1. An application has been made by Mr. Wilson (the Applicant) for a discharge of a title condition which restricts the use of property, a small hall which he owns at 2 Hawthorn Walk Cambuslang, to “religious purposes”. The condition also requires the consent of the superior to any external alterations, prohibits any buildings other than the hall on the land and lays down conditions regarding the maintenance of the un-built on ground. The application is opposed by Mrs Carole McNamee who resides at and owns 89 Duke’s Road Cambuslang (“the Respondent”). The burdened property is part of a group of 8 houses first feued off in 1923 by the Duke of Hamilton when the burden was imposed. The 8 house owners apparently remain “benefited proprietors”. The hall was used for religious purposes until about 4 years ago at which time the congregation had reduced to such a degree that continuation of religious worship was not feasible. The hall was placed on the market and ultimately sold, at auction, in August 2006 to the applicant. He intends to let the hall as a children’s day nursery for which use interest has already been expressed. The respondent objects to any plans to use the hall for purposes which would be detrimental to her privacy or would create additional noise pollution in the vicinity of her house or her back garden and objected to the application for discharge. The tribunal dealt with the matter by way of written representations and a site inspection and has decided, having regard to sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”), to discharge the condition as sought by the applicant, including the removal of the restriction of use to “religious purposes”.
2. All owners forming part of the original 8 plots feued were notified of the application and although some objected initially only the respondent maintained her opposition. The Applicant was represented by Carr Berman Crichton, solicitors, Rutherglen. The respondent was not represented. The parties were agreed that we would deal with the case by way of written submissions supplemented by a site visit. Both parties were given the opportunity to add to the terms of their original application, the notice of objection and the applicant’s answers thereto. Both declined and were content to rely on the arguments and contentions earlier expressed.
3. We inspected the hall, its grounds and the surrounding locality on 21 August 2007. The applicant was present and was able to answer certain factual questions we put to him in order to clarify his position. The respondent did not take up the opportunity of attending.
4. It was clear from the answers made by the applicant to the objections that his principal concern is the restriction to religious use. He confirmed at the site inspection that it was the removal of this use restriction which he was particularly seeking. However, as the original application clearly identified by coloured highlighting the part of Clause First for which the application was made, we have considered the matter in terms of the whole section of Clause First covered by the application. In the event of us granting the application the remaining terms of the original title would remain as neighbour burdens benefiting the 8 houses which were part of the original feu.
5. The relevant sections of the 2003 Act are Sections 98 and 100. Section 98 inter alia empowers the 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.”
The factors in Section 100 are enumerated (a) to (j) and are as follows:-
(a) any change in circumstance 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 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. The condition which the applicant asks us to remove is contained in the Feu Disposition by Trustees of William Alexander Louis Stephen, Duke of Hamilton Brandon and Chatelherault (the Hamilton Trustees) (who and whose successors are hereinafter referred to as “the Superiors”), to John McCrindle and his heirs and successors recorded GRS (Lanark) 29 May 1923 … of 8 plots of ground and in particular the part of clause First which states:-
“[the said disponees may also erect at the back of the said plot hereby disponed in the first place] … a hall to be used only for religious purposes which hall shall also be constructed of concrete blocks with stone facings or brick with stone facings but if brick is used it shall be coated or roughcast with cement as aforesaid and the ground plans and elevations of the said buildings, with a description of the stone and materials proposed to be used and style and dressing the same, shall be submitted to, and approved of in writing by the superiors before any building operations are commenced, and in the event of the said Disponees desiring alterations of any kind to be made on the exterior elevations of the said buildings after the same shall have been erected, the plans showing the proposed alterations shall in like manner be submitted to, and approved of in writing by the superiors before building operations, in terms of the said plans as altered, are commenced, and the said Disponees shall not be entitled to erect or have upon the ground feued, any buildings other than the buildings before specified, and the enclosing walls or fences hereinafter provided for; and all ground not occupied by buildings and walls shall be laid out as shrubbery garden, grass or walks and kept constantly in good order”
Parts of the condition, so far as relating to the original construction material have clearly now been implemented.
