These two applications for discharge of title conditions, under Part 9 of the Title Conditions (Scotland) Act 2003 (“the Act”), arise out of a proposal to demolish one house in a small high quality housing estate, contrary to the Deed of Conditions, to enable the ground to be sold to a developer in order to provide access to a proposed neighbouring development. The first applicants own that house, one of the original houses in the estate. The second applicant, who is also the developer, owns a tiny parcel of unbuilt ground in the estate, which would also be required and is also subject to the conditions although their application to that tiny area seems doubtful. When the estate was built in 1990, its developers, Cala, did retain one plot with the option of using it for access to the neighbouring development. They were, however, unable to get planning permission for that and therefore sold the plot for one more house, leaving no way through. More recently, the planning position has changed and the second applicant has obtained outline planning permission for the proposed development. He has entered into a conditional agreement to purchase the first applicants’ house with a view to demolition to allow access to the new development. Most of the other proprietors on the estate object to the proposal and oppose this application.
The Tribunal has decided, applying Sections 98 and 100 of the Act, that it is not reasonable to grant the discharges sought. Weighing up the statutory factors, the Tribunal considers on balance that in relation to the three houses between the entrance to the estate and the subjects, and in particular No. 5, the immediate neighbour, the applications are not reasonable. The Tribunal would not have upheld the objections of the remaining respondents, who are proprietors of houses on the other side, not immediately adjoining the subjects and very considerably less affected by the proposals, but in the result both applications are refused.
The first applicants, John Alexander McPherson and Josephine Brew McPherson, are the proprietors of 7 Queen’s Point, Croy, Shandon, near Helensburgh. The second applicant, William Fraser, is the proprietor of a very small area of land to the rear of 7 Queen’s Point. Each applies for discharge of Conditions Third, Fifth, Seventh and Eleventh of a Deed of Conditions by Cala Management Limited registered in the Land Register of Scotland on 4 July 1990. The respondents William Paterson Mackie and Mrs Margaret Jean Mackie, Paul Freidburg and Mrs Shona Freidburg, John Robin and Mrs Isabel Robin, Andrew Chandler and Mrs Linda Chandler, Ian Standing and Mrs Abigail Standing, Bryan Wight and Mrs Linda Wight, Martin Grafton and Mrs Jane Grafton, and Jack Rudram and Mrs Carolyn Rudram, are proprietors of respectively Nos. 1, 3, 5, 9, 11, 15, 17 and 21 Queen’s Point.
The applications were heard jointly. At the hearing, both applicants were represented by Mr Geddes, Solicitor, and all the respondents by Mr Brownlie, Solicitor. Mr Geddes led the following witnesses for the applicants:-
Mr Brownlie led the following witnesses for the respondents:-
Both sides lodged substantial productions. They also helpfully entered into an extensive Joint Minute of Admissions. The Tribunal made an accompanied inspection of the estate and also of neighbouring land through which it was suggested that access to enable the proposed development to proceed without coming through this estate might be possible. During the hearing, it appeared to the Tribunal that not enough consideration had been given to the title arrangements and conditions which would apply in the case of that part of the subjects which would not be required for the actual access road. The applicants were given an opportunity to address this issue in further written submissions, which were answered by the respondents. That enabled further information as to detailed planning permission, which was granted shortly after the hearing, to be obtained.
Consideration of any claims for compensation in the event of the applications being granted was deferred.
On the basis of the Joint Minute of Admissions, the evidence and submissions and our inspection, the Tribunal can make the following findings of fact.
The Queen’s Point Development was constructed by Cala Homes in about 1990. It is an attractive small high quality housing estate overlooking the Gareloch, some 3 miles from Helensburgh. It originally comprised 10 houses (numbered 1, 3, 5, 7, 9, 11, 15, 17, 19 and 21) in an attractively laid out private cul-de-sac with unfenced front garden areas. The first applicants, Mr and Mrs McPherson, own No. 7. A standard Deed of Conditions by Cala Management Limited registered in the Land Register on 4 July 1990 regulates occupation and use of each of the houses. It provides inter alia in respect of each of the houses:-
“(THIRD) The house is to be used and occupied solely as a private dwellinghouse (and any ground effeiring thereto shall be used as a garden and for no other purpose whatever) … nor shall anything be done on the subjects or in the house which may be deemed a nuisance or occasion disturbance to adjoining proprietors…
“(FIFTH) The ground appertaining to any house shall be laid out as garden ground or shrubbery and shall be maintained as such…
“(SEVENTH) Each proprietor shall maintain his house and garage in good state of repair and decoration and take all appropriate steps either by himself or in conjunction with others to prevent damage to the fabric of the same which may prejudice the stability thereof or create a nuisance to other proprietors…
“(ELEVENTH) The proprietors shall be bound to insure the dwellings comprehensively with an established insurance company for the full replacement value thereof … and in the event of the subjects or any part thereof being destroyed or damaged by fire or other insured cause, the proprietors shall be bound to restore within one year after such destruction or damage the subjects…”
No communal areas were left in the estate, most of such small amenity areas as remained outside the gardens being transferred to, and the individual responsibility of, the house owners. One very small area of land to the rear of No. 7 was, strangely, not so dealt with, and this was acquired by the second applicant, Mr Fraser. Although completely undeveloped, this area was made subject to the same Deed of Conditions.
