In 1958 the owners of a hotel near the sea-front in an historic part of Dunbar sold a site with some single storey buildings between the hotel and the sea-front. Restrictions on the height of any buildings on the site were imposed. The site and buildings were used as an amusement arcade. The hotel was subsequently converted to flats. The amusement arcade fell into disuse and its buildings are becoming dilapidated. Its owners now wish to sell the site for housing on the basis of plans for two-storey housing for which outline planning permission has been conditionally granted. The owner of a lower ground flat at the rear of the former hotel would undoubtedly be particularly affected, and objects to this application to vary the title condition.
On the basis of the evidence and submissions, including certain further submissions which were requested, and the Tribunal’s site inspection, we have decided, applying the test in Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the Act”) in the particular circumstances of the case, that it is reasonable to grant the application. We have further decided that the applicants should be directed to pay compensation of £4,000 to the respondent.
This application is brought by J. & L. Leisure Limited (“the applicants”) as owners of a plot or area of ground with a former amusement hall and other buildings at Lamer Street, Dunbar extending to 0.119 hectares (0.294 acres) (“the subjects”). They seek variation of a title condition contained in a Disposition of the subjects by Provincial Building Society and others to Erin A. Deane dated 22 and 28 May and recorded in the Division of the General Register of Sasines for the County of East Lothian on 9 June 1958. Representations were received from a number of owners of flats at 15 Church Street, Dunbar (“the benefited properties”), of whom one, Michael John Shaw, 15B Church Street (“the respondent”) insisted on his objections.
At the hearing of the application the applicants were represented by Mr Heggie, Solicitor, of Messrs Heggie Alexander, who called one witness, James McGuinness, a partner in T.M.S. Estates, a firm which has agreed to purchase the subjects conditionally upon the lifting of the title condition. The respondent represented himself and called no witnesses. Various productions were lodged, including, on the applicants’ behalf, an affidavit by Stephen Roberts, an estate agent and property manager with Messrs Garden, Stirling and Burnet, Haddington, on the issue of the effect of the proposed development on the values of the benefited properties. The Tribunal made an accompanied site inspection. Following the hearing and site inspection, the Tribunal allowed the applicants to lodge a further submission confirming an alteration to the plans on which the application was based and addressing an apparent discrepancy in relation to the boundary between the development site and the benefited subjects. The respondent also maintained, in the alternative, a claim for compensation. At the hearing, he had not produced any valuation of that claim, and the Tribunal allowed him a further opportunity to lodge such a valuation if so advised. He has lodged a valuation by Robert J Heaney FRICS, of Messrs Dixon Heaney. Each side took the opportunity to respond to the other’s further submission.
The relevant condition is Condition (Tertio) on Page Fourth of the 1958 Disposition, and is in the following terms:-
“(Tertio) our said disponee and his foresaids will not be permitted to erect on the ground hereby disponed any new buildings of a height exceeding Fifteen feet Six inches from the ground level nor to raise the level of said lean-to roofs at the south-western end of said hall.”
The subjects lie within the Dunbar Conservation Area. To the east-north-east (for convenience referred to as “east”) of the subjects are Lamer Street and then the beach and the sea. To the south-south east (“south”) are two recently constructed housing association properties, one of two storeys and the other of three storeys, which are set back some distance from Lamer Street. The benefited properties within the former hotel, now 15 Church Street and known as ‘Beach House’, lie immediately to the west-south-west (“west”). To the immediate north-north-west (“north”), a narrow public footpath runs the length of the subjects. On the other side of that footpath is an open area owned by East Lothian Council, then a street, The Vennel, and some old and newer housing.
The subjects form a roughly rectangular site. The east end, towards the sea, is mainly open. The main building, which is at its highest point approximately 17 feet high, lies towards the west end, close to the benefited properties. Its width is about 30 feet and the roof, which has a hipped end, is covered with corrugated iron. The hipped end of the roof is separated from the outer face of the respondent’s flat by a lean to roof running eastwards to the gutter of the hipped end. There are additional single storey buildings with varying levels of pitched roofs. The buildings have not been used for some years and they are showing varying signs of decay and dilapidation. They are an eyesore, crying out for re-development. The subjects are on a slight incline, being approximately 1½ metres higher at the west end than the east end.
