The subjects of this application for discharge of title conditions comprise the end of the rear garden area of a Victorian terraced house, including the end section of a service lane which section at present provides access only to the rear of that house, which is now flatted. The applicants wish to build a new house on the subjects, which would also close off this section of the lane. They seek discharge or variation of certain building restrictions and access provisions. The conditions in question were contained in an 1875 Feu Contract imposing the original building conditions in relation to the terraced houses; (possibly) a 1907 Minute of Agreement of Servitude in relation to an extension of the access lane; and a 1979 Disposition which took the subjects into separate ownership from other parts of the terrace house. There is no opposition from the owners of any of these flats, but the owners of two adjoining mews houses, and also the owners of some other flats in the terrace, do object.
The Tribunal has reached the view that it is reasonable to grant the application, so as to enable the particular proposal for which planning permission has been granted, to proceed, by varying the conditions in the Feu Contract to the extent of permitting that development, partially discharging quoad the subjects the condition in the Minute of Agreement and discharging the conditions in the 1979 Disposition. Further, the Tribunal has decided that the respondent Mr Clarke is not entitled to compensation in respect of these orders.
The application refers to title conditions in three deeds:-
1. A Feu Contract containing Feu Disposition by James Scott and others as trustees with consent of Thomas Lucas Paterson to Peter McKissock and his heirs and assignees, recorded in the Division of the General Register of Sasines for the county of the Barony and Regality of Glasgow on 20 May 1875, disponed 11 building plots and provided inter alia:-
“(Second) The second party and his foresaids shall forthwith erect and finish and in all time coming maintain on each of said plots of ground a self contained lodging or dwellinghouse … and no stables or dung pits shall be erected or set down on and no offensive use or occupation made or allowed of the back ground and no erections shall be placed thereon except the necessary ashpit accommodation for each lodging and a stable with a loft thereto on each of the plots of ground before disponed for the use of the proprietor thereof the height of any of which at the highest point shall not exceed twenty five feet from the level of the Meuse lane behind …
“(Fourth) … the Second Party and his foresaids shall immediately form bottom with ruble stones and cover with furnace ashes and in all time coming maintain a lane of not less that twenty feet wide along and within the plot before disponed in the first place and of not less than fourteen feet wide along and within the south boundary of the whole other plots of ground above disponed for the service of the said plots of ground above disponed in common with the First Party’s unfeued lands on the East and south east of said lane shall when formed remain open and unbuilt upon in all time coming and the Second Party shall if consistent with the conditions on which he acquired and now holds the ground belonging to him on the west of the plot above disponed in the first place open an access from the said Lane above provided for to the ground belonging to him to the west thereof …”
The subjects are part of the first, westmost, plot referred to (the remaining part of which now comprises flatted dwellinghouses at No 11 Turnberry Road). Only four of the plots sold in 1875 were built on as provided for in the Feu Contract.
2. By Minute of Agreement of Servitude recorded GRS (Glasgow) 15 November 1907, the Partickhill Bowling and Tennis Association Limited granted in favour of the proprietors of the four terraced houses which were built (now, Nos. 11 to 5 Turnberry Road) and their heirs and successors:-
“the servitude and tolerance of free access and egress to and from the existing lane behind the said subjects over that strip of ground forming a proposed new lane leading from the existing lane into North Gardner Street and to be known as Hillside Gardens Lane …”
3. A Disposition of the ground and basement flat and rear garden ground at 11 Turnberry Road by John Strachan in favour of Elizabeth Ballantyne Donald Strachan recorded GRS (Glasgow) 14 March 1979, provided inter alia:-
“(Tertio) my said disponee and her foresaids shall use the subjects hereby disponed as a private dwellinghouse only and for the occupation of one family only and shall not without the consent in writing of me or my foresaids make any structural alterations thereon whatsoever;
“(Quarto) my said Disponees and her foresaids shall not erect on the garden ground pertaining to the subjects any buildings but shall maintain the same and use the same solely as garden ground and keep it in a reasonable and tidy state in all time coming.”
This application under Section 90(i)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for discharge or variation of title conditions was lodged by James Gibson as proprietor of subjects now known as 16 Hillside Gardens Lane, being part of the rear garden ground and lane behind 11 Turnberry Road, Glasgow (“the subjects”). The application was intimated to various proprietors of properties in Turnberry Road, Hillside Gardens Lane and Partickhill Road. The following proprietors lodged representations (some joint) opposing the application:-
K. Mazzolini, 10 Hillside Gardens Lane
L. Clarke, 14 Hillside Gardens Lane
P. Thompson, GF, 5 Turnberry Road
J. and M. Scott, 3F, 5 Turnberry Road
M. Warrington, 2F, 5 Turnberry Road
R. Fleming, 2F, 7 Turnberry Road
G. Crighton, GF, 7 Turnberry Road
D. and L. Conway, 7A Turnberry Road
D. Ingham, Top flat, 7 Turnberry Road
Shortly before the hearing, West Coast Property Developments, having purchased the subjects and duly registered their interest, applied to be sisted as applicants. No objection was taken by the respondents and the Tribunal, in the exercise of its discretion, allowed that application.
At the oral hearing of the application, the applicants were represented by Mr Geddes, Solicitor, of Messrs MacRoberts, Glasgow. He called as witnesses John Cornelius, B. Arch. (Hons), MRIAS, architect, Mrs Elizabeth Strachan, proprietor at one time of 11 Turnberry Road and latterly of the ground and basement flat and garden ground there, including the subjects, and James Gibson, a chartered surveyor and former proprietor of the subjects. The respondents Clarke, Thomson and Mazzolini attended the hearing, and each gave evidence. None of the remaining respondents was present or represented at the hearing, but none had withdrawn their objections, which were accordingly considered by the Tribunal along with the other evidence and submissions. Various productions were lodged. The Tribunal carried out a site inspection.
Although there was no application under Section 90(1)(a)(ii) of the Act for determination of any question as to validity or enforceability, Mr Geddes made quite detailed submissions on the conditions, as he put it, “challenging the title and interest of the Respondents to object”. His intention to make such submissions had been intimated some two weeks before hearing. He explained that these submissions dealt with questions of title and interest under the Feu Contract, particularly in relation to the abandonment of the original feuing plan, and interest under the 1907 and 1979 titles but he was not seeking to have the respondents’ representations excluded. The Tribunal allowed these submissions to be made and allowed the respondents an opportunity to respond in writing following the hearing.
At the hearing, Mr Clarke confirmed his intention to seek compensation in the event of the application being granted. He was allowed the opportunity to make a written submission on compensation, with the applicants allowed to respond. The Tribunal therefore also has before it an application by Mr Clarke for compensation in the event of our granting the application to discharge or vary.