A gap was left in 1990 between Nos. 7 and 9. That plot was not subject to the above conditions. In relation to it, the Deed of Conditions provided as follows:-
“(THIRTEENTH) That part of the said area of ground … shall be retained by us and remain in the ownership of us the said Cala Management Limited.”
The estate road adjacent to it was built with a turning point which could become the start of a branch road leading through this plot in an easterly direction. Cala thus retained discretion as to the use of this plot: to provide access for a further development on land (“the Bergius land”) to the east of the Queen’s Point site and also within the building envelope of Shandon; for one more house; or simply to remain as in effect amenity ground. In July 1990 Cala wished to construct another housing development on the Bergius land, taking access through that plot. They applied to Dumbarton District Council for planning permission, but withdrew their application by letter dated 29 October 1990. Their withdrawal resulted from their inability to meet the then current planning requirements in relation to the access road. The problem related to traffic volume, having regard to limited sight lines at the entrance to Queen’s Point. Four of the respondents purchased their houses from Cala in the belief that that plot would be laid out as garden ground, the sales representative having indicated to them that Cala no longer had any plans to extend the estate road eastwards through that plot. In about 1992 Cala invited the then owners of all the houses collectively or individually to submit an offer for the plot and sought a price of £60,000. In 1993, however, the plot was purchased by a Dr Johnston who took herself bound to build a house in keeping with the estate and became subject to the Deed of Conditions. This house, with its garden, became No. 8 Queen’s Point. Access through Queen’s Point to a further development site on the east was therefore then no longer physically possible.
More recently, the planning regulations regarding sight lines and traffic volume have been relaxed so that the estate road is now considered to be capable of serving up to 100 private houses. Mr Fraser has concluded missives for the purchase of the Bergius land, conditional upon obtaining detailed planning permission for a development on it of some 16 houses. He has entered into an agreement with Mr and Mrs McPherson involving the demolition of No. 7 to make way for an access road through to the new development, with landscaping on either side. The plans also involve stopping up and dis-adopting the small section of road which is currently the turning point outside No. 8. Outline planning consent, involving also a “Section 75” agreement in relation to the costs of the ‘stopping up’, was obtained by Mr Fraser, against the opposition of most of the existing house owners, in February 2005. The proposed demolition of No. 7 is implicit in that permission and therefore does not require separate consent. Dr Johnston, who remains the owner of No. 8, has not maintained any objection to the ‘stopping up’ and has not objected to these applications. Detailed planning consent was granted on 21 February 2006.
The development would be carried out by a company run by Mr Fraser, Kingspoint Developments Limited. This is this company’s first development but it is advised by a professional design team. The proposed development would not be inferior to Queen’s Point. The houses would be bigger. Independent valuers have advised that they would achieve sales values far in excess of those being achieved at Queen’s Point.
This development, unlike Queen’s Point, would involve communal areas, in particular in the area of a burn which runs across that site but to the north of Queen’s Point. A factor would be appointed to administer the resulting communal arrangements. It is proposed that these communal areas would also include the landscaped areas on either side of the access road running through the present plot of No. 7. Thus areas presently within the Queen’s point development would fall within the King’s Point development. The maintenance obligations on the King’s Point proprietors would be made enforceable by the Queen’s Point proprietors by recording the obligations as against their titles also. There would also be landscaping obligations and provisions restricting leisure use. Some uncertainty on this matter became apparent at the hearing, following which Mr Fraser in fact conditionally offered to convey these landscaped areas on either side of the new road to the respective proprietors of Nos. 5 and 8. Neither offer was accepted. Mr Fraser indicated a continuing willingness to explore other alternative solutions, including approaching the local authority on the basis of the developers providing an appropriate fund to finance maintenance by the local authority.
No. 7 Queen’s Point is at a higher level than No. 5, with a retaining wall, some 5 feet high and topped by a timber paling fence, on the boundary. The detached garage of No. 7 is located within a few feet of that boundary, but the detailed planning consent now granted is conditional upon its demolition and replacement by screening. The lounge of No. 5 is the closest room to the boundary. A small side window looks out to the retaining wall, which is approximately 6 feet away from the house. To the front, the land between Nos. 5 and 7 is sloping and landscaped with fairly mature shrubbery. The front lounge window of No. 5 is relatively small and does not enjoy extensive views. It is unlikely that any new road built through the plot of No. 7 would be directly seen by any person sitting in the lounge of No. 5, but vehicles travelling from the existing estate road into the new road would be observable for the first few yards on the new road. The new road would be reasonably screened from the back garden of No. 5 and would be unlikely to be seen from the upper floor rear windows of that house. It would, however, be seen from No. 3 (due to the angle at which this house sits relative to the proposed line of the new road) and in dark conditions headlamps of vehicles coming down the new road from the higher level site of the new development would be likely to shine on the rear of No. 3.