Following the demise, at some uncertain date, of the amusement business, the applicants, who own the site and had for some time carried on the business on it, now wish to sell the site for housing development. To that end, they instructed architects to prepare plans and take the project on towards planning consent. Building in that part of Dunbar is characterised by a ‘herring-bone’ pattern, whereby many of the buildings are set perpendicularly to the High Street, a short distance to the west of Beach House. The proposals for the site follow that pattern by proposing two rows of housing, on the south side two semi-detached houses and on the north side a row of 5 houses in an approximate terrace. That terrace of 5 houses would be inset from the northern boundary, so as not to interfere with the ‘corridor’ view of the sea from Dunbar High Street. The houses would be on two storeys with pitched roofs, except on the east elevation, towards the sea, where there would be dormer windows (making 2½ storeys on that elevation). Like the recently constructed housing association buildings, the proposed houses would (as required by the planning authority) all be set back some distance from Lamer Street, on the sea side, with the result that the row of five houses on the north side would include an end wall close to the rear of Beach House on which the respondent’s flat is located. The plans indicate a distance of 6 metres between that westmost end wall and the boundary of the site, but an apparent error in the representation of Beach House on the plans leaves, on the basis of the plans, some uncertainty in this matter.
It is not necessary to describe the design of the proposed houses. We note that the two terraces of dwellings would be separated by a gap of 7.4 metres (24 feet) or thereby and the distance between the rear elevation of the southern block and the adjoining East Lothian Housing Association property will be 3.4 metres (11 feet). The width of the north terrace would be 7 metres (23 feet) and it appears therefore to be about 2 metres narrower than the existing amusement hall. Because of the sensitive architectural nature of the locality, the planning authority required consideration of design plans at the outline consent stage. These plans have received outline consent, subject to entering into a ‘Section 75’ agreement to secure a contribution towards the authority’s school accommodation provision. There would apparently be some delay in building all of the houses as the result of a drainage deficiency in the locality. The public footpath immediately to the north is to be upgraded, and the prospects for expenditure on improving the amenity of the public open space on the other side of the footpath would be enhanced by the proposed re-development of the subjects. At the hearing, the applicants proposed one change to the plans, viz. the substitution of a hipped roof for the originally proposed ridge-height gable at the west end of the terrace so as to reduce the impact on the respondent’s light.
T. M. S. Estates, the firm which has conditionally acquired the subjects, briefly raised with the planners the possibility of a completely different type of development, involving a restaurant with accommodation above. This would also have required lifting of the height restriction and was in any event ruled out by the planners. They also considered the possibility of some form of visitor centre, which would be a much lower building, as proposed by a number of residents of the locality who are opposed to this housing development, but did not think it would be viable.
Beach House is an imposing stone building whose main entrance is on the west, or town, side and whose upper floors on the east side overlook the subjects and look out to sea. The respondent’s property is a small two-apartment flat occupying the upper level of an extension to the rear of the building, one of three flats at roughly this level. Part of the extension was on one level only, with a flat roof which now forms an open balcony terrace, which is also part of the respondent’s property and from which access is obtained from a side door leading from the kitchen of the flat. He also owns some of the cellarage underneath. At ground level to the rear of Beach House there is an area of garden on the south side, separated from the subjects by a substantial brick wall. The boundary between the house and the subjects does not follow a straight line, because towards the north side the garden area gives way to a flat roofed building which is in fact part of the rear hall of the amusement arcade, i.e. the boundary of the subjects turns west for some 20 feet before again turning north for some 33 feet along which the rear of the amusement building (at this point a lean-to structure) shares a wall with the extension to the house. A curious feature, however, is that the upper level of that extension, which now forms the respondent’s flat, in fact juts out over the boundary, i.e. over the subjects, by some 4 feet. The extension, with its upper level jutting out as described, as well as the building which was to become the amusement hall, was built at some stage before the 1958 Disposition. The title has provisions securing support and shared maintenance obligations. This particular feature has led to difficulty and uncertainty in the preparation of the plans for the proposed development. The title boundary appears to be at the ground floor level wall. The development plans, however, appear erroneously to show the position the other way round, apparently indicating that the respondent’s flat stops to the west of the boundary, whereas it (although not the terrace balcony) in fact juts out to the east of it. It is uncertain to the Tribunal whether the development site as shown on the plans in fact occupies the whole of the subjects, and since the buildings on the subjects would be demolished it is uncertain how the obligation of support is proposed to be complied with.