Stevenson v Biggart (1867) 3 S.L.R. 184
Hislop v MacRitchie’s Trustees (1881) 8 R. (H.L.) 95
Calder v Merchant Company of Edinburgh (1886) 13 R. 623
McInroy v Duke of Atholl 18R. (H.L.) 48
Charlton v Scott (1894) 22 R. 109
Richardson v Borthwick (1896) 3 S.L.T. 303
J. A. Mactaggart & Co. v Harrower (1906) 8 F. 1101
Scotland v Wallace 1964 S.L.T. (Sh. Ct.) 9
Hampden Park Ltd. v Dow 2002 S.L.T. 95
Church of Scotland Trs. v. McLaren LTS/LO/2004/16, 16.3.2005 (Lands Tribunal for Scotland)
Shephard & Ors v Turner & An’r [2006] EWCA Civ 8
Gordon, Scottish Land Law, 2nd Edition, 22-76
Reid, The Law of Property in Scotland, para. 429, footnote 28
Cusine & Paisley, Servitudes and Rights of Way, 12-16, 14 – 16-18
On the basis of the oral and documentary evidence, the parties’ submissions and our own site inspection, the Tribunal found the following material facts proved or admitted.
The subjects, which are now known as 16 Hillside Gardens Lane, are part of the garden ground to the rear of 11 Turnberry Road, Glasgow. 11 Turnberry Road forms the west most building in a terrace of four similar imposing stone and slate terraced dwellings having accommodation over four floors. Although built about 1875 probably as individual town houses, these houses have each since been split into flats. Behind and to the south of each of these houses is an area of garden ground beyond which, in the case of 9 Turnberry Road, lies one mews house, 14 Hillside Gardens Lane. Beyond the garden ground of 7 Turnberry Road is another mews dwelling, 10/12 Hillside Gardens Lane (a single dwelling despite having two numbers). To the rear of 5 Turnberry Road were formerly buildings numbered 6/8 Hillside Gardens Lane, but these have been demolished and that site is now used for car parking. The exact age of the mews houses is unclear.
In more recent years, a Mr and Mrs Strachan owned, but then apparently sold off as flats, the whole of 11 Turnberry Gardens. In 1979, Mrs Strachan became the proprietor of the garden and basement flat and all the garden ground. In January 2004, she sold the subjects to James Gibson. The subjects comprise a rectangular plot to the rear of the original garden ground, extending to approximately 176 square metres (210 sq.yards). The plot consisted of two adjoining parts: an area of somewhat overgrown garden ground with a number of lopped trees extending to approximately 140 square metres and beyond and to the south of this area, separated by a brick wall, an area of cobbled lane extending to about 36 metres which formed the western end of Hillside Gardens Lane. The plot is bounded to the west by a brick wall, to the north by an undefined line across the rear garden of No. 11 Turnberry Road; to the east partly by a brick wall, partly by the gable end of No. 14 Hillside Gardens Lane and partly by an extension of this line across Hillside Gardens Lane. The southern boundary of the subjects is formed by iron railings beyond which is a wooded bank being part of the bowling green/tennis court grounds which lie to the south. West Coast Property Developments Limited acquired the subjects from Mr Gibson in 2006.
Hillside Gardens Lane, which is entered from North Gardner Street at its east end, is a narrow cobbled lane about 60 metres (66 yards) in length leading west from North Gardner Street. About half way along the lane and opposite No. 6/8 the lane takes a dog leg bend. From North Gardner Street to the dog leg, the land is owned by The Partickhill Bowling and Tennis Club, but thereafter the lane is owned by the various proprietors on the north side. These ownerships are subject to a servitude right of access over the lane in favour of the various proprietors whose properties access the lane.
The original Feu Contract of 1875 envisaged houses being built on 11 lots forming a terrace with lots 1 to 7 having a frontage to Minard Road (now Turnberry Road) and with lots 8 to 11 having a frontage to Hyndland Road. The layout envisaged allowed for a service lane to be formed at the south end of each plot, with access from Hyndland Road at the east end. The lane was to be 14 feet wide, except at the west end, where it was to be 20 feet, apparently to provide a turning point. Whilst lots 1 to 4 (now, 11, 9, 7 and 5 Turnberry Road) were built as originally envisaged, the rest of the design was not carried through. Instead, North Gardner Street was formed and tenements were built to the east of, and at right angles to, lot 4. The lane does not therefore follow the route shown in the feu plan beyond lot 4 (5 Turnberry Road). The 1907 Minute of Agreement secured access to it from North Gardener Street along a sectioin of lane developed by the bowling and tennis club.
The lane is used by the mews house owners and the Turnberry Road owners for their own private cars, for collection of refuse and for some other delivery access. At the ‘dog leg’, there is a larger triangular area which affords an easy turning area for cars and larger vehicles. Mr Clarke is in practice often able to park his car outside his house at 14 Hillside Garden Lane. He has also been in the habit of using the adjacent but wider end section of the lane, within the subjects, to make loading and unloading easier.
Beyond the subjects to the north and to the rear of No. 11 Turnberry Road is a small area of ground used for the storage of refuse bins belonging to the occupants of No. 11 Turnberry Road. Access to empty these bins is, at present, taken from Hillside Gardens Lane over the subjects. There is a drying green between the refuse bins and the rear elevation of no.11.
To the west of the subjects lies Partickhill, an oval area of urban woodland and garden ground. Partickhill Avenue, a private road, encircles the oval around its edge though part of its length is now ill defined on the ground particularly to the north of the oval.A driveway leads from the oval off Partickhill north to Turnberry Road and there is an extension to Partickhill Avenue from the eastern end of the oval south to the public highway. Numbers 2 and 4 Partickhill Avenue take their main access from the road encircling the oval whereas a number of houses fronting on to Turnberry Road have rear accesses to Partickhill Avenue and the oval. The original buildings which adjoined the south west quadrant of the oval have been demolished and replaced with a modern “patio style” housing development, Partickhill Court. This development is now separated from Partickhill Avenue and the oval by a substantial brick wall.Nos. 13 and 15 Turnberry Road, two semi-detached houses which formerly comprised the children’s home have been refurbished and restored to dwellinghouses. A substantial modern brick flat-roofed garage building, opening to Partickhill Avenue and the oval, serves these houses. A modern brick wall runs from that building towards the rear garden of 11 Turnberry Road and has replaced, along part of its length, the stone wall separating the oval from No. 11. Otherwise, the oval appears somewhat neglected and has a generally unkempt appearance. A scheme has been prepared, with local authority support, to restore and improve the open space within the oval.
Sections of Partickhill Avenue are owned by the adjoining proprietors and the proprietor of No. 2 Partickhill Avenue owns that section of Partickhill Avenue adjoining and to the east and extending northwards along its common boundary with the subjects to a point about midway along the western boundary of the subject plot. A servitude right of access has been granted in favour of the proprietors of the subjects.