With only 11 houses at present, traffic on the Queen’s Point estate road is very light. With the proposed new development, there would be a total of 26 houses. Although there might be two or more cars in each household, traffic volume would still be light. Although the Queen’s Point houses have off-street parking and garages, parking on the fairly narrow estate road can cause some congestion, but the new development would not really add to that once it was completed.
During the construction phase, however, very substantial disturbance would be caused by the actual work of constructing the new roadway leading off from Queen’s Point and by construction traffic while the estate road and new houses were being built. The work of constructing the new roadway through might be expected to be completed reasonably quickly, but the period of time during which the residents of Queen’s Point would, at least intermittently, suffer from the intrusion of heavy traffic while the new estate itself was being built is very uncertain. The proposed development would be a speculative development of high value housing which would proceed according to the dictates of the market. It might not be completed for several years.
During the construction period, there would be a minor but difficult to quantify negative effect on the values of the immediately affected houses (Nos. 1, 3, 5 and 8), as the result of a likely reduction in interest from prospective purchasers. It is not possible to affirm that there would be any reduction in values after the end of that period, prospective purchasers’ perspectives being likely to be different from existing proprietors who have become used to the previous situation.
There is no readily available current alternative means of obtaining access to the proposed new development. An alternative means of access through the policies of Blairvaddich House, a former mansion house to the south-east of Queen’s Point and the Bergius land, might become available in some years’ time. There are large areas of undeveloped land surrounding this building, which is Grade B listed and is currently offered for sale although not on an open market basis. There is already one small development of new houses off the Blairvaddich access road. There is potential for a lot more housing development within these grounds. This could possibly ultimately be linked up with the Bergius land, so as to avoid any need to take access through Queen’s Point. That, however is only a future prospect and for various reasons there is no present prospect of taking an access road through Blairvaddich. Without access through Queen’s Point, the Bergius land is for the time being land-locked.
Mr Geddes first referred to the facts, pointing out that these were generally agreed, any disputes being related to subjective factors with which he would deal when addressing the statutory factors. The proposed development, with one cul-de-sac accessed from another, was not unusual, apart from the delay between the two being constructed and the proposal to demolish a house to create the access. The alternative access prospect was, on the evidence, remote and impractical.
On the applications of Sections 98 and 100 of the Act, Mr Geddes advanced the following general principles: (a) the entire circumstances were to be weighed as a whole with the Tribunal determining whether on balance it was reasonable to grant the application or not; (b) it was not a question of looking at each factor individually and deciding who won or lost on any particular issue; (c) factors normally given particular weight were the purpose of title conditions, the benefit conferred and the extent to which the burdens impeded a reasonable use of the land, the latter factor being tied into the existence of planning consent; and (d) precedents were not normally considered helpful. In short, the approach was to permit discharge or variation if that did not conflict with a continuing purpose and was reasonable, thus preventing the extraction of ransoms or the hindrance of reasonable uses of property. (Ord v Mashford; George Wimpey East Scotland Limited v Fleming; Church of Scotland General Trustees v James Crawford McLaren). Mr Geddes also referred quite extensively to Ord v Mashford in the course of developing his submissions on the individual factors.
On factor (a), changes in circumstances, Mr Geddes pointed out that when the title conditions were created in July 1990, it was clearly envisaged that the Bergius land would be developed by Cala, taking access through the gap site in Queen’s Point. The failure of Cala to secure planning consent, the withdrawal of their application, the subsequent sale of that site and construction of No. 8, and the change in the sightline requirements and then grant of planning consent to the applicant, were all changes in circumstances. Discharge of the conditions would be entirely consistent with the overall purpose of the title conditions. In so far as applicants purchased understanding that the Cala plan had been abandoned, there was no element of personal bar. It could not be right that the sale of plot 8 and construction of a house on it ended the matter: land which was landlocked could never be freed. There was clear evidence that there was no alternative access. The changes in circumstances should weigh in the applicants’ favour, because the area would become just as Cala had originally intended.
On (b), benefit, the applicants’ position was that the conditions ensured that the subjects were used for no other purpose and maintained in good condition, in order to maintain the standard and uniformity of the development. Where, however, the applicants had an entirely different purpose in mind, the conditions conferred no real benefit at all on the benefited properties: discharge would not prejudice the respondents in a material way. It would make little difference to the benefited proprietors whether they were driving/walking past a house or a road-end. No. 5 would be most affected, but Dr Robin’s fears were unsubstantiated. A nicely landscaped area around a new estate road might be just as pleasant as a well kept house and garden. The root of the respondents’ issue in relation to traffic impact was the development at the rear not the proposed demolition of No. 7. In any event, that impact would be minimal. Dr Robin, although sensitised to noise from traffic, had bought when precisely this type of development was on the cards. There was no compelling evidence that the respondents would suffer from the demolition of No. 7 as opposed to the development of the Bergius land. Amenity was being protected by planning conditions. The proprietors had no rights over No. 7, which was an individual property and not to be seen as part of an estate. There was no intention to confer benefit in circumstances where there was a complete change of use proposed, provided what was done remained in character with the estate.
