper made a clerical error, so it is perhaps not surprising there are issues with precisely what the title sheet meant.

41. It seems to us that we require to construe the property description in the title sheet as we find it. The reference to “the garden ground pertaining thereto” is unqualified in that the immediate words contain no suggestion that the garden ground was only common property. There are no words such as “a pro indiviso share of...” or “a right in common to...” The definite article is used. The subsequent references to common rights are specifically numbered, suggesting a distinction with sole property rights already mentioned.

42. Then there are the later references to a common access down the stair and along the pend “to the garden ground.” We accept these are somewhat anomalous if the above construction is correct. It is not immediately obvious why the appellant and other proprietors would need to access “the said garden ground” if it was not intended as a common area of some sort. But it is clear that the words in the description were referring to access for owners of the appellant’s block 253 – 261. It was the Keeper’s position that the yellow area belonged to the neighbouring tenement block 247-249; the Keeper did not suggest that any other owner in the appellant’s block had right to the “garden ground.” So there is no context for the words to imply that the title sheet only provided a right in common to the garden with other members of the appellant’s block. The words are simply anomalous in this respect.

43. Moreover neither party suggested any particular construction to be given to these words. In context it is possible that the rear access path could have been considered as part of the garden ground. Certainly the mapping of the title sheet does not suggest otherwise. The path is not part of the yellow area which is said to belong to the neighbouring block. Access to that path would still be necessary for the other proprietors to reach their cellars and, where appropriate, for access to the stairs for other flat above. So to construe a common right of access to “the said garden ground” to mean “part” of the said garden ground, namely the rear path, would make some sense in the context. Alternatively, the words are not inconsistent with the common proprietors having some lesser right of access over the garden area between the pend and rear path and/ or staircase. However, as this point was not really argued we do not seek to find a definitive interpretation. It is enough that the words, in context, are not irreconcilable with the earlier words indicating that the appellant had an unqualified right to the garden ground.

44. So we reject the suggestion that the appellant’s pre-rectified title only purported to give a partial right to the main “garden ground.” Turning to what actually comprises the garden ground within the red line “steading” area, this is fairly apparent when one examines the features on site. There is no evidence on site of the garden area being subdivided between east and west. As we have said, there is a fence boundary to the west and south consistent with the red line boundary. To the north is the rear path and staircase in which the latter forms a partial wall. To the east is a continuation of the pend access. All that lies within these features can, we think, be described as former “garden ground pertaining” to the flat. The case is an example of gardens being increasingly used as parking areas. There is nothing else the “garden ground” could be but the parking area, except for the rear path the rights to which have not been removed from the title. This is how we propose to interpret the title sheet. Accordingly we consider that it was the whole parking area which was warranted in the title, the loss of which now falls to be compensated.

Valuation

45. We think it is reasonable to value the area in terms of its current use, namely car parking. Both sets of surveyors were agreed on this point. It would appear that a valuation as ornamental garden ground would on any view result in a lower value and we do not think it would be fair to proceed on that basis. There is no basis for assuming any of the other uses suggested by the appellant. These would have required planning permission, and we do not have the sort of detailed assessment to establish a likelihood of this being granted.

46. The valuation date is 24 November 2016 as identified in Mr Putland’s report. Although Mr Cameron valued the site as at 12 January 2017, we do not think the difference in dates is material.

47. There was no dispute as to the size of the parking area itself. We agree the site is somewhat constrained for its use. Although the pend is wide enough for a car, it is difficult for a car to manoeuvre within the western portion of the parking area due to its narrow nature and the presence of the wall of the rear staircase. It is also quite likely that when reversing out, a vehicle would require to straddle the site boundary with neighbouring property – i.e. the car park for the next door block or the access drive to the south. Although the site had markings for five spaces, and theoretically might accommodate five small cars, we consider a fifth westmost space to be too awkward to be practicable. It could all too easily be blocked by one or more other vehicles. Accordingly we agree with the implication of Mr Putland’s report, which is that the whole parking area can only accommodate four vehicles.

48. As Mr Putland has described, the site is unsecured with fencing or bollards. The surface comprises compacted hardcore.

49. For our part we note there is free parking on St John’s Road, although waiting times are limited and it is a busy road. The various side streets leading off St John’s Road have unrestricted parking. We noted at the time of our inspection that the parking immediately to the east, behind Nos. 247-249, appears to be largely used in connection with the ground and basement shops on St John’s Road. In our opinion the most likely demand would come from retailers on St John’s Road, in particular the units in the block which already have basement access directly in front of the subjects. We are not inclined to agree with Mr Putland that a hypothetical sale would require to be on the basis of individual lots, since that would remove from the market the purchaser interested in the whole. We feel the number of spaces is too few to justify any form of discount for quantum allowance.

