The subjects of this application for variation of title conditions comprise the rear garden ground of a modern detached dwelling. The applicants, having obtained planning permission and building warrant, wish to build a new house with granny flat, a development which has not received the consents of two neighbouring proprietors whose consents are required under title conditions. The main benefited proprietors object to the height of the proposed dwelling which they feel will adversely affect their amenity, which is characterised by a fine view over the Firth of Clyde and Island of Cumbrae.
The Tribunal has reached the view that the proposals involve a building which is of such a scale and in particular such a height as to have a substantial effect on the amenity of one of the neighbouring proprietors (Clark), and has decided on a consideration of the factors set out in section 100 of the Title Conditions (Scotland) Act 2003 (“the Act”) that it is not reasonable to grant the application for discharge or variation of the condition which benefits those proprietors.
The Tribunal would grant the application in relation to the (different) title condition benefiting the other neighbouring proprietor (Doull), but in the circumstances has continued the application as regards that title condition to enable the applicants to consider their position further.
Three provisions are referred to, as follows:-
1. A Disposition by Mrs Elizabeth Holm, proprietor of two neighbouring dwellinghouses, namely Broomcroft, Largs and Broomcraig, Largs, of the latter subjects in favour of Alan Reid, recorded in General Register of Sasines for the County of Ayr on 20 February 1967, provided inter alia:-
“It is hereby mutually contracted and agreed between me the said Mrs. Elizabeth Margaret Knight or Holm and my successors in the ownership of said subjects of Broomcroft and the said Alan Reid and his successors in the ownership of said subjects of Broomcraig that any further erections or buildings on the solum or ground of the subjects hereinbefore disponed other than what are already in being shall require the written consent and approval first had and obtained of me and my successors in the ownership of Broomcroft aforesaid declaring that there is hereby created a servitude and real burden to the effect foresaid over Broomcraig…”
2. A Minute of Agreement between David Johnston Clark & Mrs Elizabeth Rosemary Clark and Richard Michael Sadler and Mrs Betty Ruth Sadler, recorded in the General Register of Sasines for The County of Ayr on 22 August 1990, provided inter alia:-
“Clause 3 CONSIDERING that the second party has constructed upon 7A Rockland Park a dwellinghouse and a patio in the garden ground to the rear thereof and that the consent of the first party hereto is required.
“Clause 4 THEREFORE we the said David Johnston Clark and Mrs Elizabeth Rosemary Clark by virtue of the rights conferred upon us as the proprietors of the Broomcroft subjects conform to the said Disposition by Mrs Elizabeth Margaret Knight or Holm in favour of the said Alan Reid do hereby for ourselves, and our successors consent to the construction and approve the design of the said dwellinghouse and patio constructed on 7A Rockland Park provided always that external additions shall not be made to the said dwellinghouse and no other erections shall be constructed upon 7A Rockland Park without our prior written consent which consent shall not be unreasonably withheld.
3. A Disposition by Mrs Elizabeth Doull in favour of Richard Sadler and Mrs Betty Ruth Sadler recorded in the General Register of Sasines for the County of Ayr on 11 June 1990 provided inter alia:-
“There shall be erected on the subjects and others hereby disponed at or prior to the date of entry one detached dwellinghouse with relative offices including garage for occupation by one family only in accordance with all Local Authority planning permissions and building warrant and no other building or erection shall be permitted now and in all time coming on the subjects and others hereby disponed except with the prior express written consent of me and my foresaids as proprietors of the said adjoining subjects and the use of the said dwellinghouse for any trade, business or manufacturing purposes all for any use which may be deemed at the sole discretion of me and my foresaids as proprietors of the said adjoining subjects to be a nuisance or detrimental to the amenity of the area is hereby expressly prohibited;
Clause (Sixth) my said disponees and their foresaids shall be obliged to keep the said dwellinghouse, offices and relative garage and the remainder of the whole subjects and others hereby disponed (which shall remain unbuilt upon and shall be used only as garden or ornamental ground in respect of the said dwellinghouse in all time coming) in a good, neat and tidy condition now and in all time coming and my said disponees and their foresaids shall be obliged specifically to keep all banking and slopes at the subjects and others hereby disponed in a good, neat and tidy condition and regularly lopped, trimmed and cut so as to afford me and my foresaids as proprietors of the said adjoining subjects at all times a clear view from the first floor generally west facing windows of the said adjoining subjects known as and forming “Lizburn”, Seven B Rockland Park, Largs, of the jetty presently known as Cumbrae Slip being the present landfall on the Isle of Cumbrae (otherwise known as Great or Meikle Cumbrae) of the Largs to Isle of Cumbrae car and passenger ferry service; which reservations, burdens, conditions, restrictions, declarations and obligations and irritant and resolutive clauses and others are hereby created real and preferable burdens affecting the said subjects ….
Nos. 1 and 2 relate to the objections by Mr and Mrs Clark as the current owners of Broomcroft, but an issue was raised as to the effect of the provisions in No. 2 and in particular whether that deed created any effective title condition. A Disposition in 1994 by Mr and Mrs Sadler of the subjects at 7A Rockland Park in favour of the present applicants did not refer to No. 2. No. 3 relates to the objection of Mrs Doull as the current owner of No 7B Rockland Park.
Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 provide:-
“98. An application for the variation, discharge, renewal or preservation, of a tile condition shall, unless it falls to be granted as of right under section 97(1) of this Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that-
(a) … it is reasonable to grant the application;
…
“100. The factors mentioned in section 98 of this Act are-
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties); (b) the extent to which the condition-
(i) confers benefit on the benefited property; or (ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(d) if the condition is an obligation to do something, how-
(i) practicable; or
(ii) costly,
it is to comply with the condition;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
(j) any other factor which the Lands Tribunal consider to be material.”