On (c), burden, enjoyment of the burdened property equalled freedom to do as one pleased with one’s property, including selling for development purposes. This was a factor to be weighed in the overall balance. The question was whether the condition, not the use, was reasonable (Scottish Law Commission Report No 181).
Mr Geddes submitted that (d) and (e) were neutral. Time was not really significant where the ongoing purpose could be ascertained. Factor (f), however, purpose, was an important consideration. The Tribunal had to consider the purpose at the time the condition was imposed: in the circumstances (which were relevant even if not expressed in the deed), this cannot have been to impede or prevent development of the type proposed. To the contrary, that clear purpose had been in mind. This also greatly impacted the issue of benefit. The deed of conditions was never designed to protect against expansion of development into the Bergius land or having an access road into such development.
Factor (g), planning permission, was a factor which had to be taken into account and, if granted, must weigh fairly heavily in favour of the applicant, although not determinative. The planning process had already to a large extent dealt with the respondents’ concerns. The Tribunal should be slow to reach a different conclusion as to the materiality of impact on amenity or traffic.
In relation to factor (h), compensation had not been in issue until very recently, and this factor should not in any way weigh against the applicants. Mr Geddes made no submission under factor (i), other material factors.
In their further submissions dealing with the question of obligations relating to the landscaped areas on either side of the new access road on the subjects, the applicants pointed to their proposals and their willingness to continue to explore alternative ways of dealing with the issue. Any concerns of the respondents would be met by the proposed new conditions and the likelihood that the King’s Point proprietors would wish to see this area at the entrance to their development properly looked after. Mr Geddes also made helpful submissions about the form of the order sought.
Mr Brownlie submitted that this was an unusual proposal, involving the removal of one house; the formation of an access road through Queen’s Point; and the creation of common amenity areas, which would be an innovation for Queen’s Point. It was open to serious doubt whether any of this was envisaged when Cala drew up the Deed of Conditions.
Mr Brownlie analysed the conditions as being a combination of negative and affirmative burdens, restricting use and obliging the maintenance of houses, garages and gardens and insurance and restoration. They were also ‘community burdens’ within the meaning of Section 25 of the Act. The concept of mutuality lent weight to a feeling that it must be in the interests of the Queen’s Park community for houses to remain houses and gardens gardens.
Turning to the statutory factors, Mr Brownlie first addressed (f), the purpose of the title conditions, which he said was to preserve the amenity and maintain the integrity of what was envisaged as a small, exclusive development of houses. The integrity of the development was addressed by the requirement under Clause 3 not to use the house or garden for anything else. The amenity had two aspects – privacy generally, i.e. the cul-de-sac; and preserving seclusion, peace and quiet by limiting the number of houses served. Mr Robin was in a particular sub-category of privacy through proximity to No. 7.
As to (b), the extent to which the conditions conferred benefit, they did offer protection to benefited proprietors in a way which was not de minimis. The construction phase would undoubtedly adversely affect the amenity of Nos. 1, 3, 5, and 8. There was no precise indication how long this would last and it could take as long as 3 or 4 years. It was clear on the evidence that Nos. 1, 3, 5, and 8 would be less marketable, although views diverged on any long term effect. There was no doubt that there would be an increase in ordinary movements of private cars. Whether or not it was acceptable from the roads authority or planning point of view, it was a departure from the status quo, which was extremely important, provided the departure was not de minimis. There would be an effect on privacy. The estate would be split into two, with a new T-junction – the antithesis of a small, exclusive development. Dr Robin would suffer detriment from having an extra road next to his house, with a publicly accessible space between him and the new road.
On (a), change of circumstances, there was no change to the character of either the burdened or the benefited property. The question was whether there was any change in the character of the neighbourhood. If the reason that one plot was not built on was to give the option of developing adjacent land, the intention in relation to the other plots was that they should not be demolished and turned into a road link. The change of circumstances when they sold the remaining plot for another similar house and garden was then highly significant, because it ended any reasonable prospect of using this estate as the link. That change reinforced the case against discharging, because if regard was had to the purpose at the time, this was a shift away which was incompatible with an intention of using that plot as an access route. There was no intention at any time to use any other plot. It could be said that there was then a change in the character both of the benefited properties – now 11 rather than 10 – and of the burdened property. This remained the most, and perhaps the only, significant, change.