There is no detail on the 1875 feuing plan showing any through pedestrian connection to Partickhill. However, at some time in the past there appears to have been a pedestrian access by way of an opening or gateway through the brick boundary wall of the subjects between Partickhill Avenue and Hillside Garden Lane. This opening was bricked up in 1984 or 1985. At that time Nos. 13 and 15 Turnberry Road were owned by Strathclyde Regional Council and these houses were used as a Childrens’ Home. In response to anti-social behaviour by the occupants of the home and to improve security for the residents of Hillside Garden Lane, the gap in the wall between Partickhill Avenue and Hillside Gardens Lane was bricked up. The children’s home was closed some years ago. Some at least of the owners of the houses in Turnberry Road and Hillside Gardens Lane are interested in the idea of re-opening the gap, but apparently nobody has taken any steps towards doing so. There is a drop in levels between the avenue and the lane of approximately 1.2 metres. Steps which previously existed appear to have been removed probably at the time the gap was bricked up.
A full planning consent was obtained in November 2002 for the erection on the subjects of one dwelling with parking, subject to various conditions. This consent followed a previous application which had been refused by the Local Planning Authority, whose decision was upheld following an appeal. The planners sought the use of traditional materials and the walls are mainly brick but with stone details, the roof is covered with slate and there are cast iron rainwater goods. The dwelling proposed, No.16 Hillside Gardens Lane, will be built with two storeys having a bathroom and two bedrooms on ground floor with kitchen, lounge and dining room on the first floor. To the north, i.e. between the subjects and the remaining back green at 11 Turnberry Road, there will be a patio, and to the east a passageway/ gravel strip separating the new building from No.14 Hillside Gardens Lane. This passageway could give access to a bin space serving the new house. Also, a new bin access would be formed from Partickhill Avenue by breaking through the existing brick wall so that the bins of No.11 Turnberry Road can be serviced from Partickhill Avenue. This new access could also be used to access the bin of No.16 Hillside Gardens Lane. The design incorporates an elevated parking space constructed over the lane and with access from Partickhill Avenue. The rear wall of this parking space would cross the lane and form the boundary with No.14. Although there would be a pedestrian gate into Hillside Gardens Lane from No.16 the proposed design would not permit any through vehicular or pedestrian access from the lane to Partickhill Avenue.
The front elevation of the new dwelling at No.16 will be on the same building line as the two adjoining dwellings and therefore will be partly built over the existing cobbled lane which widens by about 1.8 metres (6 feet) after No.14 Hillside Gardens Lane
A number of conditions were attached to the planning consent:-
Condition 2 states: “noise from or associated with the completed development (the building and fixed plant) shall not give rise to a noise level, assessed with windows closed, within any dwelling or noise sensitive building in excess of that equivalent to Noise Rating Curve (NRC) 35 between the hours of 0700 hours and 2200 hours and Noise Rating Curve (NRC) 25 at all other times.”
Condition 6 states: “no development shall commence until Partickhill Avenue, between its westward turn towards Partickhill Court and the northern part of the application site, is upgraded to adoptable standards. Surface materials shall have a traditional appearance and shall be agreed with the planning authority prior to the commencement of works.”
Condition 7 states: “access to bin stores of 11 Turnberry Road shall be constructed within one month of the commencement of works on site.”
Condition 8 states: “ the gate to the car parking area shall not be formed as shown but shall be formed to give a clear parking area of 5 metres deep, without being capable of opening out over the footpath.”
The subjects and the surrounding properties are situated in a Conservation Area.
A building warrant was granted by Glasgow City Council for the development proposed on 17 March 2005. The construction period would last approximately six months, during which period there would be occasional spells of substantial noise. Access for constructioin purposes would mainly be taken from Partickhill Avenue.
10/12 Hillside Gardens Lane is an attractive traditional mews cottage but No.14 has been redesigned in the past. At one time it incorporated a roof-top astronomical observatory but this was removed some time ago and replaced with additional accommodation. There is now accommodation over three floors incorporating a balcony at top floor level. In architectural terms this is a somewhat unattractive building in this location and presents a quite different appearance from No. 10/12.
Mr Geddes first addressed the facts. There had been one sharp, although not necessarily material, conflict of evidence, as to when the gap in the wall separating the subjects from Partickhill Oval had been stopped up. The evidence of Mrs Strachan that this could not have been later than 1984 was to be preferred to that of Miss Thompson who recalled using the access through for some time after she moved to her flat in November 1984, the materiality being that in the former case any prescriptive right would have been lost through 20 years’ non-use. On any view, that access had not been available for at least 15 years. The evidence had suggested that there may not have been any access originally. There had been no attempt whatsoever to have it re-opened. There had been considerable innovation on the common feuing plan appended to the Feu Contract. The subjects themselves had for some time not been maintained. There was also evidence of some form of construction on the subjects at some time. The proposals did not involve vehicle access to the new house from the lane, apart from some access during the construction period, the vast majority of constructioin traffic coming from the other side. Nor did the proposals involve through traffic. Very little use had been made of the end section of the lane since the gap in the wall was closed, apart from Mr Clarke’s parking and unloading. He would be deprived of that opportunity, but he had no right to park there and it would still be possible for him to take deliveries and park in front of his own property. There would be little material difference from the current access position. The new house had been designed to be in keeping with the particular area, with a particular view to protecting amenity.
Mr Geddes briefly addressed the statutory test under Sections 98 and 100. The entire circumstances had to be weighed as a whole, with particular weight to the purpose of the title conditions, the benefit conferred by them and the extent to which they impeded a reasonable use of the land. Discharge or variation should be permitted if it did not conflict with a continuing purpose and was reasonable.
Mr Geddes next analysed the title provisions. As regards the Feu Contract, the reference to the second party, the feuar, possible opening access through to Partickhill was unclear, and it was not apparent that the titles gave any access to any part beyond the lane. There had been significant departures from the original scheme. The access right conferred by the 1907 Minute of Agreement, also running in an east to west direction, interestingly referred to the ‘proposed new lane’. The provisions of the 1979 Disposition did not extend beyond 11 Turnberry Road.
Mr Geddes next considered a number of issues in relation to title and interest to object, as follows:-
Mr Geddes further submitted, in relation to points made, particularly by Ms Thomson, firstly that the local authority had a statutory right to carry out refuse collection – Environmental Protection Act 1990, Sections 45-6; and, secondly, any issue as to entitlement to re-surface Partickhill Avenue (so as to be able to comply with the conditions of the planning consent) was one among the applicant, the relevant land owner and the planning authority. There was in any event an implied right of a dominant proprietor to effect improvement works – Cusine and Paisley, 12-16, 14 - 16-18 and Stevenson v Biggart.
