1. These are applications under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for renewal of the same title condition which had been the subject of a notice of termination under Section 20 of the Act (“Sunset Rule”). The condition is a real burden contained in an Instrument of Sasine dated 1838 and setting out feuing burdens on the title to a dwellinghouse with a rear garden. The burden prohibited building in the garden. The house is now divided into flats with 4 separate owners. The ground, first and second floor proprietors are admittedly benefited proprietors entitled (subject to the proposed termination) to rely on the burden. The basement proprietor owns the garden ground and is the burdened proprietor. There is no specific development proposal before the Tribunal.
2. The Tribunal has decided on all the evidence and submissions to refuse the applications. The applicants have failed to satisfy us in accordance with the statutory test that it is reasonable to renew the burden.
3. The burden is contained in an Instrument of Sasine in favour of John Watson dated 8 August 1838 and recorded in the Particular Register of Sasines for Edinburgh etc on 11 August 1838, and is in the following terms:-
“ … providing and declaring always as it is by the original Feu Charter of the said area expressly provided and declared that the said dwellinghouse shall continue of the same height with those already built on the same side of Forth Street with a platform roof in like manner with the said other houses and that the said John Watson and his foresaids shall not erect and they are hereby expressly limited and restricted from erecting any buildings behind the said dwellinghouse other than the walls of enclosure … ”
4. The respondents Richard Maxwell Gaunt and Barbara Doris Gaunt, as partners and trustees of Richard Gerald Associates, are owners of a basement flat at 10A Forth Street, Edinburgh. They duly executed and intimated a notice of termination of the burden. The applicants, the Council for Music in Hospitals, Thomas Ian Walker and Mandy Watt are owners of the ground, first and second floors, respectively, of No.10 Forth Street, Edinburgh. 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 … ”
The applications were intimated to certain proprietors at No.8 Forth Street but no representations were received from any of them.
5. The aspect of the burden which concerns the respondents is the section relating to the erection of buildings behind the dwellinghouse, although the notice of termination may, at least theoretically, be slightly wider in its effect. The respondents accepted that the applicants were owners of benefited property and that, subject to the proposed termination, the burden was valid and enforceable by each of the applicants even though there has been subdivision of the original subjects. The question whether the burden 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. The applicants, although benefited proprietors, require to satisfy the Tribunal that it is reasonable to renew the burden. The respondents did not produce or rely on any specific plans for development. Parties were agreed that certain references in the written pleadings to implied servitudes were not relevant. No compensation was offered by the respondents or requested by the applicants.
6. The applications were heard together at an oral hearing on 26 and 27 November 2007. The applicants were not legally represented. Ms Watt presented the case on behalf of all the applicants and called Mr Walker, the proprietor of the first floor property, as a witness. The respondents were represented by Mr S. O’Rourke, advocate, instructed by Messrs Morton Fraser, Solicitors, Edinburgh. No oral evidence was led for the respondents. The Tribunal had the benefit of various productions and the parties presented a joint statement of agreed basic facts and propositions. An informal, external inspection of the subjects and the surrounding area was carried out by the Tribunal prior to the hearing and a formal inspection with representatives of the parties took place on 3 December 2007.
Ord v Mashford 2006 SLT (Lands Tr) 15
David Brown & Another v Mark Richardson and Another LTS/TC/2006/41, 8 May 2007
George Wimpey East Scotland Ltd v Fleming and Others 2006 SLT (Lands) Tr 2
Gretton & Reid, Conveyancing (3rd edition)
Halliday, Conveyancing Law & Practice (2nd edition)
The Scottish Law Commission Report on Real Burdens (No. 181)
Stair Memorial Encyclopaedia
Cusine & Paisley, Servitudes and Rights of Way
7. Subject to some variation on matters of degree there was no real dispute between the parties about the facts which the Tribunal has found to be as follows:-
8. No.10 Forth Street was built, apparently around 1835, as an end terraced Georgian villa and is typical of many similar dwellings in Edinburgh’s New Town. It forms part of a terrace of four houses built on an area of land lying to the north of Forth Street and with a frontage extending to about 100 feet which was feud by James Jollie as Superior to Alexander Fowler, a builder. In due course four dwellings, Nos. 4, 6, 8 and 10 Forth Street were built, each with a frontage of about 25 feet and a plot depth of 110 feet. Hart Street, immediately to the east, runs northwards from Forth Street with 12 Forth Street being the end terraced property on the opposite side of Hart Street.