On (c), the extent to which the burden impedes enjoyment, Mr Brownlie accepted that a development value which could be enjoyed by selling the premises could be relevant, but he pointed out that there was no evidence that No. 7 was worth any more on that basis, because the terms of its conditional sale were not known. Therefore, the extent to which the conditions impeded Mr and Mrs McPhersons’ enjoyment was not known. If they were to receive a substantial uplift from normal market value, Mr Brownlie’s position would be that the condition did not prevent them from enjoying a perfectly appropriate high amenity house. The primary purpose for which any burdened and benefited property at Queen’s Point was to be enjoyed was as a house. Any greater financial benefit would have some weight, but then conflicted with the benefit to the remaining benefited proprietors, against which it would require to be weighed up. Mr and Mrs McPherson must have known about and accepted the title conditions when they bought No. 7. They took entry in November 1990: if the possibility of the next plot being used for this development purpose then remained, it was unlikely that they would have expected later to be able to substitute their property.
On (g), planning consent, Mr Brownlie accepted that full planning permission was likely. However, for the reasons given by the Tribunal in Ord, very little weight was to be attached to this, little more than that the proposed development was consistent with the public interest. The private interests were only considered tangentially by the planning authority and were still at large for the Tribunal to consider. There was nothing in this case to justify giving this fact any weight which it would not ordinarily have.
Finally, Mr Brownlie referred, under factor (j), to the possibility of alternative access. This issue arose out of the applicants’ assertion that the Bergius land was landlocked, and it was for them to make this out. The respondents did not accept that it had been established. Mr Rattray and Mr Fraser seemed not to have fully considered it. A servitude right had not been considered.
On the proposed arrangements for the landscaped areas beside the road, the respondents submitted firstly that the King’s Point residents would have no interest in preventing members of the public from entering and perhaps loitering in these areas; and secondly that the proposed maintenance obligations might be difficult to enforce in practice in the event of disagreement. There was also a problem of time lag between lifting the existing title conditions and the establishment of the new obligations.
There are two applications to be considered, but it seems appropriate to concentrate on the application of Mr and Mrs McPherson, the proprietors of No. 7, as this application involves the more significant proposal to demolish the house and garden which the title conditions require them to maintain.
There is no dispute about the general approach which we must follow, now in terms of Sections 98 and 100 of the 2003 Act. We have 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 circumstances of the case. The parties are generally agreed on the facts, but their submissions do reveal some differences of approach to some of the factors, in particular the purpose of the title conditions, changes of circumstances and the relevance of planning permission.
Identifying, so far as possible, the purpose of ‘the title condition’ is always important. It is the purpose of the condition which it is sought to discharge or vary which is relevant. Here, there are four conditions, all, however, as it seems to us, having the same clear purpose. This is to preserve the amenity and setting of the estate. It is carried through by a series of positive and negative use, maintenance and insuring and rebuilding obligations. We think the mutual character of these was rightly stressed by the respondents: each owner upon purchasing knows not only that he is bound to accept these obligations but that each of his neighbours is similarly bound. Each owner purchases with the confidence that his neighbour cannot develop his property for another use even if he can get planning permission to do so. That contractual position may, however, be subject to modification under this jurisdiction if the purpose is found to be not interfered with by such development. The neighbour may then be well on the way to establishing the reasonableness of being allowed to avoid or vary the contractual obligation even against opposition.
We do not think it is open to the applicants to say simply that it was part of the original purpose that an access road might be built through to another development. That was nothing to do with the purpose of these title conditions.
We do accept that Cala’s original intention is a relevant factor. It seems to us that the evidence clearly shows that they retained an option to build through in that way and therefore that the setting which was originally to be preserved was qualified in that way. Different purchasers, purchasing at different times and on the basis perhaps of different levels of enquiry into the position, may have had differing degrees of understanding of this qualification of the original setting, but it seems completely clear to us on a reading of Condition 13 of the Deed of Conditions that such an option was taken. There was, however, no intention that any house purchaser would have this option. Condition 13 only relates to the one particular plot which was retained by the developers. The house purchasers were taken bound under the mutual conditions designed to preserve the amenity and setting of the estate. The fact that when Cala failed to get planning permission for the development through and, rather than making the ground available as in effect amenity ground, sold it for another house, they sold it subject to the conditions by which the existing houses were bound, tends to confirm that the purpose of the conditions was to be achieved by applying them to any house built within the estate.
Factor (a), change of circumstances, tends to be of considerable significance where obligations were relatively recently undertaken. What, if any changes in circumstances, particularly in relation to the burdened and the benefited properties and the neighbourhood, have taken place, and how does the purpose stand up in the light of such changes? The planning position in the neighbourhood is a relevant circumstance. In the present case, planning permission for development through, using the estate road, was not possible at the time when the title condition was created, (although this appears not to have been clearly known in July 1990, so that it could be said that at that time there was a prospect, though an uncertain one, of such development through the plot retained by Cala). Such planning permission is, however, now available, so there is that clear change of circumstances. The other changes of circumstances are the physical change that one more house has been built, on that plot, and the extension of the mutual obligations aimed at preserving the amenity and setting of the estate to that plot also. These changes, which completed development on the estate site, appear to count against the applicants: the setting which the conditions are designed to protect is now the whole estate through which there is now no physical way.