The applicants, Francis Anthony Faeley and Alison Jane Faeley, are proprietors of 7A Rockland Park, Largs. They have obtained detailed planning permission and building warrant for the erection of a two and a half storey house with granny flat and detached garage in their rear garden ground situated to the north of 7A. Their application is made under Sections 90 and 100 of the Title Conditions (Scotland) Act 2003 and is for variation of restrictive title conditions to allow the building of one dwelling in accordance with the planning permission. The application initially referred to the provisions of Nos. 2 and 3 supra, but at the hearing the applicants were allowed without objection to add a reference to No. 1. It is accepted that respondents, David and Elizabeth Clark of Broomcroft are benefited proprietors under No.1 and Elizabeth Doull of Lizburn the benefited proprietor under No. 3. An issue was raised at he hearing as to the effect of No. 2. Mr and Mrs Lyall and Mr and Mrs Ferns are the current owners of other adjoining properties, at Broomcraig, Largs, and initially lodged objections. Shortly before the hearing, however, they each accepted that they are not benefited proprietors in terms of the Act and withdrew their objections.
At the hearing the applicants were represented by Laura J Dunlop Q.C. instructed by Messrs MacTaggart & Co., Solicitors, Largs. The respondents Clark were represented by David J.T. Logan Advocate instructed by Messrs Low Beaton Richmond LLP, Solicitors, Glasgow. Mr James B Russell, Solicitor, of Messrs James Patrick and Muir, Dalry, represented the respondent Mrs Doull. The applicants led three witnesses, viz. the applicant Mr Faeley, Richard Fox, a chartered surveyor, and Brian Stewart, architect. Mr Logan led the respondent Mr. Clark in evidence. Mr Russell did not lead any evidence.
In addition to the oral and written evidence and documentary productions lodged by the parties, the Tribunal made an accompanied site inspection.
Graham v Brownson, Lands Tribunal for Scotland (LTS/LO/2002/28), 20.5.2003
Reid v Robertson, Lands Tribunal for Scotland (LTS/LO/2002/26), 10.6.2003
Ord v Mashford 2006 S.L.T. (Lands Tr.) 15
Stair Memorial Encyclopedia, Vol. 18, para. 386-8
Gordon, Land Law in Scotland, para. 23-05
Halliday, Conveyancing Law and Practice, para. 34-22
Macdonald, Conveyancing Manual, 7th ed’n., para. 15-37
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.
Mr and Mrs Faeley own No. 7A Rockland Park, Largs which comprises a modern, two storey brick house with rear garage together with an extensive area of rear garden ground. In addition, their property also now includes the adjoining site of a former electrical sub-station extending to 140 sq.metres and lying immediately to the west of the house. This site was acquired within the recent past and creates an additional frontage to Rocklands Road of approximately 10 metres. The substation has been demolished except for the enclosing brick walls and the site is now used by the applicants for parking.
No.7A has a small front garden but to the rear, after passing through a “neck” of ground,
there is a large area of garden and grounds extending to approximately 920 sq.m (0.23 acres). This area of ground is roughly rectangular in shape having an average width of 27 metres and an average depth of 35 metres. It is on this area that the applicants seek consent to erect a dwelling. This area of ground is defined to the west by a substantial stone boundary wall about 2 metres in height. From the northern corner of the site, the land rises steeply to the north and east and these boundaries between No. 7A and Broomcroft are defined by a stepped brick wall about .75 metres high. To the south east the boundary is dominated by a rock outcrop rising very steeply to a height of about 10 metres above the lowest level of the garden ground. Part of the south-east boundary between the site and the adjoining high level property Broompark is formed by a substantial brick retaining wall which adjoins steps leading up to the eastern edge of the site. The subject ground is partly lawn with terraced borders and partly sloping grounds which are covered with a mixture of cultivated shrubs and trees and areas of wild garden.
The rear garden and grounds are effectively encircled by adjoining houses. Numbers 6, 5A, 5B and 4 Rockland Park lie to the west at a slightly lower level than the lowest level of the garden ground. To the north and east the land rises very steeply towards four houses situated on high ground above the site which in varying degrees overlook the site. Whilst the nearby houses effectively surround the property, the topography of the steeply sloping ground is such that the high level dwellings to the east, namely Broomcroft and Broomcraig, tend to visually dominate the site, particularly when viewed from the west.
Rockland Park is a cul-de-sac which leads from the A78 Irvine road, down towards the shore but also turning northwards towards the town centre. The Ayr railway line lies to the west of Rockland Park and beyond is a narrow strip of parkland with a walkway between the shore and the railway. The majority of houses on Rockland Park are detached and enjoy fine views to the west and south over the Firth of Clyde to the Cumbrae. They vary in height from single storey to two stories in the case of no.5
South House Broomcraig (17 Rockland Park), owned by Mr and Mrs. Lyall, is a substantial three storey traditional dwelling originally built about 1900. It occupies a prominent position situated on top of the rock outcrop to the east of the subject property and enjoys uninterrupted views over the Firth of Clyde. A large two storey extension was built about 1960 but it was subsequently separated from the original house and is now known as Northhouse (17A Rockland Park) and is owned by Mr. and Mrs. Stuart Ferns.
