Introduction and Summary
This is an application to renew or vary real burdens in a Feu Charter of 1888 relating to alterations or extensions to a terraced house. The respondents have extension proposals for which they have obtained planning permission. They invoked the ‘sunset rule’ by executing a Notice of Termination under section 20 of the Title Conditions (Scotland) Act 2003 (“the Act”). Their contentions include an argument that the burdens are no longer enforceable. The case accordingly raises issues under Section 53 as well as in relation to the Tribunal’s jurisdiction under Section 90(1)(b)(i) of the Act. In summary, the Tribunal has decided as follows:-
- The real burdens are enforceable, under Section 53 of the Act, by the applicants, who are accordingly entitled to bring this application; and
- The burdens should not either be renewed or simply be discharged, but should be varied to the extent of permitting the respondents’ proposed development.
We have considered this case on its own facts and on the submissions made to us. There are issues here which have not previously arisen before the Tribunal, and it may be that fuller submissions than we received in this case will point the need for fuller consideration of the general approach to Section 53 and to the application of the new jurisdiction in ‘sunset rule’ cases.
The Issues
A Feu Charter by William Murray in favour of George Hutcheon Low and others dated 9 February 1888 and registered in the General Register of Sasines applicable to the County of Aberdeen on 11 February 1888 (“the Feu Charter”) disponed six lots of ground with provisions relating to the building of dwellinghouses thereon. Inter alia, the Feu Charter provided as follows:-
“… and any alteration upon or re-erection of said houses or other buildings shall always be made according to a plan and elevation to be approved by me or my foresaids; and
Declaring that my said disponees and their foresaids shall not be entitled to erect any other buildings of any kind on the said feu without the express consent in writing of the superior …”
Section 20(1) of the Act provides as follows:-
“20(1). Subject to section 23 of this Act, if at least one hundred years have elapsed since the date of registration of the constitutive deed (whether or not the real burden has been varied or renewed since that date), an owner of the burdened property, or any other person against whom the burden is enforceable, may, after intimation under section 21(1) of this Act, execute and register, in (or as nearly as may be in) the form contained in schedule 2 to this Act, a notice of termination as respects the real burden.”
The respondents Mark Paul Richardson and Lisa Jane Gordon or Richardson are joint owners of a house and garden at 14 Duthie Terrace, Aberdeen, within ‘Lot 1’ referred to in the Feu Charter. They duly executed and intimated a Notice of Termination of the burdens narrated. The applicants David Stanley Brown and Mrs Elizabeth Jane Brown are joint owners of the house and garden at 16 Duthie Terrace, also within ‘Lot 1’. They have applied timeously to the Tribunal under section 90(1)(b)(i), which provides as follows:-
“90(1) … the Lands Tribunal may by order, on the application of –
…
(b) an owner of a benefited property, renew or vary, in relation to that property, a title condition which is –
(i) a real burden in respect of which intimation of a proposal to execute and register a notice of termination has been given under section 21 of this Act.
…
but where the Lands Tribunal refuse an application under paragraph (b) … wholly, or an application under paragraph (b) partly, they shall in relation to the benefited property discharge the title condition, wholly or partly, accordingly … ”
In their Answers, the respondents dispute that the applicants are owners of benefited property. The applicants rely on Section 53 of the Act, which provides inter alia as follows:-
“53(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.”
In the event that the applicants’ property is benefited, the question whether the burdens should be renewed or varied is to be decided on an application of Sections 98 and 100 of the Act, which provides that the Tribunal shall only grant the application if satisfied that it is reasonable to do so, having regard to the list of factors set out in Section 100.
Neither party distinguished between the two burdens at any stage of the argument.
Authorities referred to:-
Procedure
The applicants, who were not legally represented at the hearing, had requested the Tribunal to dispose of the application on the basis of written submissions and site inspection and without a hearing. In terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, however, such a course could only be followed with the consent of both parties, and the respondents insisted on an oral hearing. The application was accordingly heard in Aberdeen on 19 and 20 April 2007. Mr Brown represented the applicants at the hearing. He had received legal assistance at various stages of the application and he had lodged substantial legal materials in support of his position. The respondents were represented by Mr Yule, solicitor, of Messrs Mackinnons, Aberdeen. It was agreed that, notwithstanding the position about the burden of proof, the respondents should lead in evidence. Mr Yule called Mr Richardson and Neil Rothnie, BSc, BArch, architect, of Grampian Design Associates, Aberdeen, as witnesses. Mr Brown gave evidence for the applicants. The Tribunal had the benefit of various productions, including the plans for which there was full planning permission (and also building warrant plans) and a number of photographs. The Tribunal also carried out a site inspection.
The applicants made clear during the course of the application that they would agree to some more limited extension than that proposed by the respondents. At the outset of the hearing, Mr Brown confirmed that they would be prepared to agree to vary the burden to the extent of permitting an extension not exceeding 3 metres in length, the wall height not to exceed the height of the wall of the existing outhouse (subsequently clarified as the wall height of the applicants’ outhouse building), with a pitched roof to allow daylight to enter through the rear windows of the applicants’ house and with no windows on the wall of the extension. The Tribunal proceeded on the basis, accepted by the parties, that in the event of our not being satisfied that the burden should simply be renewed, we required to consider not only whether it should simply be discharged but also, in the light of the respondents’ particular extension proposals, whether it should be varied. In that event, we would require to decide whether to vary it to the extent of permitting the respondents’ proposed development or, taking account of the applicants’ position, to some more limited extent, but if we were of this latter view we would require to give the parties the opportunity of considering a draft order to that effect.