Factor (b) concerns the extent of benefit from the condition. There is no doubt that in a general sense the conditions continue to fulfil their original purpose of preserving the amenity and setting of the benefited properties, and we reject the submission that because the proposed development is of a totally different sort the benefited proprietors would be losing no benefit of the kind envisaged by the condition and would therefere not be prejudiced. The question is the extent of benefit involved in being able to prevent the particular proposed development.
It seems to us that there is a tangible real benefit here, although the extent of that benefit is not quite as large as the respondents suggest. The proposed development would undoubtedly increase the level of traffic using the first part of the estate road, and on a simple mathematical basis that increase would be of the order of 150%, but the traffic level would still properly be classed as light. One might suggest that it would go from very light to light. We tend to agree that the impact on visual amenity of the new road, once completed, together with the accompanying landscaping and screening, compared to the existing house and garden at No. 7, would be negligible. Having regard to the location, we think that the risk of members of the public loitering in that area is very slight, but it is possible to imagine some use of it by children from one or other of the developments. It was suggested that the new road would split the estate in the sense of dividing up the estate community. We can readily accept that there is an established small community spirit in the estate, and perhaps the development of that somewhat intangible benefit would have been slightly threatened by development through at the outset, but we do not think there is any real threat to it now.
The conditions also protect against the actual disturbance involved in the proposed development, i.e. during the construction phase. This is not generally a material consideration, because such disturbance is usually quite short-lived, for example when a neighbour wishes to build an extension, house in the garden or the like. Here, however, what is involved is not only the actual construction work at the subjects but also the construction traffic using the estate road. While the demolition of No. 7 and the construction of the road passing through the subjects may not take very long, there would be heavy construction traffic using the estate road, which is quite narrow, for much of the period in which the actual housing is being built. There is an inevitable uncertainty about the likely duration of this, but it seems to us that two to four years might be a reasonable estimate. That seems to us to amount to substantial disturbance from which the conditions presently protect the respondents as benefited proprietors.
There is no doubt that the houses Nos. 1, 3 and 5 (and to a lesser extent 8, except that there is no objection from its proprietor) would be most affected. No. 5 in particular would change from being a house in a row, i.e. with the estate road to the front, to being a house on a corner, exposed to the proximity of an amenity area which might possibly be used by children to gather. As it happens, Dr Robin particularly chose to avoid a corner site, having had bad experiences in his previous home from just such a situation. However, the Tribunal should avoid being over-influenced by subjective considerations of that kind. We should also record our impression on visiting the site and having the particular advantage of spending some time in Dr Robin’s living room, which is the room which would be most closely affected, that the visual impact from inside the house would be very slight. The house does not occupy an elevated position and the front window is relatively modest: it is not a house from which picture views are to be had. Overall, it seems to us that the physical aspect of No. 5 would be slightly but significantly changed for the worse. There is also some force in Dr Robin’s suggestion that a turning point close to his front garden would adversely affect the amenity. These points in relation to No. 5 arise even if comparison is made with Cala’s original intention to develop through. We have noted in our findings that No. 3 would seem likely to be affected to some extent by the lights of traffic coming from the new development at night. Each of Nos. 1, 3 and 5 would be affected by the traffic increase and, while the proprietors of No. 5 can point to a new turning point almost outside their front door, the proprietors of Nos. 1 and 3 are that bit closer to the entrance to the estate, where the impact of construction traffic at least will also be quite serious because of the bend and gradient of a road which is not very wide.
Conversely, the houses from No. 9 onwards seem to us to be minimally affected, suffering a slightly more congested access road, especially during the construction period, but little if any other real effect. It was rightly not suggested that any negative visual impact of the new housing behind these houses was relevant.
Apart from the physical changes, we do think that the present protection through the Queen’s Point deed of conditions is considerably more satisfactory in practice than a right to enforce maintenance, etc., obligations against King’s Point proprietors. It should, however, be noted that Cala’s original plans would have thrown up much the same issue.
As to (c), Mr Brownlie accepted that a development value which is being denied by the existence of a title condition is relevant. On the assumptions, which are fulfilled in this case, that planning permission would be available for the development through, and of course that Mr Fraser’s land is also available, and given Mrs Bergius’ willingness to sell, there does appear to be a form of ‘ransom’ value in No. 7. We suppose that theoretically that might be diluted by the ability of at least one other house (No. 8) similarly to facilitate the proposed development. Mr Brownlie argued correctly that there was absolutely no evidence as to the level of that value and therefore as to the extent to which the condition was impeding enjoyment of the burdened property. We might perhaps add that for all that is known the proprietor of No. 8 might also have been in the same market. We are, however, prepared to assume that there is some substantial value, in addition to the open market value of No. 7 as an ordinary house bound by these conditions. So there is undoubtedly a relevant factor here, even if we have no quantification of it.