The apartments in the respondent’s flat are relatively small and the existing outlook, although looking towards the sea, is of limited attraction because the windows are not large and they look out to the buildings on the subjects. The bedroom, livingroom and bathroom of the flat have windows on the east side. Those windows presently overlook the roofs of the somewhat dilapidated buildings on the north-west corner of the subjects, which adjoin Beach House at the ground level as described.
The respondent’s bedroom, on the north side, has a two light mullion window. This presently partly overlooks the sloping lean-to roof referred to in the title condition and the hipped face of the roof of the nearest building, which rises to a ridge approximately 17 feet high at a distance of approximately 24 feet (7.3 metres) from that window. The angled hipped ridge of this roof, together with the stone side parapet, partially obscures the sea view from this room. The proposals, involving the 6 metre gap to the end of the terrace of 5 houses, and with that terrace slightly inset from the north boundary, would remove part of the present obstruction to the sea view and light on the left (north) side. To the right (south) side, the end of the terrace of 5 houses, with the hipped roof now proposed, would be substantially higher (approximately 10 feet) than the existing roof ridge and thus, on that side, remove much, but not all, of the present sea and sky view. The view and outlook from this room would be changed but would overall remain roughly equivalent to the present situation.
The sittingroom, in the middle of this wall, also has a two light mullion window, which is presently similarly affected, i.e. partial obstruction of the sea and sky views. The existing light from the window, with the partial obstruction, is on the poor side. The end of the proposed terrace of houses would almost entirely remove any sea or sky view and cause a considerable deterioration in the natural light. The outlook from virtually every position in the room would be to only a blank wall and hipped roof.
The bathroom window, which is partially frosted, presently looks onto only a small part of the nearest building and roof, and then towards some of the other buildings on the south side of the site, with a very small sea view. The effect of the proposals would be to introduce, on the left, north, side, the taller end of the terrace but also to introduce a more open corridor view, between the two rows of new building, to the sea.
The kitchen, being set towards the interior of the building, would not be affected either way.
The small terraced balcony towards the south side of the building presently has more of a panorama view, which is quite open and does take in some of the sea view. However, the foreground is considerably marred by the present dilapidating buildings, reducing the attractiveness of the terrace. Under the proposals, the view would include a not unattractive corridor view to the sea, with one of the two buildings, the two semi-detached houses to the right, south, side of the site, set back by some distance and separated by a landscaped car park area.
As explained by Mr Heggie at the hearing, the actual order sought by the applicants was to vary the title condition, not simply by substitution of a different height restriction, but by retaining the restriction to 15 feet 6 inches but introducing an exception permitting development in accordance with the plans submitted and deleting the words from “nor to raise the level . .” to the end. Mr Heggie confirmed that the applicants understood that the plans did secure a gap of 6 metres between the external face of the wall of the respondent’s flat and the external face of the end wall of House No 5 on the terrace. He also accepted that they should be bound to ensure this even if it did mean some re-jigging of the plans.
