1. This is an application for a discharge of a title condition to allow the creation of a new house from the conversion and minor extension of an existing barn. The burden was established when a former farm steading comprising 1.9625 hectares (4.85 Acres) was sold off. It allowed one new house in addition to the existing farm house. The applicant owns and occupies the single house permitted under the title condition (West Feal cottage (“the cottage”)) which, with approximately 2 Acres of the site was sold off separately. She now wishes to create a second house on her land, using an existing barn. The respondents, who own and occupy the original farmhouse known as West Feal farmhouse (“the farmhouse”) and the balance of the site oppose the application. The Tribunal considered the matter under sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the Act”) and have decided to grant a variation to permit development in accordance with a planning consent issued by the local authority and subject to certain conditions.
2. The title condition (“the condition”) is contained in a Feu Disposition by Fife Regional Council in favour of Robert Lindsay dated 26 January and recorded in the Register of Sasines for the County of Kinross on 29 March 1996. It is in the following terms:-
“ … the feuar shall not be entitled to erect more than one additional house on the feu in addition to the existing farmhouse without the prior written consent of the Superiors… ”
It is accepted that the respondents are entitled to the benefit of this condition, and the reference to the superior’s consent falls to be ignored (Abolition of Feudal Tenure etc (Scotland) Act 2000, s.73(2A)).
3. The respondents purchased the farmhouse and part of the land originally acquired by Mr Lindsay and are thus benefited proprietors. The applicant acquired the balance of the site which by then contained the single new house permitted under the original Feu Disposition. The applicant’s ownership is thus burdened by the title condition. In her application she sought complete discharge, but at the outset of the hearing her solicitor indicated that she would be content with variation to allow the barn to be converted into an additional, i.e. the third, dwellinghouse on the steading site.
4. Section 98 of the Act inter alia empowers this Tribunal to grant:-
“… a variation, discharge, renewal or preservation, of a title condition….only if they are satisfied, having regard to the factors set out in section 100 of this Act, that … it is reasonable to grant the application.”
5. Section 100 of the Act sets out the 10 factors (a) to (j) which are referred to in section 98. These are as follows:-
(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.
6. At the hearing of the application, the applicant was represented by Mrs Buchanan of Thorntons, Solicitors, Dundee, and the respondents by Miss Westgarth of Shepherd and Wedderburn, Solicitors, Edinburgh. Evidence was given by the applicant and by Neil Nicholson, a friend, and by both of the respondents. Both sides lodged substantial productions. The Tribunal carried out a site inspection.
7. Previous decisions referred to by the parties included the following:-
Murrayfield Ice Rink Limited v Scottish Rugby Union 1972 SLT (Lands Tribunal) 20
Lothian Regional Council v George Wimpey & Co. Limited 1985 SLT (Lands Tribunal) 2
Ord v Mashford 2006 SLT ( Lands Tribunal) 15
McPherson & another v Mackie, Lands Tribunal, 28 February 2006 (LTS/TC/2005/18& 19)
Cameron v Stirling 1988 SLT (Lands Tribunal) 18
8. From the evidence heard by us at the Hearing and from our site inspection the Tribunal found the following facts admitted or proved.
9. The cottage and farmhouse have been created from the original steading of West Feal which extended in total to 1.9625 Hectares. It was originally owned by Fife Regional Council when its responsibilities included the supply of water. All of the land surrounding West Feal is now owned by Scottish Water as part of the catchment area for the nearby reservoirs. Access to the cottage and the farmhouse is by way of an unmade private track approximately 1 mile long leading off a single carriageway road known as “The Hazel” which in turn connects to the A911 from Scotlandwell to Leslie. The total distance from the A911 to West Feal is 1.5 miles. There is one other house located at the junction of the track and The Hazel but no other house uses the track for access. The track stops immediately beyond West Feal although a path for walkers continues. The location is very isolated and being at an elevation of approximately 1000 feet offers spectacular views to the East, South and West. It is surrounded by mainly sheep-grazing land.