9. The original design and layout of the terrace is still clear and largely unaltered with uniform dressed ashlar stonework on the front elevation. However, the roof design of numbers 6, 8 and 10 has been altered. The original pitched front roof slope has been replaced with addition walling, with windows, built above the original line of the wall head parapet so that additional accommodation has been created at second floor level within the enlarged roof, the ridge line of which is unaltered. This change to the original design affecting all 3 properties appears to have been carried out many years ago as a single alteration. In contrast to the roof design of numbers 6, 8 and 10, number 4 Forth Street has two dormer windows on the front roof slope. Other alterations include the formation of a “Georgian” ground level shop front to number 4 and the entrance doorway to number 6 has been split to form two separate accesses.
10. No.10A, which is owned by the respondents, is a basement flat with its own access from Forth Street. The internal stair, which originally gave access from the ground floor hallway, has been sealed off. This property also includes all of the original rear garden of the whole house, subject to certain necessary access rights of the upper floor proprietors. To the rear of the flat there is a conservatory which was built in the early 1990s beyond which is the rear garden which has an overall depth from the rear elevation of about 65 feet (19.8m) and width of about 25 feet (7.6m). The rear garden is surrounded by the original stone walls which are about six feet in height. Half way down the garden, and extending across it, there is a close panelled timber fence about 5 feet high. There is no indication that there has ever been any other building in the garden.
11. The ground floor accommodation of No.10 Forth Street, which is accessed from the common ground floor hallway, is owned and occupied by The Council for Music in Hospitals and used as their offices. The layout of their rooms appears largely unchanged from the original design and many period features are still present. There are two rear offices each with a window which has a view overlooking the rear garden ground towards the gable end of the 3 storey plus basement Hart Street buildings. The eastmost window, having apparently been extended at some date in the past, is some 0.7m higher, affording additional daylighting to that room.
12. Ian Walker, trading as Tomian Jewellers, owns and occupies the first floor accommodation which is accessed from the shared first floor landing. His principal front rooms are a secure store room and a reception room, which is accessible to his customers and other visitors. To the rear is a large room used as a “workshop” where Mr Walker carries out repairs to clocks and other timepieces. This large rear room has a window which like the window below at the ground floor is unusually high (some 0.3m higher than is typical), apparently having been extended at some stage. Having regard to the nature of Mr Walker’s business, the natural light in this room is of considerable benefit to him.
13. From the first floor landing a somewhat steep and narrow stair leads up to the second floor flat. It has been modernised with two bedrooms, a living area, kitchenette and bathroom and has windows to the front, rear and side elevations. The two rear windows have fine views to the north over the Edinburgh townscape.
14. The alteration of the house in order to form separate flats is minimal. Most of the rooms at ground and first floor levels have doorways which give access to the hall or landing and these doors which are still present but unused are locked for security reasons.
15. Whilst the present configuration is of residential flats on basement and second floor levels with office or business use on ground and first floors, this has not always been the case. In the past, particularly during the 1960s and 1970s and possibly before, there had been multiple occupancy of the building, virtually on a room by room basis, often with transient individuals or small traders occupying the accommodation, apparently on a rented basis. In the late 1960s, Mr Walker’s father had originally rented rooms within the building which, at least then, were in a somewhat poor condition. During the 1960s and 70s the basement flat and garden ground were used as a builder’s yard and it was not until the 1980s that the basement was restored to residential use. Multiple occupancy of buildings by small businesses, often on a short term basis, had been a feature of property use in Forth Street over many years.
16. The adjoining property to the west, No.8 Forth Street, comprises four residential flats with, at basement level, a rear garden surrounded by the original stone walls. A conservatory has been built to the rear of the basement flat.
17. No.6 Forth Street is also now in residential use although for some time part of the property was used as a travel agent’s office and part as an employment agency office. These uses ceased about 3 years ago when the building became entirely residential. At basement level there is a rear garden (with a shed) surrounded by the original stone walls.
18. There is some uncertainty over the occupational uses of 4 Forth Street. The ground floor, which has a period shop frontage, is in office use and the first and second floors are understood to be residential flats. To the rear and linked to 4 Forth Street is a substantial two storey stone and slated building dating from the 19th century. It is now used as offices which have pedestrian access from Hart Street Lane which lies to the north of the gardens of 4-10 Forth Street. It is understood that this building had originally been used for various ecclesiastical purposes including a monastery. It was converted to a studio about 1970 and subsequently converted to offices. The former studio building has a stone built extension constructed towards the rear of 4 Forth Street. Although of considerable age this extension may not be original and its walls appear to have been modified at least at some stage in the past. There is a more modern link, probably built in the 1950s, between the rear of number 4 Forth Street and the extension to the former studio building. The former studio and its extension appear to have been built within the rear garden of 4 Forth Street and after the original garden boundary walls were built. The external east wall of the former studio building has been constructed against the west face of the garden wall between 4 and 6 Forth Street. Also, the height of the garden wall has been lowered around the ground floor windows though precisely when this alteration was done is unclear.