The Facts
Subject to some normal variation in emphasis on matters of degree, there was no real dispute about the facts, which the Tribunal have found to be as follows:-
1. The houses in Duthie Terrace were built on land formerly part of the Ruthrieston Estate, around one and a half miles from the centre of Aberdeen. As the Feu Charter narrated, its granter acquired, by a Disposition of the same date, some 36 acres of the estate. The Feu Charter disponed in feu six separate lots of ground of varying shapes and extent, all being parts of those 36 acres, all to the north-east of Cranford Road, which was already in existence. The position of the lots was related to Cranford Road, to two new streets (now, Duthie Terrace and Hammerfield Avenue) to be formed parallel to it and and to one new street (now, Duthie Place) to be formed at right angles and running across to Hammerfield Avenue. Each of the lots was made subject to the same declarations of burdens and conditions. In particular, put shortly, the grantees and their successors were taken bound to erect on each lot, by January 1889, ‘good and substantial cottages or dwellinghouses’ of a stipulated quality (and to a value of not less than 40 years’ purchase of the feuduty fixed for each lot and capable of yielding a yearly rent of at least three times the feuduty), according to a plan and elevation to be approved by the superior, with particular stipulation as to the frontages, front railing, etc., and to maintain and support the new houses. The stipulations in relation to superior’s approval of any alteration or re-erection of the houses and consent for any further building followed. There were then further stipulations particularly prohibiting building in front of the houses without the consent of Aberdeen Town Council, who were given express entitlement to enforce those prohibitions both against the feuars and the superiors. There were various other burdens applicable to all six lots, including prohibitions of nuisance and of the erection of, or use of any of the houses as, shops, etc.
2. Residential development of all the lots and the immediately surrounding areas took place, although not all at the same time. ‘Lot 1’ encompassed an approximately square area bounded by parts of Cranford Road, Duthie Place and Duthie Terrace and an area to the north west which then comprised a tram depot but on which a modern block of flats, ‘The Spires’, was erected some 10 to 15 years ago. Houses were erected fronting Duthie Terrace and Cranford Road. Generally, while the fronts of the houses maintained and still maintain a planned, finished uniformity of a type particularly familiar in Aberdeen where there is the distinctive light grey granite appearance, the rear areas have acquired a rather less ordered appearance over the years with garages, outbuildings, etc.
3. Nos. 10 to 34 Duthie Terrace comprises the original unbroken terrace of 13 granite houses built on that side of ‘Lot 1’ immediately following recording of the Feu Charter. The houses were and remain of substantially similar external design and appearance, being ‘one and a half storey’ houses of modest size, i.e. each comprising a ground floor with upstairs rooms formed by dormer windows. On the Cranford Road side of ‘Lot 1’, one half of the frontage comprises a uniform terrace of larger two storey houses built at the time, while the other comprises some five houses which were not built until around the 1930s of a different style although still apparently in conformity with the original building lines, etc. In Duthie Terrace (as commonly in the area), the rears of all the houses included ‘back-to-back’ outhouses, which extended some 4 to 5 metres into the garden and occupied approximately two fifths of the width of the feus. These were originally used as stores, coal cellars, etc but have in more modern times very commonly been incorporated into the houses and used as kitchens. Generally, this configuration of the outhouses created ‘L’ shapes behind the houses, or ‘U’ shapes behind pairs of houses. Each such pair of houses also ‘shared’ a roof, in the sense that fire breaks only separated every other house. The outhouses had shared pitched roofs. A gentle slope towards the south-east end of Duthie Terrace is accommodated by ‘steps’ between the roofs of most of the pairs of houses. Since the outhouses shared pitched roofs with the houses on either side of the pairs of house, some on the higher sides (including No 16) had lower wall and ceiling heights. Behind the houses lie relatively lengthy if narrow back gardens, again following the original uniform pattern, separated by boundary walls between the feus, and giving access to a rear cul-de-sac lane lying between the gardens of the Duthie Terrace houses and the gardens of the Cranford Road houses. There is, however, otherwise apparently no common property. There is no common amenity area apart from the rear lane. Nor is there apparently any common management of any aspects of the maintenance and upkeep of the properties.
4. Nos. 14 and 16 Duthie Terrace form such a pair of houses. In each case, the outhouses have been converted into modern kitchens. The rears of these houses face broadly south-west, with No. 16 being to the south-east of No. 14. Thus, there remains an open area outside the kitchen of No. 16 on its north-west side adjoining (though separated by the garden wall) the corresponding open area outside the kitchen of No. 14 which is on its south-east side. For convenience we shall refer to these open areas immediately to the rear of the houses, beside the outhouses, as the patio areas. The room to the rear of No. 16 is used as a living and dining area with two windows into the patio area.
5. The respondents’ proposals for No. 14 involve demolishing the original outhouse building and replacing it with a very much larger extension occupying, for the first 3 metres, the full width of the area immediately to the rear of the house, i.e. taking in the whole of the patio area, and then extending a further 3.3 metres set back by one metre from the boundary with No. 16. The proposed extension follows a ‘Victorian orangery’ design concept, viz. a substantial glass rectangular conservatory appearance with a flat roof but also a predominantly glass cupola which is situated towards the boundary with No. 12 and intended to improve the natural light within the existing room at the rear of the house. Most but not all of the original rear wall of the house would be removed at ground floor level so as to create a large open kitchen and living area taking in the room to the rear of the house and the whole of the extension and with level floor and ceiling heights. The houses in Duthie Terrace as originally designed, with relatively limited ground floor areas and even using the outhouses as kitchens, are not entirely suited to the commonly encountered modern style of family living involving substantial open kitchen and living areas which these proposals are intended to provide. The existing ground floor area of the house, including the outhouse used as a kitchen, would be increased by more than 40%.