Broomcroft, Irvine Road, owned by Mr. and Mrs. David Clark lies to the north of Broomcraig. It is a two storey house built about 1970. Its principal rooms, at present, enjoy spectacular, uninterrupted views south-west through west to north-west over the Firth of Clyde. In contrast to Broomcraig the house is set back from its west boundary by approximately 15 metres of gently sloping lawn leading down to the highest point of the stepped brick boundary wall with the subject property. Whilst the main lawn of Broomcroft slopes gently to the west the northern part of the garden slopes more steeply to the north-west and consequently the boundary wall following the ground contours drops down to the north corner of the subject property. The rear garden ground of 7A cannot be seen from the ground floor rooms of Broomcroft but it can be readily seen, as can all the ground between Broomcroft and the sea, by looking over the boundary wall from the edge of the lawn. Beyond the boundary wall and within the subject property there is a relatively narrow area of level ground before the land falls away steeply. Mrs.Doull owns Lisburn, 7B Rockland Park, immediately to the east of 7A and with Broomcraig adjoining to the north but at a much higher level. None of the proposed development can be seen from 7B.
North Ayrshire Council initially refused the Applicant’s planning application but following an appeal by Mr Fealey to the Scottish Executive, planning consent was granted in June 2005 for the erection of a 4 bedroomed, two and a half storey dwellinghouse and granny flat on land to the north and west of 7A Rockland Park, Largs. Access to the new building would be from Rockland Park on the west side of No. 7A and shared with it. It would be laid through the former electricity sub-station site necessitating the demolition of the existing double garage. The proposed development would be located centrally in the rear garden with a double garage being erected at the north west corner of the site. Furthermore, a new double garage would be built to the rear of 7A to serve that house.
Nine letters of objection were submitted from neighbours and Largs Community Council also objected. In granting consent, the Inquiry Reporter concluded that the Council had failed to take into account revisals to the design and to the access following the refusal of earlier applications. The previous decision to refuse consent had been taken on the views that (1) the development was “backland” in nature; (2) the access sight lines were inadequate; (3) trees protected by Tree Preservation Orders were affected; and (4) there was potential subsidence impact on Broomcraig. These issues had all been addressed in the appeal before the Inquiry Reporter. Following receipt of planning consent minor changes have been made to the elevational treatment and the proposed position of the house on site has been rotated slightly to the west. These changes have not altered the height of the proposed building.
A building warrant was granted for the development in November 2005. The development proposed is an architecturally designed house together with granny flat and detached garage. On ground floor there is an entrance hall, kitchen and dining room together with the granny flat comprising entrance hall, bedroom, living room, kitchenette and bathroom. On the first floor there is a lounge, two bedrooms and bathroom and on the second floor a gallery/lookout together with bedrooms 3 and 4. The roof will have blue grey slate effect concrete tiles and the walls will be rendered white with a base course of facing brick. The height from the ground floor to the ridge line is 9.3 metres. At the time of our inspection the foot print of the building had helpfully been marked out on the site.
As part of the submission for building warrant a topographical survey of the subject site (but not Broomcroft) was carried out. From this survey a section line through the site, the proposed house and including Broomcroft (on the basis of estimated levels at Broomcroft) was prepared. This section shows the ridge height of the new house to be higher than the boundary wall with Broomcroft and demonstrates that the ridge would be visible from the ground floor front rooms of Broomcroft. The boundary wall is erroneously shown as 1.5 metres. The precise extent of this intrusion into the view from Broomcroft is difficult to measure. Views of at least the foreshore would be impeded. The boundary wall is stepped and on site it is not entirely clear at precisely what point the section line passes through the wall. More of the proposed development becomes visible as the wall drops following the ground contours. The ultimate height of the new development could be influenced by the ground level adopted once site preparation has been completed and ground conditions are accurately assessed.
Broomcraig and Broomcroft had in the past both been affected byb structural concerns. In relation to Broomcroft, the problem relatedc to a garage building on the west side of the house, some substantial distance away from the boundary with the applicants’subjects. Concerns had been expressed that the development proposed could adversely affect both properties but no technical evidence was submitted to the Tribunal.
Miss Dunlop first addressed the objections of Mrs Doull, under reference to the test in Sections 98 and 100 of the Act and the Tribunal’s observations in Ord v Mashford, particularly at page 20, about the approach under the Act. The 1990 Disposition by Mrs Doull had a clear purpose of protecting her amenity and in particular her view across to Cumbrae Slip. The applicants’ proposals, however, did not involve any visual detriment to her. They did not really affect her privacy or seclusion and it was difficult to imagine that she would be aware of the new house. Factor (f) therefore weighed heavily in favour of the applicants. On factor (a), two houses had been divided since 1990, and the applicants had acquired the sub-station site, making the plot larger, which went to the issue of density. On (b), benefit, there was almost negligible benefit to Mrs Doull in being able to prevent the proposed house from being built. On (c), burden, Miss Dunlop recognised that personal factors were not relevant, but said that the condition removed a significant option in the use of the ground. On (e), while 16 years was not very long, there was guidance in Section 92 of the Act, limiting to 5 years the period in respect of which an absolute right to enforce conditions could be stipulated. On (g), in this case the planning application had received a meticulous approach and the grant should have more weight than in Ord; (h) was neutral. Variation of the conditions in Mrs Doull’s favour was reasonable.
