This is an application by the joint proprietors of a large bungalow built in around 1934 to discharge a feu charter title restriction relating to alterations and further building, so as to enable them to proceed with some alteration and extension of the house for which they have received planning permission. Three of their immediate neighbours, who are accepted for the purposes of this application to be benefited proprietors, object on grounds of disturbance to amenity and privacy.
The title condition in issue is contained in a Feu Charter by Captain George I. Campbell, Younger of Succoth, in favour of Thomas Brown recorded in the Division of the General Register of Sasines for the County of Midlothian on 19 March 1934 (“the Feu Charter”). This was a conveyance feuing out a plot of ground on which the original feuar was to build a bungalow house. The condition is part of Clause (Second) and is in the following terms:-
“And declaring it shall not be competent to my said disponee or his foresaids to make any alterations upon or additions to any building on the ground hereby disponed without the consent in writing of me or my foresaids and no buildings of any other description than those above specified shall be built upon the ground and the ground unbuilt on shall be used exclusively as gardens or for planting or as pleasure ground except where specially authorised in writing by me or my foresaids.”
Applying the test of reasonableness set out in Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”), the Tribunal is satisfied that it is reasonable to grant the application to the extent of varying the title condition to permit the proposed alteration and extension.
Put shortly, the Tribunal, having considered all the evidence and submissions and also visited the site, is of the opinion that while the proposed extension will have some slight effect on the respondents’ properties, most particularly on Mrs Heath’s natural light, we are persuaded on weighing up the factors set out in Section 100, particularly the extent of the impediment on the applicants’ enjoyment of their property, that the condition should be relaxed to enable this development to proceed. We do not think that the condition should be discharged altogether.
The applicants are Mr and Mrs George Smith, of 36 Campbell Road, Edinburgh. They seek discharge of the title condition. Alternatively, it was indicated on their behalf at the hearing that they would accept variation to permit the particular development proposed, details of which were produced. The application was intimated to nine surrounding proprietors, of whom three objected, viz. Mrs Barbara Heath, 38 Campbell Avenue, Ms Judith Scott, 27 Cumlodden Avenue and Mr Charles Prior, 29 Cumlodden Avenue.
At the oral hearing of the application, the applicants were represented by Mrs Webster, Solicitor, of Messrs Bell & Scott, Edinburgh, who called each of the applicants and Mr George Clark, Solicitor, of Messrs Morton Fraser, Edinburgh. The respondents were represented by respectively Mr Heath (son), Mr Hutton (partner) and Mr C. Anthony Prior (son). Mrs Heath, Mr Heath, Mr C. Anthony Prior and Ms Scott gave evidence. The applicants and the respondents lodged productions, including an ‘impression’ prepared by Mr Heath of the effect of the proposed extension. The Tribunal made a site inspection.
Ord v Mashford 2006 SLT (Lands Tr) 15
Daly v Bryce LTS/TC/2005/15, 28.4.2006
There was an element of dispute or uncertainty in the evidence in two areas, firstly, with regard to precisely what was done and said in the course of an unsuccessful attempt by the applicants to obtain the informal written agreement of each of the respondents to discharge their rights under the title condition; and secondly, on certain matters of detail regarding previous development at certain other subjects, in particular 27 Cumlodden Avenue. The Tribunal did not consider the precise details of either of these matters to be of any real significance. Generally, whilst there were some differences of emphasis, for example, in relation to the present extent of “overlooking” there was no real dispute on the basic facts. On the evidence and submissions, and with the benefit of the site inspection, the Tribunal found the following facts.
Subjects. 36 Campbell Road comprises a bungalow sited on a plot with a frontage of 22 metres, a depth of 37 metres and a rear width of about 14 metres. The bungalow which was built about 1934 is set back some 11 metres from the pavement. The distance from the rear of the house to the garden boundary is some 16 metres. Adjoining the north side of the house is a double garage and garden ground lies to the front and to the rear. The back door steps lead down to a patio there being a drop of about one metre. The rear garden which is mainly lawn has a slight fall to the east and is bounded partly by hedges about two metres in height and also partly by a close boarded fence of similar height. A number of deciduous trees screen, to a limited extent, the views of adjoining houses.
The bungalow is single storey, of brick construction, roughcast externally and with a pitched slate roof. Two skylights on the rear pitch of the roof give daylight to the floored attic space which can be accessed by way of a demountable Ramsay Ladder. The lower of these skylights is a velux window about one metre square, constructed about one metre above floor level. The present accommodation of the bungalow is three bedrooms, two public rooms, kitchen, bathroom, cloakroom and utility room. Internally, the layout of the subjects is substantially unchanged since the house was built and the internal fixtures and fittings whilst functional are now somewhat dated in appearance. On the rear elevation there are two principal windows facing east, together with two smaller windows serving the utility area.
Neighbourhood. Campbell Road lies in the Murrayfield district of Edinburgh which is a popular residential area. The Mary Erskine and Stewarts Melville schools are located nearby. It runs roughly north/south with 36 Campbell Road lying on the east side. Cumlodden Avenue lies to the east and runs parallel with Campbell Road and thus the gardens of the houses on the west side of Cumlodden Avenue. back on to the gardens of the houses on the east side of Campbell Road. Ravelston Dykes, with houses only on its south side at this point lies approximately 50 metres to the north of the subjects and at right angles to both Campbell Road and Cumlodden Avenue.