Addressing the factors listed in Section 100 of the Act, the applicants submitted, in relation to (a), that there had been a number of relevant changes in circumstances since the title condition was created: to the benefited property, which had changed from being a hotel to flats, it being reasonable to suppose that the burden had to do with retaining the desirability of the letting rooms; to the burdened property, for whose intended use at the time the restriction was reasonable – it was no longer so used and it was reasonable to expect that it would not again have that use; and in the neighbourhood, which was no longer a major holiday destination and which in recent years had had substantial, fairly tall, house building, particularly to the south. On (b), benefit, it was acknowledged that there was some benefit to the respondent’s property, but the impact overall, balancing the present position with that proposed, would be minimal. On (c), the condition constituted a significant impediment to the enjoyment of the burdened property. One storey buildings would face planning difficulty and also be of doubtful financial viability. On (e), the condition had been created 47 years ago, a significant period, particularly considering the changes referred to. On (f), the purpose of the title condition, this was to preserve the sea view in the context of use of the benefited property as a hotel. The main purpose was thus no longer present. Putting it another way, a substantial element of the benefit had gone. On (g), there was conditional planning consent. On (h), the applicants were willing to pay any compensation ordered, while reserving their right not to consent. On (j), other material factors, it was submitted that the sort of development proposed would greatly improve the amenity of surrounding properties, including the benefited properties.
The respondent’s written Answers first questioned the changes of circumstances, suggesting that the purpose of the title condition remained relevant. The burdened property provided an opportunity to enhance the seafront, and other uses or alternative designs, without lifting the height restriction, could be considered. Alternatively, bungalows could be considered. The title condition conferred a real and tangible benefit. The erection of one storey buildings should not automatically be presumed to be financially unviable. The length of time since the condition was created should not determine whether it remained relevant. The purpose of the condition was not specified in the Disposition, but preservation of the sea view remained just as important as when the building was used as a hotel. It was accepted that the burdened property was in need of re-development, but the fact that the buildings were substantially derelict was a matter within the applicants’ control.
Supplementing these submissions at the hearing, the respondent stressed that, with amendments to the plans emerging and the planning permission being only outline, the matter would be left wide open. He emphasised the provision in relation to the lean-to roofs. He did not think the matter had been investigated properly. On the respondent’s understanding of the plans, there were 4.150 metres from his windows to the proposed end of the terrace. It was important to appreciate that he had bought his property with knowledge of the burden. He did not agree that the proposals would have no overall effect, and particularly referred to the middle window. The passing of the hotel was irrelevant: the individuals living there all the time were just as much entitled.
We should start by saying that for reasons which will become clear on our assessment of the statutory factors, we have no difficulty in accepting the applicants’ general case that two-storey housing development of the type proposed should not be prevented by the existence of this title condition. To have to maintain the subjects as they are would clearly be unacceptable. We can readily accept that single storey housing firstly might not be approved by the planners and secondly would be uneconomic. As far as other suggested development not exceeding the height stipulated by the condition is concerned, it is not for us to dictate uses to which property owners should put their property and the material before us does not suggest any unreasonableness in rejecting other possibilities.
However, we have to consider the particular objection of the respondent. It is not in dispute that as the proprietor of one of the divided parts of the benefited property, he is entitled to the benefit of this title condition, although the impact of the applicants’ arguments arising out of the change from hotel to flat use and the improved amenity which they say would result to others from these proposals will have to be assessed. It is also clear that there would be some adverse effect on the respondent’s property. The applicants suggest that, balancing everything out, the net adverse effect would be either nil or at worst minimal. The respondent clearly considers otherwise. It is necessary therefore to start our consideration of the issues between the applicants and the respondent by giving our assessment, on the evidence and with the benefit of the site inspection, of the effect which the applicants’ proposals would have on the respondent’s property.
We think that the applicants’ view ignores or at least gives insufficient weight to the effect of the proposals on the natural light in the respondent’s sitting room. This is perhaps illustrated by the fact that the computerised simulation which the applicants produced of the views from the respondent’s flat omitted to represent the position of this room. In so far as the affidavit by Mr Roberts addresses the general question of the effect, as opposed to the more specific issue of effect on value, it is not evident to us that he gave adequate consideration to this room. On the other hand, we think that the respondent over-emphasised the attraction of his flat as it is at present, and we are correspondingly critical of Mr Heaney’s description of the effect of the proposals: we are surprised, to say the least, by his assertion that ‘the proposed development will obliterate the view from the terrace.’