However, it seems to us also to be relevant that the conditions do not in any way at all impede the ordinary, normal use of this house or diminish its value as a house and garden. To the contrary, they underpin that value. This is not a case in which, for example, a house or garden has become too large or in some other way unattractive or uneconomic in modern conditions. The applicants will have purchased it without, presumably, having to pay any premium to reflect this new potential value, there being no evidence of any market knowledge of it. The house continues to be a most attractive and desirable house in an attractive and desirable development. In any consideration of reasonableness, the unquantified potential windfall development value seems to us to carry little weight as a material factor.
Neither party relied on factor (d), which Mr Geddes described as ‘neutral’. We might just point out that the conditions in question do include obligations to ‘do something’, viz. to insure and, in the event of destruction, rebuild, which appear to us to be entirely normal, practicable and not unduly costly obligations.
As to factor (e), the conditions are just under 15 years old. The significance of the age of the conditions is very much affected by consideration of any relevant change of circumstances and the continuing validity or otherwise of the purpose of the conditions. Mr Geddes submitted that this factor too was neutral and, in the absence of any particular reference to it by Mr Brownlie, we can accept that. It does not advance the applicants’ position.
We have dealt with (f). As to factor (g), Mr Brownlie fairly accepted at the hearing that there would be planning consent, and the detailed planning application has now been granted. In contrast to Mr Geddes, however, he submitted that this was a factor of little significance in a case like the present. We agree. We can accept, as in any case, that the planning consent is an indication that the proposed use is reasonable from the viewpoint of the general public, and within that we can take it that to the extent that the respondents raised issues as to the safety of the access where the estate road joins the main road such issues can be taken to have been sufficiently addressed in the planning process. However, as Lord McGhie pointed out in Ord, at pages 14 to 15, in many cases the issue is essentially a private not a public issue, and this is such a case. The issue is the reasonableness, where a private obligation much more restrictive than public planning rules was entered into, of lifting that obligation. In such a case, it is wrong to assert that the consideration which is given in the planning process to issues of, for example, amenity is conclusive in relation to the amenity afforded by a private title condition.
Factor (h), willingness to pay compensation, is neutral: Mr Geddes pointed out that the respondents had not sought compensation earlier, and Mr Brownlie did not found on it. It is important to keep in mind that ‘compensation’ in this context is limited to compensation for loss or disadvantage which would be caused to the benefited proprietors rather than being related to development value of the burdened property. This factor does not permit us to enter into any consideration of whether a windfall ransom value should be shared with benefited proprietors.
Factor (j) allows us to consider any other factor which we consider to be material. Two matters seem to arise here. Firstly, if we have correctly approached the purpose of and the benefit from, the title conditions in question as not encompassing the original possibility of development through, we should certainly consider it here because, as we have already indicated, it must clearly be a relevant factor in the consideration of reasonableness. Secondly, we should consider the question of alternative access to the Bergius land for housing development. The applicants contended that the Bergius land was effectively land-locked if their proposals cannot go through and that this was a material factor. The respondents countered that there was a way through the policies of Blairvaddich House. Our finding is that that does seem to be a possibility some time in the future but that for the time being the Bergius land is land-locked. We consider, however, that this factor in itself is irrelevant in a question between contracting parties who do not include the owner of the Bergius land: it is res inter alios. It of course indirectly affects the applicants because it is the factor which gives their subjects this potential extra value, but we have already considered that. If, however, we are wrong in that and we are required to give consideration to the effect on the Bergius land, we are still not prepared to give it much weight. Set against the benefits which these title conditions give to the benefited proprietors, the disadvantage to a neighbouring landowner of being deprived of an opportunity to realise development value seems to us to be of even less weight than the loss to the burdened proprietor of the ransom value. Although the proposal to profit from the development of land for housing is of course entirely reasonable, we do not think that the problem for that landowner and the potential developer should be of much significance to a dispute among owners within the Queen’s Point estate. We are clearly not to give any weight to the respondents’ feelings about development of the Bergius land itself: correspondingly, we should not, we think, pay much attention to the concern of the Bergius land owner to realise development potential. In any event, there is at least some possibility of development in another way at some stage in the future: landowners and developers frequently have to take longer term views of development potential.
When we come to weigh up these various factors in order to reach a view on the reasonableness of the application, we should first note that we have not been asked to take the view that an application whose predominant purpose is to enable the development of land other than the subjects may not properly be brought under this jurisdiction. It may be wondered whether it was the intention of either of the Parliaments, in 1970 and 2003, to interfere with contractual provisions so as to enable the burdened proprietor to realise a development value which arises out of the development of other land, there being no sharing of the development value with proprietors who could have used their contractual right either to prevent the development or to extract some share of the profit. In a case such as this, however, the scheme as restated in Sections 98 and 100 of the 2003 Act allows us to weigh up the relevant factors so as to take account of the nature of the impediment suffered by the burdened proprietor alongside the nature of the benefit enjoyed by the benefited proprietors. If the latter continue to enjoy some real and tangible benefit which is in line with the purpose of the conditions, whereas the former are perfectly well able to use and enjoy their property as it stands, the balance will, other things being equal, normally favour the benefited proprietor: if the balance includes some real and tangible benefit to the respondents, the applicants’ potential loss of the special value will not outweigh that. The scheme, however, requires us to take all relevant factors into account and there may be cases, of which the present is certainly suggested to be one, in which other considerations affect the balance.
