This is an application to vary a title condition involving a building height restriction in order to enable a two-storey housing development to proceed. The application was opposed by a benefited proprietor who is the owner of a nearby flat which would undoubtedly be particularly affected. The Tribunal heard the application and, after certain further written submissions, issued a decision granting the application by varying the condition so as to allow development in accordance with detailed plans to proceed. We also found the respondent entitled to compensation of £4,000. However, before the order was finalised, the applicants have in effect sought to amend the application because they say they have learnt that a design modification which they indicated at the hearing that they would be prepared to make, and which they confirmed in a subsequent submission, will not in fact be acceptable to the planners. The respondent opposed this amendment; or, alternatively, sought an increase in the compensation.
Following a further hearing, the Tribunal has decided to allow the application to be amended and then to allow the application on the basis of the revised plans, which involve reverting back to a full height gable end as opposed to a hipped roof at the point closest to the respondent’s property. We have also decided that, on the basis of this altered proposal, the appropriate amount of compensation should be £5600 and not £4,000.
We refer to our Opinion of 28 March 2006. At the further hearing, the applicants were again represented by Mr Heggie, Solicitor. The respondent on this occasion was accompanied by Mr Heaney, the surveyor who had earlier prepared a valuation and who had been assisting the respondent in considering the proposed alteration of the plans. We permitted Mr Heaney to represent the respondent and we are most grateful to him for his assistance in this respect. Mr Heggie led one further witness, James Thomson, an architectural designer and another partner in T.M.S. Estates, the firm which has conditionally agreed to purchase the subjects. The respondent and Mr Heaney each also gave evidence. The applicants lodged a letter dated 20 July 2006 from Messrs Edwin Thompson, the applicants’ architects who had designed the proposed development and had the involvement with the planners, and also one further revised drawing, No. S511/102, Revision D, which in effect confirmed the reversion to the design drawings which had been before the Tribunal at the beginning of the previous hearing.
The Tribunal had, however, first to consider, as a matter of procedure, whether to allow the applicants to amend their application in the particular, hopefully exceptional, circumstances. The precise procedural position was that the Tribunal had not pronounced a final order consequent upon its decision and opinion of 28 March. This was because an award of compensation in such cases requires the consent of the applicants, i.e. they had the option of not proceeding with the application – Section 90(9) refers. It was when the applicants were asked to confirm their position in this respect that they, on 21 April 2006, advised the Tribunal of the problem and requested that the application be re-considered on the basis of the original full height gable end. We should mention, although nothing turns on this, that there was some delay before the respondent clarified his position in response, and also that certain other minor matters were canvassed in correspondence but in the event these did not call for any further consideration or decision by the Tribunal.
It appeared to the Tribunal that we could competently allow amendment at this late stage, because we had not pronounced any final order. The respondent’s position, as clarified at the hearing, was that, while wishing again to oppose the application in the changed circumstances, he did not really oppose the procedure of amending. Amendment so as to allow ‘a second bite at the cherry’ will not normally be allowed after a hearing and decision, as there is a need for finality in litigation. It has also to be said that the applicants should really have ensured that they knew the planners’ position before they proposed, during the previous hearing, an alteration to the plans. However, in the particular circumstances the Tribunal was prepared to allow this course. We were mindful that the alternative would be to require the applicants to start again with a fresh application, which would be in nobody’s interest. Further, the amendment was not only on a relatively minor, though significant, detail, but also merely involved reverting to the proposal as it stood when the applicant prepared for the original hearing. Also, for the latter reason, there need be no concern about the interests of the other benefited proprietors who did not make, or maintain, objection to the application. There was no suggestion of any particular prejudice to the respondent other, of course, than some further expense for which he can be compensated in expenses if appropriate.
On the basis of the further oral and documentary evidence, the Tribunal can make the following further findings:-
Mr Heggie and Mr Heaney (supplemented by the respondent himself) made brief submissions both on the merits and on the effect on the compensation award.
Mr Heggie expressed the applicants’ regret that it had been necessary to bring this matter back to the Tribunal. He submitted, however, that there was no alternative. In practical terms, the applicants had no option. The revision to the plans was only very slight: it was a matter of light, and the effect of the change in the plans would be minimal. In relation to compensation, the Tribunal’s award of £4,000 had included consideration of other matters, including a degree of benefit from the proposal. This slight alteration would make no, or alternatively minimal, difference when everything was taken into account. It was significant that Mr Heaney had not put a particular figure on it.
Mr Heaney submitted that the planning aspect had not been properly explored. There was no indication how extensive the discussions had been; the Committee might take a different view, faced by a decision of the Tribunal; or the revised plans might receive permission on appeal. The proposed alteration had a far bigger impact than had been suggested.
The effect of the procedure which we have followed is that we now have to consider a different application. On an overall and general view, the difference is relatively minor and we see no reason to re-consider, or repeat, our views on this application looked at generally. However, as we explained in our previous opinion, we have to consider the particular objection of the respondent. We require to look again at our decision, on the basis that there would now be a full height gable end, and not a hipped roof, in the quite close proximity of, in particular, his sittingroom window. We should start by explaining our view as to the effect of that.