Our view is that there are indeed some positive as well as some adverse effects of the proposed development on the respondent’s flat. The windows all to a greater or lesser extent at present look out immediately to the closest roof on the subjects. This is unattractive in appearance and obscures the natural light, as well as the sea view, to some extent. We should assess the effect of the proposals on the basis that the gap between the respondent’s wall and the proposed west wall of the development would be 6 metres, despite the respondent’s doubts about this, because we are clear that if granting this application we should specifically so stipulate. On that basis, we feel that in the bedroom the positive and adverse effects will more or less cancel each other out. Similarly in the bathroom in which, in any event, the issue is obviously of much less concern. In the sittingroom, however, we are clear that there would be a substantial adverse impact. There was not much of a view from that room, but the respondent is understandably concerned as much if not more by the light than the view. We do consider that in that room the light, already weak, would be considerably affected. The direct outlook would be completely dominated by the end of the development. The view of the sky would be all but obliterated. The extent of the effect on light is obviously influenced by the colours of reflecting surfaces as well as the distance away, and it is difficult to assess such matters exactly, but we do think there is a substantial adverse effect here. It is unfortunate that this happens to be the respondent’s living room and, although the matter was not canvassed, it is obvious upon entering the flat that the layout could not readily be altered.
We do not, however, consider that there would be any overall adverse effect on the view from the roof patio. Put shortly, we consider that the objective viewer would immediately be struck by the unattractiveness of the present foreground view and would accept that although the extent of the sea view would be reduced (but by no means totally removed), the new housing with its landscaped surrounds would produce an overall effect no worse than the present situation.
On balance, therefore, we do think that there would be some adverse effect which is not to be ignored but is also not to be exaggerated and would be in one room only. We do think that the attraction of the flat as a whole is already quite limited as a result of its constricted layout and the existing partial obstruction of natural light.
We turn to applying the legal test of reasonableness. Sections 98 and 100 of the Act require us to look at the various factors listed in Section 100 on the basis of the materials before us and then weigh them up as a whole in order to decide on the overall issue of reasonableness in the particular circumstances.
We should mention one question of interpretation and approach which seems to us to be of importance in this case although the parties’ submissions (understandably) did not directly address it. In this case, not only has the use made of the benefited property changed from hotel to private residential but the property has been divided up. The result under the law applicable (altered, but only in relation to new transactions, by Section 12 of the Act) is that each of the sub-divided flats is benefited. It seems to us that “the benefited property” in Section 100(b)(i) is the objector’s property and not all the units of property which have the benefit. In other words, in assessing the extent to which the condition confers benefit on the benefited property, we should consider the extent to which it confers benefit on, in this case, the respondent’s flat, rather than taking an overall look at Beach House. Such an overall look might result in a different assessment of the extent of benefit. Some sub-divided parts of benefited properties may indeed not be sufficiently affected to be able to demonstrate an interest in maintaining the condition. To take an overall look at the original benefited property could result in diluting the strength of this factor.
On the other hand, the sub-division, and the fact that only one sub-divided part is substantially affected and it is suggested that others would in fact benefit from an improvement in their amenity, would seem in principle to be factors which could be considered, as a matter of degree, in the assessment of reasonableness. To illustrate hypothetically, a property on three levels may have been sub-divided into, say, 18 small flats; the proposed development on the burdened property may be considered highly positive by 17 of the proprietors; but one on the ground floor might be adversely affected. The sub-division would then appear to be a change of circumstances (factor (a)), which might be regarded as a weighty factor, or at least another material factor (factor (j)). In such a case, evidence about the possibility of removing the prejudice to the one owner might be thought important. The existence of compensation provisions should also be remembered, although the first and primary question remains whether the application should be allowed.