During the early and mid-1930s Captain George I. Campbell, Younger of Succoth, feued plots of land for building in Campbell Road and Cumlodden Avenue. The Feu Charters contained broadly similar terms permitting the purchaser to erect individual dwellings on plots subject to various conditions. These typically included the requirement that the plots were for the construction of individual dwellings, the design of which was to be approved by the seller’s architect. Furthermore any alterations or additions also required the seller’s (or his successors’) consent and any unbuilt ground was to be used exclusively as garden ground. Broadly standard conditions were imposed on the sale of the various plots in Campbell Road, Cumlodden Avenue and the adjoining section of Ravelston Dykes. All these areas are referred to in the titles as being part of Murrayfield Estate and laid out “according to plans prepared by Duncan Menzies, sometime architect in Edinburgh, now deceased”.
The terms of the Feu Charter were typical of those which prevailed at that time and conditions included not only an obligation to build a house to a design approved by the seller but a prohibition against division of that house into more than one home. There was a restriction on the minimum depth of the front garden, an obligation on the purchaser to maintain and insure the dwelling when built and there was also an obligation to erect boundary walls and fences to a specified style and height. Additionally there was a restriction on use prohibiting tenements or flats and an obligation to limit any use to residential.
Most of the surrounding properties were built in the 1930s and are typically either large single storey bungalows or two storey villas. Many are brick built, roughcast externally with a tiled or slate roof. The vast majority of houses appear to have been individually designed and whilst there is some similarity in the general style of bungalows, the general impression is of good quality individual dwellings. Garden sizes are quite generous by modern urban standards, but not so large as to provide complete seclusion. Towards the south end of Campbell Road are stone villas or semi-detached stone villas. The residential layout is largely unchanged since the 1930s when the houses were originally built, though in many cases there have been minor alterations or extensions. Two houses, built in the 1980s on the site of a former tennis court are situated at 23 Campbell Road. In Succoth Park further to the east there has been more change with town houses and flats built in the 1960s.
Adjoining properties. To the north No. 38 Campbell Road, owned by Mrs Heath, is a single storey bungalow with attic bedroom; to the northeast No. 29 Cumlodden Avenue is a single storey bungalow owned by Mr Prior and sited some 13 metres beyond the shared boundary with the applicants’ property; to the southeast No. 27 Cumlodden Avenue, owned by Ms Scott, is a two storey villa; and to the south No. 34 Campbell Road is a bungalow.
The applicants took entry to the house in October 2005 with the intention of modifying and extending the layout to suit the requirements of their family and with a view to upgrading the internal fixtures, fittings and services. Architects were instructed to prepare plans and elevations that were sensitive to the original design. The applicants’ proposed alterations envisage a ground floor rear extension with a pitched roof of similar style and proportions to the original but incorporating a dormer window. Internally a new stair will be constructed to give access to the first floor creating in the roof space four en-suite bedrooms whilst at ground floor the present accommodation would be altered to create a large open plan family room and kitchen together with a fifth bedroom and garden room. The rear extension, towards the north side of the building, has a proposed floor area of approximately 34 square metres (excluding the bay window) and a depth of 4.35 metres to the outer face of the proposed bay window. The maximum depth of the roof extension is approximately 4.6 metres. The ridge line of the proposed rear extension is about 1.25 metres below the existing ridge line. There would therefore be two new dormer windows on the rear elevation, one on the existing roof and the other on the hip of the proposed extension. The front elevation alterations also envisage a new dormer window together with two skylights.
A planning application for the proposed alterations and extension to 36 Campbell Road was lodged on 30 November 2005, with consent granted by The City of Edinburgh Council on 9 February 2006. The only non-standard condition was that a 2 metre high screen fence was to be erected “on the southern boundary, opposite and for the length of the extension …” and the reason given was to safeguard the amenity of neighbouring residents.
Effect on neighbouring properties. The proposed alterations and extension may have two types of effect on neighbours. Firstly there will be, to some, minor loss of privacy caused by the fact that overlooking of neighbouring property will be possible from the new first floor rooms and, secondly, there may be some reduction in natural light caused by the proposed extension. These effects inevitably vary according to the proximity of adjoining property.
29 Cumlodden Avenue. From the proposed first floor rear dormer windows it will be possible to see into the garden of Mr Prior and he will suffer from a marginally reduced level of privacy. It is possible at present to see into Mr Prior’s garden from the existing velux window which currently provides daylight though only to the floored attic space as opposed to a habitable room. The changes proposed to the ground floor layout will have minimum added impact on the privacy of Mr Prior considering that the maximum extension to the rear is 4.35 metres, reducing the distance between the two houses from some 29 metres to some 24.5 metres. The existing 2 metre high hedge between No. 36 and No. 29 does, however, to some degree reduce the impact of the shortened distance between the new extension and the shared boundary hedge. The proposed extension will have no discernible effect on the extent of daylight reaching Mr Prior’s property.