19. To the north west of Hart Street Lane are the undeveloped and attractive rear gardens of the Hart Street and Broughton Street basement flats. Hart Street, which runs northwards from Forth Street, has residential tenement flats on both sides of the street, with the exception of No.3 Hart Street. This is a modern 2 storey house, partly with stone walls and partly metal clad, which has recently been built to the rear of 12 Forth Street on a site that essentially “parallels” the rear garden of 10A Forth Street. However, the Steel House, as it is known, was erected on a site with buildings which had in the past been used for stables and subsequently as a workshop.
20. The frontages of the buildings on the north side of Forth Street are substantially unchanged since they were erected in the 19th century but there are significant rear extensions to 16 and 24 Forth Street which appear to date from the inter-war years, and there is extensive car parking to the rear of 18, 20 and 22.
21. On the south side of Forth Street the original frontages give a largely uniform impression though there are a number of period shop fronts towards the junction of Forth Street with Broughton Street. The commercial users of the buildings in Forth Street are mainly offices but there are also small retailers, a restaurant, a hotel and, at Nos. 13/17, Radio Forth’s broadcasting centre. Some of the buildings are in mixed office and residential use and whilst in the past commercial uses dominated, there is an increasing trend towards residential occupation. Broughton Street Lane runs parallel to Forth Street with access through a pend from Broughton Street. Ground to the rear of the buildings on the south side of Forth Street has largely been developed with car parking, accessed from the lane, or with office extensions some of which link through from the Forth Street properties to Broughton Street Lane. To the rear of the Radio Forth building, and attached to it, there is a very large office building with a frontage to Broughton Street Lane and which links through to 13/17 Forth Street.
22. Similar burdens are stated, in very similar terms, in Instruments of Sasine of slightly later dates, in relation to No.8 (1842) and No.6 (1845), but in the title to No.4 Forth Street (1847), the burden is stated as follows:-
“ … providing always as it is by the original Feu Charter expressly provided and declared that the said dwelling house shall continue of the same height with those already built on the same side of Forth Street with an M roof in like manner with the said other houses and that the said deceased … shall not erect …. any additional buildings behind the said dwelling house other than the walls of the enclosure … ”
The word “additional” is not present in the titles of 6, 8 or 10. (The “deceased” appears to have been the original feuar, the burdens having originally been set out in the prior Feu Charter). No evidence was provided that the superior’s consent had been sought and obtained for any recent alterations. Nor was there any evidence of the superior’s identity, or existence, in the years prior to the abolition of feudal tenure.
23. The granter of the feu charter at 12 Forth Street (and therefore the then superior) was not, as in relation to Nos. 4 to 10, James Jollie, and whilst there is a restriction on building in the rear garden this is limited to a prohibition against building “above the level of the soles of the Parlour windows of the North side of Forth Street”.
24. No.10 Forth Street lies within the New Town Conservation Area. Planning consent for the conversion of part of the rear garden to parking for two vehicles was sought in 1984 but refused on the basis that inter alia removal of part of the boundary wall would adversely affect the character of the “B” listed building and would be detrimental to the amenity of the conservation area. This refusal was consistent with refusal of an earlier planning application in 1979 for a larger car park in the rear garden. That refusal was upheld on appeal to the Secretary of State. In 2004, architects acting on behalf of the respondents approached the planners for views on use of the garden site for residential development. They indicated a wish to construct a single dwellinghouse, either 2 or 1½ storeys high. This elicited a reply indicating that the principle of erecting a structure within this garden was unacceptable as conflicting with the spatial character of the conservation area, the area to the rear of the building being traditionally garden ground providing amenity and space for residents.