6. Both within the original ‘Lot 1’ and also more generally in the area (including the other five lots in the Feu Charter), the fronts of the houses have maintained their uniform appearance, although many of the windows including the dormer windows have a more modern appearance. To the rear, however, there are some extensions, conservatories, sheds and other garden buildings, as well as garages at the ends of the majority of the gardens. As far as Nos. 10 to 34 Duthie Terrace are concerned, there are three incursions of building into the said patio areas. At No. 24, there is a conservatory built alongside the original outhouse, attached so as to occupy the whole of that area with a bow window extending a metre or so out from it. At Nos. 30 and 32, there is a shared ground and first floor extension (the houses having, apparently, uniquely in the terrace, originally been built with an extra combined, shared dormer window from which the extension comes out). This appears to occupy around one third of the patio areas of the two houses. At the end of the terrace, No. 34 has a flat roofed extension occupying the whole of the patio area and immediately adjoining the pavement of Duthie Place, i.e. not immediately affecting any neighbour. In this stretch of Duthie Terrace, there is no extension which both covers the full width of the plot and extends substantially further out into the garden than the original outhouse, as the respondents’ proposed extension would do. There are, however, a number of buildings or sheds which extend the line of the ‘L’, i.e. preserving the patio areas. At No. 16, a small boiler house, and also a small shed, both flat roofed, extend out from the outhouse building in that way. At No.12 Duthie Terrace, immediately on the other side of the boundary with No 14, there is a rather more substantial and somewhat unsightly red wooden shed which also extends out from the outhouse.
7. Elsewhere in the area of Cranford Road, Duthie Terrace and Hammerfield Avenue, including the areas of the other 5 lots in the Feu Charter, there is a variety of other extensions and outbuildings. Again, some fill or partially fill the patio areas, but there are very few which both fill the patio areas and extend substantially beyond the length of the original outhouse buildings. Most, but not all, are at ground floor level. The overall appearance, by contrast to that at the fronts of the terraces and houses, is that, while the original layout has been maintained, there has been some further building with no uniformity of design or appearance. However, there has not apparently been any sub-division. A general planning ‘rule of thumb’ against developing more than one third of the plots appears to ensure that this remains an area of attractive and generally owner-occupied, well maintained town houses and gardens. The housing density and the character of the neighbourhood have not changed, except in so far as these days private motor cars and their garaging abound.
8. The superior’s interest under the Feu Charter was extinguished under the provisions of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (“the 2000 Act”), with effect from 28 November 2004. Prior to that date and for a period of at least around 20 years the superiors, if there were still any, had apparently not exerted any control under the building restrictions in the Feu Charter. House owners planning alterations, extensions, etc., apparently no longer even applied for consent. There is no suggestion that neighbouring proprietors had any right before November 2004 to enforce the burdens in the Feu Charter. Owners concerned themselves only with obtaining planning permission.
9. The respondents submitted their planning application in May 2006. The applicants and two other neighbouring proprietors objected. As the application proceeded, it was subject to some alteration in an attempt to meet the applicants’ objections. There was also a change of planning officer during the course of the application and apparently some slight differences in view between the two. It was always proposed that the extension would abut the boundary walls on both sides for the first three metres back from the house, that being the recommended limit under Council guidelines in the case of single storey extension along a common boundary in the case of a terraced dwelling. Thereafter, the approved proposal involves extending a further 3.3 metres, set back from the applicants’ boundary by 1 metre, into the garden. The first 3 metres would present a blank wall and the next 3.3 metres would be glazed but with a special condition that these windows would be of obscured glass in order to prevent overlooking. The original design did not involve any pitching of the roof. In order to meet one of the applicants’ objections, relating to daylight in their living room at the rear of No. 16, the design was changed to incorporate a small pitched area for the first three metres on the east elevation. Included amongst the approved plans is a drawing by Mr Rothnie, the respondents’ architect, showing, as a rough measure of the effect on the light, that a 45 degree angle drawn from the new height of the east elevation nearest to the house, incorporating the change to the pitched roof there, would cut out less than half of the area of the nearer of the applicants’ two living room windows and none of the area of the other. The new wall height on that section of the east elevation would be approximately 0.3 metres above the existing wall height of the outhouse building of No. 14. However, because the roof of the outhouses building for Nos. 16 and 18 is some 0.45 metres lower, this height will be some 0.75 metres higher than that roof height. A planning report to the Committee considered that the proposed extension ‘may have a visually dominating appearance for neighbours of number 16’, but, having considered the applicants’ objections (except their reliance on the title conditions) and the steps taken to seek to reduce the effect, recommended approval subject to the condition about obscuring glass. Full planning consent was granted in November 2006 following a site visit by the Committee. The applicants had also been concerned about the internal design, which originally had the kitchen units, etc. hard up against the wall at the point closest to their patio area. Subsequent to the grant of planning consent, a building warrant has been obtained on the basis of some internal re-design which moves the kitchen area and utilities back into a part of the original room to the rear of No. 14.
10. The mutual boundary wall between No. 16 and No. 14 is approximately 1.5 metres high. Above that height, the proposed extension will for three metres present a blank wall for a further 1.2 metres, then the gutter and the small area of pitched roof, at an angle of around 30 degrees and finished in natural slate, leading to the flat roof. A small part of the cupola, with a glazed rooflight system, will also be visible from the patio area of No. 16. The respondents have offered to paint this elevation facing No 16 in whatever colour the applicants choose and to pay for plants to soften the aspect of the blank wall. Extending beyond the first 3 metres and for a further 3.3 metres, but set back by 1 metre, will be the obscured glass area with wooden frames leading up to stained timber fascias and to the gutter and flat roof some 1.75 metres above the wall.
