This is an application by the joint proprietors of a bungalow to discharge a title condition, contained in a deed of conditions in relation to a modern estate, so as to enable them to erect a single storey extension for which they have planning permission and building warrant. The present title prevents the erection of an extension without the superiors’ consent. It is accepted that neighbouring proprietors are benefited under that condition. The respondent is the immediate neighbour on one side and is admittedly a benefited proprietor.
Applying the test of reasonableness set out in sections 98 and 100 of the Act the Tribunal is, on balance, persuaded that it is reasonable to grant this application to the extent of varying the condition so as to allow the particular development proposed by the applicants to proceed.
The applicants seek discharge of the condition which is contained in a Deed of Conditions by Walrus 2 Limited , registered in the Land Register of Scotland on 17 December 1993. The relevant title condition is set out in the Burdens Section of the Land Certificate (Title No. LAN 104065) for the applicants’ subjects, 18 Armstrong Crescent, Uddingston (“the subjects”), and is in the following terms:
“…and the feuars shall not make any external alterations or additions to the said dwellinghouse and others after the erection thereof as aforesaid, nor erect any additional buildings and others on any part of the feu, nor make any internal alterations to any of such buildings and others which would affect or be likely to affect the external appearance thereof, without the prior submission and approval as aforesaid of plans and specifications of all such altered or additional buildings and others…”
The applicants accept that neighbouring proprietors including the respondent are entitled to the benefit of the condition, including this condition, in the deed of conditions.
The application is brought under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”). The applicants are Daniel Gerard Anderson and Sally Veronica Anderson of 18 Armstrong Crescent, Uddingston. Statutory notification of the application was made to a number of proprietors. The respondent Elaine McKinnon of 20 Armstrong Crescent, who is particularly affected, has objected.
At the oral hearing of the application the applicants were represented by Mr J McLean, Solicitor, of Messrs John Owens & Co, Bellshill, who called the applicant Mr Anderson, and Mr John MacCormack and Mr Colin Swan, proprietors of two other houses on the estate, as witnesses. The respondents were represented by Mr P Santoni, Solicitor, of Messrs Freelands, Wishaw, who called the respondent Mrs McKinnon and Mr Scott McIntosh, the respondent’s brother, as witnesses. The productions lodged by the parties included copies of the planning permission and the building warrant together with relevant drawings, lists and photographs of extended properties within the neighbourhood and a report by Andrew McFarlane of D M Hall, Chartered Surveyors, on the extent to which alterations to 1 Townhead Place and 11 Armstrong Crescent approached the boundaries of these properties. The Tribunal made a site inspection and this included an internal inspection of the first floor window to the gable of No. 20.
In the course of the hearing Mr Anderson indicated that the applicants intended to amend the design of their extension by reducing its width by 9 inches, i.e. the wall of the extension, which was originally to be built to the boundary with the respondent’s property, would now be built 9 inches distant from the boundary. The respondent maintained her objection.
Ord v Mashford and Others 2006 SLT (Lands Tr) 15
Generally, there was little dispute on the basic facts. On the evidence and submissions and with the benefit of the site inspection the Tribunal found the following facts.
The applicants’ property. No 18 Armstrong Crescent has been owned and occupied by the applicants Mr and Mrs Anderson since its completion in 1995. It is a detached brick bungalow and is designed with gables to the front and rear. Thus the present side wall of No. 18 is parallel to the gable wall of No. 20. The distance between this side wall of the bungalow and the boundary fence is some 2.8 metres.
Proposed development. The applicants obtained planning permission on 13 June 2001 for an extension to be built in this gap up to their boundary i.e. to the north east of their house and thus towards the gable wall of No. 20. The design of the extension envisaged a new gable wall built just inside the boundary running the full depth of the bungalow, with a pitched roof and a height at its apex of about 6 metres, nearly up to the existing ridge line. A building warrant was obtained on 14 October 2005. The building warrant drawings indicate inter alia, “all works carried out within the feu of the applicant”. The foundations along the boundary are described in the building warrant drawings as ‘eccentric’ foundations which enable the external leaf of block work to be built vertically above the outer most edge of the concrete foundation. These plans also note (apparently incorrectly), “right of eaves overhang according to titles.”