The following relevant facts were determined by the Tribunal following its site inspection:-
7. The 8 houses originally feued by the Duke of Hamilton front Duke’s Road on its south side. The southeast most one, No. 85, has a corner frontage with Hawthorn Walk and the hall, which is the subject of this application, is erected at the rear of this house and fronts Hawthorn Way. The respondent’s house at No. 89 is two houses removed from this corner. The rear garden of 85 is shorter than those of the remaining seven as the ground on which the hall sits is effectively excised from its rear garden. The rear garden ground of No. 87 which lies between the hall and the garden of the respondent’s house is enclosed with 6 feet high wooden lap fencing and it is not possible to see into the garden of the respondent’s house from the ground at the rear of the hall.
8. The surrounding area is generally residential in character with some commercial and light industrial buildings. The houses mainly date back to the 1920s and are generally 2 storeys in height but some new build has recently taken place further south in Hawthorn Walk. Immediately opposite the eight houses is a range of single storey shops which include a small grocer’s, newsagent and a food take-away. At the northeast junction of Duke’s Road and Hawthorn Walk a former garage now houses a small number of businesses mainly engaged in the motor trade. Adjoining this garage to the north is a large public house with extensive car-park. A mini round-a-bout has been formed at the junction of Duke’s Road and Hawthorn Walk. The junction is quite busy and although provision is made for cars to park in front of the row of shops cars also park partly on the pavement of both Duke’s Road and Hawthorn Walk.
9. The site on which the hall has been built at 2 Hawthorn Walk is elevated with a stair and ramps leading from the street level to the front door. The hall itself is single storey of plain construction. The external walls are of pre-cast concrete block and the pitched roof is clad in concrete tiles. There are windows to the front and rear and one window in the North elevation. The south gable wall is erected on the boundary of the adjoining house at 4 Hawthorn Walk. Internally the floor-space is generally open with an open aspect to the pitched roof. The walls are plastered or, in parts lined in timber. The roof is also underlined in timber. Originally there were enclosures for male and female toilets as well as certain features associated with the former religious use. These have all now been removed by the applicant who is meantime fitting out the floorspace for his intended use as a children’s nursery. He has carried out certain repairs to the fabric of the building.
10. The site associated with the hall is quite small in area and the distance from the front pavement to the rear fence, short. In consequence the front garden is somewhat narrow and the space between the back wall of the hall and the back fence extends to only 10 feet or so. There is currently only a narrow side passage leading around the hall allowing access to the ground at the back which is meantime overgrown. The applicant has local authority building control consent to form a door in the rear wall of the hall to permit direct access to the rear ground.
11. Notwithstanding that the site is generally higher than Duke’s Road, as the hall is only single storey in height its roof is no higher than those of the 2 storey houses erected on the balance of the original feu.
12. Clause (Fifth) of the original Feu Disposition contains further title conditions in the following terms:-
“(Fifth) without prejudice to the other conditions and provisions herein contained, it is hereby declared that is shall not be lawful to, nor in the power of the said Disponees or their tenants or others deriving right from them to do or permit to be done without the consent in writing of the Superiors any of the following acts, matters and things, all of which are hereby prohibited videlicet:- (Primo) to erect or form or use upon any part of the ground hereby feued any stable cowhouse, pighouse, or henhouse, any steam engine manufactory, brewery or distillery, or any workshops or yards for masons, wrights smiths, coopers weavers or candlemakers, or any crackling houses or slaughter-houses or any other nuisance; (Secundo) to carry on upon the ground hereby feued, or in any buildings thereon, any chemical operations, noxious or noisy manufactures, or anything which may be a nuisance or offensive or cause annoyance or occasion disturbance to any of the neighbouring proprietors or feuars; (Tertio) to use any buildings to be erected on the said ground as a shop or warehouse for the sale of goods or as an hotel or public house or shop or other place for the sale of exciseable liquors, or as a club in which the use or consumption or the sale of such liquors shall be permitted; (Quarto) to carry on upon the ground hereby feued, or in the buildings to be erected thereon, any operations such as are appropriate to any of the buildings, works, trades and others in these presents prohibited: Declaring with reference to the foregoing prohibitions that the Superiors shall be the sole judges of what may be considered an annoyance or nuisance, so far as they may consider their interests or the interests of their vassals or tenants affected thereby, and the Superiors decision shall be final, and they shall have power to order the removal of any annoyance or nuisance at the expense of the said Disponees.”
