This is an application by the joint proprietors of a 1960s low level bungalow to lift a title restriction so as to enable them to demolish their house and erect two two-storey detached houses, for which they have planning permission, in its place. The present title restriction prevents more than one house on the plot and contains certain minimal building obligations. The respondents are the immediate neighbours on one side and are admittedly benefited proprietors. They would be particularly affected by a loss of natural light in one room at the side of their house if the applicants’ proposals proceed.
Applying the test of reasonableness set out in Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the Act”), the Tribunal is, on balance, satisfied that it is reasonable to grant the application to the extent of varying the title conditions to allow the particular proposed development to proceed. The application will now be continued to enable the respondents’ claim for compensation to be disposed of.
The conditions are contained in a Feu Charter by Weir Housing Corporation Limited in favour of James MacKay Bruce recorded in the General Register of Sasines for Lanark on 7 October 1961. This conveyed the plot on which the applicant’s house was built (“the subjects”). The applicants accept that some immediately surrounding proprietors, including the respondents, were entitled to the benefit of the conditions, which have accordingly survived the abolition of feu rights. The principal relevant conditions are as follows:-
“(FIRST) The feuar shall be bound to erect and complete and shall be bound thereafter to maintain and uphold in all time coming on the said plot or area of ground hereinbefore disponed a dwelling house not exceeding two storeys in height and containing not less than five apartments, with suitable and substantial domestic offices behind the same and which shall be erected at a cost of not less than Three Thousand Nine Hundred and Sixty Pounds Sterling and the front walls of the said house shall be erected upon the building lines: (SECOND) The said house shall be used as a private dwelling house only and for no other purpose and shall never in any way be sub-divided or occupied by more than one family, and any garage which may be erected on the said plot or area of ground shall be occupied and used only as an adjunct to the said house and for the personal pleasure and use of the occupier of the house and shall never be let or occupied or used separately from the house or for any other purpose of trade or business; No other buildings or erections of any kind whatever except the wall and other enclosures shall ever be erected on the said plot or area of ground without the consent in writing of us or our successors, and the same so far as not occupied as the site of the said house and/or garage and other domestic offices already mentioned, and the entrance thereto, shall be used as ornamental garden ground and a green for bleaching or drying clothes (the said green being always at the back of the said house) and for no other purpose whatever:”
A number of consequential and more detailed conditions, proceeding on the basis of just one house, follow.
The applicants are Thomas Daly and Anne Frances Daly, of 7 Blairston Avenue, Bothwell (“the subjects”). They seek discharge or alternatively variation of the title conditions to permit them to erect two two-storey detached houses at the subjects, in accordance with plans for which they hold detailed planning permission. The application was intimated to several surrounding proprietors whom the applicants accept to be benefited under the title conditions. Of these, only the respondents, Thomas Bryce and Helen Bryce, of 5 Blairston Avenue, maintained objections.
At the oral hearing of the application, the applicants were represented by Miss Griffiths, Solicitor, of Messrs Biggart Baillie, Glasgow, who called David C. Reat, Architect, M.Arch., MRIBA, MAPlS, the architect who prepared the final design, Colin McDowall, MRTPI, Head of Planning and Building Control Services for South Lanarkshire Council, and the applicant Mrs Daly as witnesses. The respondents were represented by Miss Stewart, Solicitor, of Messrs Macdonalds, Glasgow, who called the respondent Mrs Bryce and Stuart G Henderson, Architect, as witnesses. The productions lodged by the parties included copies of the planning permission and the detailed plans approved, a planning application report, photographs, an architect’s drawing in relation to the daylight requirement, a report by Allied Surveyors, who were instructed by the respondents to report on the effect on value, and an opinion by Mr Henderson on the proposed development. The parties lodged a Joint Minute of Admissions agreeing the accuracy of certain of the documentary productions. The Tribunal made an accompanied site inspection, which included some internal inspection of both properties.
Shortly before the hearing, the respondents lodged a detailed claim for compensation on the basis not only of an alleged reduction in value but also of estimated costs of alterations to minimise the particular natural light problem. It was agreed that the applicants were to have time to answer this claim in the event of the application on the merits being granted, and accordingly the issue of compensation was not argued at the hearing.
Ord v Mashford and Others 2006 SLT (Lands Tr) 15 (LTS/LO/2004/16)
George Wimpey East Scotland Limited v Fleming and Others 2006 SLT (Lands Tr) 2 (LTS/LO/2004/19)
Cameron v Stirling 1988 SLT (Lands Tr.) 18
Miller Group Ltd v Gardner’s Executors 1992 SLT (Lands Tr.) 62
Halliday, Conveyancing Law and Practice
The basic facts are not seriously in dispute. The Tribunal can make the following findings on the basis of the oral and documentary evidence and its own inspection at the locus:-
No.7 Blairston Avenue comprises a quite substantial plot approximately 76 feet wide and on average 150 feet deep on which there is a single storey bungalow built in the 1960s along with a detached garage in the rear garden. The bungalow is built across much of the width of the plot. Provision for vehicle parking and access to the rear garage has been made in the 11 feet wide gap between the house and the North-East boundary (mutual to No.5). A similar gap on the South-West side exists. The house is designed with 2 projecting rear wings, one on each side of a rear central courtyard. Due to the extensive frontage of the building in relation to its depth it has a very shallow pitched roof, covered in bitumen felt. No significant works of improvement or upgrading have been carried out to the exterior of the house.