In relation to the objections of Mr and Mrs Clark, Miss Dunlop first addressed the issue as to what the relevant condition was (which in the present case would only affect consideration of factors (a) and (e)). In her submission, it was the condition on page 2 of the 1967 Disposition, which contained mutual stipulations against a background of development of the land in the vicinity of both Broomcroft and Broomcraig being in the air. She submitted that the 1990 Minute of Agreement did not create a second burden. There were issues as to both the competency of creating a new burden and whether in fact one had been created. She referred to Stair Encyclopedia, vol. 18, para. 386-8, 304. Section 32 of the Conveyancing (Scotland) Act 1874, on importing conditions by reservation, had been modified by Section 17 of the Land Registration (Scotland) Act 1979. It was no longer necessary to wait until the subjects were conveyed, but there was a view that the burden would need to be referred to in the subsequent disposition. This was the disposition in 1994 in favour of the applicants, which did not refer to the Minute of Agreement. Reference was additionally made to Gordon, para. 23-05 and Halliday, para. 34-22.
Even if one could create a real burden in this way, Miss Dunlop submitted, from the narrative of the Minute it was clear that that was not what was happening: rather,. This was a reference to the 1967 Disposition. The burden existed already, and this was either mindless reiteration or possibly a personal agreement by Mr and Mrs Clark that they would not withhold consent unreasonably, although the reference to external additions was new. At the very most, the real burden created by the 1967 deed was being modified, not superseded or discharged. For the purposes of the Section 100 factors, the condition was created in 1967.
The purpose of the 1967 condition had, again, been the protection of amenity. In this case, however, the view was only one of the elements in that, the others being privacy and sense of space. Most importantly, this was to control development at the same level as Broomcroft. Miss Dunlop did, however, accept that protecting the view over the Firth of Clyde must have been part of the purpose.
As to the other statutory factors, Miss Dunlop did not suggest any relevant change of circumstances: although other houses had been built, she accepted that this had all been in contemplation and the view of the foreshore had already gone. On (b), Miss Dunlop maintained her objection to evidence of a threat of subsidence to Broomcroft. In any event, there was a lack of technical evidence and it did not appear that the cause of the problem at Broomcroft had anything to do with the topography at the subject site. Miss Dunlop referred to the treatment by the Tribunal of issues as to the benefit of sea views in Graham v Brownson and Reid v Robertson. The view from Broomcroft was principally to the west, the new house being to Broomcroft’s south-west. The Tribunal should accept Mr Stewart’s view that, although the new house would be seen, it would not spoil the view as it would be part of the existing roofscape. There were roofs in every direction in this particular area, including a particularly prominent one at No. 5. There would be only a marginal effect on the near distance and no effect on the middle and long distance. On the other factors, the position was as in the case of Mrs Doull, the age, in relation to (f) being either 16 or 38 years.
As to the form of order, Miss Dunlop indicated that it would be acceptable if the conditions were varied to the extent of permitting the proposed development, with a small degree of flexibility. Expenses should follow success, and Miss Dunlop referred to the evidence of Mr Stewart, refuting certain suggestions put to him, in connection with the process of notification of the details of the plans. She also moved for sanction for the employment of senior counsel.
On behalf of Mrs Doull, Mr Russell drew attention to the terms of the building restriction relied on – Clause (Fourth) in the 1990 disposition. This was in conventional terms and not at all unusual, particularly where a proprietor sold ground beside his house for the erection of another house and wished to protect the amenity, value and character of the existing house. There was nothing unusual, onerous or unreasonable in it. He had made clear in the objections that the application was premature, there having been no appropriate approach to discuss it, and it had been, and was still, marred by a lack of information provided by the applicants. As to changes in circumstances, the removal of the sub-station had been merely for the purposes of the planning application and there had been no change in the character or amenity of the subjects or the neighbourhood. The fact that the applicants’ house diminished the view for Mrs Doull to some extent showed that she was not being unreasonable. As matters stood, the condition should not be varied.
On behalf of Mr and Mrs Clark, Mr Logan spoke to a written submission. He submitted that these respondents had the benefit of two conditions, first in the 1967 deed and second in the 1990 Minute of Agreement. The Minute fell within the conditions for a valid deed of conditions. There was no statutory form for deeds of conditions. The requirement in Section 32 that this must be done in contemplation of disponing the property was academic in this case, because the minute was part of the process of conveyance, albeit not granted by the disponer. It was clear that the deeds were linked: the house at No. 7A could not otherwise have been built. It could still be ‘in contemplation of’ the transfer although it post-dated the Disposition. In any event, it was not simply a narration of the building restriction, but a different formulation. Even if it were not itself valid, it served as an example of the 1967 condition being exercised so as to protect the amenity of the benefited property.
Mr Logan then addressed the statutory factors. As to (a), he acknowledged that there had been changes of circumstances – sub-divisions of both Broomcroft and Broomcraig, and some development of other properties within Rockland Park, but Broomcroft clearly remained the benefited proprietor and there was no essential change in the character of the neighbourhood or the benefited property. None of the developments had impeded the benefited proprietors’ exceptional view as this proposed development would. There had been four known break-offs, all with consent sought and obtained, there being no prejudice. Mr Clark had also been unconcerned about the addition of a balcony at the applicants’ house. It had not been shown that there was any relevant or material change in the benefited or burdened subjects. In relation to the 1990 Minute, it could additionally be said that the changes mentioned in relation to the benefited and burdened properties had preceded it.