13. The hall had been used by the Assembly of Christian Brethern for worship, but this ceased in around 2003 when the congregation had been reduced to one person. The property was then marketed and a purchaser apparently secured. The transaction never concluded and the subjects were subsequently re-exposed to the market, at auction, when they were bought by the applicant. Two ladies who had previously wished to develop the hall as a children’s nursery have maintained their interest and are proposing to take a lease of the hall from the applicant when it has been fitted out to the standard they require. No specific attempt has been made to secure a religious use and apparently no such use emerged during the marketing period.
14. The use currently made of the hall lies within Class 10 of the Town and Country Planning (Use Classes) (Scotland) Order 1997. The full range of uses within Class 10, which is headed “ Non-residential institutions” is
(a) as a crèche, day nursery or day centre;
(b) for the provision of education;
(c) for the display of works of art (otherwise than for sale or hire);
(d) as a museum;
(e) as a public library or public reading room;
(f) as a public hall or exhibition hall; or
(g) for, or in connection with, public worship or religious instruction, or the social or recreational activities of a religious body.
Local Authority planning consent is not required for any change of use within the same class as defined in the relevant Use Classes Order. The proposed use as a day nursery will therefore not require planning permission.
15. The applicant focused his contentions on the removal of the use restriction contained in the condition, i.e. the restriction of the use of the hall to religious purposes, on the basis that current circumstances rendered the burden inapplicable. He reviewed the various factors set out in Section 100 of the Act and identified in particular factors (a) and (c). He maintained that, insofar as Factor (a) was concerned changes in the role of religion in the normal life of society had changed and it was no longer reasonable to restrict the use of the subjects to religious purposes. The burden impeded the enjoyment of the burdened property and unduly restricted the use of the subjects. Insofar as factor (b) was concerned he maintained that no benefit was conferred on the benefited proprietors and there would be no detriment to the benefited proprietors if the condition were not enforced. The burden was created over 80 years ago and it was no longer reasonable to impose it at the present time. In regard to purpose, factor (f), this would appear to be to promote religious activity and that to impose such a burden upon subsequent owners of the subjects was unreasonable. Finally the Applicant pointed out that the subjects have a Class 10 planning use which use embraced a broader range of uses than simply a religious one.
16. The respondent did not directly relate her objection to the factors set out in the 2003 Act. She relied on the terms of her written objection to the original application for a discharge, stating:
“… I … object to any plans to make use of the hall for any purpose which could be detrimental to my privacy or will incur additional noise pollution in the vicinity of my house, especially my back garden, which more or less backs on to the back of the said hall.
I therefore strongly object to any request to discharge the title conditions contained in the Feu Disposition affecting my property … ”
17. The applicant referred us to the case of Church of Scotland General Trustees v McLaren 2006 S.L.T. (Lands Tribunal) 27 in support of his application.
18. The circumstances of this case are quite straightforward. Is it reasonable to exercise the powers given to us under the 2003 Act to discharge the condition identified by the applicant in Clause First including the restriction of use of the subjects at 2 Hawthorn Walk to use for religious purposes? The applicant’s arguments clearly focused on the particular use restriction and the respondent’s concern were also clearly related to use. we will therefore initially look at this part of the condition before also considering if there are any issues in regard to the balance of the part of the clause referred to us. We are required to take account of the directions as laid down in Sections 98 and 100 of the Act. While we require to consider all of the individual factors set out in Section100, when reaching our conclusion we have to form an overall view of the reasonableness of the application. If the purpose of the condition can be identified, that is often important.