We have found in this case that there is some tangible and real benefit, in furtherance of the purpose of the conditions, to at least the proprietors of Nos. 1, 3 and 5 in being able to prevent this proposed development through No. 7. It is also clear that the conditions do not in any way at all impede the ordinary, normal use of this house or adversely affect its value on the basis of such use. The conditions are only some 15 years old and cannot be described as outdated. There is planning consent for the proposed development, which can therefore be seen to be in line with general planning considerations. That availability of planning consent can be seen as a change in circumstances, but it seems to us that the change in the setting of the houses from one in which there was a gap for further development to one in which there is no such gap is also significant. We attach little or no weight to the interest of the owner of the Bergius land.
That leaves the matter of the original proposal to develop through. The question perhaps is whether and to what extent that historical circumstance, the fact that there was a proposal, which was or should have been known at the time when the houses were built and the conditions imposed, to develop through, affects assessment, from the standpoint of reasonableness, of the present benefit to the house owners. Given the historical position, can they really be regarded as having a proper interest to stand on the conditions?
It is interesting to ask what view might be taken if, hypothetically, the gap site had not been filled in, i.e. the prospect of development remained rather than having been removed, but for some reason there was a proposal to demolish No. 7 to help facilitate the development. In that hypothetical situation, the benefited proprietors could not claim the benefit from the conditions of the protection against prolonged disturbance during the construction period or from the increase in traffic, because the conditions would not have enabled them to prevent these things. They would have had protection against the substitution of a landscaped road for a house and garden, but we have noted that we rather agree with the applicants that there this would have little effect on the visual amenity.
We have earlier found that the benefit of being able to prevent this development is minimal for the proprietors of No. 9 upwards. In the cases of these houses we feel that the fact of the original proposal, which was or should have been known to anyone who purchased before the gap site was filled in, would tip the balance in favour of the applicants. We would not uphold their objections.
However, in relation to No. 5 we think the position is different. Although we have found following our site inspection that the view from this house would not be as seriously affected as might have been thought, we nevertheless find that this house would be significantly affected by the demolition of its immediate neighbour and the building of a road, which would carry construction traffic turning just outside the house over a period of years, followed by the existence of the road into which traffic would turn just beside the house. These effects would arise even on the hypothesis which we set out above, there being in our view a substantial difference between development at the original proposed site separated from No. 5 by another house and development by demolishing No. 7. This seems to us to give the proprietor of No. 5 a strong enough interest, even when account is taken of the fact of the original proposal to develop through the gap site, to outweigh the interest of the applicants in exploiting a windfall value. As between the applicants and Dr and Mrs Robin as the proprietors of No. 5, we have decided that it is not reasonable to grant the application for discharge.
We find consideration of the application in relation to Nos. 1 and 3 more difficult. They would each be slightly more affected by the increase in traffic, and the rear of No. 3 would be slightly affected by headlights from the new road. The increase in traffic, and the disruption during the construction period, would each also have resulted from the original known proposal to develop through. There is, however, in our view on a consideration of reasonableness, at least some difference between anticipated further development following on from the original development – quite a common situation faced by owners of new houses on estates – and development some 15 years later, long after the original proposal was put aside and a new house, subject to the same conditions as all the original houses, was built. Development through, during the ‘bedding down’ period of a housing estate, is a little bit different from a new lengthy and unanticipated period of disturbance several years later. This is all a matter of degree, and we would regard the case in relation to the objections from Nos. 1 and 3 as very border-line, but we would narrowly come down in their favour also.
For these reasons, we have refused the application by Mr and Mrs McPherson. We reach the same decision in relation to Mr Fraser’s application. The considerations are a little bit different, because the application of these conditions to that narrow undeveloped strip is in any event somewhat anomalous, but with the other application failing, Mr Fraser is not able to point to any respect in which his enjoyment of those subjects is being impeded and, for what it is worth, the protection of the restriction against their development should be maintained. Neither side suggested that the result of this application should be different.
In these circumstances, there is no need for any further consideration of the form of the order or of compensation. If there is any motion for expenses, we would envisage dealing with this on the basis of written submissions in accordance with the Tribunal’s normal practice, unless otherwise requested.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr F A J Geddes, solicitor, Messrs MacRoberts, Solicitors, Glasgow | |
| for the respondents: | Mr W K L Brownlie, solicitor, Messrs Stirling & Gilmour, Solicitors, Helensburgh | |
| Heard: | Edinburgh, 16, 19 and 20 December 2005 | |
| Sitting: | J N Wright, QC K M Barclay, FRICS |
|
| Decision issued: | 28 February 2006 | |
LTS/TC/2005/18 & 19
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 February 2006
Neil M Tainsh — Clerk to the Tribunal