27 Cumlodden Avenue. Ms Scott’s property is offset from the rear garden of No. 36 and whilst it will be possible to see into her garden from the new first floor dormer windows the impact of this will be very modest in terms of reduced privacy. Furthermore, whatever impact there will be, will be limited by the presence of trees which at least in summer provide added privacy. The proposed ground floor windows of the rear extension will not have any material impact on the privacy of Ms Scott nor will the extension impact on the amount of daylight reaching her property.
38 Campbell Road. The privacy of Mrs Heath’s property is not affected to any material extent as the dormer windows at the rear of No. 36 essentially face east. However, there will undoubtedly be some impact on the amount of daylight reaching her property particularly in the area of her rear patio, towards the south side of her property. The proposed extension and in particular its roof extends beyond the existing rear elevation by some 4.6 metres. Because the boundary is set at an angle to the house at No 36, this addition comes to within about 1.4 metres of Mrs Heath’s boundary, at a point just over halfway down her garden, almost due east from one side of a large patio area to the rear of her house. The reduced amount of early morning sunlight and the proximity of the extension to her property will be noticeable.
The proposed front dormer window faces west and whilst a window is envisaged at first floor level this will have minimum impact on neighbours on the opposite side of Campbell Road, none of whom have objected to the proposed alterations.
There will inevitably be some disturbance during construction work but this would be for a relatively short period and likely only to affect Mrs Heath in any significant way.
Alterations and extensions to houses in the neighbourhood. There have been a number of alterations and extensions to dwellings in the immediate area, including the following:-
17 Campbell Road – alter and extend; forming a playroom, extend kitchen, create 2 bathrooms, a WC and 2 bedrooms.
20 Campbell Road – alterations and extension of existing dwelling.
25 Campbell Road – extend dwellinghouse – 2 bedrooms and bathroom.
29 Campbell Road – alter and extend dwellinghouse.
30 Campbell Road – alter and extend dwellinghouse.
33 Campbell Road – alterations including forming accommodation at first floor.
20 Cumlodden Avenue – alter dwelling; forming 3 bedrooms and bathroom in attic.
Prior to the abolition of feudal superiorities, effective in November 2004, the proprietors of the Murrayfield Estate superiorities would, if asked for their consent by feuars to carry out alterations or extensions, have (1) sought a grassum from the feuar - depending on the relaxation requested this would have been approximately a sum of £750; (2) sought reimbursement of the superior’s expenses, and (3) probably requested that any consent was subject to the feuars obtaining any Local Authority consents that might be required. It would have been unlikely that they would have objected to any relaxation sought, on the view that the planning consent would have taken into account any third party and public consultation in respect of the proposed development. The superior would not have taken a view or expressed any opinion as to whether the relaxation was appropriate or inappropriate in the neighbourhood as they considered that the powers for this form of observation had passed to the statutory authorities a long, long time ago.
Attempt to obtain consents. Prior to buying the property, the applicants were advised by their solicitors that, following the abolition of the role of superiors, they should obtain the consent of their immediate neighbours to the proposed alterations which, but for the change in legislation, would previously have required only the superior’s consent.
The applicants took the view that their proposals would not create a problem with the neighbours as, in their opinion, the extent of the alterations was modest. Before concluding missives the applicants wrote to a number of the immediate neighbours indicating their wish to carry out future alterations and extensions. The precise nature of these alterations had not been finalised by the applicants and no plans were provided to the neighbours. The letter issued to the neighbours sought their confirmation that they would not block the applicants’ plans under the Title Conditions (Scotland) Act 2003 but it was stated that such consent if granted would not impact on neighbours’ rights to object through the planning process. Whilst five neighbours signed the consent letter, the three respondents did not. As they had a majority of signatures, and no-one had actually actively objected, the applicants proceeded with the purchase.
Ms Webster started by indicating that the applicants sought total discharge only of the title condition that restricted their ability to alter or extend their property, although they would be content with variation so as to permit their proposals to proceed. Sections 52 and 53 of the 2003 Act, on the implied right to enforce, were not clear, but there were indications of a common scheme and ‘related properties’ and the applicants had chosen to accept that the respondents were benefited and to make this application.
Ms Webster referred to Ord v Mashford and noted that as the facts surrounding each case were inevitably different, no direct comparison should be made with past cases. Weighing up all the circumstances in this case, discharge (or variation) was clearly reasonable. It was important to focus on purpose. Following the introduction of the Title Conditions (Scotland) Act 2003, rights previously held by the superior were now held by neighbouring proprietors but she emphasised that that could not result in change to the purposes of title conditions. This remained as the superiors had originally intended. Reference was made to Daly v Bryce, at page 18. She submitted that the primary purpose of the title condition in this case was twofold; firstly, to provide a financial income to the superior through income from granting consents for alterations; and, secondly, as a form of planning control since planning legislation was not introduced in Scotland until the 1947 Town and Country Planning Act. She conceded that the title condition did have an amenity purpose but only in a very general sense. For example, there was no reference in the condition to the mass of the building. Issues of overlooking were not mentioned and there was no reference to privacy. On the contrary the issues that were referred to were issues such as the presence of a building line, continued residential use, an initial minimum value of each dwelling and an ongoing prohibition against sub-division. She observed that there was no restriction as to where a house was to be sited within the plot as long as it was behind the specified building line. The layout and design were not specified as such and changes were allowed as long as these had obtained superiors’ consent. There was nothing to prevent a purchaser rotating an approved design on the plot to the possible detriment of neighbours. Furthermore, she suggested the superior was neither concerned with the views of neighbours nor with the detail of alterations, or their impact on amenity, as long as the feuar had obtained planning permission. Clause (Second) was remarkably similar to that considered in Daly v Bryce.