Mr Geddes addressed the factors listed in Section 100 of the Act in order. In relation to (j), other material factors, he pointed out that none of the Turnberry Road properties most directly affected had objected. In relation to construction traffic, Mr Gibson had acknowledged that there would be some impact, but vehicular impact would be minimal. Short term disturbance was of little weight: Shephard v Turner. The question whether the new house would be ‘out of character’ did not really arise, and objections that the Glasgow City Plan was not being adhered to were not appropriate in this forum. As to the possibility of a damaging precedent, each case was conaisered on its own merits. It was not relevant that this ‘would not benefit 11 Turnberry Road’, particularly where those proprietors had not objected. The effect on wild life would be negligible. In all the circumstances, it would be reasonable to grant the application.
As to the form of the order, the applicants’ principal motion was for discharge.That would be necessary as far as the access issue was concerned. In relation to the real burdens, in so far as there was title and interest, a fall-back position was to ask for the burden to be relaxed to the extent of permitting the development for which planning permission had been granted.
The respondents’ submissions, including the various written representations by proprietors not present at the hearing, were, understandably, quite diverse. However, a reasonably comprehensive written submission was lodged, as the Tribunal had allowed, after the hearing. We first summarise these submissions.
On the factual dispute as to when the Partickhill Avenue was bricked up, even if the wall had been bricked up in 1984, it was, on the evidence of Miss Thomson, clearly open again before November 1984 and remained open until some time between 1991 and 1993.
On the law, reference was made to Hampden Park Limited v Dow, a case where there was sufficient community of interest to enforce a ius quaesitum tertio. Reference was also made to Sections 52 and 53, and ‘48A’ (which latter, we have to say, we have not found) of the 2003 Act in relation to ‘related’ properties. A servitude right extending over the whole of the lane had been established by prescription: Prescription and Limitation of Actions (Scotland) Act 1973, Section 3(2) and McInroy v Duke of Atholl. The Feu Contract had provided for ‘free ish and entry’.
On the statutory factors (Section 100), it was submitted that the community of interest that the feu plan seeks to preserve had served well over 130 years since the houses, mews cottages, and North Gardner Street and associated tenements were built. The external character was virtually unchanged. Reference ons the feu plan to ‘mews lane’ lent credence to the assertion that the mews cottages were built at the same time. The 1875 feu plan was only a ‘proposed feu plan’. All the properties and the subject land had the same burdens. Internal alterations did not radically alter the community of interest.
As to (b), the conditions applied to a community of properties and conferred benefit on all of these neighbours. There was a servitude right of pedestrian access to provide potential access to the Oval, available recently. That opportunity would be lost forever. There was a right of access across the subjects for residents of 11 Turnberry road. Mr Clarke had tended the flower beds. There was also a servitude right of vehicular access used by Mr Clarke on a regular basis., used for delivery of larger items and also for bin men, etc., to get access to both 11 Turnberry Road and 14 Hillside Gardens Lane. There would be considerable inconvenience if this was lost. Reference was made to Scotland v Wallace. There was clear evidence of the exercise of this right over the whole of the lane for the 20 year prescriptive period. Further, the conditions conferred benefit by requiring the proprietors of the subjects to maintain the gardens – even simply to be allowed to do so for the proprietors would be a benefit. The properties, particularly 14 Hillside Gardens Lane, had been bought on the basis that there would be no building on the subject land. The character of the area would be significantly altered.
As to (c), the proposed enjoyment by the applicants was purely one of financial gain. The developer not having been present at the hearing, the respondents did not know his intentions. As to (e), although the feu plan had been in place since 1875, the 1979 title reiterated it so that it clearly continued as important.
As to the purpose of the title condition, this was to maintain the amenity and character of the area for the community and to maintain servitude and access arrangements. Mrs Mazzolini and Mr Clarke enjoyed particular amenities and the particular effects of the proposals. The fact that the garden area was in poor condition was attributable to the owners of the subjects. If the title condition was abandoned a building free-for-all would result, the planning process not being a sufficient safeguard.
As to (g), the grant of planning permission, reference was made to other problems which might prevent the development from proceeding: the need for approval by the Partickhill Avenue owners of necessary road works and demolition of walls, and further public consents said to be required. The condition to make Partickhill Avenue Lane up to standard could cost many thousands of pounds. Service access for residents of 11 Turnberry Road (other than for bin collection), the siting of drains and other services, and practical issues with the proposed parking area for the new house, were further problems. There was also uncertainty as to whether the new applicants would proceed.
On (h), it was noted that no attempt had been made to discuss proposals with local residents.
Several other material factors were suggested. The Oval was subject to a regeneration plan supported by the Council, making access through to it, which was proposed to be under lock and key, more desirable. The proposed vehicular access to the new house created a real danger that open access would be created by default, to the detriment of the mews houses. There was concern about carbon monoxide fumes close to the doorway of 14 Hillside Gardens Lane. The aspect from the balcony of 14 Hillside Gardens Lane would be obscured. Reference was made to the reasoning of the Scottish Office Reporter in turning down the previous planning application. Some of the respondents expressed concern at the possibility of opening up a through traffic route. Others were concerned about restriction of their own access. The disruption during the building process would be considerable.
It was also submitted that servitude rights had been established over the whole lane (c.f. McInroy v Duke of Atholl), and ‘free ish and entry’ had been provided in the Feu Contract. There was uncertainty about what was proposed. It was reasonable to defend the status quo. The removal of the burdens would set a precedent for other speculative developments.
Some respondents also emphasised that the two mews houses had been built around the same time as the Feu Contract, whereas there had never been any development of the subject land.
The applicants’ proposals involve, firstly, building a house in part of the original back ground of 11 Turnberry Road; secondly, in so far as the house would follow the building line of the existing mews houses but the lane is wider at the rear of No.11, encroaching on the area of the lane; and, thirdly, removing the whole of this section of the lane, thus stopping access from it to the rear of No. 11 and removing any possibility of pedestrian passage between the remaining part of Hillside Gardens Lane to the east and Partickhill Avenue to the west. The proposed building would not, however, curtail or affect the current use of the lane by other proprietors for access to their properties and should not increase traffic in the lane, at least following completion of the development. They will not, as it seems to us, create any through traffic route. They do not involve any change in the residential character of the neighbourhood.
It is neither necessary nor appropriate for the Tribunal to rule on title and interest to enforce the title conditions in question – c.f. Church of Scotland Trustees v McLaren, at para. 34 (2006 SLT (Lands Tr.) 33). This consideration is stronger in this particular case because there are other benefited proprietors who might conceivably have wished to oppose in relation to the general enforceability of the conditions in the Feu Contract if there had been an application under section 90(1)(a)(ii), and also because the respondents in this case have, understandably, not addressed the quite complicated legal issues addressed in the applicants’ written submission. In their submission, the applicants have in places referred to title and interest to object to discharge. They have not, however, placed in issue the respondents’ entitlement, under Section 95, to make representations as respects this application. Questions of interest to object arise, and can be adequately considered, under Section 100(b)(i), which raises the issue of degree of interest, which, although similar, is not identical to the test of interest under Section 8(3)(a).