The applicants started building work about November 2005 but the respondent sought and was granted an interdict restraining the applicants from proceeding with further work. The works carried out to date include removing the boundary fence, excavating the foundation trench up to the boundary, forming the foundations, building the inner leaf of blockwork to damp-proof course level and building the outer leaf of block work to about ground level. The boundary fence which was some 0.1m (4 inches) wide has been removed but it appears that it ran roughly down the centre of the concrete/gravel strip formed beyond the existing block work path of No. 20.
At some stage after planning consent and building warrant had been obtained, the applicants decided to reposition the gable wall 9 inches inside the line of the wall already built and therefore 9 inches away from the boundary fence. The eaves would then no longer overhang the respondent’s property. No formal alteration of the planning consent or building warrant was considered necessary.
Respondent’s property. The respondent is the owner-occupier of 20 Armstrong Crescent, Uddingston, which is a two-storey detached brick villa built about 1994. Originally the dwelling had a single storey garage adjoining to the south west but the house was extended at first floor level in about 2001 to create two additional bedrooms over the garage. Internal access from the stairs to these two bedrooms is by way of a short corridor at first floor level which gains daylight from a window in the “extended” south west gable wall. The window light measures approximately 30 inches wide by 42 inches high. These two bedrooms have windows, one to the front and one to the rear elevation of the house. Mrs McKinnon acquired the house in February 2004, some three years after the alterations had been completed.
At ground level down the side of No 20 (the south west gable) is a mono-block path about 1.1 metres wide leading from the front garden to the rear garden. The ground beyond the edge of the mono-block has been disturbed by the applicants’ building operations but appears to have been a narrow strip of concrete with gravel about 0.28m (11 inches) in width along which ran the post and two rail boundary fence. This fence has been removed and now sits loosely in the excavated trench which was created when the building work was undertaken.
Effect of the proposed extension on the respondent’s property. Prior to any building work starting, the gap separating the side wall of No. 18 from the gable wall of No. 20 was about 4 metres. This distance would be reduced, to create a gap of about 1.5 metres (at the widest point), disregarding any eaves overhang at the gables. The applicants will be unable to carry out maintenance to this wall or their gable woodwork without entering the respondent’s property. The proximity of the proposed bungalow gable wall will also make future maintenance of the gable and window- cleaning of the gable window in the respondent’s property more difficult.
No drawings were provided showing the precise position of the gable window of No 20 in relation to the proposed side elevation of the bungalow as extended. It is difficult to visualise accurately the impact of the proposed gable wall on the amount of natural light reaching the window without a detailed survey, but the window will be situated just above the pitch of the proposed gable and about 1.8 metres to the south-east of the proposed gable peak. The roof of the extension, given its profile, will have limited impact on the amount of light entering the window, at least for most of the day. As the sun sets in the west there will, at least in winter, be some reduction in daylight entering the window.
The neighbourhood. Armstrong Crescent forms part of a large residential estate built about 1994 by Walker Homes. The total number of houses built by them is understood to be about 227 of which some 49 are particularly identified as being covered by the Deed of Conditions in question. The original superiors and granters of both the deed of conditions and the individual feu dispositions were Walrus 2 Ltd, a company which was part of the Walker Group. Of the larger number of properties (i.e. the 227 houses) many have been subsequently altered or extended and of the 49 in the particular part of the development 27 have been altered or extended. In the immediate area many of the houses have been altered with additions and extensions but none of these precisely replicate the design contemplated by the applicants, whereby a single storey extension would be built very close to its boundary and where the neighbouring house has a window in the gable wall close to the roof of the extension. In some situations, adjoining houses have been extended towards the common boundary resulting, in the most extreme situations, in the creation of a narrow passageway separating the gable walls of adjoining properties. In none of these was there a window in either of the adjoining gables. There was evidence elsewhere on the estate of property being extended up to or very close to the boundary, but when this occurred there was no impact on day-lighting of adjoining property and in most cases a gap wider than 1.1 metres was left.
Superiors’ Consents prior to November 2004. The superiors, Walrus 2 Limited, were dissolved on 8 January 1999, and there was no indication of any conveyance of the superiority interest. Latterly, some extensions and alterations had been carried out without superiors’ consent. The previous owners of No 20 had corresponded with Walker Homes in May 1998, when it was confirmed that superiors’ consent would be required and indicated, on the basis of plans submitted, that consent would be likely to be granted on payment of a fee.