10. The farmer who leases the surrounding land from Scottish Water uses the track as access to his fields. In addition it is used by members of the public to reach the walks and paths on the adjacent Munduff Hill and Bishop Hill. On a very limited number of occasions there are model gliding competitions run at the 2 hills and by agreement with the respondents vehicles are permitted to use the access track to bring model gliders part of the way up the hill. They then park on spare land belonging to the respondents before continuing on foot. There are no gates across the track, the farmer’s stock being controlled by cattle grids
11. The cottage lies to the west, and slightly uphill of the farmhouse. The access track leading to the cottage passes through the grounds of the farmhouse (a servitude right of access exists in favour of the cottage) quite close to the farmhouse buildings. Users of the track can overlook a rear courtyard belonging to the respondents. The track is maintained jointly by the respondents and the farmer. A contribution to the cost is made by the applicant. Separate driveways lead off the track, one to the west of the cottage and one to the east of the farmhouse.
12. The original steading was arranged with the farmhouse facing east and detached from the remaining farm buildings. These buildings lie mainly to the rear (west) of the farmhouse and would appear to have interconnected. The northmost half of these buildings has been converted to the private house permitted under the original feu disposition. Rooflights were set into the east facing roof of this cottage when this was formed. The southernmost section comprises the barn which the applicant is now seeking to convert to a further house. The back wall (east facing) of this row of agricultural buildings forms the title boundary between the cottage and the farmhouse with the exception of a small section of the barn which is within the ownership of the respondents. That part is used as a water storage tank room with access taken from the farmhouse yard. The remainder of the barn is accessed from the ground lying to the west belonging to the cottage. There is a door and a window as well as a further small opening in the rear or East facing wall of the barn overlooking ground belonging to the farmhouse.
13. Both the farmhouse and the cottage are built in stone and “harled” externally. The barn has unrendered stone walls but these have been patched in brick in places. The barn roof is clad in asbestos cement sheets. The barn is in a fair state of repair for its age but ongoing maintenance will be necessary. Approximately 2 acres of land is associated with the cottage and the applicant keeps her show horse there as well as a small pony as a companion for the horse. The applicant has made some use of the barn for stabling. Her predecessor, Mr Lindsay occasionally used it for ceilidhs. The respondents formed a pond in the land to the front of the farmhouse and now keep ducks and geese there as well as free range hens. They have very recently acquired 2 piglets which roam the farmhouse land. A private water supply from an underground spring owned jointly by the applicant and the respondents serves both properties. The water is stored within the land belonging to the farmhouse. Waste water is led to septic tanks with soakaways outwith the curtilage of both houses. Electricity is laid on to both properties by way of overhead cables from a pole-mounted transformer on Scottish Water land.
14. On the 30 August 2005 Perth and Kinross Council under reference number 05/01278/FUL granted:-
“…planning permission for Change of use from barn to dwellinghouse and erection of a new stable block Site at Westfeal Cottage Leslie Glenrothes Fife.”
Conditions laid down in this consent were:-
(1) The development shall be begun within a period of five years from the date of this consent.
(2) The proposed development must be carried out in accordance with the approved plans herewith, unless otherwise provided for by conditions imposed on the planning consent.
(3) The development shall be contained within the existing walls of the building and the building shall not be extended in any way without the prior written consent of the Council Planning Authority.
The stable block referred to in the planning consent will be a timber, shed type building for stabling the 2 horses. That part of the development is not the subject of this application.
15. A new electricity supply will be made available to the new house from the transformer by way of an underground cable. If permission to share the existing water supply is not forthcoming from the respondents, a new well will be sunk within the cottage land to provide water for the new house. Drainage will be to a new septic tank.
16. The original particulars of sale of the former steading of West Feal issued by Fife Regional Council included the following reference.;-
“It should be noted that the property is being sold for the renovation of one dwelling, and that offers for multiple development will not be considered.”
17. The Ministry of Defence has sought planning permission for a Rainfall Radar Station on Munduff Hill and has approached the respondents about using the access track for bringing in certain of their building materials. The respondents have offered the use of their unused land lying north of the access track as a base for storing building material during construction. Helicopters would be used to bring materials to the hill top. Once completed the installation would operate automatically. Visitations by personnel would be limited to periodic maintenance inspections. The resultant increased use of the access track will be minimal.