These things said, the factors to be considered in relation to the merits of an application of this kind are not dissimilar to some at least of the issues canvassed in that submission, and our consideration does require a careful look at the import of the title conditions in question, because our jurisdiction concerns the private rights flowing from the titles and not wider considerations. Several points require to be made about the title conditions, and the positions of the respondents in relation to them, at the outset of our consideration of this application.
It appears to the Tribunal that the provisions in the 1907 Minute of Agreement are not substantially affected by the applicants’ proposals. On our consideration of the materials, and particularly comparing the 1875 deed plan with the position on the ground now, it seems reasonably clear that the service lane originally envisaged did not get beyond Plot 4 (now, 5 Turnberry Road). The remaining 7 houses were not built as envisaged. In their place, North Gardner Street, with tenement housing on each side, was created. The tennis club took land to the south and obliged itself to allow access via the lane serving the tennis courts to the service lane which presumably by then had been built behind the four houses. This new lane did not follow the same line as the original proposed service lane, because the gap between the tennis courts and the tenement was slightly south of the original line. Like the other subjects at 5 to 11 Turnberry Road and in the lane, the subjects of this application, i.e. the proposed new building plot, would seem to be benefited rather than burdened by this access right. The proprietors of the flats at No. 11 Turnberry Road would lose the benefit of the lane created in 1907 if this application were granted, but that loss would be immaterial because their access from the original service lane would also have been lost, and they are in any event not opposing.
One other result of the 1907 arrangements is that because the two sections of lane were not aligned together, there is a roughly triangular area at the point where they join, behind 5 Turnberry Road. As Mr Geddes pointed out, this results in a substantially larger turning area than that for which the 1875 deed evidently provided at the west end, i.e. at the subjects. The 1875 scheme involved a lane of only 14 feet wide throughout its length except at the west end.
The dispute before us also does not require direct consideration of the conditions expressed in the 1979 disposition. There is no suggestion that any of the respondents opposing the application have the benefit of these conditions. These were in favour of the remaining proprietors at 11 Turnberry Road, none of whom has objected. The 1979 transaction did not involve any common scheme or community of interest from which any of the respondents can benefit. We do, however, nevertheless consider below the possible materiality of the continuation in 1979, in favour of the proprietors of 11 Turnberry Road, of some of the 1875 conditions.
Attention thus requires to be focussed on the 1875 Feu Contract. This essentially regulated the building of 11 houses with provisions for their service and amenity, and the applicants do not dispute that this did basically confer enforceable rights on co-feuars as well as the superior. The provisions were of a standard kind, involving amongst other provisions positive building obligations to secure the building of substantial and uniform houses on the dedicated plots, and also building and use restrictions which were evidently aimed at securing the residential nature and amenity of the neighbourhood, all for the mutual benefit of the proprietors of the houses as well as the superior. There was to be a rear service lane. The only permitted buildings apart from the houses were ‘the necessary ashpit accommodation’ and a stable and loft for each house. The lane which was to be provided, running through the individual plots with mutual access rights, was ‘for the service of the said plots of ground … in common with the first Party’s unfeued lands on the East and south east.’
The 1875 deed did not make any provision for mews houses. There is a conflict of evidence as to when the mews houses behind Nos.7 and 9 (originally plots 2 and 3) were built. They have evidently been there for very many years, without, apparently, any objection. They may have been developed from the original stables. There also appears to have been a substantial building at one time behind No.5. These buildings are either a substantial departure from the original scheme, in which case that no longer has weight, or they are not, in which case the proposal to build a further mews house is in itself also not a significant departure. What is clear is that the 1875 deed does not address the amenity of the mews houses. When attention is focussed on the titles, as it requires to be in cases under this jurisdiction, it is very difficult to see why there should be any substantial right of the proprietors of mews houses, themselves not provided for in the titles, to object to one more mews house in so far as that would occupy a plot corresponding to theirs.
These comments on the 1875 title do not of course apply to proprietors at 5, 7 and 9 Turnberry Road. They did have, from that deed, the benefit of building restrictions which can be seen to have been conceived for their amenity. In relation to these proprietors, the question whether there was such a departure from the common scheme as to destroy the mutuality of benefit on which the ius quaesitum tertio was founded, is more pertinent. It might be thought that if part of a common scheme giving rise to mutuality of obligations is realised, although another part is not, the proprietors in the part which was realised could still be liable in questions among themselves. That, however, was not the result in Calder v Merchant Company of Edinburgh, a case with some similarity to the present in that an original building scheme had not been completed and many years later some very different development had taken place on another part of the original land. It is not clear in the present case whether the unused land, plots 5 to 11 in the 1875 scheme, was re-conveyed to the superior and then feued out again under different conditions, as was the case in Calder, so there may be a distinction. We doubt whether sub-division in itself, including division of the houses into flats, would amount to a significant enough departure from the scheme, but here there is not only the sale of the mews houses but also of course the entirely different development of North Gardner Street and its tenements, the backs of which must have significantly affected the outlook from at least 5 and 7 Turnberry Road. For the reasons already given, we do not require to decide this issue, but it is sufficient to indicate that there have been very substantial changes and there is a doubt about the strength of neighbouring proprietors’ rights based on the Feu Charter. Further, there seems on any view to have been at least acquiescence over very many years to the changes from the original conception.
In relation to the servitude right of access, the applicants do not contend that this has been destroyed by departure from the common scheme, but accept that it is established, if only by the operation of prescription. The positions of proprietors in the Turnberry Road houses and those in the mews houses may not always be the same. What is being talked about in one case is a rear service lane, and in the other a necessary front access. Three questions seem to arise: firstly, does the right include a right of passage from and to Partickhill Avenue? Secondly, even if not, i.e. it is merely a right of access from the east, does it in the case of individual proprietors extend any further along, i.e. further west, than their own properties? Thirdly, is there, in the case perhaps of Mr Clarke, something more than a right of access and some form of right to park? Indeed, one might perhaps ask, even more generally, could the proprietors’ rights in relation to this lane, along with the rear garden grounds, be seen as amenity rights, the subjects being a ‘green’ area, as some of the respondents seemed to regard it?
On that latter point, we think it impossible to construe the 1875 deed as providing the lane as an amenity area: it was clearly designated as a service lane.