For the applicants, Mr McLean submitted that the various factors set out in section 100 of the Act were addressed in detail in Ord v Mashford. The Tribunal should accept that these tests had been satisfied and in particular (a) that there had been change in the neighbourhood and (b) that any benefit to the respondent was minimal when compared with the burden on the applicants. There was, he said, a strong case to permit the construction of the extension. The title condition should be discharged and the application granted.
For the respondent, Mr Santoni indicated that there were three areas where he challenged the applicants’ evidence. Firstly, the applicants had suggested that there were 3 or 4 houses on the development where comparable extensions were said to exist but it had been shown that there were none where the extension had been built to the boundary line and where there was an existing gable with a window close to the boundary. There were admittedly a number where extensions had been built close to the boundary but not up to the boundary as was proposed in this case. Secondly, the previous owners of No.20 had been able to get superiors’ consent in 1998 for their extension, and the applicant’s evidence about obtaining advice regarding the superiors from Companies House was not reliable. Thus, the development did not have the consent required under the condition. If it were accepted that, in general, the superior’s consent had not been being obtained, caution should be exercised in considering the extent of changes of circumstances resulting from such alterations and extensions. Thirdly, there was uncertainty in the evidence about alteration of the plans.
Mr Santoni submitted that in relation to factor (g) in section 100 it was inappropriate to rely on the planning system when the superiors’ consent (whose rights are now held by neighbouring proprietors) had not been obtained. He contended that planning authorities were more concerned to ensure that proposed alterations were consistent with the authorised use than with general amenity issues. He submitted, put shortly, that the planning system did not offer sufficient protection to neighbours. He submitted that having regard to Ord v Mashford it was important to look at the facts and circumstances particularly in the context of section 100(c) - the extent to which the condition confers benefit on the benefited property. In this case both properties were both burdened and benefited. With regard to the purpose of the condition he considered that this was to prevent the alteration of the character and layout of the development which would adversely affect its amenity, and to maintain a degree of control within the overall scheme of development, which control now lay in the hands of the neighbouring residents. He also recognised that the fact that many residents had extended their property, apparently without the consent of the superiors or neighbouring proprietors, may be seen as a change in circumstances, but the particular proposed development was not the same.
In relation to interpretation of the title condition, Mr Santoni submitted that it should be read along with the deed’s provision in Clause (Second) relating to access for maintenance and repair, which would not suggest anticipation of approving any building to the boundary. A right of ‘eavesdrop’ conferred in Clause (Second) referred to overflow and not eaves overhang.
Alternatively, Mr Santoni submitted that although the applicants seek discharge of part of clause fourth the Tribunal could grant a lesser remedy and vary the condition if they considered that more appropriate. In any event he invited the Tribunal to refuse the application.
Sections 98 and 100 of the 2003 Act require us to weigh up a variety of factors in order to reach a view as to whether it is reasonable to grant the application. We have to look at the evidence and weigh the circumstances up as a whole.
We start with some general comments arising out of the evidence and our findings of fact.
It is very clear to us that within this modern estate there has already been quite a lot of alteration and extensions to the individual houses. This seems to us to be in general such an accepted feature that there cannot, in general, be reasonable objection to extensions even if these take houses considerably closer to their neighbours. There are examples of extensions narrowing the gap between houses to around the distance between the respondent’s house and the wall of the proposed development by the applicants. However, the respondent did clearly identify in the evidence something which our look at the various examples confirmed, namely that this proposed extension goes that little bit further than other such extensions in such close proximity to neighbouring houses, because in this case there is a window on the gable wall of the respondent’s house. We have had to look at the impact which the extension would have on the respondent’s property with that in mind.
There has evidently, unfortunately, been animosity, and litigation in court, between the parties. We should make clear that it is not for us to judge on the issues as to encroachment and access which have been raised in that litigation. Whatever our decision, the applicants will still require to respect the respondent’s rights in relation to these matters. We proceed on the basis of the applicants’ decision to take the new building some 9 inches back from the boundary (apparently because they have come to recognise that, contrary to the indication in their plans, they do not appear to have any right to ‘overhang’ the respondent’s ground), but we do not think that that change is of any material significance in this case. We say that because these few inches can in our view have only a very marginal effect on the extent of the impact on the respondent’s house, and certainly not sufficient to tilt the balance which we have to apply. The fact of commencing building without the necessary consent, whether from the superior or from the respondent, also does not influence us either way. There appears to have been uncertainty about the position in relation to superiors’ consent even before November 2004, and in any event it is accepted that the respondent’s approval is required unless the Tribunal grants this application.