Blairston Avenue leads off the principal through traffic route between Uddingston and Hamilton and is close to the centre of Bothwell. Notwithstanding its closeness to a busy traffic route it is a quiet mature residential area in the main developed with houses of a similar age, character and value. The houses are all single or one and half storeys in height with the exception of some recent 2 storey developments. The neighbourhood generally slopes downwards to the South and the banks of the River Clyde.
A small complex of 2 storey houses is being developed within the grounds of Blairston House which is located in Blairston Gardens off Blairston Avenue. The underlying slope in the topography and the size of the site being developed allows this new development to fit in to the overall character of the neighbourhood. A new block of flats has been constructed immediately to the East of the reference subjects in the grounds of an existing older building which itself has been converted into 3 floors of flats. Although located immediately to the rear of No.7 Blairston Avenue this development is not part of the neighbourhood of the reference subjects as access is taken from the main through road where the surrounding development is in any event much older. There are 5 houses in the immediate neighbourhood of a similar style and age to the reference subjects; of these, three including No.5 owned by the respondents, have been substantially upgraded and extended with raised roofs incorporating re-tiling and additional architectural features Other houses in the neighbourhood have been extended, most notably No.2 Wingfield Gardens which has a substantial side and rear extension occupied by the daughter and son-in-law of the principal homeowners. No.9 Blairston Avenue as well as No.2 Wingfield Gardens are occupied by extended families, apparently with some degree of separation of the accommodation but not complete sub-division.
The respondents’ property was originally of similar design to No.7 but has been substantially altered. The rear central courtyard between the 2 wings has been infilled and now comprises a lounge. The original lounge has been converted to a smaller living or day room incorporating a utility room at the rear but within the original envelope. In consequence the living room has natural light only from a double window in the south-westmost gable wall, the original window in the rear wall now serving the utility room. However, as Blairston Avenue follows a gentle curve the houses are stepped back from each other and accordingly the living room of No.5 faces the driveway and fence connecting the house at No.7 to the rear garage. The original roof has been replaced with one incorporating a more significant slope or pitch allowing it to be clad with concrete tiles; in consequence at its apex it is much higher than originally built and much higher than that of No.7 although there has been no significant variation at wall-head height.
Two houses are proposed to be built on the present plot of of No.7. They are mirror images of each other and have been designed to take full advantage of the width available in the plot having regard to the requirements of the local authority. Each house is to be set 2 metres from the respective boundaries with No.5 and No.9 and there will be a 4 metre gap between them. They generally follow the existing building line and as with the existing houses are stepped back from each other. They will be 2 storeys in height but on the front elevation the roof has been sloped back from the ground floor ceiling height with an attic window provided over approximately half of the frontage. At both side gables the roof has been “hipped” as has the front and rear slopes with the result that the roof comes to a central apex point. The gable walls to the existing houses are however a full 2 storeys in height. Behind the main 2 storey part of the houses is a single storey rear projection designed as a sun-lounge, this covering approximately half of the width of the houses. Both houses incorporate an integral garage, sharing a common entrance drive. There is provision for a further 3 car spaces at each proposed house. Each will have 2 public rooms as well as a cloakroom on the ground floor with 4 bedrooms and 2 bathrooms on the 1st floor. The height from ground level to the underside of the gutter in the proposed new houses is approximately 5.055 metres; this compares to the height from ground to gutter of the existing house of 2.64 metres. The houses will be built of traditional materials. In distinction to the prevailing design in the neighbourhood these proposed houses will have significantly narrower frontages and correspondingly greater building depth than other houses in the neighbourhood.
The planning consent granted reflects an amendment from the original application made particularly in regard to the design of the roof. The original design incorporated the gable walls running full height to the apex whereas the amendment embraces the hipping of the roof at the gables thus reducing the height of the gable brickwork. As part of the local authority’s consideration of planning applications a daylight test is carried out. The initial test is to investigate whether from a notional position 2 metres above internal ground floor level there is uninterrupted sight at an angle of 25 degrees above horizontal. If any development fails this test a more sophisticated test under British Standards 8206 can be carried out involving the calculation of “probable daylight hours” for both summer and winter months. In the instant case the development failed the initial test but passed the test under B.S. 8206. In general, tests under B.S. 8206 require to be carried out by specialist or very experienced persons. Objections were made to the local authority against the proposals. The development control officer of the Authority recommended approval and this was accepted by the planning committee. Detailed planning consent was granted on the 17th February 2005.