We cannot, on the evidence and submissions, see the right as being a right of passage to or access from Partickhill Avenue. There is nothing to suggest that the conditional obligation, if that is what it was, on the original feuar to open a way through to other land belonging to him to the west ever resulted in any access rights in favour of the Turnberry Road proprietors. This was perhaps conceived in favour of the other land, but in any event there is no material on which we could hold that the condition was fulfilled and it actually happened. More recently, we know that there was for some uncertain period of time a formed opening in the wall, with steps up to it, enabling pedestrian passage. On the evidence, however, the land to the west is private and there is no general right of access for the Turnberry Road proprietors through it. The respondents referred in their submission to ‘free ish and entry’ having been conferred by the Feu Contract, but it seems to us that this is clearly a reference to access from (then) Minard Road, Hyndland Road and the lane which was to be formed.
We did not feel able to resolve completely the conflict of evidence between Mrs Strachan and, principally, Miss Thompson, in relation to the date when the gap through to the oval was closed. We thought that Miss Thompson’s recollection of the gap still being open between 1991 and 1993 was probably reliable – possibly there had been an earlier closing and re-opening. At all events we do not hold that there has been a period of 20 years’ non-use which would found negative prescription, but in any event as far as passage through the oval is concerned there is nothing to indicate that any such right was established.
On the second question, it appears to us to follow from the provision for the lane to be wider at this specific point, apparently at the end of it, that this was to enable turning, presumably of horses with carts or the like. No other suggestion has been made. It seems to us to follow, as a matter of reasonable construction, that the whole of the lane was to be a facility for all the owners. Subject to the general argument against any right to enforce the 1875 conditions at all, there is no reason to hold that that entitlement has been lost, but the existence of the bigger turning point outside 5 Turnberry Road makes it difficult for the benefited proprietors to establish an interest to enforce.
We do not consider that Mr Clarke or anyone else can derive a right to park in the lane from the 1875 deed. He has been in the fortunate position of being able to use the slightly wider end part of the lane to park, but we cannot read any such intention into the Feu Contract: on the contrary, stables, obviously outwith the area of the lane, were contemplated.
With that background consideration of the rights and obligations involved in the title conditions, we turn to consider the merits of the application, i.e. whether, on a consideration of the factors listed in Section 100, including any other factor which we consider material, it is reasonable to grant this application so as to enable the applicants’ proposals to proceed. We are of course considering the effect of the proposals as outlined at the beginning of our consideration; and we are dealing with objections from proprietors in the Turnberry Road properties (although none from either 11 or 9 Turnberry Road) as well as those of the proprietors of the mews houses. As we have not ruled separately on validity or enforceability and it is not contended that any of the respondents is not entitled to make representations, we proceed on the basis that entitlement under the 1875 deed continues in favour of all the divided properties, including the mews houses, although the statutory factors include consideration of the extent of the respondents’ interest.
In view of some of the submissions made to us, to the effect that there was a broad community of interest arising from the feu plan, we should stress that what is under consideration is such burden as these title conditions provide, not any more general obligation not to develop one’s property so as to disturb the amenity of neighbours. No such burden exists, a fundamental point which, as it happens, was specifically confirmed by the court in Calder v Merchant Company of Edinburgh (see pages 631-2 and 633-4, per Lords Adam and Shand).
In relation to the statutory factors to which we have to have regard, the purpose of the title conditions (factor (f)) is always of importance. As we have explained, the 1907 and 1979 deeds do not contain any title conditions which confer relevant benefit on any of the respondents, so we are here concerned with the purpose of the relevant conditions of the Feu Contract of 1875. We see this as the protection of the amenity of the Turnberry Road houses, partly by restricting building and partly by restricting use, and the provision of rear service access to these houses. Amenity would certainly include visual amenity, although it is to be noted that the intrusion of stables with lofts (perhaps these days to be equated with garages with lofts), as well as ashpits, was contemplated.
We note a number of changes of circumstances since the title conditions were created: the development of the mews houses; the tenement building on the west side of North Gardner Street, quite different to what was envisaged in 1875; the general change from horse-drawn to motor vehicles; and the division of houses. The division of houses into flats has led in our view to changes in the character of the back areas, from the house gardens envisaged in the Feu Contract to back greens. Looking at the immediate surroundings of the subjects, i.e. the rear of the garden grounds of the four houses originally envisaged, we find an area whose character has evolved very differently, into an area of mews houses, a car park where there had been a building (No. 5) and the rear part of what is, in effect, a tenement back green (No. 11). The particular decline in the state of the subjects themselves, including the loss of two substantial trees should not, in our view, weigh in favour of the applicants, because we tend to agree with the respondents that this may have resulted from a failure, attributable to the prospect of this development, to adhere to the positive upkeep obligation. That, however, does not alter our clear impression that the rear parts of the gardens of the four Turnberry Road houses are very different from the 1875 conception. In the slightly wider area, there has of course been the completely different development of tenement flats to the east and also in fact some modern development around Partickhill Oval, although we give less weight to that. We appreciate that over time the area of the back lane, mews houses and tennis courts, together no doubt with the outlook towards Partickhill Oval, have come to provide an attractive locality and rear aspect for the houses. The 1875 restriction on the use of the land, as opposed to the building restrictions, would seem to have generally held good. We think, however, that the existing mews house development is a particularly significant change not contemplated in the Feu Contract. Overall, we think that since 1875 there have been very considerable changes in the neighbourhood, which changes appear to us highly material in relation to a proposal to build a single house in the mews area. We do not accept the major thread in the respondents’ argument that the community of interest created by the feu plan has been preserved, and that the external character has remained virtually unchanged. That seems to us to be a superficial view which is not borne out on closer examination. The respondents make a further and slightly different point that the feu plan was in any event only a ‘Proposed Feu Plan’ and may not have represented what was actually built. If that were so, however, it would weaken still further the reliance placed on conditions imposed in the light of a plan which did not proceed.
Section 100(b)(i) directs our attention to the question as to how much benefit the conditions confer on the benefited proprietors. As far as the Turnberry Road proprietors who are maintaining objections are concerned, there is the visual amenity, which no doubt varies with the level of flat concerned, but in our view the impact of one more mews house at the bottom of the garden of No. 11 on that amenity can be overstated, particularly when it is remembered that the conditions allowed one building with a loft there. The end section of the lane provides these proprietors with the very doubtful benefit of a turning area which is considerable smaller than that outside No.5. The other issue about the benefit of the access lane to proprietors of 5 and 7 Turnberry Road relates to access to Partickhill Avenue. As we have indicated, we do not consider that this is a right which was conferred by the 1875 deed. We note also that some objectors seemed concerned to avoid increased through traffic, others to preserve the possibility of access through. As far as the latter is concerned, no doubt maintaining the whole of the lane would preserve that possibility, but the fact is that no-one has tried to restore the gap or opening in the wall since it was stopped up, despite the fact that the children’s home which was said to be the reason for the stopping up closed some time ago. There is also the consideration, as far as residents at 5 and 7 Turnberry Road are concerned, that if the Partickhill Oval does get developed as some form of public amenity ground, access could be taken by the lane off Turnberry Road, which would seem to be little if any less practical than by going out from the rear of these houses.