18. In the particular circumstances of this case we do not consider it necessary to set out at extensive length the submissions made to us by both parties’ agents. There was no significant dispute on any matters of fact nor were there any issues of credibility. The parties accepted that the Tribunal would require to make its own assessment of the weight to be placed on the various factors set out in section 100 of the Act all based on its view of the evidence presented and following the benefit of a site inspection.
19. For the Applicant Mrs Buchanan focused initially on the purpose of the condition (following the approach set out in Ord v Mashford and George Wimpey East Scotland Limited v Fleming). She suggested that assistance could be taken from the terms of the original sales particulars which she considered were clearly there to stop housebuilders developing the site as a housing estate. Between the issuing of the particulars and the drawing up of the title restriction as set out in the Feu Disposition the Council’s position had altered to the extent of allowing one house. There was thus recognition that the original purchaser wanted to carry out a small development and this confirmed that the real purpose of the condition was to prevent large scale development. The variation as sought by the applicant would still give protection to the respondents. The benefit is not lost by the variation sought. Moving on to the other factors of section 100 she submitted that the evidence identified very little, if anything, of detriment to the benefited subjects. In particular there would be no impact on the open space surrounding the farmhouse nor would there be any impact on the view from the farmhouse. It would retain its openness. Conversion of the barn would be a reasonable use of an existing building. Planning permission had been granted and if the development proceeded there would be no openings in the wall adjoining the farmhouse ground other than rooflights which would, however be at a high level in the roof slope. The barn was in a state of disrepair and the proposals could be argued to enhance a building immediately adjacent to the benefited property.
20. In terms of factor (a) of section 100 the change of circumstances since the condition was imposed was that the extra house allowed had now been built and had been extended. So far as (e) was concerned while acknowledging that 10 years was a short time this was only one factor and was not significant since it was a variation only which was sought. Much had been made of the access roadway in the evidence but it was clear that it was used by many people and not just by the two parties at West Feal and the farmer. In any event the track was well away from the farmhouse and was not directly in front of it. Finally, in regard to the respondents’ concerns that the sinking of a further borehole would affect existing water supplies due to the particular geological substrata there was no evidence given on the geology of the area and nothing to support Mr Elrick’s fears.
21. Miss Westgarth for the respondents emphasised that the burden of satisfying the Tribunal lay with the applicant. She sought to demonstrate that the applicant had failed by reviewing the factors set out in the Act under two headings, namely the purpose of the burden and its continuing effect, and the balance between the applicant and the respondents. Starting with purpose – factor (f) – there were two distinct purposes, namely protection of the amenity and secondly, protection against overburdening of services. On amenity, the condition recognised that the area was one of Great Landscape Value and that the seclusion had to be protected. Overdevelopment would destroy the seclusion. Fife Regional Council when initially selling would have been aware that services were limited and there should be no overuse of the access track and water supply. She included the track as part of her definition of “services”.
22. So far as factor (a) was concerned there had been no change of circumstances. There was no new access road and no upgrade of the services. The cottage had been built as originally allowed for in the Feu Disposition; the immediate locale was 2 houses. The flying club and the Ministry of Defence use and potential use were minimal and not material. Having regard to purpose (in assessing factor (a)) the condition was more relevant today as the Cottage has been built.
23. On factor (e) the burden had been in existence for 10 years only and was as relevant today as when created.
24. Turning to factor (b) (i), ((b)(ii) did not apply in this case) one should go back to the original purpose, namely protection of the amenity and the protection of the services. The respondents were entitled to enjoy the seclusion and the sparsely populated locality. If the new house were to be built there would be extra noise and traffic and there would be an overburdening of services. Effectively there would be a 50% increase in usage. No plans had been put forward to the Tribunal. So far as existing use of the track by members of the public was concerned most of this was on foot, the evidence being clear that walking parties were dropped off at the bottom of the track and then proceeded on foot. The services were at their limit and a greater use of the services (including use of the track) could lead to extra costs on the respondents even if these were to be shared. During construction work there would certainly be detriment to the respondents. The work could not take place without access to the respondents’ land and, based on a previous experience, they were concerned as to how this would be undertaken.