The proposed houses will differ from the prevailing design in the neighbourhood. They will have much narrower frontages and will have significantly greater build depths. Although the garden of No.7 is itself very much deeper than most others in the neighbourhood and therefore the extent of the plot which will be developed by buildings will not be excessive, from the road this development will be seen as prominent and concentrated. The houses will be viewed as 2 storey buildings, notwithstanding the provision of an attic at first floor level in the front elevation.
The only direct impact will be from the North-Eastern most house gable wall. It will be closer to the boundary and in turn closer to the living room in No.5. The gable wall, being much higher and also extending back much further, will restrict the amount of natural daylight flowing into the living room although the effect will depend on the particular climatic conditions at any one time. The generally open appearance from the living room (which is however of an urban environment only and not scenic) will be replaced by a 2 storey high wall. In contrast to these changes there is, however, likely to be much less physical presence by adjoining house occupants in the area of ground between Nos. 5 and 7 as there will be no cars parked there. There will be a less significant effect on the dining room of No.5 which sits forward of the Living Room as this already looks out on to a wall, albeit only one storey high and is also positioned close to the front garden. The lounge formed in the courtyard at the rear will be unaffected, although the natural light there is already quite limited. The rear garden is already very enclosed due to the proximity of the adjoining boundaries and the garage of No.5, as well as by the raised roof over No.5, and will be unaffected by the proposed development. From the road the wall-head height of the proposed new houses will not be significantly higher than the apex of No.5 since its long frontage combined with the need for an adequate slope for concrete tiles has resulted in this apex being close to 2 storeys in height However they will appear to be higher because of their scale and restricted frontages.
Mr. Reat is a fully qualified architect specialising in new residential developments, of which he is involved in 10 to 12 per year. He was also involved in the design of the windows for the new Scottish Parliament. In the instant case his remit was to modify a previous design by another architect to obtain a planning consent. He made five or six site visits and had discussions with the planning officer and was part of a committee meeting dealing with the case. The issues arising related to amenity; the requirement for a 2 metre space round each building with 4 metres between each one; a reduction in the footprint; the impact of the gables on neighbouring property as well as reducing the mass to adjoining properties. Mr Reat’s principal solution was to reduce the height of the gable wall by the introduction of a hipped end on the roofs at the gables; in addition he proposed the introduction of 3 car-parking spaces for each house. In the original design the gables were two and a half storeys high. The overall height at the roof apex was not altered but the reduction to 2 storeys at the gables meant that, in his view, the effect of the new houses on daylight on neighbouring houses would now be negligible. The calculation of the effect of any development on the daylight on neighbouring property was a complicated matter and there were various measures available for assessing this. Some were advisory only. Much depended on the particular circumstances of each case. The aspect of the house as well as the amount of reflected light from adjacent buildings was important. Mr Reat concluded that on the more sophisticated test the new development did not reduce the daylight to No.5 below the minimum requirements. He was aware of the test used by the respondents’ architect (the P J Littlefair Test) but this was not mandatory and was less detailed and comprehensive than the test he had employed. He had been guided by the local authority planning department and suggestions made at a committee meeting. There were alternative locations available on the site for the proposed 2 houses but these were unacceptable to the planning department. Although he had not inspected the respondent’s house internally Mr Reat was aware that the rear courtyard had been infilled in the past and that a utility room had been formed at the back of the living room meaning that the only source of light was the side window. In his view this significantly altered the original concept of the house which was to make use of the 2 wings to provide natural light from the back. The house was never intended to rely on natural light from the side walls. Mr Reat finally outlined his views on the appearance of the 2 houses, as revised, in comparison to the existing houses in the neighbourhood. In his view the characteristic of the immediate locality was that houses were built fully up to the mutual boundaries and his proposals merely replicated that. In addition there were now 2 storey developments appearing nearby and the proposals for this site continued that pattern. He also had had regard to the fact that the height at the wallhead of the new buildings was very close to the height at apex of the adjoining houses and the proposed houses therefore linked in with the existing neighbourhood.
Mr. McDowall has been head of planning at South Lanarkshire Council since 2004. He confirmed that the proposed development conformed to his council’s requirements for minimum distances between new houses and he also confirmed that the officials had considered the effect of the development on daylight and sunlight on the adjoining property. A site visit had been made because of the strength of feeling in this particular case, although it such visits were not common. In his view the development would not have a detrimental effect on the neighbourhood. He recognised that the extent of natural light depended on a number of factors and was not an exact science. While the development would have some effect on the extent of natural light to No.5 he did not consider that this was enough to recommend refusal of the planning application. He considered that the principal effect of the proposed development on No.5 would be the loss of a view and not the loss of daylight. Finally he was satisfied that the development would not detract from the street scene, was not cramped and was not over-development.
As part of the productions lodged by the respondents there was a report from Allied Surveyors commenting generally that the proposed development would not be in keeping with the existing development in Blairston Avenue. It offered no firm view on the effect the proposed development might have on the marketability of the respondent’s property as this was dependent on the strength of the market at any given time.