The fact that the previous owners of No. 18 had themselves extended, upwards, creating the window in the gable, is also of no relevance either way. Whether or not the superiors consented to that particular extension, there is no indication that it caused any difficulty to the applicant. It is an established feature of No. 18, which the applicants must take as they find it.
Our view on the evidence is that the proposed extension will have some effect on the light at that window, but that this effect can only be described as very modest. We noted that the window is quite small, at the end of a short corridor, and the presence of a net curtain did not suggest that maximising the light from it was a priority. Sunlight will only be restricted by the extension when the setting sun is low in winter. That wall on the side of the respondent’s house already faces the mass of the roof of the applicant’s house, which is slightly higher than the roof of the extension. The proposed extension will bring the mass closer, and of course be in the form of a gable facing the respondent’s gable, but the window is some feet to the south-east side of the ridge of the extension, so that, so far as we could see, the window will be above the new roof immediately opposite to it. The likely overall effect on light seemed to us to be very slight. Obviously, two new rooms closer to the respondent’s house will have a slight effect on her privacy (just as the two bedrooms added on the upper floor of No 20 slightly impact on No 18’s privacy), but there is still not to be any window on that elevation.
Building up to or close to the boundary will certainly create quite a narrow gap, but this will be mainly at ground floor level and there are other narrow gaps on the estate. Apart from raising the issue of light which we have considered, the upper floor window on the gable of No 20 does not seem to us to be material to assessment of the gap. Particularly on the basis of our look round the neighbourhood, we do not think that this single level extension up to the boundary will be out of place. We consider that its impact on the respondent’s property will be very slight.
We can in this case review the factors listed in Section 100 quite briefly. As to (a), it seems clear to us, and not we think disputed on the respondent’s behalf, that while the character of the locality has not changed, the extent of the alterations and extensions which have taken place in houses round about is such as to amount to a significant physical change which is of relevance when the nature of the applicant’s proposal is considered: despite the title condition, the locality in which the respondent lives, and indeed into which she herself moved quite recently, is one which has changed to that extent. However, we keep in mind that none of these alterations has gone quite as far as the applicants’ present proposal.
Factors (b) and (c), the relative benefit and burden, seem to us to be the most significant factors in this case. As we have mentioned already, we consider the benefit to the respondent in maintaining her right to refuse approval of the applicants’ proposed extension to be quite slight – some modest effect on a light source already not very strong, and some very slight effect on privacy in an area of fairly dense modern housing. On the other hand, the applicants’ enjoyment of their property is very considerably impeded by the respondent’s refusal to approve. The applicants’ motives for extending are not of importance. They are exercising a normal wish to enjoy their property by extending their house. It would be a considerable hardship to them if they were unable to do so. Again as we have mentioned above, we here leave out of account any additional hardship which would arise as a result of their unfortunate decision to commence works without obtaining the necessary approval.
As we understood Mr Santoni’s submission, the respondent also relies on problems, we think both ways, which would arise in relation to access if this extension were permitted. Because another provision in the deed of conditions gives a right of access to neighbouring properties for maintenance purposes (which right Mr Santoni appeared to envisage would apply in relation to the applicants’ extension as well as to the original house), the applicant would come under an increased burden; and, it was also said, maintenance of her own house on that side (and indeed cleaning the window to which we have referred) would be made more difficult. We appreciate that there is presently a degree of friction between the parties, but we must proceed on the basis of reasonable neighbourly relations, and of only a very occasional maintenance or repair requirement: on that basis, there should not in our view be any great problem in either respect. As far as cleaning the window is concerned, we do not consider this to be a significant problem in the case of a modern window of this size in this position.
Reference was also made to the period of the construction works. In some cases, these might be regarded as causing such a substantial problem to benefited proprietors, either because of the physical situation or perhaps because of the duration of the problem, as to make protection from them a valuable benefit, but in the present case we cannot see this as a factor of any weight. This is a relatively straightforward construction on neighbouring property, and indeed we know that the respondent is exercising her right, so far as it goes, to prevent encroachment, etc. The applicants will of course require not only to respect that right, but, more generally, to avoid causing a legal nuisance.