19. In this case we are not certain that factor (f), purpose, is of any particular influence. The wording in the Deed allows a hall to be built at the back of the ground disponed in “the first place”, now 85 Duke’s Road but states “to be used only for religious purposes”. It requires the hall to be built in a manner similar to the other 8 houses and lays down conditions on the building material to be used more or less identical to the conditions laid down for the houses. The effects of these conditions can be seen today as the houses and the hall are of similar style and construction. At its simplest the purpose might be considered to be to allow a church hall in contrast to the requirement for houses on the remainder of the land, but it goes further than that. The first part simply gives the Duke’s disponees an opportunity to build a hall, the use of the word “may” seeming persuasive of there being no compulsion. If proceeded with, however, the hall can only be used for religious purposes. We can find nothing to suggest that this was a positive obligation required by the Duke for the furtherance of religion in the area. Rather we think it is most likely to be a condition imposed for amenity purposes so that the use of the hall, if built, was confined to the originally intended use and was not unduly detrimental to the houses being feued at the same time. There are several other restrictions in the deed relating to amenity and exclusion of nuisance which are good indicators of a purpose of ongoing protection of amenity. We have concluded therefore that in regard to “purpose” we can safely consider it from the standpoint of amenity alone. However the terms of clause Fifth of the deed are much more broadly stated and are likely to have more effect in regard to the amenity issues than would arise under this use restriction. We therefore regard factor (f) as having no significant bearing on our decision as the purpose is more ably secured by the terms of Clause Fifth, which the applicant is not seeking to discharge.
20. We agree with the applicant that so far as factor (a) is concerned there has been a general change in circumstances in regard to the part played by religion in current society. Ample statistics exist of the decline in membership of the traditional religions in the country and there is evidence also of churches closing and congregations amalgamating. Further, in the case of this particular small church hall, the religious use has ceased for the understandable reason that there is no longer a congregation. Although the applicant has made no efforts to secure a religious use of the premises the property was available on the market for a period of up to 4 years and no demand emerged. The physical circumstances in the neighbourhood of the property may not have changed but there is no doubt in our mind that there has been a significant change in the circumstances surrounding the nature of religious worship in the country as a whole and at this locality. We accordingly find that factor (a) favours the applicant.
21. Factors (b) and (c) are important in the balance between the interests of the applicant and the respondent. We think little needs to be said in regard to the effect of the burden on the burdened property. It is quite clear to us that this is a significant burden on the use and value of the burdened subjects and that it impedes significantly enjoyment of the burdened property. It restricts the market considerably, to the degree of potentially rendering the burdened property unsaleable. Factor (c) is therefore very much in favour of the applicant.
22. By contrast we see the condition conveying little benefit to the benefited property. From a physical standpoint the hall is located round the corner from the respondent’s house and the garden of 87 forms a buffer between the 2 properties. At present there is a high fence around the garden of No. 87 which currently provides significant screening between the 2 properties although we acknowledge that neither the applicant nor the respondent has any control over it. The respondent’s house already looks on to a row of shops which includes a food take-away. There is parking directly opposite with a regular movement of vehicles to and from these commercial premises. Even at our inspection the footpath directly in front of the 8 houses was being used for short term parking while the occupants visited the shops. We also suspect that the public house in Hawthorn Way, north of Duke’s Road will be noisy at closing time. In short, we do not consider that removal of the title restriction to religious use, allowing a wider range of uses for the hall, will be likely to create any significant change to the nature of the locality surrounding the respondent’s property. The remaining title conditions would remain including significantly the terms of condition Fifth which include a prohibition of nuisance. It seems to us that prevention of nuisance is the respondent’s principal concern and the title would, on a variation only being granted, still contain measures of protection no less strong than if the hall was restricted to religious use. Removal of the use restriction from the title would not affect the town planning position. Any change of use would require the consent of the local authority unless it came within the terms of Class 10 of the Use Classes Order. The other uses within Class 10 are, we consider, unobjectionable having regard to the mixed nature of this locality. Given the juxtaposition of the burdened and the benefited properties we think the local authority is in the best position to properly regulate future use here. We accordingly find that the burden provides very little benefit to the benefited property.