The applicants in the present case did not seek to change those parts of the title that restricted the use to residential. Accordingly all that was left, she argued, was for the Tribunal to address the building issues in the title. She submitted that if preserving privacy was the purpose the superior could have specified this as an issue and imposed conditions in the title. There was no need to be concerned about releasing development potential. All that was envisaged was an extension and alteration and in any event the title was not designed to protect privacy or ambiance.
Ms Webster then went on to address the other factors set out in Section 100. On factor (a), she submitted that the extent of the neighbourhood would differ from case to case, depending on the purpose of the condition. She suggested that while there had not been radical change to the area and Murrayfield remained residential, a small number of plots had been sub-divided. Many details of recent minor alterations to houses nearby had been referred to in evidence. There had been other change, including the housing market, where many owners carried out modifications and alterations to houses that had otherwise been unaltered since the 1930s. Furthermore, increasingly owners sought to bring their homes up to modern standards and this could be regarded as a relevant change in circumstances.
On (b), Ms Webster focused on the benefits which the neighbours perceived including issues such as a stable ambiance and privacy. Some alteration had already affected neighbouring proprietors and it had been conceded by the respondents that internal alterations were not resisted. She conceded that Mrs Heath would lose daylight particularly to her patio but she considered the benefit did not weigh that heavily.
On (c), she contended that the burden did impede the applicants’ enjoyment of their property and noted that Mr Clark in evidence suggested that many householders expected to carry out alterations in order to meet the needs of their families and changing family expectations; for example, houses that initially had one bathroom now frequently have more than one and shower rooms are increasingly common. The nature of the burden was unduly oppressive in that it prevented any alterations without the approval of neighbours.
Ms Webster had no comments under factors (d) and (e) and in relation to factor (g) noted that planning consent had been granted. On (j), the applicants had tried to talk to the neighbours and had achieved majority support. It was not accepted that those who consented were unaffected by the proposals. She concluded her submission by emphasising that the applicants had no intention of carrying out further extensions and the application for this extension should not be regarded as the “thin end of a wedge”. If the Tribunal were minded to approve the application, the applicants would accept a variation to permit the development proposed in the application.
Mr Heath suggested that it was important that the Tribunal had regard to the intentions of the parties at the time of the original conveyance. In his view there had to be recognition of the fact that the co-feuars also had to be happy with the title conditions which, for example, led to a mix of houses in the locality. The feuar on signing was benefiting from the ability of the superior to manage the development of the area and to control alterations and extensions. The purpose of the conditions he submitted could be found in the terms of the deed. Finally he emphasised his concern that the roof of the proposed extension would lead to overshadowing of his mother’s property and a “canyoning” effect.
On behalf of Ms Scott, Mr Hutton spoke to a written submission. The Tribunal’s task was to determine whether or not it was reasonable to grant the application having regard to the ten tests set out in section 100 of the Title Conditions (Scotland) Act 2003. Neither the character of the burdened property, the benefited properties or their immediate setting had changed since 1934: such change as there may have been in the locality was not of a fundamental character. He accepted that Mr Clark’s evidence showed that the objectives of the feudal superior were in large part to retain the value and income from their property. He also accepted Mr Clark’s evidence on the change in the housing market and the increasing extent of alterations and extensions to existing dwellings. The change must, however, be relevant to the obligation.
Mr Hutton considered that having inherited the ability to enforce title conditions only very recently, and although the neighbours might articulate their objectives in exercising their power to enforce the title conditions rather differently to their feudal predecessors, the medium through which they wished to achieve these objectives remained the same. They wished to protect the amenity and environment of their property and that for the foreseeable future, if not perpetuity. He went on to submit that the Planning Acts were designed to protect the general public interest and offered little protection to the precise, detailed interests of individual owners. In contrast he felt that the title conditions in general and those affecting the properties in the immediate neighbourhood in particular, were extremely valuable in providing a mutual support to maintain the ambience and lifestyles they enabled. He considered that the proposed alterations were contrary to the purpose of the title conditions which were to sustain the character, amenity and ambience of the immediate neighbourhood. He accepted that internal alterations, as such, would not affect the amenity of the neighbourhood and they would not prejudice the objectives of the title conditions. He considered that the conditions laid down in the Act had not been met and submitted that discharge would not be reasonable using the tests set out in Section 100. He did not consider that changes in market demand were relevant to the lifting of title conditions.