4. With leave of the Tribunal the applicants lodged a report commissioned by them from Barr Brady dated 22nd February 2006. Although it makes comment on the nature of the surrounding development this report primarily deals with value issues and the effect of the development on the value of the respondent’s house. As the Tribunal had agreed that any matter of compensation would only be considered after a determination on the merits of the application had been made this report was left in abeyance.
Mr Henderson is a fully qualified architect who has for the last four and a half years been employed by the same house building company with whom Mrs Bryce works as a sales manager. He had paid four visits to the locus and described the existing overall general style as a combination of two features, firstly pitched roofs and secondly a horizontal emphasis. A typical feature was the width of the houses and that there were no gables to the front. All gables were to the sides. The general height of the gutters was uniform – i.e. at first floor level – and the houses were generally low-lying. Even the one and a half storey houses still had the gutters at first floor level. Although daylighting was important it was just one of the prime considerations. Equally important was that the proposed development should not be detrimental to the neighbourhood and this was even more significant with infill development particularly in tight situations. The Littlefair rule had been used by him but he confirmed that it was a crude measure and that if a development failed this rule one would normally fall back on the calculation under B.S. 8206. He had never carried out a calculation under the B.S. standard and his experience was that it was always carried out by specialised consultants, reflecting its complexity. The proposed development failed the Littlefair rule but he did not dispute that it passed the B.S. rule, although he commented on the lack of vouching of that. He had noted that all of the existing houses have windows in the side walls and furthermore each is staggered in terms of its position with its neighbour. In his view this has been designed to allow daylight in to the public rooms. In regard to the Council’s 2 metre and 4 metre rule this was more to do with the appearance of detached houses in modern estates and was to avoid the appearance of terraces of houses. It had less to do with over-building. He questioned parts of the South Lanarkshire Planning Application report and in particular how they interpreted their own guidelines in relation to the subdivision of garden grounds. In particular he disputed that the proposed houses were “of a scale and massing sympathetic to the character and pattern of development and must not result in a development that appears cramped, squeezed in or visually intrusive.” He also disagreed that the proposed houses were of the same shape as the existing development and that the proposed new houses reflected the existing features in the street.
For the applicants, Miss Griffiths spoke to a written submission which is summarised as follows.
Firstly, Miss Griffiths submitted that the respondents’ objection was irrelevant, in respect that they were seeking to enforce a right which they did not have. It was clear that the objection related only to the size, design, shape and position of the proposed house immediately adjacent to their property on the basis of the alleged detrimental effect on the light in their habitable rooms. Their position must be that the title conditions provided them with a guarantee of a specific amount of light, but the conditions in fact did not provide any such guarantee. Reference was made to Halliday at page 261 onwards, paras. 19-31. There was merely a very broad obligation that ‘a dwellinghouse’ must be no greater than two storeys and with its front wall on the building line. Approval as to what was to be built was not required. There was no design obligation nor any obligation relating to the location of the house (except in relation to the building line). The condition did not prevent the house being built closer to the respondents’ boundary and at two storeys in height. The condition could easily have regulated the design of the house, or where it was to be located. The respondents, like the superiors, had no ‘right of veto’ on such matters. The applicants could without objection demolish the house and re-erect anywhere on the plot, to any size (no greater than two storeys) and any design, with the front wall on the building line. The respondents were opposing relaxation of a title condition which did not exist.
Secondly, even if that submission were not accepted, on weighing up the statutory factors, the application was reasonable in the circumstances. Each case turned on its own facts and circumstances. Reference was made to two Tribunal decisions on the application of the Act, viz. Ord v Mashford & Others and George Wimpey East Scotland Ltd v Fleming.
The appropriate starting place was the purpose of the condition at the time it was imposed. This was to create and preserve a residential area with protection against commercial use and what was perceived as over-development in 1961. The superior was not interested in the design or positioning of the houses and cannot have intended to restrict their width or protect neighbours’ light. The variation sought would not be detrimental to this purpose and would not cause over-development and this was not what the respondents were objecting to. Mr McDowall, an objective witness, had agreed that there would not be over-development.
In regard to Section 100(a), there had been relevant changes in circumstances, viz. the development to the roof and rear of the respondents’ property, minimising the daylight source, it being likely on the evidence that the respondents’ property would originally have been identical to the applicants’ property. The respondents must accept the property with all modifications made to it, and a more onerous burden should not be placed on the applicants as a result. Further, there was the development of new two storey houses at Blairston House; a ‘granny flat’ at 9 Blairston Avenue; and a six-room extension, giving the potential for a semi-detached house, at 2 Wingfield Gardens. These were also burdened properties and there had accordingly been sub-division in breach of the conditions. There had also been development at 3 Blairston Gardens, and an old building behind Nos. 5 and 7 Blairston Avenue had been converted into flats and a two storey block of flats added, setting a precedent in the immediate vicinity. In the light of these changes, the title condition was no longer appropriate and reasonable.