23. We can deal with the remaining factors in Section 100 quite briefly. Factor (e), the age of the burden favours the applicant as it has been in existence for over 80 years although we do not regard age, by itself, as being of significant weight in this case in comparison with the other factors. We are satisfied that the property does have the benefit of the provisions of the Use Classes Order and that alternative uses are available under the town planning acts but are prohibited by virtue of the title restriction. Again, therefore factor (g) favours the applicant. The final condition which could be potentially relevant in this case is factor (j) which is the “catch-all” provision. In this case there are no further matters which we consider material. We can, for the sake of completeness, record that no offer of compensation has been made by the applicant nor has this been raised by the respondent. In the circumstances of this case we do not regard it as a relevant issue.
24. There are effectively three parts of the section of Clause First remaining, in addition to the use restriction, which the applicant seeks us to remove and which remain of potential relevance now ( the remaining part relating to construction when the restriction first imposed). The first relates to external alterations requiring the consent of the superior, a prohibition against any buildings other than the buildings specified at the granting of the original feu and finally the requirement that all ground not occupied by buildings and walls shall be laid out as shrubbery garden, grass or walks and kept in good order. The rights of the superior have been removed by the terms of the Feudal Reform Act 2000 and have become neighbour burdens, although there might be a doubt as to their exact application now. The applicant did not deal in any detail with this part of the clause and it was not referred to by the respondent, but we have considered whether in terms of section 100 and the factors stated therein it is reasonable to discharge the whole of the condition which is identified in the application
25. We are influenced by the physical circumstances in this case and in particular that the applicant’s property fronts Hawthorn Walk whereas the respondent’s house is in Duke’s Road. Furthermore there is an intervening house between the 2 feus which is fully enclosed by high fencing. The Local Authority Planning Department will require to consider any application for external alterations (certainly of any significance) and without doubt in regard to any proposed new buildings. They will also take account of any views of the neighbours adjoining in Hawthorn Walk so a wider range of views than would be the case under the title restriction will be considered by them. We are satisfied that it is reasonable that they should be the body principally responsible for such matters in the particular circumstances of this case where there is a degree of physical remoteness. In these circumstances we have concluded that the condition is of very little value to the respondent. By contrast it is an impediment to the applicant as he will require the consent of the neighbouring proprietors as well as the local authority.
26. The respondent is also protected by the terms of Clause Fifth which incorporates the nuisance provisions. Such a condition would be likely to cover the requirement for maintaining the grounds in good order. While the effect of these conditions on the applicant may not be so severe as the use restriction and this, of course, has been reflected in the approach adopted by both the applicant and the respondent to the arguments, we are satisfied that it is reasonable to grant a discharge to the applicant of the section of Clause First which he has requested.
27. Section 98 of the 2003 Act empowers us to grant an “application for the variation, discharge, renewal or preservation, of a title condition” if we are satisfied, having regard to the factors set out in Section 100 that it is reasonable to do so. We are fully satisfied that in this case it is reasonable to do so on the basis sought, i.e. removal of the restriction to religious use and the remaining parts of Clause First as identified in the application, leaving the remaining conditions intact.
28. We have considered the effect on both the applicant and the respondent of an order to remove this restriction. The effect on the applicant is to leave him in the same general position as the other former feuars at this location. He will no longer be restricted to religious use at the property but he will continue to be bound by the restrictions in clause (fifth) of the Disposition which prohibit what might be described as noxious trades and from the sale of excisable liquor. We think it reasonable that these should remain. We do not see them as a particular impediment on the burdened property having regard to both the nature of the building and the surrounding locality. They also benefit the respondent and the other original feuars. Irrespective of the use made of the property he will continue to be governed by the terms of the “anti-nuisance” clause. We also bear in mind that planning permission will be required for any uses outwith Class 10.
29. We accordingly grant the application by discharging the title condition as set out in paragraph 6 of this opinion.
30. We will leave for written submission the issue of expenses should either party wish to make application.
Decision issued: 6 September 2007.
Members: J N Wright, QC; K M Barclay, FRICS
Case Ref: LTS/TC/2006/57
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 September 2007
Neil M Tainsh
Clerk to the Tribunal