Mr Prior did not make any final submissions. The representations lodged by his father had concentrated on one particular aspect of the applicants’ proposals, viz. the extent of overlooking from the two new dormer windows, exacerbated by the fact that the applicants’ house was on a higher elevation. The applicants’ plans involved a major extension to their property, towards the boundary with his. They would change the amenity enjoyed by proprietors of ‘related properties’. The extension would tower over the garden shrubbery at the boundary. A precedent would be created and it could lead to widespread overdevelopment, changing the character and amenity of the area.
Our general view of the applicants’ proposals, on all the evidence plus our own inspection, reflects very much the view spoken to by Mr Clark in his evidence. He is a very experienced professional who gave evidence objectively. His description of the proposals as a normal attempt to improve accommodation, whose layout had perhaps become somewhat dated, to render it more flexible for current-day family use, appears to us accurate. There was, he said, nothing particularly unusual in the plans. He described the extension as modest in terms of footprint, and again we find ourselves agreeing. The particular design seems to us to fit comfortably into the neighbourhood. We cannot see it as having any detrimental effect on the general amenity. As to the effect on the respondents, the parties were understandably somewhat polarised, the applicants considering that the proposals did not really cause any problem for the neighbours, whereas those of the respondents who gave evidence, being long-term residents, were naturally concerned by the proposed extension in particular. It seemed to us that the proposed extension would have some effect on the neighbours, but we think that this could be exaggerated, particularly in the cases of the two Cumlodden Avenue properties. Quite simply, the distance by which their properties and gardens were separated from the site of the extensions including the new dormer windows led us to the view that the additional overlooking, in the context of the various buildings in the locality, would have little effect. Mr Prior correctly refers to the slope as a factor, but our impression on visiting the site was that the effect would not be nearly as dramatic as suggested: ‘towering’ is not, we think, an apposite description. The extension would have some detrimental effect on Mrs Heath’s natural light (including sunlight for a period of the morning, depending on the time of year). This will no doubt be quite noticeable to Mrs Heath to start with, but we do not think that a person coming fresh to the new situation would regard it as having any very substantial effect. The plots are such that adjoining houses are already naturally in quite close proximity. Overall, we do not consider that any of the respondents would be affected to any marked degree. We did not, for example, hear any evidence to suggest that there would be any effect on the marketability or market value of any of the respondents’ properties, nor do we think any such effect is likely (except, possibly, during the construction period).
However, the respondents admittedly have the benefit of title conditions which presently apparently give them a right of veto over any alteration or extension, and we have to consider whether the applicants have persuaded us that it is reasonable to remove that right, either completely or for the purposes of their present proposals.
This case touches on an area of uncertainty about the rights of neighbours to enforce title conditions contained in feu deeds, where the rights of superiors have now been extinguished. Prior to 28 November 2004, neighbours might have been granted such a right (a ius quaesitum tertio) in the feu charter or contract, either expressly or by implication. There was no statutory test for implication: it was a matter of common law, not always easily comprehensible. Sections 49 to 51 of the 2003 Act provide for extinction, in a phased way after November 2004, of rights of enforcement implied under the previous law. In the present case, the Feu Charter contains one specific requirement (in the context of boundary walls) for neighbours’, as opposed to superior’s, consent, and it looks very much as if the other provisions, including the title condition with which this case is concerned, were not intended to be enforceable by neighbours.
However, Sections 52 and 53 of the Title Conditions (Scotland) Act 2003, operative from November 2004, make new provision for implied rights, as follows:-
“52. Common schemes: general
“(1) Where real burdens are imposed under a common scheme and the deed by which they are imposed on any unit, being a deed registered before the appointed day, expressly refers to the common scheme or is so worded that the existence of the common scheme is to be implied (or a constitutive deed incorporated into that deed so refers or is so worded) then, subject to subsection (2) below, any unit subject to the common scheme by virtue of-
(a) that deed; or
(b) any other deed so registered,
shall be a benefited property in relation to the real burdens.
“(2) Subsection (1) above applies only in so far as no provision to the contrary is impliedly (as for example by reservation of a right to vary or waive the real burdens) or expressly made in the deed mentioned in paragraph (a) of that subsection (or in any such constitutive deed as is mentioned in that subsection).
… ”
“53. Common schemes: related properties
“(1) Where real burdens are imposed under a common scheme, the deed by which they are imposed on any unit comprised within a group of related properties being a deed registered before the appointed day, then all units comprised within that group and subject to the common scheme (whether or not by virtue of a deed registered before the appointed day) shall be benefited properties in relation to the real burdens.
“(2) Whether properties are related properties for the purposes of subsection (1) above is to be inferred from all the circumstances; and without prejudice to the generality of this subsection, circumstances giving rise to such an inference might include-
(a) the convenience of managing the properties together because they share-
(i) some common feature; or
(ii) an obligation for common maintenance of some facility;
(b) there being shared ownership of common property;
(c) their being subject to the common scheme by virtue of the same deed of conditions; or
(d) the properties each being a flat in the same tenement.