25. Moving to factor (c), the applicant originally purchased the property for equestrian use and as a stable for her horse. This was not a case of the applicant having outgrown her house; the barn was in use as a stable, store etc. The restriction was simply denying a financial gain. Miss Westgarth made reference to our recent decision in McPherson v Mackie as well as to the Murrayfield case and George Wimpey v Lothian Council. She emphasised that what was relevant was the particular circumstances, including the character of the neighbourhood as well as the usual or normal use of the house. Finally in regard to this factor the applicant’s existing house would be worth less if the development were to proceed.
26. The last factor which Miss Westgarth referred to was factor (g), the availability of a planning consent. In her opinion this was neutral. The local authority had to consider local circumstances and had to take account of the whole area which she conceded wouldn’t change significantly. There was no written report and the matter had been decided under delegated powers. As we had said in Ord v Mashford and in McPherson v Mackie it was the reasonableness of the condition which was important and the granting of a planning permission was not conclusive. The Consent did not go into detail as to how it would protect the amenity or prevent overburdening of the services, the main purpose of the original condition. In conclusion, in her view the condition did not restrict the applicant from a reasonable use of her premises; it provided significant benefit to the respondents; and there had been no change of circumstances since the restriction was imposed.
27. We have made it clear in many decisions that the particular physical circumstances of the case are of prime importance and that we gain much from our site inspection. Both of these aspectsvery much apply in this case. The respondents had been looking for a rural property for some time and were immediately attracted to West Feal farmhouse because of its remoteness. Mr Elrick, in his evidence repeatedly referred to its “seclusion”. “Remoteness” might be a better word, but we accept that this was an important consideration to him and is likely to be important to any occupier of the farmhouse. There is no doubt that this is in many ways a unique site and this factor influenced the respondents when they first bought the farmhouse. It quite clearly continues to offer them much enjoyment and pleasure. It is the dominant feature of both the cottage and the farmhouse and accordingly must be fully taken account of in the decision we reach. But while the location is very remote and the nearest house at the bottom of the private drive cannot be seen from West Feal the farmhouse and the cottage are part of what was formerly a single farm steading. The two houses are quite literally “cheek by jowl”. That is also relevant.
28. We have to consider all of the factors set out in section 100 of the Act, including the catch-all factor (j), and thereafter weigh them up as a whole in the context of the particular circumstances of this case. We have given above our views on what we consider are the significant features of the farmhouse and the cottage. As far as factor (f) , the purpose of the condition, is concerned, it seems to us that this was primarily to restrict the building of further dwellinghouses to one. It should be remembered that the condition was created at the time of sale by the local authority of the steading as a whole.
29. We know from the original sales particulars, which we consider appropriate to look at in our assessment of purpose, that the anticipation then was that the farmhouse was to be renovated as a dwelling-house. Multiple development was not to be allowed, but the purchaser evidently negotiated permission to build one (but only one) more house on the land. The resultant condition regulates building, not use. It does not, for example, prohibit sub-division of the existing house or limit conversion or use of the other buildings. The parties both, in effect, accept that the development of the existing dwelling-house on the applicant’s subjects and the proposed development which is the subject of this application each involves the erection of a house within the meaning of the condition. We can proceed on that basis, but it seems to us that the purpose of this condition was to restrict new building and thus protect the amenity of the wider area. We think the council’s concern was the protection of an area of peacefulness and beauty from over-development.
30. Accordingly, while it is clear that the respondents are entitled to the benefit of the condition following sub-division, it is not clear to us that the purpose of the condition was to protect them from more intensive use of the part of the original subjects which they did not acquire.