11. The blocks of flats at the north-west end of Duthie Terrace are some five storeys high and impact to some extent on the natural light to the rear of No. 16. This already affects the outlooks from each of the living/diningroom, kitchen and patio areas of No. 16. From almost all points in the house and patio area of No. 16 the proposed extension will not further obscure the sky and will have a limited effect on afternoon and evening sunlight. It will, however, present a substantial mass which will have a slight overbearing or dominating effect, particularly for persons accustomed to the previous openness of this area. It will thus appear to have some very slight shading effect in the patio area, kitchen and living and diningroom. It will not, however, have any adverse effect on the privacy of No. 16. There is at present some shrub, rambling rose and ivy growth in the affected area of No.14 and on the boundary wall. This presently partially obscures the light although not to the same extent as the proposed extension. It will be possible with such growth to soften the visual impact of this elevation of the extension.
12. There is a security issue to the rear of the houses in Duthie Terrace, there being opportunities for intruders to enter using the cover of walls, trees and bushes, garages and other buildings and gain access to the roofs (and possibly open windows of, for example bathrooms) by climbing on the outhouses. The proposed extension at No. 14 will have no significant effect on this.
Applicants’ Submissions
Mr Brown relied substantially on a written submission evidently prepared with legal advice, and lodged certain legal writings and authorities in support. He submitted that the burdens were community burdens to which section 53 of the Act applied. There was a common scheme and the houses at 10 to 20 Duthie Terrace were ‘related properties’, the houses having been built around the same time, by the same builder with the same or similar construction and common features. The applicants satisfied the requirement of Section 8(3)(a) of the Act in relation to interest to enforce, as there would patently be an effect on their enjoyment of their property. The references to superior’s consent to changes fell to be deleted: Section 73(2A) of the 2000 Act. Benefited proprietors’ agreement was required. As to the purpose of the burdens (Section 100(f) of the Act), this was to benefit the neighbouring properties, maintaining the character of the area in perpetuity, providing uniformity and preventing unsightly alterations. There had been no change in the character of the neighbourhood and it was disputed that there were ‘tremendous changes’. The importance of the burdens as community burdens affecting every property on the terrace was stressed. The proposed extension would result in material detriment to the value and enjoyment of the benefited property. The natural slope made the extension even more dominant. The grant of planning permission was not decisive. The decision to grant had been marginal, following a site visit during which the councillors did not visit No. 16. The applicants had always maintained that a smaller, more sympathetically designed extension would be acceptable and would have wished to compromise. It was therefore reasonable to renew the title conditions, allowing benefited proprietors a certain degree of influence, to encourage compromises. Reference was made to Ord v Mashford and Stoddart v Glendinning. It was not the intention of the legislation that the sunset rule should always prevail – this was a ‘triggered’ rather than an automatic rule, and useful burdens should be capable of being renewed.
Respondents’ Submissions
Mr Yule first submitted that the applicants were not benefited proprietors and therefore not entitled to bring this application. They might have become benefited under either section 52 or section 53 of the Act. This was not a Section 52 case, there being contra-indicators in the Feu Charter to any right of co-proprietors to enforce. As far as Section 53 was concerned, on the facts, the burdens were not imposed under a common scheme. The Feu Charter related to 6 separate lots, not one area of land to which a common scheme was applied. Even if it were permissible to consider ‘Lot 1’, it was still not possible to find a common scheme, the houses in Duthie Terrace being only a part of that area of ground. It was not the buildings which counted, but imposition of the burdens under a common scheme. If there were a common scheme, the buildings were not ‘related properties’: none of the illustrative circumstances set out in Section 53(2) applied and the provision did not envisage anything like the situation here. These were questions of mixed fact and law. Mr Yule made no separate submission on ‘interest’, accepting that the applicants would not fail on that point.
Turning to the merits, if they arose, Mr Yule reviewed the facts in relation to the factors listed in Section 100. As to (a), there was a clear change of circumstances since 1890, there being a real change in the neighbourhood to the rear of the houses. There had been something of a ‘free-for-all’, with no evidence of any kind of superiors’ control. Whether there was a change in the character of the neighbourhood was a matter of impression, but the alteration in the amenity amounted to a change of circumstances. As to (b), it was accepted that there was some benefit to the benefited property. As to (c), the condition was impeding the respondents’ enjoyment of their property. They had made considerable attempts to accommodate the applicants’ concerns. There would be some height difference anyway, given the lower level of the roof of the outhouse at Nos. 16-18. The respondents’ present kitchen was extremely limited and it was reasonable to extend like this. The whole purpose was to produce something running through. If the height was reduced, the ceiling would take a step down. The effect on light was being mitigated where it impinged most. Factor (d) was inapplicable. The length of time, (e), 120 years, was relevant in itself but all the more significant because of the changes in the area. As to (f), Mr Yule submitted that there was no basis for saying that the purpose had been to benefit adjoining proprietors. The obligation was to erect houses of sufficient value to secure the feuduties. Factor (g), the planning consent, was a prime consideration in this case. It was significant that the planning committee had given detailed and anxious consideration to the applicants’ objections. There being no issue as to compensation, (h) did not arise. Nor did (i). There was nothing to be added under (j). Looked at as a whole, it was reasonable to refuse the application and discharge the title conditions, upholding the Notice of Termination. Alternatively, the burdens should be varied to the extent of permitting the respondents to proceed with their particular proposals. Mr Yule ended with some brief responses to the applicants’ submissions.