At first sight, the benefits to the mews house proprietors appear greater. As a result of the sub-division of the properties and of the fact that the 1875 conditions on the face of it do benefit these houses also, the protection against building next door would seem to be a substantial benefit, but we doubt the reasonableness of insisting on that benefit when the mews houses themselves go against the 1875 scheme: the purpose of the 1875 conditions cannot have been the protection of mews dwellinghouses from further mews house development. As far as the end section of the lane is concerned, the considerations in the previous paragraph mostly apply here, although no doubt the alternative of access to Partickhill Oval from Turnberry road would not be convenient for the mews house proprietors. Mr Clarke, as the proprietor of the immediately neighbouring subjects, has in fact had some benefit from this part of the lane, particularly in relation to loading and unloading from his car, but that also was not part of the purpose of the Feu Contract. We also have to say that our impression was that it would not be too difficult for him to adjust to using the larger turning area a few yards to the east if he has difficulty loading and unloading immediately outside his own house. We also think that there may actually be some benefit to him in closing off the end section of the lane through which the proprietors of 11 Turnberry Road presently enjoy service access. The proposals would leave him at the end of the lane, with the opportunity in practice to continue to park outside his own door. Thus, even in relation to Mr Clarke, we think the benefit of the current title provisions was over-stated.
Factor (c) highlights the extent to which the conditions impede the enjoyment of the subjects as the burdened property. Inability to proceed with a substantial development which has planning permission is clearly relevant here. This is a significant impediment when the subjects have otherwise little or no prospect of any other valuable use– c.f. Ord v Mashford, at page 25G-L. We quite appreciate the respondents’ argument that this may simply be a speculative development with a view to realising profit, and we do accept that there is a difference between situations in which some factor such as the passage of time has created problems for the original permitted use of the property and situations which simply involve a new development use. In purchasing the property, the applicants accepted the conditions and therefore the risk that they might not be lifted. These considerations are relevant when weighing up the various factors. A separate point, again advanced clearly by Miss Thomson, is the suggestion that there are other obstacles to this proposed development which have not been removed by the planning permission. It may be that there are matters which require further consideration, but that does not alter the fact that, assuming the title conditions restricting building and providing a service lane running through the subjects to be valid, they represent a substantial obstacle to the development.
Factor (d) is not relevant in this case. Factor (e), the age of the condition, does seem to us significant, although the extent of that significance tends to depend on the presence or absence of relevant changes of circumstances. 130-year old feuing conditions could still have some relevance for neighbouring proprietors who can show a continuing interest.
Factor (g), whether there is planning consent or other necessary authorisation, favours the applicants, but the strength of that depends on the extent to which the purposes of the title conditions overlap with public planning policies: there can certainly be cases in which the existence of planning consent does not take the applicant very far because the private title condition provides a particular benefit which is not, or not so, relevant to the planning issues. In the present case, bearing in mind the changes in circumstances which we have highlighted, it is difficult to say that there are any particular continuing distinctive purposes of the building restrictions in the Feu Contract.
Factor (h), willingness to pay compensation, can be seen as a neutral factor in this case. The applicants are, in principle, willing to pay compensation if such is found due; and it is not a case in which opposition is being maintained unreasonably in the face of an offer of compensation.
Factor (i) does not arise. As to (j), other material factors, we note that the 1875 building restriction was in effect re-imposed, in favour of the other proprietors at No. 11, in 1979, indicating perhaps an acceptance then of the continuing force of the restriction, although Mrs Strachan gave evidence that she and her husband (who conveyed the subjects, along with the ground and basement flats, to her) always had in mind the possibility of exploiting this site for development. On the other hand, there is no objection from any of the present proprietors at No. 11 to this application. We should mention that we do not regard any view, either way, of the architectural merits of the proposals as material in this case. This is not a development which will interfere with any uniformity of the existing two mews houses.
Another matter which Mr Clarke highlighted was the close proximity of the elevated car parking space to his front door. We can see that the issue of vehicular access to the new proposed house will have caused difficulty to the planners, and in this particular respect the solution adopted may seem unfortunate. We come back, however, to the point that these feuing conditions were plainly not imposed in order to protect the amenity of any mews buildings as dwellinghouses.
We consider the issue of reasonableness in the light of the various factors in three stages. Firstly, we are clear that, viewed in the light of the particular title conditions entered into in 1875 and the changes since then, the principle of building a third mews house in 2006 is reasonable. Either there was a scheme involving mews houses or the scheme did not permit such houses, in which case it has long since been departed from in this respect; or, perhaps, the mews houses were a somewhat natural development in the course of time from stables with lofts. Whichever way the matter is looked at, it cannot in our view be said to be unreasonable to add another mews house if public planning permission can be obtained for it. We do not think that there will be any substantial intrusion into the visual amenity. In so far as any overlooking issues are for us rather than the planners, we do not see any such problems for any of the respondents. The opposition by, in particular Mr Clarke as the immediate neighbour, to the proposal is entirely understandable but not, we think, justifiable in the light of the title conditions.
It is accepted that there is bound to be some degree of disturbance during the construction period. We note some useful observations in the Court of Appeal on the approach to this issue under the corresponding English provisions, in Shephard and Others v Turner and Another relied on by the applicants. Again, we have not identified in the title conditions such protection of the amenity of the mews buildings as to provide a particular benefit in relation to such works, and the evidence did not suggest that the disruption would be sufficiently prolonged or serious or otherwise out of the ordinary as to amount to a factor to which much weight can be attached.The builders will of course require to pay due regard to the interests of neighbours, particularly Mr Clarke.
Secondly, we do not think that extending the plot as far as the building line of the other two mews houses creates any problems. The only discernible benefit of the extra width of the lane at that point was for turning, in modern conditions the area is inadequate for that and in any event the changes reflected in the 1907 deed created a larger and viable turning point close by. The provision of a turning space in the 1875 Feu Contract does not seem to us to provide a reasonable basis for insistence on extra space, on someone else’s land, to load and unload a motor car in 2006, in the face of a proposal by the owner of the land to develop his land. We think that it is unreasonable to object to this aspect.
Thirdly, while complete closure this end of the lane seems to raise a little bit more difficulty, we have reached the view that this will not have any substantial effect on any access enjoyed by the respondents through this part of the service lane. The prospect, which is all it is, of developing a right of access through to Partickhill Crescent, does not seem to us to be either sufficiently related to the title conditions or anyway sufficiently strong to make the present proposal unreasonable. Mr Clarke does not seem to us to have any particular entitlement or reasonable expectation in the light of the title conditions, to make the further use of this section of the lane which he has in fact been able to enjoy to date. As we have said, we do not think that the protection of his amenity has any significant weight in relation to the conditions in the Feu Contract: it is a matter to be considered primarily under the public planning process.