… ”
Very broadly, Section 52 sets out a new test for the implication of the right to enforce, subject to any provision to the contrary. Section 53 is another new provision which is not subject to any express provision in the deed and which gives enforcement rights to owners of ‘related properties’. These provisions apply to deeds registered before the 2003 Act came into force. Indeed, Section 52, while new in expression, may simply replicate the previous law. We were told that in the (very common) type of situation with which this case is concerned, where a landowner originally feued out building plots in accordance with a feuing plan, and there is some necessary element of mutuality between immediate neighbours in relation to the position at the boundaries, proprietors of the properties which had been subject to the feudal burdens are being advised that, while there is a degree of uncertainty, their co-proprietors are likely to be held benefited under one or other of these statutory provisions. The applicants in this, as in other, cases, have accordingly (and entirely understandably) proceeded on the basis that their immediate neighbours are benefited. They have not chosen to invoke the jurisdiction which the Tribunal now has, and which can be invoked in the same application as an application to discharge or vary, to test the matter.
The application of these new provisions was therefore not in issue in this case. There remains unfortunately a degree of uncertainty. It is not entirely self-evident to us that the situation in which a landowner historically simply feued out (perhaps over a period of several years) individual building plots on his estate, where despite the reference to a feuing plan and repetition of similar or identical obligations the only actual element of regulation among the feuars was in relation to boundary walls or fences, necessarily involves a ‘common scheme’ under the 2003 Act. Houses within the area of the former Murrayfield Estate do not seem to fit any of the examples of ‘related properties’ in Section 53(2), although that is not a definitive list. Whether either of these provisions applies will of course depend on the particular circumstances, but without having heard full argument in an appropriate case we wish to reserve our view on that.
In the present case, we are to proceed on the basis that the respondents’ properties are now benefited, and no separate issue as to their interest to enforce this title condition is raised, although the extent of their interest does have to be considered under Section 100(b). On that basis, our starting point is that the statutory intention is that, despite the abolition of the feudal superior, this former feuing condition remains good as a title condition and can now, possibly for the first time, be enforced by neighbours. However, it is of course open to the burdened proprietor to persuade us in an application such as this that it is reasonable, applying the tests in Sections 98 and 100, to discharge or vary it.
In the exercise of our jurisdiction to vary or discharge, both before and under the 2003 Act, the Tribunal has considered the purpose of the title condition (now, Section 100 (f)) to be a particularly important factor. As we pointed out in Daly v Bryce, although the extinction of the superior’s interest to enforce has turned the focus of enforcement on neighbouring properties where these are also benefited, that cannot be used to extend the purpose of the conditions. The superior’s interest to enforce used to be generally presumed, although one particular ground for variation or discharge, under Section 1(1)(b) of the Conveyancing and Feudal Reform (Scotland) Act 1970, did invite a balancing exercise between the extent of the benefit and the extent of the burden. Once it is recognised that neighbours are benefited, the extent of benefit to them becomes relevant (under Section 100(b)) in every case, but in our assessment of purpose we must remember that it was the superior and not the neighbours who entered into this relationship with the feuar. We heard extremely useful evidence from Mr Clark about the purpose behind feuing conditions of the type with which we are involved here. Mr Heath may have made a valid point that in considering purpose we should remember that although the Feu Charter was unilateral in form it reflected a contract and it may not be right simply to look to the superior’s consideration of his interests. However, if this is right, we should remember that the contract was between the superior and the feuar: the purpose of restrictive conditions like this one must have been primarily at least a purpose of the superior.
The title condition should be considered in its context. The Feu Charter conveys the plot of one house, subject to a series of conditions in a form and shape commonly used for much of the twentieth century and evidently repeated in much of the former Murrayfield Estate. Clause (First) permits the superior to alter the feuing plan, in relation to as yet unfeued lots, in any way he might consider more suitable. The title condition is part of Clause (Second), which mainly sets out the positive obligation to erect a substantial bungalow, not less than 35 feet from the Campbell Road boundary, to a certain specification and value and according to plans to be approved by the superior, with a prohibition on sub-division. ‘Other usual and necessary offices’ might also be built, again subject to approval. The title condition follows, and is followed by maintenance, use, insurance and rebuilding obligations. The whole clause involves a combination of requirements for the superior’s approval and powers of the superior (“me or my foresaids”) to consent, expressed in various ways (“according to plans and elevations approved of by me or my factor”; “unless … sanctioned by me in writing”; “the sites position and plans with elevations thereof shall be previously submitted to and receive the approval of me or my Architect for the time being”; “without the consent in writing”; “except where specially authorised in writing” ; “except with the consent of me or my foresaids”).
Clause (Third) makes lengthy and detailed provision for enclosure of the plot and erection and maintenance of boundary walls and fences, with provision where appropriate for joint contribution and mutuality with adjoining co-feuars. This clause includes the one specific requirement for neighbour’s consent, in the form of a prohibition of building on or rested against boundary walls “without the consent of me or my foresaids and the conterminous feuars”. There are clauses requiring contribution to the cost of making up the road and providing in relation to drainage and sewers. Clause (Sixth) contains further restrictions on building and use and then prohibits certain listed noxious uses with a general prohibition of “any other act which may injure the amenity of the place or neighbourhood”, etc. The final clause of the conditions provides that the superior’s express or tacit consent to relaxation or modification of the conditions in favour of one feuar is not to entitle others to act without such consent. This is not in form a reservation of power to waive but that is perhaps implicit.