In relation to (b), the benefit extended to Broomcroft was substantial. Firstly, there was the protection of the unimpeded view of the Firth of Clyde. Mr Logan subjected the evidence of Mr Fox, based upon one single sightline drawing, to detailed criticism. The benefit was not simply from that point. Mr Fox had accepted that from the garden, particularly the further north one went, the view would be more impeded. The boundary wall fell away sharply, resulting in ever greater intrusion. Mr Fox had not known the height of existing structures. His opinion was subjective and partisan. Secondly, the proposal would allow a construction within 10 metres of the boundary of Broomcroft, giving an overview of their garden. On the basis of at least some of the footprints provided, the eastern elevation pointed directly at Broomcraig and the northern elevation with several windows at Broomcroft. Thirdly, the development would detract, and not just marginally, from the dramatic settings of Broomcroft and Broomcraig. Fourthly, there were real concerns about the structural integrity of the boundary wall, garden and house. There was a history of subsidence in the area. The extent of removal of materials was significant. Neither the borehole results nor the building warrant, which would have demonstrated the steps necessary to secure the cliff face, had been produced. Mr Logan then expanded on his detailed criticism of the elevation plan A4. There were greater concerns for Broomcraig in which the benefited proprietor had an interest. Overall, it was established that the conditions extended significant benefits.
As to (c), the burdened property clearly lost some development potential, but it already had a substantial family home on it. As to (e), even if only the 1967 condition was considered, this was “not a particularly ancient condition”; 1990 was relatively recent. As to (f), the purpose of the title condition was not specified but it was reasonable to infer that it was to protect the amenity and capital value of Broomcroft as well as the factors mentioned under (b), and loss of those benefits would impinge on the capital value as well as reducing the amenity. This development would be by far the biggest intrusion. As to (g), the planning consent did not have much weight. The first application had been refused and this application only granted on appeal despite the local authority’s objection. Ground stability had been noted as a matter for building control, but the building warrant had been produced. As to (h), there had been no suggestion to these respondents that compensation might be payable.
Mr Logan mentioned two matters under (j), other material factors. Firstly, the unique layout of these properties made the potential structural consequences for adjoining properties relevant. Secondly, the conduct and attitude of the applicants, Mr Faeley in particular, was relevant: in a number of respects, in relation to these issues, he had not been a ‘good neighbour’. He had refused to enter into discussions with Mr Clark and to provide information about the size and layout of the proposed development. This process was a ‘one-off’, in the sense that if there were further revision of the planning consent there would be no further opportunity to make representations in respect of the title conditions.
In conclusion, Mr Logan submitted that there were good reasons not to discharge the conditions. These respondents had shown title and interest. Further, the onus was on the applicants, so that if the balance was seen as neutral, the application should be refused.
Mr Logan submitted that the matter of expenses should be reserved, although he observed that if the application were granted subject to conditions, that would be qualified success. He moved for certification of junior counsel and had no observation to make on the motion for certification of senior counsel.
As with many cases under this jurisdiction involving proposals to build additional houses in garden areas contrary to existing title conditions, this case comes down in large measure to the Tribunal’s assessment, on the evidence and their impression at the site inspection, of the effect of the building proposals on the benefited proprietors, in the light of the purpose of the conditions and the other factors relevant to the issue of reasonableness. There are, however, two particular features which require to be noted and considered first.
Firstly, there is the slightly curious position that whereas there was a mutual stipulation in 1967, whereby the owners of both Broomcroft and Broomcraig were entitled to object to building in the grounds of the other, and this proposed development is on Broomcraig land, a subsequent break-off conveyance of Broomcraig land did not impose the building restriction on the purchasers (Mr and Mrs Doull). However, at a further break-off when Mrs Doull conveyed land for the erection of another house (No. 7A) a new building restriction was imposed on that purchaser (McLaughlin/Sadler, of whom the applicants are the successors). The applicants are thus admittedly bound by different burdens, one in favour of Broomcroft and the other in favour of Mrs Doull at 7B, but, as is now accepted, the owners of Broomcraig are not benefited and thus, under the provisions of the 2003 Act, not entitled to have their views taken into account in these proceedings. The two respondents maintaining their objections are in fact relying on different burdens under different deeds, albeit that the conditions in issue are to similar effect.
Secondly, in the case of Broomcroft, while there is no doubt that the burden in the 1967 deed remains valid, the additional question has been raised whether the provisions of the 1990 Minute of Agreement between the owners of Broomcroft and Mr and Mrs Sadler, who needed consent from Broomcroft to build No. 7A, are effective to create valid title conditions, i.e. real burdens.
This issue is of quite limited significance, and our jurisdiction to determine questions of validity and enforceability has not formally been invoked. We tend to the view that the 1990 deed does not in fact go beyond its main purpose of exercising the power under the existing condition to grant consent, subject to a proviso which may create a personal obligation but does not itself create a further real burden. There may be differing views as to whether, following the amendment of Section 32 of the Conveyancing (Scotland) Act 1874 by Section 17 of the Land Registration (Scotland) Act 1979, the deed of conditions relied on would have had to be referred to in the subsequent conveyance. We are inclined to think not, and think that, as well as Professor Reid, Professor Halliday, at paras. 34-36(9) and 34-37, amy have been of the same view. If that is right, it might point the need for very clear expression of a real burden. When one looks at the 1990 Minute of Agreement, it seems to us very doubtful whether it can really be seen as a deed of conditions which sets out a stipulation binding on successors. It may be more consistent with the benefited proprietors, Mr and Mrs Clark, qualifying the terms on which they granted the necessary consent and confirming a personal agreement.
We should record our impression that the principle of building an extra house on this site does not appear to us to be problematic. Although the houses farther on in Rockland Park follow a more symmetric pattern, the immediate locality is characterised by piecemeal development, fitting houses into spaces in the slightly rocky terrain, and one more such would not of itself seem to us to have any substantial effect on the amenity. An apparent access problem under planning guidelines was overcome by acquiring the sub-station site. We do not, however, understand the respondents, or at least Mr Clark, to take any different view, and he indicated clearly that he would not be opposed to a lower building which could be shown not to have a material impact on the amenity of Broomcroft. Mr and Mrs Clark, as well as Mrs Doull, clearly have a private entitlement to reasonable protection of the amenity of their respective houses, and the issue is whether, as a matter of degree, the applicants’ proposal is reasonable in the face of those rights to protection.