The purpose of the title condition (factor (f)) is always important and often considered first. It seems to us clear that the purpose was to preserve amenity and in particular the attractive sea view, but also, in relation to lower levels of the building, to protect the light. The provision of what amounts to an additional restriction in the area of the lean-to roof, in the immediate proximity of what is now the respondent’s flat, seems to confirm this and also to confirm a purpose of protecting this particular area of the hotel and not, just, for example, guests’ bedrooms on higher floors. There has of course been the change of use to flats which is clearly a change in the character of the benefited property, but we agree with the respondent that this in itself is not of any importance in relation to this particular title condition. The relevance of a change in the use of benefited property will depend on circumstances: a particular use restriction might be rendered irrelevant or purposeless by a change in the benefited property, but in this case it seems to us that hotels and flats are each essentially forms of accommodation which can enjoy the type of amenity which this condition was aimed to protect. Purchasers of the flats, including the respondent, bought with the benefit of the condition. So we see the purpose of this condition as a continuing one and one which was intended to protect the amenity of the part of the building which is now the respondent’s flat.
Looking at factor (a), it is clear that there have been a number of changes in circumstances the relevance of which we must consider. There has of course been the change in the use of the benefited property from hotel to flats, and the sub-division. The burdened property has become uneconomic in its present form and its physical condition has deteriorated. There is no dispute that the locality has ceased to be a major holiday destination. The locality, which might be seen to be the ring of buildings around the open area which the council retains, has seen quite a lot of ‘in-fill’ housebuilding all of which appears to have been two storey or higher.
The conclusions which we have already expressed about the effect of the proposals on the respondent’s flat bear on factor (b): as well as providing general protection against building above the permitted height, the condition confers benefit on the respondent as benefited proprietor to the extent of protecting him from the substantial adverse effect on his livingroom of the proximity of the end of the proposed terrace of 5 houses to, in particular, his sittingroom window.
On factor (c), the extent to which enjoyment of the burdened property is impeded, it is completely clear to us that the general prejudice involved in being prevented from proceeding with this housing development, whose height and form are more or less determined by what the planners will allow on this sensitive site, is very considerable indeed. In general, the proposed housing development seems not only eminently reasonable but also the only type of development which can be seriously considered. Accordingly, the burden on the applicants of the title condition restraining development to this height is very considerable.
If, however, what is being considered is the extent of the burden of not being allowed to build to this height so close to the respondent’s flat, the evidence is not so clear. These plans were prepared by the applicant’s architects, from whom we did not hear directly. We can accept that development has to be set back from Lamer Street – the rationale given for the planners’ insistence on that seems understandable and the fact that that is what was actually done on the neighbouring site to the south, where the housing association flats are similarly set back, seems to confirm the position. The applicants therefore only have part of the site on which they can develop. We are more doubtful, in the absence of direct evidence, about the assertion that all seven houses are required to make the development viable, and wonder whether one less house might merely reduce the price of the land. Even on that basis, however, this would impede, to an extent which we cannot quantify, the applicants’ enjoyment of the burdened property.
We can deal briefly with the other factors in Section 100. Factor (d) does not arise. Factor (e), the length of time since the condition was created, may be less important than the issue as to changes in circumstances, but the period of 47 years, during which things have undoubtedly moved on in various ways in this neighbourhood, is quite significant. On (g), the outline planning consent, based on assessment of the design and plans before us, very much strengthens the general case, although the evidence before us does not indicate any very detailed consideration of the respondent’s particular position, as opposed to the general impact of the proposals on Beach House as not only the immediate neighbour but a listed building. We do not in this case attach any weight either way to (h), willingness to pay compensation: whatever may have actually passed between the parties, there is no indication that the applicants have offered such a substantial sum of compensation as would affect the issue whether it is reasonable to grant the application.
One or two other matters should be considered under factor (j). The applicants ask us to take the view that the development would ‘greatly improve’ the amenity of surrounding properties, including the other benefited properties in Beach House. This does appear in general to be correct, but when the purpose of the title condition is remembered we do not think that in these proceedings, which have to do only with that title condition, we should attach weight to benefit to other properties round about. We have also not heard evidence from other proprietors, who are not necessarily to be taken as agreeing. In relation to the other benefited properties, we do think, as discussed above, that this could be relevant, but, again, we have no evidence other than their non-objection, or withdrawal, for reasons unknown, of objections. So we do not give this factor much weight in this case.