Tribunal’s Consideration
(i) Title
It was not questioned, and appears correct to us, that the respondents, despite having in a sense initiated this procedure by executing a Notice of Termination, may legitimately challenge the applicants’ title to bring this application. They might have proceeded in another way after they learnt that the applicants intended to rely on these burdens, but the procedure under section 20 provides an administrative way of disposing of a very old burden and thus hopefully avoiding the need to come to the Tribunal or a court. Applications under Section 90(1)(b)(i) can only be brought by benefited proprietors. It is not so clear that the applicants require in these proceedings separately to establish an interest to enforce, but in any event that was in the end not contested by the respondents.
The applicants have not argued that Section 52, the provision replicating the common law position in relation to implied enforcement rights, applies here. It seems that before November 2004 neither the applicants nor any of their predecessors as proprietors of No. 16 Duthie Terrace going back to 1890 or so had any right to enforce these burdens. The burdens enforceable by the superior had apparently been something of a dead letter for quite a substantial period before 2004. However, it is not argued that anything had happened to bring them to an end, so the starting position is that they had remained valid and enforceable by the superior until the superior’s interest was abolished. In that situation, Section 53 can apply to make the applicants benefited proprietors if the burdens were imposed under a “common scheme”, provided that the further requirement for their property to be a unit within a “group of related properties” is satisfied.
The respondents challenge the existence of a common scheme under which these burdens were (or, in the words of the statute, ‘are’) imposed. Firstly, they argue that there cannot be such a scheme where the identical burdens were applied to six different lots of ground. We do not accept that. It seems to us that there is a clearly discernible common scheme regulating by burdens the residential development of the area of which these lots formed parts. The houses in the area were plainly going to be built according to a plan involving development back from Cranford Road, the creation of the new roads – Duthie Terrace, Hammerfield Avenue and Duthie Place – and the uniform regulation of the frontages, railings and boundary walls. The actual uniformity of the houses and layout of their garden areas, as distinct from their position in relation to the street, was not specifically provided in the deed, nor was it followed throughout the area, but it was clearly going to be, and can be seen to have been, controlled. There was in our view a scheme with sufficient common characteristics to be described as a common scheme. Even if that were not so, we think that it would be legitimate to see each of the lots as involving a common scheme, which happened also to involve precisely the same burdens as that applied to each of the other lots. In relation to that alternative approach, viewing each lot as having its own common scheme, we observe that precisely the same result might have been achieved in 1888 by executing separate feu charters.
We understood Mr Yule also to question the existence of a common scheme within ‘Lot 1’ on the basis that the houses in Duthie Terrace were not the same as those in Cranford Road and indeed half of the latter were not in fact built for another 50 years. Again, it seems to us that the lack of complete uniformity of design and construction is not fatal, there clearly being a scheme of regulation of sites, building materials, etc. and common ongoing burdens. We note again that it is not in this case suggested that anything, such as a departure from the common scheme, happened to invalidate the burdens. There was no requirement to build on the whole lot within one year, only a requirement to build to a certain value, and there is no indication that that was not met.
It seems to us that this issue of a common scheme can be tested by considering whether Section 52 (which also requires a ‘common scheme’) might have applied if the Feu Charter had been differently expressed in relation to waiver and enforcement. We think it could.
That leads to the further requirement to establish a group of ‘related properties’. This seems the more difficult issue and we can see arguments both ways. We share the commentators’ difficulties in this respect. Mr Yule referred to one commentary as follows:-
“A street of Victorian villas and semis may well have the same burdens, imposed by feu charter in the 1870s. Probably, however, they are not ‘related’ in the required sense. Certainly they are unlikely to meet any of the criteria set out in s 53(2). An interwar housing estate may be in a different position, if only because there is likely to be uniformity of architecture and design, each house having been built by the same builder. This makes it possible to argue that they share ‘some common feature’ in the sense of para (a)(i). But the position is uncertain. The use of a deed of conditions would probably put matters beyond doubt (para (c))” (Reid and Steven).
In searching for a group of properties, there seems no particular reason to look only at Nos. 10 to 20 as the applicants did. We see no reason why we should not look at Nos. 10 to 34. In other words, as we read the provision, the “group of related properties” need not be all the properties burdened under the common scheme. If that is done, we find a terrace with, of course, a degree of attachment involving, it can be said, some common feature. We have to decide, with the assistance of the circumstances listed in the provision, whether the necessary relationship can be inferred from all the circumstances.
We do not consider that the circumstances in this case are either the same or analogous in principle with the circumstances set out in Section 53(2) paras. (a) convenience of managing the properties together, (b) shared ownership of common property, or (d) flats in the same tenement. Para (a) refers to ‘some common feature’ but only as making common management convenient. There seems to be no question of that here: application of common burdens is not the same as management of the properties. The evidence before us does not establish that there is any shared ownership of common property. The properties are not flats in a tenement and a tenement building involves a considerably stronger necessary interrelationship, so that we do not regard attachment in a terrace as comparable.