50. For the appellant Mr Cameron concludes, based on the evidence he quoted, that lock up garages in the area command a price of £15,000 to £20,000. While we accept that evidence as far as it goes in demonstrating the existence of a market, he does not provide any further evidence to support his opinion that an unsurfaced parking space has a corresponding value of £10,000. We are cautious about drawing conclusions from the sale of lock up garages, providing security, shelter and possibly electricity, which can then be applied to open parking spaces.

51. The implication is that the equivalent price per open space is 50% to 66% of the equivalent lock up value. This approach risks allowing an unduly high proportion of value to the land, particularly in a suburban location, and may leave insufficient headroom, say 33% to 50%, for the notional construction of a suitable lock up structure.

52. Mr Cameron also provides two land comparables, one from 2002, which we have disregarded as being too historical to be of assistance. The other relates to the asking price of a corner of amenity land at Gogarloch Road which would still appear to be available, more than 12 months after the date of his report. We have not given weight to this piece of evidence since there was no transaction.

53. As we have indicated, Mr Putland suggests a market value of £10,000 which relates to only 50% of the subject site area; i.e. £5,000 per space. We have reached the view above that the whole site should be taken into account for compensation purposes, and that the site consists of four marketable spaces. Accordingly we infer that subject to any “stand back and look” final approach, Mr Putland would have reported a value of £20,000 for the whole site.

54. Mr. Putland’s valuation is largely based on the evidence of two car park sales transactions, both in 2016. The first relates to the sale of five spaces in Bread Street Lane for a sum of £55,000. Bread Street Lane, which is one way, runs in a broadly south to north direction between Bread Street and East Fountainbridge on the southern fringe of the City Centre. Mr Putland noted that the price paid equates to an average of £10,100 (sic) per space. The price will have reflected any site constraints.

55. Having inspected this comparison site we noted that it has a slightly awkward access and egress, and can only accommodate five cars in a configuration of two sets of tandem spaces and one clear space. This means there are two spaces compromised by potentially being blocked in, and another two spaces are compromised as being the potentially blocking spaces. A more commonly adopted method of valuation analysis is to take the four compromised spaces at approximately 60% of the full rate in order to express the sale in terms of notional clear spaces for comparison purposes. Thus:

4 x 60% = 240%
1 x 100% =100%

340% or 3.4 clear spaces = £55,000

1 clear space = £55,000 ÷ 3.4 = £16,176

56. Thus we consider that this comparable justifies a conclusion of a full rate per open space, in a fringe/ central location, at £16,176.

57. The second comparable quoted by Mr Putland relates to a car park on Constitution Street. This site has achieved some notoriety in the market as the interest which was sold, and has been marketed on several occasions, relates to a 50% pro-indiviso share. The other 50% is owned by an investor who, we understand, assigned the rights to the proprietors of the adjoining block of flats. In the circumstances, this transaction is so compromised as to be of virtually no assistance for market value comparison purposes. The only inference one can draw is that the whole interest in the site would have achieved not less than £2,400 per space on a lot size of 22 spaces.

58. Mr Putland has also quoted a selection of car parking rental evidence in the range of £50 to £120 per month, and a lock-up at £170 per month. While this provides some broad context it does not, in the absence of any yield evidence, provide evidence which leads to a capital value.

Tribunal’s Valuation

59. The above variances illustrate the difficulty in establishing the market value in the absence of directly comparable sales evidence, leaving the valuer to interpolate between the available evidence using his or her experience and judgement.

60. From Mr Putland’s evidence we conclude that the appropriate price per space should be significantly more than £2,400 derived from the Constitution Street comparison. The value will be significantly less than the analysed value of a clear space, namely £16,176 derived from the more central location of Bread Street Lane. The value will also be less than Mr Cameron’s £10,000 per space for the reasons discussed above.

61. On balance, and to an extent intuitively, we consider that a rate of £7,000 per space is appropriate for clear spaces in the area. We have then made an allowance reduction of 20% to reflect the restricted access, condition and configuration of the parking area. We have not discounted the value further by means of a quantum allowance. This results in a Market Value of £22,400.

Decision

62. We therefore find the appellant is entitled to compensation under part 7 of the 2012 Act in the sum of £22,400.

63. The appellant is entitled to interest from the date of rectification (24 November 2016) until payment. The rate is 1% above the Bank of England base rate: s79(4) of 2012 Act and SSI 2014/ 194.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 February 2018

Neil M Tainsh – Clerk to the Tribunal