On Section 100(b), Miss Griffiths submitted that the condition did not confer the benefit claimed in relation to space, light and aspect. At most, the benefit was to the general amenity in the area and there would be no adverse impact on that. Indeed, the general amenity would be enhanced. Reference was made to the evidence of Mr McDowall and Mr Reat, which was to be preferred to that of Mr Henderson, in relation to adverse impact on daylight. If the respondents were entitled to the benefit of a specific aspect and light, on the evidence there would not be any great adverse effect. On Section 100(c), while it was accepted that purely personal considerations would not be relevant, the condition clearly impeded the applicants’ enjoyment of their own property as they so desired: they were unable to develop the two proposed houses for which they had planning permission. On Section 100(e), the condition had been created almost 45 years ago, and there had since then been a change in attitudes, particularly in relation to over-development, for example the flatted development to the rear.
Miss Griffiths submitted, under Section 100(g), that material weight should be given, in the particular circumstances, to the planning consent.The respondents’ only objection, related to the restriction of light, had, on the evidence, been a ‘material consideration’ which had been considered in the planning process. Mr McDowall had given opinion evidence that this was not a reasonable objection and that the distance between the proposed house and the respondent’s property would be sufficient not to have a significant adverse effect. He had also been clear that the planning decision, taken after an exceptional period of consideration during which considerable work had been done to come up with an acceptable solution, was fair and reasonable. His opinion should be preferred to that of Mr Henderson.
Under Section 100(j), other material factors, Miss Griffiths referred to the considerable consideration which had been given in response to the respondents’ concerns to the effect on their property. Weighing up all the relevant factors, the balance was in favour of the applicants. Finally, she distinguished the facts in two cases under the 1970 Act intimated as authorities by the respondents, viz. Miller Group Ltd v Gardner’s Executors and Cameron v Stirling.
For the respondents, Miss Stewart first submitted that weight should be given to the evidence both of Mrs Bryce and of Mr Henderson. On the objection to relevancy, she submitted that the issue had not previously been raised. She did not accept that the objection related only to the ‘size, design, shape or position’ of the proposed houses: the major part of the objection was to the loss of light. It was not suggested that the respondents were entitled to any specific level of light, rather that they had a general right to light as part of the amenity protected by the conditions. The density of development, with its impact on amenity, was important.
Miss Stewart suggested that hypothetical consideration of the effect if the windows in the respondents’ house were in a different position was irrelevant. What was relevant was what presently existed. In any event, it was not accepted as having been established that the window had been in a different position: there was no evidence that the houses had been identical, although they had been bungalows with the same footprints and almost flat roofs. She also took specific issue with evidence that the proposed houses would be in keeping with the area: Mr Henderson had drawn attention to the general character of low profile properties as a significant aspect of the neighbourhood.
Reviewing the statutory factors, Miss Stewart submitted that while it was reasonable to suggest (under reference to Nos. 5 and 9 Blairston Avenue, 3 Blairston Gardens and 2 Wingfield Gardens) that there had been some development, that had not changed the character of the benefited properties or the neighbourhood. These had been developments with sensitivity to preserve the essential character and should not have particular weight. The new flats could not be seen from the respondents’ house, took different access and were not part of the neighbourhood, and the development at Blairston House was within its own discrete boundaries and did not affect the character. The general character had not changed and the immediate neighbourhood had changed very little. In relation to ‘neighbourhood’, she referred to Cameron v Stirling at pages 3 to 5.
Next, Miss Stewart considered Section 100(c). Accepting that the condition did impede the development for which there was planning permission, she suggested that the applicants could build two smaller, or semi-detached, houses. The calculation under B.S. 8206, relied on in preference to Mr Henderson’s ‘25 degrees’ rule, had not been produced. In relation to the benefit of the condition (Section 100(b)), Miss Stewart agreed that the purpose of the condition was to maintain the residential character. It also went to controlling the extent of development. The restriction on density was an amenity benefit which by implication involved issues of spacing, light and aspect for each property. There must have been an intention for houses of a particular character – single houses on large plots. Amenity was a very important factor. To allow the particular development proposed would be to the severe detriment of the respondents, there having been no change in the character of the amenity which the condition afforded them. Although it was accepted that there was no open view at present, to have to look into the side gable wall one metre closer than at present would involve the loss of all sight of any general aspect.
Under sections 100(e) and (f), Miss Stewart suggested that the purpose was as identifiable and applicable now as in 1961. It was to maintain the residential character and afford a certain amenity. Despite the element of ‘sub-division’ suggested at 9 Blairston Avenue and 2 Wingfield Gardens, these extended houses could only be sold on the basis of use for single families. On Section 100(g), planning permission was not conclusive evidence of reasonable use – Miller Group Ltd v Gardner’s Executors; Ord. The superior must have intended, by restricting the density of development, to afford amenity and this justified an expectation of a certain amount of light. Finally, under section 100(j), other factors, Miss Stewart referred to the condition, in effect, that the properties would be built so staggered that rooms to the south west would have an improved amenity. To allow the variation sought would result in loss of amenity to a scale that would result in the loss of natural daylight and aspect. Further, the unique situation of No. 5, with habitable rooms facing that way, was material. In all the circumstances, the application should be refused as unreasonable.