In that context, the title condition itself prohibits alterations or additions without the superior’s consent; prohibits buildings of any other description; and requires the ground unbuilt on to be used exclusively as garden ground “except where specially authorised” by the superior. Another way of reading the condition is that “buildings of any other description” could also be specially authorised. Section 73(2A) of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 Act requires us now to disregard the particular provisions about superior’s consent, etc., so that the condition now simply reads as a prohibition, which (it is accepted in this case) the benefited proprietors can enforce, subject to the general rules on variation and discharge, including of course this Tribunal’s jurisdiction. We do not, however, consider that this prevents us, in the application of this jurisdiction, from considering the original provisions and noticing the distinction between the first part of the condition and the later parts. Alteration or addition required superior’s consent, but building on unbuilt ground had to be “specially authorised”.
What then was the purpose of the title condition in context? Like the subsequent provisions for maintenance, insurance, etc., it was clearly to be an ongoing condition. It essentially contained building restrictions subject to consent, so it was a power of control over future development. Taken with the regulation of and control over the original building, the prohibition of sub-division and the use restriction, it would seem to reflect a purpose of protecting the residential character, low housing density and general amenity of the area as a whole. This was, however, protection in the superior’s interest, not the interests of neighbours. The superior was a landowner in the course of selling off his land in lots or portions, thus replacing rents or other annual fruits of his use of the land with land sale prices and ongoing feuduties. These ongoing restrictive conditions would help to preserve a general amenity to the benefit of his remaining land and to preserve the security of his investment in feuduties. They would also enable him to preserve a stake in future development values, because he would be able to extract payments for relaxations. There is, however, no indication in any part of the clause of any purpose of protecting the physical amenity of immediate neighbours as opposed to the general amenity of the area. There is no attempt to impose uniformity of design; no limitation of the footprint of the bungalow; and no control over its location within the plot (other than by application of a front building line). This is not to say that the conditions do not confer some benefit on neighbours, but we can, for example, find no, even implicit, purpose of protecting immediate neighbours’ privacy or light.
We agree with the applicants’ submission that the reference in Clause (Sixth) to amenity is to be seen in the particular context of control over noxious uses.
The condition distinguishes between alteration and addition on the one hand and further building on the other. The applicants accept that extension is to be seen in the latter category. It appears to us that the first part, relating to alteration or addition, is a power of supervision. The second part, relating to extension or additional building and use of the unbuilt ground, involves something more like planning control, for the purpose of protecting the amenity of the area as a whole. It is to be contrasted with types of specific prohibition or control in the particular interests of the adjoining proprietors. It is not surprising that superiors regarded control of this nature as having been substantially replaced by the postwar public planning system.
Accordingly, while we have to consider as another, separate, factor, the extent of benefit to the neighbours’ interests, we must recognise, so far as purpose is concerned, that the purpose of this condition was to maintain the general amenity of the area, and it was not conceived to protect the amenity of the immediate neighbours.
Turning to the other factors listed in Section 100 of the 2003 Act, we consider first the issue of change of circumstances. We agree with the respondents that there has been no change in the basic character of the neighbourhood. We also agree that there are no relevant market changes, as such. The burdened property evidently remains a highly saleable residential property. It can be said that the accommodation has become somewhat dated for the requirements of modern family living. That seems to us relevant to the proposal to alter, but not to the proposal to extend. What can be said is that there have been a number of extensions to houses in the neighbourhood. The fact that these have not altered the character of the neighbourhood does not particularly assist the respondents if the principle of such changes has been accepted and they have not threatened the general amenity which is protected by the title condition: it points towards the reasonableness of a further extension proposal, so long as it also will not affect that amenity.
Next, we consider the extent to which the condition confers benefit on the benefited properties. As we have indicated, whatever our view of the purpose of the condition, it clearly does confer some benefit on the neighbouring proprietors. At first sight, it (now) gives them an absolute right of veto over any alteration or extension (internal or external). This must, however, be seen in context: the applicants’ house might well, from the outset, have been built on the footprint now proposed and with the roof structure (although perhaps not the dormer windows) now proposed. Over a period of many years, it could, we have been told, been altered or extended with the superior’s consent (provided planning permission was obtained). On the view we take of them, we do not consider that the current proposals will affect any of the respondents to any marked degree. There is already a degree of overlooking. The benefit of being able to prevent this particular proposed development is in our view quite limited. Clearly, there is the wider benefit of the ability to prevent further, perhaps more objectionable, development. The applicants told us, no doubt completely truthfully, that they have no further plans, but of course circumstances, and indeed ownership of No. 36, might change.
Section 100(c) requires us to consider the extent to which the condition impedes enjoyment of the burdened property. We consider this factor to be strongly in the applicants’ favour. It is correct that the applicants’ individual wishes or requirements are not relevant, but, looking at the matter objectively, we find nothing surprising or unusual in a proposal to alter and extend in this way. To be prevented from doing so is a very considerable impediment to enjoyment of the applicants’ house.