25. Ms Watt explained and elaborated upon the applicants’ written submissions. After noting that the burden was valid and enforceable and that they had the benefit of it, and that the nature and timing of the proposed development had not been specified, they submitted, under reference to the factors listed in section 100 of the Act, as follows, in summary:-
(a) Neither the character of the burdened land nor the neighbourhood had changed so as to prevent the relevant part of the burden from operating in the way originally intended. The advent of general planning control was not a relevant change. The gardens of Nos. 6, 8 and 10 Forth Street were similarly burdened. There was mutuality. The erection of the conservatory and shed buildings, possibly not ‘buildings’ and anyway not compromising the amenity, were not relevant changes. The feuing conditions in relation to No.4 Forth Street and No.3 Hart Street, the latter being in the quite separate Picardy lands, were different and in any event had been complied with. There was no evidence that other properties on the north side, or any properties on the south side, of the street were ever subject to such title conditions. While it was relevant to consider changes in the general area, this should receive considerably less weight, and changes of use were not relevant in an issue as to a building restriction. There had not been such sub-division of the house as to fundamentally alter its character. The building restriction remained valid as part of a common scheme. Even if the changes of use were relevant, a return to residential use at the subjects was perfectly possible, and the building, if in common ownership, could easily be restored as a single dwellinghouse: the subjects remained part of the terrace of dwellinghouses. The general prohibition against building had been adhered to. It was not necessary under the 2003 Act to establish that the burden had been continued in effect.
(b) There was substantial benefit from the burden preventing the erection of buildings on the rear ground. This would give an element of control where there was uncertainty over development plans. The burden protected the open prospect, space and light, and there was also at least some question about access. The benefited property had been altered so as to have unusually large windows to the east side of the rear, to gain natural light. That alteration may have been made by the first proprietor or his son, each artists. Mr Walker, the current proprietor, had a similar interest. If a separate house were built, the applicants would not have the benefit of the provisions of the Tenements (Scotland) Act 2004, Section 9. The existence of the ‘Steel House’ and the extension to No.16, suggested the possibility that planning consent (for one of a number of possible uses in a ‘mixed use’ area) for building above basement level might be granted.
(c) In the absence of any firm development plans, it should not be assumed that the benefit of development would outweigh the benefit of preserving the burden. Nor should it be assumed that the respondents would succeed in obtaining planning consent. They could in any event apply for variation to permit particular proposals. The burden must have been accepted as part of the terms of the respondents’ purchase, the garden being bought at a price reflecting the existence of the burden.
(e) This was not the type of old burden which had become irrelevant. Some burdens might still serve a useful purpose and there was no reason why they should not be allowed to survive: Ord v Mashford; Brown v Richardson; and S.L.C. Report, para 5.21(c). The respondents were not claiming that the passage of time as such had rendered the burden obsolete.
(f) The purpose of the burden was to protect the amenity of the benefited property by preventing any buildings being erected on the ground behind it. There was nothing to suggest a public purpose. It was accepted that it might be to protect the superior’s investment. It was about private interests.
(g) There were no consents or deemed consents, and there was an indication that the planners would oppose the erection of a building.
26. Introducing the respondents’ submissions, Mr O’Rourke referred to the onus on the applicants to satisfy the Tribunal that it was reasonable to renew the burden, and suggested that their position was at points speculative. He too explained and elaborated upon previous written submissions, under reference to the section 100 factors, in summary as follows:-
(f) It was appropriate to consider first the purpose of the title condition. This had not been specifically stated, and was for the applicants to establish. It could not be inferred from its terms that the purpose of the building prohibition had to do with light or the open prospect: there was nothing to prevent the planting of trees or to limit the height of walls. It was better to say that it protected general amenity (including light). There was no specific prevention from interfering with light. Of the two possible ‘real’ purposes, protection of the interests of the superior was more likely than mutuality, which had not been created at the time. If there had still been dwellinghouses at Nos. 4 to 10, there might have been a ‘common scheme’ under the 2003 Act. The property at No.10 had been the burdened property. The purpose of protecting the superior’s interest no longer had any effect.
(e) 169 years was considerably longer than the ‘sunset’ threshold. Passage of time itself was not necessarily relevant, but, taken together with consideration of the purpose and also with changes of circumstances, might be and in the present case was.
(a) There were relevant changes in the character of the benefited property, in that the presently benefited property had previously been burdened; the contention that it had reverted to residential use was incorrect; the divided occupation, over a substantial period of time, was a significant further departure from the original position; accepting that changes in use might be of more limited importance, they were of some relevance where the starting point was amenity. The character of the burdened property, i.e. the basement and garden, had also changed to some limited degree, through the development of the conservatory in the garden, apparently a breach of the condition acquiesced in, and the 1990 planning permission for access. There had been significant change in the overall character of properties in the neighbourhood. While Nos. 4 to 10 comprised the most significant area, consideration of other development behind the properties was also relevant. There was likely to have been at least some further building behind No. 4 since 1838, contrary to the terms of the condition. The nature of the whole area had become a mix of commercial and residential.