We disagree with the view, apparently from the planners, that there was nothing to be gained by changing to the hipped roof. This was, after all, a proposal put forward by the applicants in an attempt to ameliorate the effect on the respondent’s property. Mr Shaw described in his evidence the pleasant effect of early morning sunlight, at least in summer. Given that the elevation of his flat is slightly east of east-north east (and not north, as the architects’ letter suggests) we can accept not only that the whole proposed building would indeed have an impact but also that that impact would be worse with a full height gable than with a hipped roof. It should be remembered that the increase sought in the permitted building height - just over three metres – will almost entirely comprise the roof space and not the walls of the new building. We also note that there is no indication that either the planners or the architects have been inside the respondent’s sittingroom. We have found that reverting to the full height gable would produce a further effect which is significant and not minimal.
We must therefore look again at the issue of reasonableness in the light of the statutory factors and any other material factor, with particular reference to the position of the respondent. We remind ourselves that the purpose of this title condition was to preserve amenity and in particular the attractive sea view, but also to protect the light. Under factor (b), extent of benefit, we find a factor of slightly more weight. Under factor (c), extent of burden, looking at the particular and not the general, we again find an element of uncertainty in the evidence. The position about having to set the development back from Lamer Street remains much the same. Again, we have an assertion that all seven houses are required for viability and nothing to indicate that there has been any consideration of one less unit or any thought of re-design to reduce the dimensions and take the building further away from the respondent’s property. We have slightly more evidence, and can accept, that re-design would involve having to go through a fresh application. We do agree with Mr Heaney’s suggestion that there must be at least some possibility of persuading the planners to think again, or possibly succeeding in a planning appeal. Overall, however, we take the view that the evidence does demonstrate that to change from the plans of which the planners presently approve to the plans with a hipped roof would create quite a serious problem for the applicants. The possibility of change of mind by the planners is just that: we cannot on the information available to us see it as probable.
We have reviewed the other consideration which we gave to the statutory factors at pages 13 to 15 of our Opinion, and find no other change. Weighing up the various considerations, we are persuaded that the application, as it now stands before us, is reasonable. Even on the basis of the amendment, we are of the view that it would be disproportionate to, in effect, require the applicants to take such steps as would be required to cure the problem of the respondent’s light. Our specific finding now as to the difficulty in the way of changing to a hipped roof illustrates and we think confirms this view.
Accordingly, having considered the application as it now stands, we find it reasonable to grant it and allow variation in the manner sought.
Once again, we have to consider a new case, and not simply ask ourselves whether the amendment makes any difference to the figure at which we previously arrived. Once again, however, we see no reason to adopt any different general approach from that which previously led us to award compensation. We again reach the view that there is substantial adverse impact on the respondent’s property and that this amounts to ‘substantial loss or disadvantage’ under the Act. Again, of course, we have a factor which is notoriously difficult to value. We shall use the same reasoning as before to adopt what can only be a very rough figure of £80,000 in preference to Mr Heaney’s valuation of the benefited property and the question is what percentage of that figure to take.
We have considered whether, despite our view that the alteration of the plans does significantly add to the adverse effect on the respondent’s light, the figure of 5% which we previously adopted may in fact still be correct. It might be suggested that, assessment of the figure being such an imprecise matter, 5% still covers the situation. We note Mr Heggie’s submissions, although we do wonder whether the fact that we were in effect netting a negative effect against a positive might work against the applicants. Once again, it can be pointed out that the effect being compensated is the additional height of the proposed development over and above the present restriction, i.e. mainly the roof space. Looking at the positives and negatives of the new proposals, we now think that there is a loss of value, in consequence of the variation in the title conditions, which can reasonably be assessed at approximately 7% of £80,000, giving a figure of £5,600.
Our order on the merits of the application will be in the same form as the previous order but specifying the drawings which show the full gable end and not the hipped roof detail; and, further, that compensation of £5,600 will be payable by the applicants to the respondent, unless the applicants exercise their option under Section 90(9).
There was some discussion in relation to the expenses of the further procedure which has taken place. Mr Heaney suggested that the applicants should be found liable for such expense. Mr Heggie on the other hand argued that that should depend on the outcome of the hearing, and also suggested that the present hearing had been made unnecessarily long by the introduction of irrelevant material by the respondent.
We shall follow our normal practice of inviting written submissions on any motion which may be made for expenses. However, since the question of the expense occasioned by this further procedure was canvassed, it seems appropriate for us to express a preliminary view on it. The underlying rationale for awarding expenses is that a party has caused expense to another party. In our view, regardless of the actual outcome, the further procedure was caused by the applicants and there has been nothing unreasonable in the respondent’s conduct in relation to it. We would encourage parties to reach a reasonable agreement on the matter of expenses, bearing in mind the divided success (the applicants opposed the award of compensation) as well as the position about the further procedure.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr C A Heggie, solicitor, Heggie Alexander, Edinburgh | |
| for the respondents: | Mr R J Heaney, surveyor, Dixon Heaney, Edinburgh | |
| Date heard: | 1 August 2006 | |
| Members sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 25 August 2006 | |
Case Ref: LTS/TC/2005/12
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 August 2006
Neil M Tainsh – Clerk to the Tribunal