Our other general impression of this locality is that the outlook and the sea views are an essential feature of the amenity. Building restrictions designed to protect amenity mat therefore be expected to have reasonable protection of this outlook and the sea view as an important part of their purpose.
The applicants contended that the proposed new house would have negligible impact on the owners of Broomcroft. Mr Fox, an experienced local surveyor, gave as his opinion that the effect would be extremely marginal. He had used the sightline survey, A4, which he felt he had no reason to question, and considered, as he put it, that the ridge line of the house would be “right at the bottom of the screen”. He had apparently stood on the beach and estimated where the new building would fit in, in comparison with the ridge lines of the existing houses. He thought that from the upper floor bedrooms of Broomcroft the only view of the ground area, railway, parts of the beach and perhaps some moorings would be obscured. He accepted that his was an ‘educated guestimate’ based on his extensive experience. He had not been into the house or garden of Broomcroft. He considered that the sea view in the middle and far distance was of the most interest. He did not accept that the garden area of Broomcroft would be overseen from the attic rooms of the new house.
Mr Stewart, the applicants’ architect, said that the effect of the house on Broomcroft would be negligible. It had not been raised as an issue in the planning process. A person standing in Broomcroft would see a bit of the roof, but it would not obscure the view of the Clyde and Cumbraes. The roof would be a significant distance away from the house. It would merely become part of the roofscape of houses in Rockland Park. The principal aspect from Broomcroft was, he claimed, to the south not the south west.
The respondents did not lead any expert evidence. Mr Clark’s own position was to a fair extent one of uncertainty, of not being persuaded that the impact was so slight. Although the ground level of the site could not be seen over his garden wall, it was possible from his garden to see over to the walls on the other side of the applicants’ garden. He had seen a number of plans, with differing footprints. He did not think A4 showed the heights accurately. He thought that the building would still appear over the height of the wall. He could envisage a house of one and a half or two storeys which did not impinge on sightlines, and had tried to discuss and address that with Mr Faeley but had been unable to do so.
As well as considering the evidence, including the sectional sightline survey, the Tribunal looked at the site from as many different angles as possible. We spent some time in the site itself (where the footprint had been helpfully staked out for us but there was of course no physical indication of the height of the building), in the front room and garden of Broomcroft, in an area at the front of Broomcraig which affords a particularly close view over the site, and also down at the beach which had been Mr Fox’s vantage point. It is very difficult to gauge the precise physical impact accurately, although obviously the more accurate sectional sightlines which are available the better. We compared the height of the building with the height, which we felt able to gauge reasonably closely by sight, of a taller tree immediately over the wall on the other side of the site, within the back garden of No 6, and with such assistance found the side view, as it were, from Broomcraig, of assistance in trying to gauge the height in relation to the garden and hgouse of Broomcroft. There is additionally the subjective element, for example as to the relative importance of the foreground as well as the sea view.
We do not in any way disparage the ‘guestimate’ approach of Mr Fox, and we completely reject the submission that he was a ‘partisan’ witness, because we felt he was doing his best, as an independent surveyor asked for his opinion, to apply his considerable experience to the problem. We were slightly less confident of the weight of Mr Stewart’s opinion, because he had lived through the planning process with the applicants and appeared perhaps still to be looking at the issue through planning spectacles which have at least a slightly different focus. We also felt that on this subjective issue he was almost bound, quite understandably, to have subconsciously slipped into taking his clients’ position. Some of Mr Logan’s criticisms seemed to us to be of little weight when what is being sought is not and cannot be an absolutely precise view. In the end, we concluded that the impact of the proposed house on the amenity of the house and the main part of the front garden of Broomcroft would be substantial. Proximity was a particular factor and one which we thought would be difficult to gauge from A4 or from the foreshore area which is very approximately 160 metres away from Broomcroft. It seemed to us that the closeness of the proposed house to the front garden of Broomcroft affected the assessment in two ways. Firstly, we do think that the uppermost few metres of the house would have a considerable and quite striking impact on the view. This obviously increases as one walks downhill and closer to the site, but we give this as an overall impression in relation to both the house and garden. We do not think the new roof would simply merge into the roofscape: we think it would stick out to quite a marked degree. Secondly, we think that the substantial mass of building so close would considerably affect the particular setting of Broomcroft. Although the effect is of course considerably reduced by the substantially lower height of the ground within the site, 9 metres is a substantial height for a house, higher and closer than others in Rockland Park. There might not be actual overlooking from windows some distance below the roof ridge height of the house, but the mass and height of the house as a whole would, we think, make a considerable impact.
Although, as we have said, the matter must necessarily be one of overall impression or perhaps feeling, some particular points can be made about the applicants’ evidence on this matter. Firstly, we noted that none of these witnesses had actually viewed the position from Broomcroft, something which could easily have been arranged. It seemed to us that something as difficult to assess as this needs to be viewed from as many positions as possible. Secondly, as Mr Stewart slightly reluctantly accepted, the single sightline shown in A4 was taken at the point highest in the Broomcroft boundary wall, with the effect of minimising the apparent impact, and it is of course only one section which does not indicate the mass of the proposed building. Thirdly, our measurement of that wall at that point differed significantly from that shown on that plan: we measured it at approximately one metre on the subjects side, and 0.75 metres on the Broomcroft side, compared to 1.5 metres shown on the plan. Fourthly, the ground heights within Broomcroft had been estimated and not measured. The section line in A4 shows that when viewed by a person standing in a ground floor room of Broomcroft approximately two metres of the height of the roof of the proposed development would be visible and from first floor rooms the entire roof. We think these are under-estimates. Finally, we do not accept Mr Stewart’s view that the main attraction of the view was in another direction: it seemed to us that the house would be slap bang in the middle of the lower part of the view which is a major part of Broomcroft’s amenity.