31. We can now turn to the other factors in section 100, so far as they apply to this case. We substantially agree with the Respondents in regard to factor (a). There is no real or relevant change in the circumstances since the condition was created. We do not regard the implementation of what was allowed by the condition as material: it was, in effect anticipated when the original condition was established. Of limited significance may be the fact that there has been built two small extensions to the west wall or front of the cottage. We do not however regard these extensions as indicators of any change in the circumstances relating to the character of either the benefited property or the burdened property. Nor does the work done by the respondents in their garden area in any way assist the applicant’s suggestion of material change. All this is insignificant in the context of the extent of buildings at West Feal. Given our conclusion regarding the purpose of the restriction we have particularly considered whether there has been any change to the neighbourhood. The answer has to be no. The surrounding countryside remains unbuilt on, it continues as a water catchment area and remains used for grazing sheep. Walkers continue to use the area for leisure activities. The track remains unsurfaced and in roughly the same condition as when the condition was created.
32. Factors (b) and (c) have a significant impact in our overall consideration. Factor (b) requires us to take account of the extent to which the condition “confers benefit on the benefited property”. The condition stops a new house being erected on the burdened property. It does not, however deal with use nor does it deal with any building other than house building.
Accepting the parties’ agreed approach, there is clearly a benefit to the respondent in being able to prevent this proposed development. Given the location and the “seclusion” quite reasonably sought by the respondents, the title condition will assist in maintaining that which currently exists, but only in a limited way. It restricts the number of houses but it does not regulate other matters which also affect the amenity. As an example it does not restrict the number of occupants in the cottage, nor their age or how they use the facilities available. The applicant currently uses the barn and the 2 acres of land in a manner sympathetic to the surrounding environment. There would appear to be one car only using the track. But if the cottage were to be sold and the purchaser had an extended family each with a motor vehicle one could quite readily see that there could be a significant change to the immediate surroundings. An alternative use could be made of the barn which the applicant currently uses for the stabling of her horses—a children’s playroom or a teenagers’ den could be uses that the respondents would find unattractive and yet so far as the title condition is concerned it would be unable to give any protection. The existing window openings on the east wall might be retained or perhaps enlarged. In essence while the condition provides a benefit to the Respondents it does not go the whole way of maintaining the environment surrounding their property in the manner they seek.
33. The first respondent expressed concern at the effect a new bore-hole would have on the spring which currently provides water to both the farmhouse and the cottage. His concerns centered on the uncertainty of the geological substrata in the area. There was no evidence of any basis for his fears and we reject them.
34. Another concern expressed was about the disruption and inconvenience during the construction period. We do not ignore this, but there is nothing to indicate that this will be anything other than very temporary and, as far as necessary incursion on the respondents’ land is concerned, very occasional and limited.
35. It is fair to say that the respondents were not really able to spell out any other particular benefit from prevention of this development. We fully appreciate their general concern at one more household in such close proximity, and we can see that there will be slightly more use of the access track. Quite apart from the fact that the existing condition would not prevent an increase in the human use of the area of this barn, it seems to us that, with the windows removed and with access taken from a totally separate driveway, the respondents do not have very much room for concern at one more house “cheek by jowl”: we do not think the effect will be much greater than the existing occupation of the cottage. The new house, like the existing cottage, will be quite separated from the farmhouse. Accordingly, while we accept that in terms of factor (b) the condition provides some benefit to the respondents this is, for the reasons stated, limited.
36. The contrast to factor (b) is the extent to which the condition impedes enjoyment of the burdened property (factor (c)). On the basis of the parties’ arguments the condition prohibits the Applicant from creating a new house from the existing barn. While she has indicated that she would intend to occupy the newly created building herself (and sell off the existing cottage) we take no account of that. That is essentially a personal circumstance which we should ignore. The condition does not allow the applicant to use the barn for the purpose desired. It cannot be used for a house. Any extra value associated with such a use will be lost to the applicant. As the Tribunal recognised in Ord v Mashford (at page 25) a restriction causing such a financial loss is an impediment to the enjoyment of the burdened property. Such a loss arises here. We cannot comment on its extent as we were given no information on costs, sale prices etc. although we would say that the amount of profit may be affected by the additional costs arising from the supply of water and electricity to the new house and from the creation of a drainage system. Miss Westgarth for the respondents raised with us our decision in the case of McPherson and another v Mackie where we made comment on the relative weight to be given to development profit against the impact on the benefited property. We see a clear distinction, however, as the McPherson case was dealing with development profit arising outwith the burdened property. In effect the applicants in that case were able to make full use of their property for the purpose for which it was built i.e. a house. This is covered quite clearly in the following passage from our decision:-
“However, it seems to us also to be relevant that the conditions do not in any way at all impede the ordinary, normal use of this house or diminish its value as a house or garden. To the contrary they underpin that value. This is not a case in which, for example, a house or garden has become too large or in some other way unattractive or uneconomic in modern conditions … The house continues to be a most attractive and desirable house in an attractive and desirable development.”