We do, however, find an analogy in para. (c), ‘same deed of conditions’. We entirely accept that the Feu Charter is not a ‘deed of conditions’ within the meaning of this provision (Section 122(1), referring, as Mr Yule pointed out, to Section 32 of the Conveyancing (Scotland) Act 1874), but Section 53(2) makes clear that it does not provide an exclusive definition. It seems to us that a feu charter conveying the ground to the builder and establishing a scheme of conditions to be applied to the housing units to be erected may be of the same character. It may be that all the detail of many modern deeds of conditions is not to be found in this Feu Charter, and if it had merely regulated the initial development, with no ongoing burdens, we do not think that would have advanced the argument much. However, it seems to us that it did provide an analogous scheme of continuing burdens, in particular regulating further building and requiring maintenance, insurance and (if necessary) rebuilding of the individual houses. These seem to us to make this provision comparable in this context with a deed of conditions. The Feu Charter may be said to have provided an element of communal protection of amenity.
What other circumstances are relevant? We think that the degree of uniformity achieved in this terrace is relevant. This clearly resulted from the common scheme. We are looking here at the properties as a whole, and we take the view that the basic uniformity produced through the Feu Charter subsists even although there has been substantial building in the garden areas.
We think that age in itself is irrelevant, but we have wondered whether the quite striking fact, in this case, that, whatever the position might have been in earlier years, the superior had apparently effectively disappeared at least 20 years before 2004, affects this issue. In other words, if there was a relationship in the years following the building of the terrace, is there any longer? It may be a matter for further submission in other cases whether the relationship can be destroyed, but in the present case we have reached the view, on the basis of our findings about the extent of change in the area, that if there was a qualifying relationship, there still is.
Neighbours at Duthie Terrace may of course, as in any other neighbourhood of properties, socialise and perhaps even get together to discuss local issues, say in relation to security to the rear, refuse collection or the local bus service. Mr Brown seemed to be coming close to suggesting that community in that sense advanced the case. It seems to us that such matters do not in any way arise out of the title situation and are not relevant. The owners might quite well go from one year to the next without having any need to discuss any property concerns.
On balance, and with some hesitation, we infer from the circumstances of this particular case that there is a group of ‘related properties’ in this part of Duthie Terrace, and we hold that Section 53 applies, so that the applicants are entitled to bring this application.
(ii) Renewal or variation
The application under Section 90(1)(b)(i) can be seen to raise two distinct questions. The first is the general question whether these old burdens should continue to subsist or simply be terminated. The second arises if we decide that they should continue to subsist, and is whether we should make an order varying them to permit either the development proposed by the respondents or some lesser development, or simply renew the burden (which would have the same effect as refusing an application by the respondents in a ‘normal’ case and leaving them to try to negotiate further with the applicants). Both the questions involve the application of Sections 98(a) and 100. The onus is on the applicants.
We start by looking at the facts and circumstances in relation to the factors listed in Section 100 of the Act, including, if appropriate, any other factor which we consider to be material. We consider first the purpose of the title conditions (factor (f)), because, as the Tribunal made clear in Ord v Mashford, that will often carry weight (2006 S.L.T. (Lands Tr) at 20 J-K). Is there a purpose which can still be achieved? Although it can be difficult in some cases to discern the purpose of title conditions, the burdens in this case fall within a very frequently encountered category of feudal burden related to residential development, particularly in deeds pre-dating the system of general planning control introduced in 1947. The superior retained general planning control not only over the original development but also over both alterations or rebuilding and further building. The control over the former – plans and elevations to be approved – is expressed at a lower level than that over the latter – no other buildings without express consent. There might be a question as to which of these is engaged in the present case, but the respondents addressed both in the Notice of Termination. The frontages were even more strongly controlled and, interestingly, the Town Council was specifically given the right to enforce these. Thus we see varying levels of general planning control. The superior had his own interest both in relation to the value of the other building land which he acquired from the estate and in relation to securing the feuduties. We are not persuaded that the purpose was to protect individual proprietors from further building or extending by their neighbours. Not only are neighbours given no right to enforce these burdens (they are expressly given some very limited rights later in the deed) but there is nothing which might indicate a purpose of protecting neighbours from further building which might be regarded as overbearing or interfering with their light or their privacy. There is no indication of any particular restriction of building or extending close to neighbouring properties. Certainly, the burdens are about preserving amenity, in which all the proprietors would have an interest, but only in a general way.
However, even if this was not part of the original purpose, the Act has, as we have found in this case, given neighbours such as the applicants the benefit of prohibition of further building, thus in effect requiring the house owners to obtain the consent of any neighbour who could satisfy the test of interest and thus enforce the burden in a court. Subject of course to our jurisdiction, the applicants have the benefit of being able to insist on the respondents cutting back on their development proposal. What is the extent of that benefit (factor (b))? Generally, of course, it involves retaining control even if planning consent is granted. In relation to the respondents’ present proposal, we accept that the proposed extension will have some impact, being so close and slightly overbearing, on the applicants’ enjoyment of their property. The applicants, who are used to the present degree of openness immediately to the rear of their house, will particularly notice that. It must, however, be considered objectively. In our view the impact will be quite limited. The natural skylight on that side of No. 16 is limited by the form of the blocks of flats. Clearly, this mass will be very much closer, but our impression when standing near each of the windows of the applicants’ livingroom and kitchen, and also when either standing or sitting in the patio area, was that the natural light was already slightly limited and that the impact on daylight will be more apparent than real, although we do not doubt that it will have some slight impact. Having regard to the direction, one might be concerned about sunlight also, but our visit took place just after six o’clock on an April evening when the sun was low in the sky. We were clear that, in much of the patio area at least, the sun would, at least at that particular time of year, go down behind the flats and not be affected by the extension. Any worse effect on sunlight would be in winter, not summer, months. Privacy is no longer a concern, with the special planning condition of obscuring the glass. Security we have found to be no concern: there are already so many opportunities for intruders at the rear of this terrace that this will not materially add to them. In conclusion, we are satisfied that the ability to stop this particular development is of some benefit but that this is fairly limited.