The respondent stressed that he had been aware of the condition, and relied on it, when purchasing his property. We can accept these things and agree that they are pertinent, but would point out that it is implicit in our consideration of reasonableness that the respondent in effect bought into this contractual right when he purchased, so it does not add anything to our objective consideration of reasonableness. Another matter on which the respondent relied was the uncertainty of the plans, as to which we have made findings. It seems that the respondent has been endeavouring to make this point for some time and does not feel it has been adequately considered. We hesitate to give a definitive view, but do think that what he has been saying all along on this might well be correct. However, the matter can easily be dealt with by making clear that (as the applicants accept) there must be a gap of 6 metres between the external face of the wall of the respondent’s flat (not the cellarage at the level below which may in fact be the title boundary at ground level) and the external face of the end wall of the proposed terrace of houses. So, again, it does not enter into our consideration of the reasonableness of granting the application. The question as to how the maintenance and support obligations are to be met in the future is also not part of our consideration, as these obligations would not be affected by our decision.
Weighing up these considerations, we are persuaded, despite our acceptance that the purpose of the condition holds good in relation to the respondent’s flat and that removing the height restriction so as to allow this development to proceed will adversely affect his property to some extent, that this application is reasonable.
This is of course a case which we have considered in the light of particular proposals and that has enabled us to consider not just the general question but the particular question whether development at this height this close to the respondent’s flat, which is considerably closer to the development than any of the other benefited properties, is reasonable. On balance, we are persuaded that it is. We think that the adverse impact of these proposals on the respondent is actually quite limited when compared with the existing situation. Nevertheless, it has to be considered whether, having regard to that impact, it is reasonable to allow the particular proposal to proceed. We have considered whether in effect to require a larger gap or some other modification of the proposals. It is of course not for us to attempt design modification of the proposals, so that fixing a particular larger gap, say eight or ten metres, would be problematic. What weighs with us is that, difficult as these matters are to judge, a relatively small increase in the gap would seem unlikely to make a substantial difference. In other words, to cure the problem of the adverse impact on the respondent’s flat would seem likely to require some rather larger, and we think disproportionate, curtailment of the proposals. The burden thus placed on the applicants would, in our opinion in all the relevant circumstances of this case, be disproportionate to the benefit which we would be according to the respondent from his entitlement to enforce the title condition. On a consideration of all the statutory factors, we conclude that it is reasonable to relax this title condition so as to enable the present proposals to proceed.
In reaching this decision, we should not of course give undue weight to the possibility of compensation: the respondent is entitled to ask us to refuse the application on its merits. We can, however, observe that the existence of the provisions in the statute for compensation if ‘substantial loss or disadvantage’ in consequence of the lifting of the condition is demonstrated does of course confirm that there can be cases in which substantial adverse impact is demonstrated but the application still succeeds on the overall test of reasonableness. That is what we have decided is the result here.
Parties’ submissions on compensation were relatively brief. In the Answers lodged on his behalf, the respondent reserved the right to seek compensation for loss of amenity and value. The applicants’ position was that their proposals were likely to enhance rather than detract from the amenity. They relied on their respective valuation opinions. In his affidavit lodged by the applicants, Mr Roberts referred to the subjects as now being virtually derelict and an eyesore: the proposed development together with work which the local authority would carry out on the adjoining ground would improve the appearance and general amenity of the surrounding area. In his view, the ground floor properties, including the respondent’s flat, while losing some light and having altered views to the sea, would not see any effect on value either way. Mr Heaney, on the other hand, referred to the private roof terrace as the key to the value of the respondent’s flat. In his opinion the proposed development would obliterate the view from the terrace and from the windows. He considered the value of the property in its present condition to be £100,000 and that this would be adversely affected in a significant way, which he put at 30% or £30,000. In a written submission in response to this opinion, Mr Heggie submitted that it took no account of the existing outlook over unsightly and derelict buildings and that the view from the terrace would in fact be considerably improved.