We first reject the challenge to the relevancy of the respondent’s objection. Firstly, we consider that it confuses the condition with its purpose, scope or effect. Analysis of the purpose and effect of the condition is important when considering, under the statutory test, the merits of this application, but it is not correct to assert that the respondents are seeking to rely on a title condition which does not exist. It is accepted that they are benefited proprietors in relation to an obligation not to build more than one dwellinghouse and it is that obligation on which they are seeking to insist. There has been no application to us to rule on the enforceability of the condition, nor do we understand it to have been submitted that the respondents have no interest to enforce it (as opposed to the question, within the statutory test under Section 98 and 100, as to the extent of benefit). There may possibly be extreme cases in which stated objections can be seen to be lacking in specification or so clearly unrelated to the title condition as to be liable to be overruled without any evidence being heard (which is the implication of the submission), but we do not consider that to be sustainable in this case. Secondly, even if we are wrong in this and it is permissible as a matter of relevancy to consider whether the objection addresses a matter which may be within the scope or purpose of the condition, we consider that the question of natural light could fall within an aspect of the amenity protection given by this title condition. The condition, by limiting the extent of building on the plot to one dwellinghouse, garage and domestic offices, does provide some degree of protection of the physical amenity of the immediate neighbour. Consideration of the true purpose of the condition, and of the extent of such protection conferred by it, is appropriate to the merits of the application and objections to it.
Before considering the statutory factors, we should set out some views on some issues which arose on the evidence. We accept all the witnesses as generally credible and reliable. The three experts might all be thought to have had some interest in the matter, but we accept that they each approached the giving of evidence in a professional way. We did feel that each of them was primarily addressing the question whether the proposed development met public planning policies, this not being the issue before us.
The evidence in regard to the planning history appears to us to confirm, as suggested in cross-examination on behalf of the respondents, that this was a case in which there was a degree of difficulty in obtaining planning permission. Mr Reat implied in evidence that he was called in when a previous set of plans had failed to win the approval of planning officers, and he referred to having to attend meetings to discuss the plans and indeed the plans required to be modified. We also heard from Mr McDowall that the application had received unusually lengthy consideration for a dwellinghouse application. A lot of attention had been required to the respondent’s objections.
We can accept that planning policies, in particular in relation to overshadowing and over-development, were met. We do, however, consider that the proposed two-storey gable wall slightly closer to the boundary, and extending considerably further back into the plot, will have a noticeable effect on the daylight enjoyed by the respondents in what is one of their habitable rooms (albeit that our inspection took place on an afternoon of strong sunlight streaming into the window in question and allowance ought to be made for that). We also think that the proposed development will give some impression, particularly to those used to living in this neighbourhood of predominantly single storey houses, of over-crowding. Compliance, perhaps narrowly, with planning policies, does not make an application under our jurisdiction reasonable, except perhaps in the rare case where the purpose of the title condition can be seen to be an entirely public purpose. What we have to consider is what weight the impact of the proposed development on the neighbouring, benefited, property has in applying the statutory test under our jurisdiction.
The other observation which we should make on disputed evidence is that we accept as probable the applicants’ suggestion that No. 5 originally had its lounge in the same location, i.e. at the south west corner, as it still is at No. 7, with a south-east facing window with an aspect to the garden rather than to the boundary. We reach this view because the two houses (as originally built) do appear to have had the same design; the aspect to the rear of the houses rather than to the side seems more natural; and there clearly has been substantial alteration to that area of No. 5. Again, however, we have to consider whether this particular matter is material, either for or against the application.
It is appropriate to start our consideration of the factors to which section 100 draws our attention with a consideration of the purpose of the title condition. The condition with which we are mainly concerned is Condition (Second) in the Feu Charter, although it is necessary to refer back to Condition (First), the long since fulfilled obligation to erect a dwellinghouse, etc., to see the extent of the continuing obligation. It is primarily a continuing use and building restriction. There is to continue to be one house, not exceeding two storeys high and with its front walls on the building line, with a strict restriction to residential use by one family, a prohibition against any other building or erection of any kind without consent, and a degree of obligation in relation to the garden ground, all of which reinforces the residential, non-commercial purpose. These obligations are accompanied, in a standard way, with an insuring and rebuilding obligation (Condition (Seventh)) which requires rebuilding, in the event of damage or destruction, “in strict conformity with the provisions of these presents”. The purpose of the obligations, in our opinion, is to preserve the amenity of the neighbourhood as a whole, firstly by a strict restriction to residential use, secondly by controlling the density of development and the extent of occupation, and thirdly by some degree of building restriction, which is, however, limited to the requirement to build to the front building line and to limit to two storeys. Clearly, the purpose is not to impose any uniformity or standard of design, or to limit the size, of any dwellinghouse (so long as occupied by only one family), or control its location within the plot (other than by application of a front building line). Nor can it be seen to be directed, except in a most general sense, at protection of the physical amenity of the immediate neighbours. If that were to be a significant part of the purpose, the condition could easily have imposed some restriction on building at or close to the boundary. The purpose is not to retain private control over these matters, which are therefore almost entirely left to the planning authority. The superior’s interest to enforce these conditions has of course now been extinguished by the abolition of feudal tenure, so that the focus on enforcing real burdens, where the neighbouring proprietors were also benefited, is now on the neighbouring proprietors, but that cannot be used to extend the purpose of the conditions.