Section 100(d) applies where the condition involves a positive obligation, and is largely irrelevant in this case. We can perhaps note that the condition does include an obligation to use all the unbuilt ground as garden ground, but it was not suggested that compliance with that condition causes any particular difficulty or undue expense.
Section 100(e) requires us to consider the length of time which has elapsed since the condition was imposed – in this case, some 72 years. We do think this is quite significant in this case. Firstly, although these things might perhaps have been viewed as changes of circumstances, there have during that period been major changes in the shape of development control in Scotland. Control over general amenity now rests primarily with public planning departments; the Conveyancing and Feudal Reform (Scotland) Act 1970 effectively removed the opportunity for those holding private rights to exploit these by extracting payments linked to development values; and finally, of course, the whole system of control by feudal superiors has been dismantled. Secondly, to the extent that rights of control may produce sterility, there must come a time when, however attractive it is to immediate neighbours, that should be at least relaxed. Holding the applicants to a prohibition on extension more than 70 years after it was imposed would seem to us to require quite strong justification.
The planning permission is relevant, and a factor in the applicants’ favour, under Section 100(g). The Tribunal has on many occasions pointed out that this is by no means conclusive in the face of a private title condition, even if the title condition is in relation to the same sort of considerations, such as amenity, as are considered by the planners. The private condition may be more restrictive, in which case its purpose and continuing reasonableness as between the benefited and burdened proprietors, in the light of the factors listed now in Section 100, still require to be considered even if the planners have been satisfied. Having identified the purpose of this title condition as primarily one of control over the general amenity of the neighbourhood, a control which superiors at least have long since seen as having passed to planners, and not any particular protection for immediate neighbours, we give slightly more weight to the planning permission in this case, but it is still only one factor.
Section 100(h) has no particular relevance in this case, and Section 100(i) is inapplicable.
Section 100(j) allows us to consider any other factor which we consider material. The applicants ask us to take into account under this head their early attempts to try to talk to the neighbours, and indeed the fact that the majority of the neighbours whom they identified signified their consent to alteration and extension, i.e. their waiver of their right to enforce the title condition. We do not regard this as material in the circumstances of this case. It might sometimes be of some relevance that a majority or a large majority of equally affected benefited proprietors consent to a proposed development, but in this case, firstly, the details of the proposals were not available at the time, and secondly, even with the benefit of the plans, it is clear that the three respondents, while not in our view seriously affected, are more affected than the others. The owner of No. 34, on the other side from the proposed extension, and the owners of properties on the other side of Campbell Road, are clearly less affected.
The respondents mentioned some concerns about creating a precedent. However, the Tribunal considers each case on its own circumstances. In any event, there are already a lot of examples in the neighbourhood – even if one defines that more narrowly than the applicants sought to do – of alterations and extensions. Ms Scott’s submission put the matter another way, that there had been change which had not undermined the fundamental character of the locality, but the cumulative effect of more change could cause insidious deterioration of the locality. We appreciate the point, but do not think that this proposal, which has been designed to blend in well, will have any such effect, and in any event the title conditions have not produced any architectural uniformity.
Weighing the issue of reasonableness up in the light of all these factors, our main reason for deciding that the condition should at least be varied to permit this development is that, in our view, the burden on the applicants of not being able to proceed with this development which while quite substantial will have only a very modest effect on the respondents outweighs the benefit to the respondents of the right to prevent it. We add to that the facts that there has already been a certain amount of similar change in the locality; the development will have no detrimental effect on the general amenity of the neighbourhood; the condition is 74 years old and did not in any event have a particular purpose of protecting the immediate neighbours; and the fact that there is planning permission.
However, we have decided on balance not to discharge the condition completely. We can see an argument for doing so, namely that it has really some time ago fulfilled its original purpose, which is now generally fulfilled by the public planning regime. There may be few cases in which, planning permission having been granted, it should be reasonable for neighbours to insist in their right to veto. However, on the basis on which this case has been argued, Parliament has recently legislated either to create a new enforcement right or at least to preserve one which existed. It does seem possible to envisage situations in which, in the particular circumstances, a development (perhaps of a building of some “other description”) might not be reasonable as against the immediate neighbours. If there is indeed here a “common scheme” with “related properties”, the existence of a condition, even if it might be expected to be discharged or varied to accommodate many if not necessarily all developments for which there is planning consent, may at least encourage appropriate communication and discussion of plans, with a view in very many cases to sensible agreement being reached.
In all these circumstances, we have decided to allow the application to the extent of varying the title condition to the extent of enabling this particular development to proceed.
| Representation: | ||
|---|---|---|
| for the applicants: | Mrs S M Webster, solicitor, Messrs Bell & Scott, Edinburgh | |
| for the respondents: | parties | |
| Dates heard: | 13 and 14 September 2006 | |
| Members sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 17 November 2006 | |
LTS/TC/2006/06
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 17 November 2006.
Neil M Tainsh
Clerk to the Tribunal