Factor (d) does not really arise in this case. Factor (e), the length of time since the condition, was created, some 15 years, might seem to count against the applicants (although applications do arise, and are competent, within shorter periods), but when that is set alongside the extent of alteration which has taken place since then, we do not consider this factor to have much significance.
Factor (f), the purpose of the title condition, is often of considerable importance. This title condition is in standard general terms which are related more to control over extensions and alterations, in the interests of the general amenity of the neighbourhood, than to the particular protection of neighbours. There is, for example, no provision in relation to further building at or close to the boundaries of the houses. This is a provision which was designed to facilitate supervision in the general interest of plans for further building, rather than a veto on the basis of individual interests. That is not to say, of course, that the benefit to neighbours is to be ignored. Mr Santoni wished us to read the title condition along with provisions about access for maintenance and repairs, but that clause also contains the right of eavesdrop. Even if we accept that this does not confer a right of eaves overhang, it seems to envisage some building close to the boundary.
Factor (g) directs us to consider the existence of the planning consent, and here also the building warrant. These clearly favour the applicants. However, the limited strength of this factor has often been pointed out. Where a private title condition clearly confers some different, often stronger, right than the control which the planning system involves, planning consent may count for little. In the present case, the title condition expresses quite general controls which may be seen as similar to public planning control, so this would be a factor of some weight. Planning consent was, however, obtained before the respondent bought No. 18. We do not know whether there was objection from the previous owners, but it seems clear that the respondent, had she been around at the time, would have objected and would have been able to make the point that this extension proposal goes that little bit further than anything so far done. It may not be fair to the respondent to place much weight on this factor in that situation. We have taken our own look at the issues raised in this particular case. However, this remains a factor in the applicants’ favour.
Nothing is made of factor (h) in this case. Factor (i) does not involve this type of case. That leaves (j), any other factor which we consider material to the issue of reasonableness. Neither party drew particular attention to any such factor and, having reviewed the pleadings, evidence and submissions, and having ourselves inspected the site and neighbourhood, we do no think there is anything else under this head.
Balancing matters up overall, it seems to us that this is a general title condition creating no particularly strong right in the particular interests of neighbours. We note the extent of alterations and extensions in the neighbourhood, but that does not provide support for this particular proposal, which goes slightly beyond what has happened elsewhere. The planning consent favours the applicants, but perhaps did not involve consideration of the objections now made. These considerations bring this case back to assessing the relative burden and benefit, or, to put the same thing another way, the extent of the burden on the respondent if this extension proceeds, compared to the extent of the burden on the applicants if it does not. The onus is on the applicants to satisfy us. Having looked as carefully as we can at the extent of the impact on the respondent, we are persuaded that the balance favours the applicants and this application is reasonable.
In these circumstances, we shall grant this application. We shall, however, do so only to the extent of varying the title condition so as to enable the particular proposals which have received planning permission to proceed: the 2003 Act having confirmed, or even given, the right of co-proprietors in property communities to enforce former feudal burdens, it would not be appropriate to discharge these completely where they may still have some application in the future.
As we have already noted, the applicants have slightly altered the proposal, apparently in recognition of the legal position about overhang. That alteration is, so far as we can see, not reflected in any formal alteration of the planning consent or building warrant. Our decision is reached on the basis of the altered proposal, but we do not feel it is necessary for us to add any particular condition about it, because, as we have said, it is not material to our decision. This decision should not of course be taken as approving of any encroachment on the respondent’s land or other infringement of her rights.
If any issue about expenses arises, the Tribunal can deal with that on the basis of written submissions, as is our normal practice.
| Representation: | ||
|---|---|---|
| for the Applicants: | J McLean, solicitor, Messrs John Owens, solicitors, Belshill | |
| for the Respondents: | P Santoni, solicitor, Messrs Freelands, solicitors, Wishaw | |
| Date heard: | 22 November 2006 | |
| Members sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 12 January 2007 | |
LTS/TC/2006/04
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 12 January 2007
W D Ballantyne
Deputy Clerk to the Tribunal