There is room for some concern about the size of this extension. As we have noted, it does present a mass of building very close to the back of the applicants’ house and beside their patio area. It extends more than 6 metres, and altogether adds more than 40% to the existing ground floor area. Even although it is to be set back by 1 metre after the first three metres, it clearly amounts to a substantial interference, very close to the boundary, with the original layout of the area to the rear of this pair of houses. An extension of such a large size would be unprecedented in this part of Duthie Terrace and unusual, although not unique, in the wider area. The ability, now conferred by these burdens on the applicants, to control the size (whether the height or the length) of the respondents’ extension, is a benefit.
As to factor (c), the extent of the impediment on the respondents’ enjoyment of their property, this is a factor of weight. There is firstly the very fact that any development such as an extension is now subject to control by neighbours who can demonstrate an interest to enforce, thus requiring the respondents to seek permission and if necessary negotiate with their immediate neighbours. That cannot be ignored, although it is considerably mitigated by the ability to invoke the Tribunal’s jurisdiction. One would anyway hope that neighbours would discuss such proposals and take account of reasonable objections, and any unreasonable, or even, now, unsuccessful opposition to an application to vary may be met by an award of expenses (Section 103(1) of the Act). Looking at the particular situation here, we consider that the respondents are proposing an extension and improvement of their property of an essentially normal and reasonable type, in line with modern living. We can in this day and age readily accept that a possible alternative of buying a larger property of comparable location and attractiveness would be expensive in comparison. In accepting that this is quite a substantial burden and interference with the right of proprietors to develop their property to the extent permitted under public planning control, we do not ignore the applicants’ willingness to agree to a smaller extension, of about half the area and rather lower. The proposed extension is large, creating, along with the existing room now to be developed as a kitchen and utility area, a very large living area which might perhaps be reduced to some extent without any serious damage to the concept. That would, however, interfere with the respondents’ reasonable wish to develop their own property. The height restriction suggested by the applicants would require the respondents to reduce the ceiling height quite markedly, or excavate more and have a step down, or perhaps both – that seems to us a very substantial impediment to the respondents’ enjoyment of their property. We should mention that in assessing this factor, we leave out of consideration the respondents’ argument that now to allow the applicants to limit the development would produce the added burden of starting again with the planning application. That short-term consideration seems in principle irrelevant and anyway exaggerated as we would have thought that a reduced application would in the circumstances proceed smoothly through planning.
The respondents placed considerable reliance on factor (a), change of circumstances. Although there are clearly changes in the appearance of the areas behind the houses, and the amenity has been slightly diminished by the variety of small buildings of one kind or another, we are not persuaded that there is any material change in the character of this neighbourhood. Indeed, we were struck by the almost modern appearance of these granite houses which are nearly 120 years old, and the houses and gardens seem to us to retain very much their intended character. The one significant visual impact is the extent of garage buildings, but these are so far away from the houses as to be of no materiality in relation to the particular development proposal here.
We have wondered in this context also whether the mere fact of the apparent withdrawal many years ago of the superior is a significant change in itself (or, perhaps, another material factor, under (j)). However, looking at this from the point of view of reasonableness, we are doubtful whether it should be relevant in itself. It is not the responsibility of the house owners. It can be said that the Parliament intended to place neighbours in the position of superiors who have often been more absent than present. There may be little difference in this context between superiors disappearing so that owners feel no need to ask consent and the other common situation in at least more recent years, namely superiors simply charging a standard fee and in effect ‘rubber stamping’ requests for consent or approval of plans. Of more importance is the question whether the character of the neighbourhood has (perhaps as a result of such abandonment of interest by the superior over the years) materially changed so that the burdens are no longer capable of having any real effect in preserving the general amenity or uniformity and it would be unreasonable to resurrect them. We do not think that that is the situation in this case. We do, however, wish to leave open for submission in other cases the question whether mere lapse of time since the superior had any involvement could ever of itself be material in cases in which neighbours only acquired title to enforce under the 2003 Act: if so, it will in a sunset rule case be for the benefited proprietor to lead appropriate evidence about the degree of involvement by the superior in the past.
We admit to some uncertainty as to the amount of weight to attach to the age of the burden (factor (e)) in this case. It is clearly not a factor which assists the applicants, and it is a factor which has expressly been introduced into the legislation, in two places, by the introduction of the sunset rule and by inclusion as a specific factor in the list in Section 100. We think, however, that the consideration of this factor should be no different from the consideration of it in Ord v Mashford in a ‘normal’ application to the Tribunal to vary or discharge. In other words, we tend to agree with the applicants that the sunset rule merely provides a trigger to achieving discharge without having to apply to the Tribunal: it puts the onus on the benefited proprietor in an application to renew, but otherwise the factors are to be weighed up in the same way as in ordinary cases. A very old burden which is still serving its original purpose, or could do so, might reasonably be kept in being.