One other matter which Mr Logan sought to introduce into the evidence was the structural integrity of boundary wall, garden and house itself at Broomcroft. Miss Dunlop was entitled to object to such evidence on the ground of lack of notice, but we would in any event indicate our view on the evidence which we permitted subject to competency and relevancy that we would not have been able to attach much, if any, weight to this matter in relation to Broomcroft: firstly, the evidence was somewhat unspecific and not vouched; and secondly, such evidence as there was tended to suggest a particular problem related to the garage at Broomcroft and probably not related to ground conditions in the area of the proposed house. There might have been more substance to this consideration if Broomcraig had been benefited. It seemed to us like something of an afterthought as far as Broomcroft was concerned. It also seems slightly difficult to square with Mr Clark’s indication that he would not oppose a building which did not interfere with the visual amenity.
Our assessment of the circumstances regarding Mrs Doull’s objection can be stated briefly. We accept the evidence that the new house would not be visible from her house and most of her garden area (which, following the sale of the site for 7A, does not in fact enjoy any substantial outlook to the sea). Although the new house would of course increase the development of the applicants’ subjects, which is struck at by the title conditions, we note that access is on the far side from Mrs Doull’s point of view and we think the impact on her amenity so slight as to be negligible.
There was one other area of conflict of evidence which we should mention briefly. A persistent thread in the objections both in advance of and at the hearing was the suggestion that full details of the proposals, which changed from time to time, had not been provided. There was an allegation of unreasonable behaviour by Mr Faeley. On the other hand, Mr Stewart spoke of steps taken to make plans available for inspection in his office. The Tribunal did not seek to get to the bottom of these matters. We have to consider the reasonableness of the application and objections on the evidence before us. It is particularly unfortunate in this case if there has not been an opportunity for the applicants to discuss their proposals and in particular what height of building is acceptable to Mr and Mrs Clark whose consent as owners of Broomcroft is required.
We turn to consider the factors listed in Section 100 of the Act. Apart from the issue of the validity of the 1990 Minute of Agreement, we do not think there was any real difference of approach in the competing submissions of Miss Dunlop and Mr Logan. Rather the issue were issues of degree and assessment of the evidence. In particular, on the very important factor of the purpose of the title condition, Miss Dunlop, while correctly pointing out that the provisions (and this applies to both deeds) on which the Broomcroft proprietors relied, were general and did not specifically identify protection of view as a purpose, accepted that protection of the view over the Firth of Clyde must have been part of the purpose. She referred to the view, privacy and sense of space as being within the purpose. She suggested that the most important issue was control over development at the same level. While ground levels are obviously relevant and the lower the ground level the higher any building would have to be to become an issue, it seems clear enough to us that the condition protecting the view applies equally to affected subjects at lower levels. Put shortly and with the benefit of Miss Dunlop’s, in our view, correct acceptance that the view was part of the purpose, we see the purpose of the general requirement of consent and approval of the Broomcroft proprietors for any further erections or buildings as being for the purpose of protection of the physical amenity of Broomcroft. The particular setting and views to be had from Broomcroft are the central part of that amenity. The provision also controls the density of any development, but that is not, as such, an issue in this case. The 1967 deed (by contrast with the 1990 deed) does not in terms provide a test of reasonableness, but of course this jurisdiction involves just such a test.
We do not consider that there have been changes of circumstances which we could regard as material in relation to this application. There has of course been some development in the vicinity, with consent given where required, but we do not think anything has happened which has materially affected the view and the setting of Broomcroft. Again, Miss Dunlop did not seek to argue otherwise. As to factor (b), the extent of benefit to Broomcroft seems to us to be clear. By giving control over all building development, it provides protection of the magnificent view and the particular setting of the house as well as protection from over-development. It no doubt also provides control over development which may affect the structural foundations of Broomcroft. As to factor (c), the extent of the burden on the burdened proprietor, clearly this does impose a burden. On the face of it, of course, it prevents any development of the garden area of No. 7. However, it is completely clear on the evidence that its exercise over the years has not had the effect of preventing all development. Consent was given to the erection of Nos. 7B and 7A and to some minor extension of 7A. The current Broomcroft proprietors do not object to all housing development. So the applicants as proprietors of 7A, having purchased with at least constructive knowledge of a requirement to obtain consent for any development, know that any development they propose must not materially interfere with the amenity of Broomcroft but are not in reality prevented from building on this site.
Factor (d) does not arise. Factor (e), the age of the condition, of course depends on whether the 1990 Minute of Agreement is valid, but even on the basis that only the 1967 deed is considered, we do not think that this can be said to be particularly old. We have already considered factor (f).
Factor (g), the existence of the planning consent, and also the building warrant, favours the applicants and limits the extent to which we should consider the type of public issues which are of course considered in the public planning process. However, as the Tribunal has often pointed out, title conditions often create private rights which do not rule in the planning process and where the dispute before us is centred on such private rights, the planning permission may tell us little. Mr Stewart pointed out that interference with the sea view had not been considered as a particular issue in the planning process. Although there are obviously general requirements in the development plan relating to neighbouring houses, which requirements have been held satisfied, we note from the decision letter that there is no specific consideration of the relationship with Broomcroft or the effect on Broomcroft’s outlook and the Inquiry reporter did not include Broomcroft in his site inspection. It cannot be taken that Broomcroft’s outlook including the sea view was considered not to present any problem; rather, it was not a relevant problem in that process.