37. In the current case the barn can no longer be used for its original purpose. The steading is no longer part of a farm and the area of land associated with the cottage is only approximately 2 acres. It is clear that the barn could be put to a fuller use if it were to be used as the basis of a new house. In the circumstances we are satisfied that the condition does impede enjoyment of the burdened property to a significant extent. Consideration of reasonableness of course requires us to remember that the applicant accepted the burden and purchased the subjects at a price which presumably reflected its existence.
38. There is not much that can be said in respect of factor (e)—the length of time which has elapsed since the condition was created. Ten years, particularly when no material change of circumstance has been found, is undoubtedly a short period in these matters. This factor favours the respondents.
39. Having earlier dealt with “purpose” we now come to factor (g)- whether there is a planning consent for the use which the condition prevents. In this case the consent of the local authority as planning authority was issued on the 30 August 2005. There was evidence, including evidence of correspondence between the respondents’ (and for that matter the applicant’s) M.P. and the planning department, from which it appeared that the respondents were unhappy about the procedure followed. We do not think the manner in which the local authority made its decision is in any way relevant to the weight we must give to this factor. It is entirely up to the local authority what procedures they apply to their processes for determining planning applications. The fact that in the present case the decision was taken using delegated powers in no way reduces the validity of the consent. It exists and is able to be relied on just as much as one given after a full hearing of the council. We may add that it does not particularly surprise us that delegated powers were used in this case which involves the conversion of an existing barn. If there were any realistic suggestion that the planning decision mighty be altered, that might be different, but there is no real indication of that. The respondents have not commenced any formal proceedings which could have that result. Factor (g) favours the applicant.
40. The issue of compensation was not raised by either party and in these circumstances we are content to regard factor (h) as neutral.
41. The final factor in section 100 which is relevant to this case is the “catch-all” factor (j). Parties did not direct our attention to any specific matter but there is one which we believe we must consider and which can be covered under this heading. The basic building from which the new house will be formed already exists in the form of the barn. We have already said that we are accepting both parties’ contention that the condition requires to be varied to enable the house to be formed. But that does not mean that we have to assume that the barn does not exist. It does and we require to reflect on the significance of that fact when we assess the overall weight to be given to the various factors set out in section 100. The barn is located along part of the west boundary of the farmhouse grounds. It runs parallel to and approximately 25 feet west of the farmhouse building. It is clearly seen from the farmhouse. Indeed at present there are 3 openings in the wall of the barn overlooking the farmhouse and its garden. Currently of course the barn is only used as a stable so the effect of the openings is limited so far as privacy of the farmhouse is concerned. Nonetheless the openings are there and of course there is nothing in the condition which controls the use made of the barn. The applicant has indicated that these openings will be bricked up if the scheme goes ahead. This was part of the planning application which we have not seen but we see no reason to dispute it. The proposals also include 2 small extensions but these will be on the west wall of the barn and will not be seen from the farmhouse. There will therefore be no change to the size or extent of the existing buildings within the cottage property so far as can be seen from the farmhouse. The only physical difference which will be noticeable from the farmhouse is that the barn will be “harled” in a style to match the existing farmhouse and cottage and the roof will be reclad. It will however incorporate “velux” rooflights serving the proposed first floor of the new house and the section of the ground floor which will be left open to the re-built roofspace. But the existing cottage already incorporates a similar arrangement with 8 rooflights set in the slope facing the farmhouse. While the proposal will bring in another family to the small enclave it will in our view have no significant overall effect on the physical arrangements which exist between the parties’ properties. Whether the proposal goes ahead or not the barn will remain substantially as it is.