We accept that the applicants are in effect proposing a speculative development of the subjects for profit, not envisaged in the Feu Contract. Overall, however, we do not think, considering the matter at the present time in the light of our assessment of the respondents’ interests derived from the Feu Contract, that there is enough weight in the respondents’ objections to enable any of the respondents reasonably to object to these title conditions being lifted so as to enable this development to proceed.
We can also understand the respondents’ concern about creating a precedent, but do not think that in the circumstances of this case that any weight can be attached to that. Firstly, there has of course already been substantial building in this mews area. Secondly, each case must be decided according to its own circumstances. Just as we have not had any regard to precedents elsewhere in the west end of Glasgow to which reference was made, so we would not anticipate this decision to any extent at all determining what might or might not be allowed in the exercise of this jurisdiction in other cases.
The applicants sought, as their primary remedy, discharge of each of the title conditions identified by them. In relation to the conditions in the 1979 Disposition, they are entitled to what they seek, as there has been no opposition from any benefited proprietor. As regards the 1907 Minute of Agreement, although as we have indicated we did not think it particularly material to the dispute, particularly, again, as none of the proprietors at 11 Turnberry Road have opposed, it does perhaps confer rights, under which the subjects may be said to be burdened, in favour of No. 11, so that too should be partially discharged, quoad the subjects. As far as the Feu Contract is concerned, on the basis that that might still have some force, particularly perhaps in relation to the use restriction, and also that the respondents may be entitled to the assurance that the development will not be different from that for which planning permission has been obtained, it seems more appropriate to vary these conditions, quoad the subjects, to the extent of permitting the development for which there is permission.
The respective written submissions on compensation are brief.
Mr Clarke advanced his claim in somewhat equivocal terms, indicating that he understood that compensation claims were difficult to determine in cases such as this; his intention in objecting had not been to gain compensation, but “if I am required to state a figure for these purposes then £27,500 is the maximum claimed.” He referred to an opinion dated 8 May 2006 of Eric Curran, FRICS, of Messrs D. M. Hall, Glasgow. Mr Curran narrates that he “carried out a superficial inspection of the above subjects and perused plans of a proposed dwelling adjacent to the subjects with a view to advising on our opinion of likely Market value before and after the development”. Having quite briefly described the subjects at 14 Hillside Gardens Lane, Mr Curran addressed the issues in the following terms:-
“The subjects are situated at the end of a lane which has a small hammerhead turning point adjacent to the property which over the years has been landscaped with raised borders. The lane is base coated with tarmac to the east and the westmost section directly opposite the subject property is cobbled.
“At the present time, prior to any development, the mews house enjoys a pleasant natural amenity with little or no through traffic from adjoining properties.
“The proposed development will mean the removal of the cobbled hammerhead area and replacing this with a obtrusive boundary wall and raised car parking space. It is my opinion that when the development is completed, the amenity of the subject property will be adversely affected and the development will remove the open aspect at the westmost end of the lane directly adjacent to the subjects.
“Valuation
“It is our opinion that the market value of the subject property could be adversely affected by as much as 10% by the proposed development. We are further of the opinion that the market value of the subject property at the present time could be fairly stated at £275,000.“In conclusion, it is our opinion that the market value of the subject property may be adversely affected by as much as £27,500 if the proposed development as outlined in the plans provided was to be constructed.”
In his submission on behalf of the applicants, Mr Geddes drew attention to the somewhat tentative nature of this claim. Assuming, however, that this was a claim in the sum of £27,500, the applicants, while prepared to consent in terms of Section 90(6) of the Act, resisted it. He submitted that no weight could be given to Mr Curran’s evidence, which had not earlier been produced. Further, any loss or disadvantage which would be suffered by Mr Clarke would not be ‘substantial’ (Section 90(7)): any inconvenience would be minor, there being other parts of the lane which he could use for unloading; any loss of amenity from loss of that right would be modest; and any disruption during the period of construction would be negligible. Any entitlement to compensation would only be as a benefited proprietor, and for the reasons already submitted Mr Clarke was not benefited in relation to the building restriction.
Section 90 of the Act provides inter alia:-
“90(6)… an order discharging or varying a title condition may … direct the applicant … to pay to any person who in relation to the title condition was an owner of the benefited property … such sum as the Lands Tribunal may think it just to award under one, but not both, heads mentioned in subsection (7) below.
(7) The heads are –
(a) a sum to compensate for any substantial loss or disadvantage suffered … in consequence of the discharge or variation …”
We do not accept the applicants’ contention that we should not look at Mr Curran’s opinion because it was not given in evidence at the hearing. At the hearing there was discussion as to procedure in relation to Mr Clarke’s claim for compensation, and we understood the written submission procedure for this to be agreed. That being the case, Mr Clarke was entitled to lodge an expert report on this matter.
On the basis of the submissions, the issue is narrower than might at first sight seem. Firstly, we cannot read Mr Curran’s opinion as supporting any reduction in value as the result of the building of another mews house as such. The opinion on value might seem to read that way, but Mr Curran’s observations are all directed at the loss of amenity by the replacement of the cobbled end section of the lane by a boundary wall and raised car parking space. The dispute as to whether Mr Clarke has any entitlement to compensation in relation to the relaxation of the building restriction as such therefore falls away.
We note also that Mr Curran does not mention the loss of any right of access or passage. The question is whether the revised arrangements in the applicants’ land, taking away the cobbled area which Mr Clarke was able to use to assist in loading and unloading his car, and removing what could be seen as a part of the amenity in the immediate vicinity of his house, produces ‘substantial loss or disadvantage in consequence of’ the variation of the title condition. We refer to our views above in relation to the proper analysis of any remaining rights under the Feu Contract. We simply do not consider that it can be said to have conferred amenity rights which could be relied on by the proprietors of mews houses occupied as dwellinghouses in contravention of its terms. Nor can it be said to have conferred rights to use the service lane for purposes going beyond access.
If service access did include the right to load and unload, the loss of this right at this point of the lane cannot in any event in our view be described as ‘substantial’, because of the close proximity of another area in which this could be done. We can accept that this could be slightly more inconvenient for Mr Clarke, but we are not able to accept that such inconvenience could amount to ‘substantial loss or disadvantage’ compensatable under the Act.
We quite appreciate that Mr Clarke will suffer some loss of amenity (although not we think as much as claimed), but it comes back to recognising that mere loss of amenity which cannot be related to the lifting of the title restriction when that is properly analysed does not attract compensation under this jurisdiction.
In these circumstances, the application for compensation fails.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr F Geddes, solicitor, Messrs MacRoberts, solicitors, Glasgow | |
| for the respondents: | parties | |
| Heard: | Edinburgh, 24 and 26 April 2006 | |
| Sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 28 June 2006 | |
LTS/TC/2005/21
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 June 2006.
Neil M Tainsh
Clerk to the Tribunal