The other factor particularly relied on in this case is the planning consent (factor (g)). The applicants correctly refer to the Tribunal’s general approach to the effect that, while this of course indicates that the proposal can be accepted as reasonable from the viewpoint of the general public, it does not necessarily address particular private interests protected by title conditions. This again comes back to consideration of purpose but also recognition that there may be benefit to the benefited proprietor even although that was not the original purpose. In this case, it would seem that the relevant planning policies (apart, perhaps, from a general public interest in allowing extensions to dwellinghouses) limit extensions on the boundary to three metres but thereafter require only slight setting back and limit the overall length only on some rather vague consideration of a rule of thumb about confining total building to one third of the site area. We heard from Mr Rothnie that this rule of thumb is not rigidly followed and indeed he told us that the permitted extension at his own house, in another section of Duthie Terrace, brought that ratio to around 50%. It would seem that the length of the respondents’ extension was not a particular issue for the planners. The planners did, however, clearly take into account the issues of privacy and daylight affecting No.16. They insisted on changes in relation to each of these matters. We consider that important although of course only one factor in the overall consideration. We give no weight to the suggestion that the decision was marginal, which does not appear to us necessarily to follow from the fact that the committee visited the site.
None of the other factors in Section 100 appears to have any significance in this case.
On the general question whether it is reasonable to keep these burdens in existence at all, their existence is both a benefit to the benefited proprietors and a substantial impediment to the burdened proprietors’ enjoyment of their property, although the extent of each will of course vary according to circumstances. In the comparison between benefit and burden, it can be said that while termination would remove the benefited proprietors’ right altogether, renewal would leave the burden subject to our jurisdiction to vary: the burdened proprietor could still apply to the Tribunal to permit particular proposed developments (which is in effect happening alongside the application for renewal in this case). Neighbours would now have to consider very carefully their likely liability in expenses should they unsuccessfully oppose such an application. There has been some change in the neighbourhood in the sense that there has been a fair amount of building to the rear of the houses, but we have not found that this has changed the character of the neighbourhood. It can be argued that the original purpose of the burden is now supplied by public planning control and that the present case shows that, while the title condition is not relevant to planning, considerations such as privacy, overlooking and light are considered. It seems to us, however, in this case as in others in which we have granted variations but not discharged completely, that the planning and private considerations are not identical. It is possible to imagine cases in which there is planning consent but it will not be reasonable, having regard to the private title conditions, to permit a particular development proposal. Despite the decision which we explain below in relation to the respondents’ proposed extension, the present case illustrates that: while privacy and height were addressed by the planners, they appear to have been relaxed about the length of the extension, a matter which is reasonably raised by the applicants. Although compensation does not appear to have been put in issue in this case, termination of the burden would remove any possibility of a situation being dealt with in that way. Having considered the statutory factors, we conclude that despite their age these burdens ought not simply to be terminated.
That brings us to the second question, related to the respondents’ particular proposals. Here, we have, quite narrowly, reached the view that it would not be reasonable to accede to the applicants’ wish to curtail the respondents’ extension. The applicants themselves do not oppose any extension, but rather raise issues as to the size. We do have some concern about the scale of the extension. As regards the height, we are very clearly of the view that it would not be reasonable to interfere with the approved plans: to do so would be a very substantial impediment to the respondents; this particular issue has been considered by the planners, who have, in our view, imposed as much restriction on the respondents as is reasonable; and we do not think that any further fairly marginal change which we might impose would make very much difference from the applicants’ point of view. We have been less certain about the length. As we have mentioned, the extension is large in relation to its setting. We think that the length could be reduced a little without serious interference with the concept, particularly now that the kitchen has been transferred out of the extension itself, leaving a very large (in context) living area. As we have said, this aspect appears not to have been too closely considered by the planners. Again, however, we have looked at the benefit which a reduction in length, say halving the further 3.3 metres of the extension after the 3 metres which are up to the wall, would achieve for the applicants. It would of course reduce slightly the mass of the extension, although not at the point where it is right up to the boundary wall. It would, however, only do so at the furthest extremity where the impact is least. Looking objectively at the proposal as a whole, at its full proposed length, we consider that once it is in place and hopefully softened by appropriate planting it will have rather less impact than the applicants fear. It will not interfere with the applicants’ privacy and indeed might slightly improve that. Without becoming arbiters of taste, we do not think that the design is open to the sort of criticism which the applicants level at it. It will impact only slightly on the light, both general daylight and sunlight. It will not, in our view, have the effect which the applicants’ fear on the security of their house. We do not think that an outsider, for example any prospective purchaser of No.16, would consider it to be any real disadvantage. Although we do not think that the effect of changes in the neighbourhood are such as to make it unreasonable to keep these burdens subsisting, we cannot ignore in the consideration of this particular proposal the fact that there are other extensions at least some of which in the surrounding area are of comparable extent and impact. We also bear in mind the original purpose of the burdens, which we have found to be general – preservation of the general amenity – rather than particular – protection of one neighbour against another. We can envisage cases brought by neighbours which raise issues of general amenity even although these will have been considered by the planners, which is why we do not think that these burdens should simply be discharged, but in this particular case, accepting the applicants’ reasonable concerns, we think that they are primarily seeking protection of their own property, although we accept that this is only one factor. On balance, looking at all the circumstances, we reject the possibilities of either imposing some reduction such as a reduction in length or of simply renewing the burdens. We have decided to vary the burdens to the extent of permitting the respondents’ proposed development.
The applicants relied strongly on one reported decision, Stoddart v Glendinning. Each case of this kind must depend very much on its own circumstances and on the Tribunal’s inspection at the location. It does, however, in any event seem to us from the report in that case that while there were some similarities the circumstances were in some respects clearly different.
We do note that one of the applicants’ concerns, as to the siting of the kitchen area, was apparently not met in the planning process but in the building warrant, and our order varying the burdens will include reference to the relevant plan (dated 14 December 2006) so as to ensure that there is no further change in this particular aspect.
Any issue which may arise in relation to expenses can be dealt with by written submissions in accordance with the Tribunal’s normal procedure.