42. As we said in George Wimpey East Scotland Ltd. v Fleming and have oft repeated our task is to look at the evidence about the various factors and then weigh them up as a whole judging, not, as it were, the result under each factor but rather the strength and weakness in the overall issue of reasonableness in the circumstances of the case. The matter is not without its difficulties particularly because of the position the parties find themselves in, located in the country well away from other houses, but occupying 2 adjacent houses which inevitably means some interaction between them. One party will be disappointed but we can only hope that relations between the two will not be too affected given what we see as a need for the parties to live with reasonable harmony.
43. This is a recent condition in relation to which there has been no material change of circumstances, and the applicant accepted the condition. She has, however, obtained planning consent for a change of use of a building which can no longer be used for its original purpose. It is a matter of agreement that the condition would prevent this. We do not find the condition to be particularly aimed at this form of development of the land. We do not consider that this development will have any significant effect on the amenity of the locality. Importantly the Statute requires us to consider, in relation to the reasonableness of the respondents’ opposition, the extent of benefit which the condition affords the respondents. In our view, the respondents can gain only limited assistance from the condition. It stops any new build of houses but it says nothing about the use that can be made of buildings already on site nor does it prohibit new building unless this is residential. There will be effectively no difference externally to the appearance of the entire steading should this proposal go ahead. With suitable safeguards the direct physical impact of the proposals on the respondents will be negligible. The loss of the ability of the applicant to put the existing barn to more intensive and valuable use is a significant one. By contrast the benefit of the condition to the respondents is quite limited simply because there are so many matters not controlled by it. The most significant is use which includes intensity as well as variety. While we understand the concerns of the respondents it is simply a fact that although the retention of the condition would provide a measure of control it does not guarantee that the rural idyll sought by the respondents will remain exactly as it is. The applicant could sell her property at any time and the respondents could not control who the purchaser would be. There could be a large number of members of the new family and they could use their ground with trail or quad bikes with additional cars using the access road. In the alternative a sale of the existing cottage might attract a mature couple who shared the same values as the respondents and there would be no change to the circumstances which currently prevail. The condition does not provide this regulation. To refuse to vary the condition in these circumstances would appear to us to be unreasonable.
44. Accordingly from a consideration of all of the circumstances we find against the respondents.
45. Although we have not found the purpose of this condition to be to benefit sub-purchasers of this land against each other, we do not consider complete discharge appropriate. That of course would allow any owner to undertake further housing development for which planning permission might be obtained. We shall, instead vary the condition to the extent of permitting the change of use of the barn by the development of a dwelling-house in accordance with the grant of planning permission by Perth and Kinross Council dated 30 August 2005, ref. 05/01278/FUL together with any consent of the planning authority in terms of condition (3), subject to the following additional conditions:-
We understand these conditions to be in line with the applicant’s plans and have included them to preserve the privacy of the farmhouse that having been a relevant issue in considering the physical impact of the proposals on the respondents.
46. This Opinion was initially issued in interim form to allow parties to comment on the terms of our draft order. Both parties confirmed their satisfaction with the order. Accordingly, this final opinion and the order varying the title condition are now able to be issued.
47. It was agreed that we would leave for written submission the issue of costs should either party wish to make an application.
| Representation: | ||
|---|---|---|
| for the applicants: | Mrs Gillian Buchanan, solicitor, Messrs Thortons, Solicitors, Dundee | |
| for the respondents: | Ms Hannah Westgarth, solicitor, Messrs Shepherd and Wedderburn, W.S., Edinburgh | |
| Heard: | Edinburgh, 21 September 2006 | |
| Sitting: | J N Wright, QC K M Barclay, FRICS |
|
| Decision issued: | 20 November 2006 | |
LTS/TC/2006/14
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 20 November 2006.
Clerk to the Tribunal