We have to determine whether the respondent as owner of the benefited property will suffer ‘any substantial loss or disadvantage’ in consequence of our decision to vary the title condition so as to allow this proposed development to proceed (Section 90(7)(a)(i) of the Act). In other words, is the property with the benefit of the title condition worth more than it will be following variation, and if so by how much is the value being reduced? We have to consider whether in a hypothetical sale of the property a seller who could indicate that any development would not exceed 15 feet 6 inches in height, with the additional protection of the lean-to area, would obtain a higher price than a seller who had to indicate that there was permission for this housing development and therefore the prospect of this substantial adverse impact on the amenity of the flat; or, perhaps, whether an owner in the respondent’s position would, if required, pay a price to have the condition retained and thus prevent this development.
We have already indicated some general views on the effect of the development and on the respective valuers’ opinions. We have indicated that as a result of the effect of the proposals on the natural light in the respondents’ sittingroom we consider that the proposal would have a substantial adverse impact on the respondent’s property. That effect is, however, not to be exaggerated, and we part company from Mr Heaney’s descriptions both of the property as it stands and the effect of the development. On the other hand, with all respect to Mr Roberts, we find his report vague and there is no real indication that he has considered the particular impact on the respondent’s sittingroom. A finding of substantial adverse impact does not necessarily mean that there is any substantial effect on value, but in this case we do think that the condition has a positive value which is substantial. As it seems to us, the owner, or the hypothetical purchaser, would appreciate that the subjects were likely to be developed and would therefore have the height of any such development positively in mind. The existing restriction would therefore be a comfort and would, we think, influence his bid.
Such amenity factors are notoriously difficult to value, because even knowing that a price has been affected rarely reveals the extent of that influence and each case depends on its own circumstances. We have, quite understandably, no comparative evidence. We find Mr Heaney’s 30% figure seriously flawed by his views both on the present situation and on the effect of the development. We are not required to form a view as to the actual market value of the property, and do not question Mr Heaney’s indication as to this on the basis of his description of the property and, presumably, a knowledge of local values. For the purpose, however, of measuring, in what can only be a very rough way, the effect of the proposals, we have worked on a figure of £80,000, reduced from Mr Heaney’s figure to reflect our differing assessment of the position at the property. We think that the effect can fairly and reasonably be assessed at 5% of that figure, giving a very approximate estimate of £4,000.
In these circumstances, we would award compensation under the Act of £4,000. Section 90(9) makes the award dependent on the applicants’ consent, i.e. they have the option whether to proceed on the basis that compensation in this figure is payable, and they have perfectly properly reserved their position on this.
Accordingly, our decision is to grant the application, on the basis that compensation of £4,000 will be payable by the applicants to the respondent, unless the applicants exercise their option under Section 90(9).
We consider it appropriate not only to specify the 6 metre gap between buildings, but also to specify a maximum height, which we fix at 8.25m (27feet) on the basis of our understanding of the plans.
Our order, assuming the applicants do wish to proceed, will be to allow variation of the title condition by deleting the words after “ground level” and substituting:-
“except as may be necessary to permit the erection of buildings of the heights and in the positions shown on the drawings S511/101-105 prepared by Edwin Thompson, Chartered Surveyors, Berwick-upon-Tweed (as revised (where applicable) on 27 January 2006), and subject to the following additional conditions: (i) the heights of the buildings will not exceed 8.25m above ground level, which for this purpose is taken to be 100.10 as shown on drawing S511/01( the site layout plan as existing); and (ii) the minimum distance between any point on the outside face of the westmost wall of such buildings and the outmost face of the flatted dwellinghouse, No 15B Church Street, Dunbar, will be not less than 6 metres.”
As regards expenses, this matter is reserved. If there is any motion for expenses, we would envisage dealing with it, in accordance with our normal practice, on written submissions, unless otherwise requested.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr C A Heggie. Solicitor, Messrs Heggie Alexander, solicitors, Edinburgh | |
| for the respondent: | party | |
| Heard: | Haddington, 12 January 2006 | |
| Sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 28 March 2006 | |
LTS/TC/2005/12
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 28 March 2006.
W D Ballantyne – Depute Clerk to the Tribunal