There has been some change in circumstances. Firstly, three of the other four houses in the neighbourhood which were built to the same design have been to some degree or another upgraded, quite extensively and strikingly. This evidences the degree to which the design of the burdened subjects have become outmoded. Although we were not told of any structural problems or anything of that kind, the subjects have not stood the test of time well – from our inspection, we agree with the view that as they stand the subjects have come to look out of place, and it is not at all surprising that the applicants, like the owners of the other similar subjects, plan extensive works. Secondly, there has been some other development – the extensions at No. 9 Blairston Avenue, immediately on the other side of the subjects, and No. 2 Wingfield Gardens. These appear to involve some degree of separation of living quarters for different family generations, but apparently not ‘sub-division’ within the meaning of the title condition. This has very slightly increased the overall building footprint. Finally, there are two examples of new building, albeit neither seems to the Tribunal to be properly regarded as within the immediate neighbourhood. These are the new houses in the site of Blairston House, but at a location which, in our view, is somewhat separated, by the lie of the land as well as geographically; and the sub-division of an apparently Victorian house and newish block of flats to the rear of the subjects, physically quite close but again not, in our view, part of the immediate neighbourhood because access to these properties is not from Blairston Avenue. So there is what we would see as quite a small degree of change of circumstances.
Consideration of the extent to which the condition confers benefit on the respondent’s property (Section 100(b)) appears to us to be of central importance in this case. We have already indicated that the question of natural light does fall within the ambit of the protection of amenity given by the condition. This must be so to an extent when there is some restriction of the height of building and the amount of building. The requirement to adhere to the building line, and the prohibition of further building in the garden, adds to this. When one comes to look, however, at the extent of the protection, one finds it to be somewhat limited. The simple position is that as far as the title conditions are concerned a two-storey house can be built right up to the neighbouring boundary and stretch as far back from the building line as wished. Condition (Seventh) allows rebuilding following destruction to be governed merely by the original building conditions. While one is bound to think that in practice the restriction to one house makes it more likely even without planning control that a single house would be built towards the middle of the plot as at present, the fact is that the benefited proprietor has only very limited control. Moreover, to the extent that the respondents here rely on the existing pattern of single storey buildings, that is not a benefit which they have from the title condition. Nor does the condition confer any protection in relation to the type or design of house. So while the condition does in practice give some protection in relation to natural light, that protection is very limited.
The condition does of course protect against over-development, and the question becomes how significant is this in the assessment of reasonableness on the basis of the evidence and submissions. It has to be said that while the respondents referred to this in their written objections, their oral evidence and submissions made little or nothing of any concern about occupation of the subjects by one more family unit. Their real concern was the particular light problem. There was some disagreement as to the exact import of the arrangements at No.9 Blairston Avenue and No. 2 Wingfield Gardens, but we did not understand the respondents to be indicating any concern about such living arrangements, however they are categorised. Nor is there any indication of any other concern about the addition of one residential unit. Division of the subjects into two plots, each with one house made subject to the same title conditions, is of course slightly different in degree from internal separation of accommodation, but the respondents did little to suggest any real concern about the sizes of the plots. It does seem to us that the respondents are not really objecting to an additional house as such, and that they are not unduly concerned about adding one more family unit to the neighbourhood. The residential character and the protection against sub-division of the houses are important but would continue to apply in the event of variation, rather than, discharge, of the obligations.
We are next required to have regard to the extent to which the condition impedes enjoyment of the burdened property (Section 100(c)). We can readily accept that the applicants need to redevelop the subjects and the condition prevents them from doing so in their preferred way for which they have planning permission. On the other hand, the condition does not restrict the size or design of house, and other owners have redeveloped without building a second house. The applicants accepted that their personal reasons for their preference are not relevant and did not indicate any particular reasons related to the property for building two houses rather than extensively refurbishing (or perhaps completely rebuilding) the one. This seems to us to be something of a gap in the applicants’ case. However, the Tribunal can appreciate from the evidence and from its inspection that refurbishment of the existing house, like rebuilding, would be likely to involve very considerable expense as it clearly has at the respondent’s house and No.3 Blairston Gardens in particular. Abiding by the restriction to one house would, standing the clear requirement to do something fairly major, apparently be onerous. This is not a case in which the subjects could simply be enjoyed in their existing state and the proposal to demolish and replace with two new houses was motivated only by financial profit.