There is no particular consideration under factor (h) in this case, and (i) does not arise. Factor (j) directs us to consider any other factor which we consider material. Under this heading, Mr Logan submitted that the structural concerns in relation to Broomcraig could be a legitimate consideration by the Broomcroft proprietors in considering whether to consent to the development, because there were potential consequences for adjoining proprietors. We did not consider that this point was made out in evidence and we do not give it any weight. Mr Logan also referred to the conduct and attitude of the applicants and Mr Faeley in particular. In cases such as this, we appreciate the risk that proposals may be further revised after the exercise of our jurisdiction, but this is often met by restricting the order to one of variation to the extent necessary to permit the particular development which has been considered by the Tribunal, and that is what we would order if granting this application. Beyond that consideration, the applicants’ attitude and behaviour is of little relevance.
Weighing all these factors up as a matter of balance and degree, we find that this case comes down to assessing whether there is any substantial continuing interest in adhering to the condition, and if so whether that is outweighed by the burden on the burdened proprietor. Standing our assessment indicated above of the extent of effect of the proposals on the amenity of Broomcroft, we have reached the view that it would not be reasonable to remove Mr and Mrs Clark’s right to refuse to consent to this development. We have identified a substantial adverse effect of the proposal by reason principally of its height, and we do not think that the burden on the applicants of being unable to develop to this height outweighs this. We have referred to the “uppermost few metres” of the proposed house. This proposal is too high to make the objection from the Broomcroft proprietors, who have demonstrated their reasonableness in considering development proposals on previous occasions, unreasonable.To the contrary, we think that their objection is reasonable and their right to object should not be removed. We shall refuse the application to discharge or vary the burden in favour of Broomcroft.
Miss Dunlop referred to two other decisions of this Tribunal in particular circumstances, Graham v Youngson and Reid v Robertson. Although each involved consideration of a sea view, each was decided in its own circumstances and in particular on the analysis of the particular title conditions in context.
We can give our view on the objection of Mrs Doull very shortly. We are in no doubt that there is a continuing valid purpose in the title conditions in her favour: it may well be reasonable to insist on objection to development which affects the amenity of No. 7B. However, we think that the effect of the present proposals on the amenity of No. 7B are either non-existent or negligible. As it happens, there is in her title a condition which very specifically affects one particular view from her house. This proposal has no such effect. The more general building restriction should not be used to hinder a development for which there is planning consent and which will really not affect her at all. We would therefore grant the application, so as to vary the condition in the 1990 Disposition to permit the proposed development.
Such an order in relation to the position as between the applicants and Mrs Doull may or may not be thought to be of any assistance to the applicants when we are upholding the Broomcroft proprietors’ objections. We think it appropriate to give the applicants the opportunity to consider whether they wish to proceed further with the application in relation to the title condition in favour of Mrs Doull, and if so what form of order they would seek.
If the applicants do wish to proceed further, Mrs Doull’s claim for compensation, if insisted upon, will require to be considered further. The next step then would be for Mrs Doull to consider the application in the light of the Answers for the applicants. Her claim appears to be for compensation under the less normal type of head, under Section 90(7)(b) of the Act, on the basis of an account of the transaction for sale of the site of No. 7A and an assertion that had the Disposition permitted the erection of two dwellinghouses the price paid, having been calculated on a formula related to the sale price of the subjects after No. 7A was built, would have been higher. The applicants have, however, countered that the erection of a second house must only have been a remote possibility, particularly because of the planning problem which has subsequently only been overcome by the purchase of the substation site, and also because of the burden in favour of Broomcroft. Mrs Doull would need to address these points.
We would add a final comment in relation to the position as between the applicants and Mr and Mrs Clark as the Broomcroft proprietors. Our decision very obviously does not rule out development altogether. A point would undoubtedly be reached where the building would simply merge into the existing roofscape and not substantially affect the view and the setting of Broomcroft. We do not think it right to specify precisely how much too high we have found this proposed house. It may be helpful if we indicate our view that if the building had been around three metres lower, other things being equal, our decision may well have been different. Assuming that the applicants still wish to proceed with revised plans, we express the hope that parties may be able to reach agreement without the need for further litigation. If there are difficulties in the machinery of negotiation, parties may wish to consider the use of mediation to reach agreement.
It seems appropriate to defer the question of expenses in general, and the Tribunal will be inclined to follow its normal practice of dealing with these on the basis of written submissions. There is of course a possibility of some further procedure inn relation to Mrs Doull’s claim for compensation. We were, however, asked to sanction the employment of counsel. We consider it appropriate to do so, but, with respect to Miss Dunlop, do not consider this is a case which merits sanction for senior counsel: we do not think it involved such complexity or scale or importance as to make that appropriate. Our order at this stage will include sanction for the employment of junior counsel.
| Representation: | ||
|---|---|---|
| for the applicants: | Miss L J Dunlop, QC, instructed by Messrs Mactaggart & Co, Solicitors, Largs | |
| for the respondents: | Mr D J T Logan, Advocate, instructed by Messrs Low Beaton Richmond, Solicitors, Glasgow | |
| Heard: | Edinburgh, 9 and 10 May 2006 | |
| Sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 28 June 2006 | |
LTS/TR/2005/30
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