The remaining statutory factors can be considered relatively briefly. Factor (d) does not really arise and was not relied on by either side. Factor (e), the length of time since the condition was created, some 44 years, does not appear to us, in itself, to count very strongly either way, but does perhaps offer a little bit of support to the notion that things have changed, at least a little, in this neighbourhood, as considered above. Factor (g), the planning consent, of course favours the applicants so far as it goes. However, as has been stressed in many cases both under the former and now under the current legislation, this is of very limited significance where the issue is essentially one of private right. The Tribunal re-affirmed this position in Ord v Mashford, at page 15. Evidence is frequently, and was in the present case, led about the extent of consideration of particular issues as material in the planning decision, and that can of course be instructive, but where the decision has been to grant all that is established is that planning policies are considered to have been met and the proposal is, from the public point of view, reasonable. If a substantial purpose of the title condition was to limit overshadowing in a particular way, that would be assessed in these proceedings not by reference to planning policies but by application of the statutory factors and in particular the extent to which the proposal would remove the benefit which the title condition afforded, and should reasonably continue to afford, to the benefited proprietor.
Neither side placed any reliance on Factor (h) in the circumstances of this case. Factor (i) does not arise. That leaves the question whether there are any other material factors. The respondents asked us to consider as material the staggered effect of building to the building line on a curved road, resulting in the southmost corners of the houses, and in particular of the respondents’ house having a lighter aspect, together with the location of the living room window on the south-west, rather than the south-east facing wall The applicants ask us to ignore, in particular, the latter, on the basis that the respondents cannot be in a better position as a result of changes made since the condition was created. We consider that each of these factors could be relevant – works done with the deliberate intention of improving a party’s position might fall to be ignored, but there is no suggestion of that here. On the other hand, when the limited purpose of the title condition is borne in mind, the particular physical layout and position of the window (and whether or not this was a feature of No. 5 as originally built) become of very limited relevance. Putting the matter perhaps the other way round, individual owners considering house designs or possible refurbishments could not count on the protection of the title conditions against overshadowing – their assessment would have to be that they would have to rely on public planning policies because the title condition does not give any specific protection.
We have to weigh up these factors and reach a view on reasonableness. The purpose of the condition is not really to protect against overshadowing but does include some protection of physical amenity. The burdened subjects have become outmoded and in need of at least extensive refurbishment. There has been some, but not very much, change in the neighbourhood. Other proprietors have been able to refurbish without having to build a second house. The condition gives very limited benefit of the kind claimed by the respondents, and they have not relied to any extent on any concern about over-development as such or overcrowding. The existence of the condition prevents the applicants from carrying out a development for which they have planning permission. We do not consider that the two house plots to be created will be unreasonably small, although they will be narrower than the prevailing pattern in the neighbourhood and this will create some impression of overcrowding. The design or appearance of the proposed houses in the street is of itself of no concern to us but the height and depth of the nearer house will have a noticeable impact on the natural light enjoyed by the respondents’ house although it remains within the constraints of the actual building restriction.
We have not found it easy to decide this case, because we can understand a degree of concern about over-development at this particular location. However, weighing up the various factors, and particularly given the limited nature and purpose of the title conditions, we are satisfied on balance that it is reasonable to grant this application. In all the circumstances, the benefit derived from this condition is in our view outweighed by the burden on the applicants. In our view, the title conditions should be varied to the extent necessary to permit the proposals which have received planning permission to proceed. This will preserve the residential character and the prohibition against sub-division of the new houses.
However, there is of course an application by the respondents for compensation. This means that the Tribunal cannot order variation of the condition until that issue has been decided and, if the Tribunal decides that compensation is appropriate, the applicants consent to such an order (their alternative in that event being not to proceed with the application – Section 90(9)). There will be a revised order for the applicants to lodge answers, if so advised, to the respondents’ claim. In considering the issue of compensation, parties should refer to the statutory test as set out in Section 90(7)(a) of the Act.
The Tribunal’s decision, subject to the required further procedure on the claim for compensation, is to grant the application by varying the title conditions to the extent necessary to permit the proposed development on which the application was based.
We were not addressed on expenses: if any issue as to expenses is raised, we would propose to follow our normal practice of dealing with this on the basis of written submissions, after the compensation claim is disposed of.
| Representation: | ||
|---|---|---|
| for the applicants: | Miss I Griffiths, solicitor, Messrs Biggart Baillie, Solicitors, Glasgow | |
| for the respondents: | Miss N Stewart, solicitor, Messrs Macdonalds, Solicitors, Glasgow | |
| Heard: | Edinburgh, 24 and 28 February 2006 | |
| Sitting: | J N Wright, QC K M Barclay, FRICS |
|
| Decision issued: | 28 April 2006 | |
LTS/TC/2005/15
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 April 2006
N M Tainsh — Clerk to the Tribunal