(b) It was accepted that the extent of benefit to the benefited proprietors was a significant factor, and there was a general amenity benefit, as in many cases. In relation to light, the burden could not be taken as guaranteeing either views or the ingress of light. In any event, any likely development would have limited, if any, effect: the ground and first floors were not residential, and the impact of any development on the light of the top floor negligible. There was no formal negative servitude. The right of access did not extend to any right to use the ground, e.g. as a drying green.
(c) While there was no specific identified use being impeded, the opportunity to seek to develop and profit from ownership of the land was relevant.
(g) It was accepted that there was no planning consent and it might be hard to obtain. This factor was of limited relevance. While a grant of consent might tend to support lifting a title condition, a restricted prospect of consent was also relevant. The applicants could take comfort from the fact that they would be protected by the planning regime, and they would have their right to comment or object. It was impossible to say to what extent other consents had been influenced by the presence of existing buildings. Evidence about the respondents’ previous proposals and any discussions was not relevant.
(j) It was relevant that there had been no opposition to the termination from, e.g. the owners at No.8 Forth Street.
Mr O’Rourke accepted that the Tribunal could refuse the application, or could allow it in part, i.e. vary the burden by specifying matters such as proximity or height, but there was no specific evidence on such matters. Finally, he submitted that Brown v Richardsonwas distinguishable on its facts, because in that case, while there had been some change, the Tribunal had found that the character of the neighbourhood had not changed significantly.
27. Applications under this particular jurisdiction of the Tribunal – to renew burdens in respect of which the burdened proprietor has followed through the process of giving notice to terminate under the ‘Sunset Rule’ (Section 20 of the Act) – may arise in the context of particular proposals by the burdened proprietor which would require the burden to be lifted or relaxed. In such cases, of which Brown v Richardsonis an example, two issues may arise: firstly, whether the burden should be kept in existence; and secondly, if so, whether the Tribunal should exercise its jurisdiction to vary the burden so as to permit the proposed development. In the present case, however, while it is clear that the burdened proprietors, the respondents in this application, have given some consideration to the possibility of building a house on this ground, no particular proposal is before us and the question is only the more general one whether to keep the burden in existence. If the application is granted and the burden ‘renewed’, it would of course be open to the respondents, at such time as they had a definite proposal, to seek agreement for its relaxation or waiver, or make their own application under the Tribunal’s ordinary jurisdiction, under section 90(1)(a).
28. We have to consider the same general issue of reasonableness, under section 98 of the Act, and to have regard to the same list of factors, in section 100, as under our ordinary jurisdiction, but the onus is reversed. The benefited proprietors have to persuade us that it is reasonable to renew the burden. Onus is often not of great importance, and may not in the end of the day be important in this case, but it does mean that to the extent that questions about the original purpose, and the history of the operation, of the burden arise, there is at least an initial onus on the benefited proprietors to shed light on the matter. It seems consistent with the general scheme of the legislation that while older burdens may well be shown to have continuing current usefulness making it reasonable to renew them, if there is some obscurity about their original purpose and their operation over the years, the task of upholding them might be harder.
29. This burden is a building, not a use, restriction. The respondents agree that it had an amenity purpose. It would seem to follow that changes in the use of buildings round about are really of no relevance except in so far as they may have altered the amenity in question. If, as we think the applicants have shown, the amenity in question is the amenity to the rear of Nos. 4 to 10 Forth Street, which can be seen as one building development, we should ignore, or at least give very little weight to, changes in the occupation and use of other buildings in Forth Street.
30. We take a different view, however, about what we see as major changes in the character of the ownership and occupation of No.10 Forth Street itself. It was originally, like Nos. 4, 6 and 8, a single dwellinghouse in one ownership. We have actually heard almost nothing about its history between the 1840s and the 1930s (at the earliest), but we did learn about not one, but two, general changes thereafter in relation to the ownership and the occupation of the building. Firstly, it went through a phase of ‘multi-occupation’, i.e. rooms were let out and occupied separately, usually by individuals or small traders. Subsequently, ownership was divided into four: the house, if indeed it had retained that character, became four houses or flats. The proprietors of the upper floors, who had been burdened by this building restriction, became benefited by it when they ceased to be owners of the garden ground. It is of course accepted that, subject to the present termination issue, the applicants do have the legal benefit of this title condition. There was no prohibition of either sub-letting or division and no restriction of use to residential, and it is not argued that, as a matter of law, either of these phases of change amounted to such a departure from the feuing plan as to deprive the superior of entitlement to enforce them. We do wonder slightly whether, if the full position were established, and if there was similar phases of ‘multi-occupation’ at Nos. 4, 6 and 8, as seems to have been the pattern in this street for a considerable period of time, such an argument might have been possible. At all events, we consider these changes in the character of No 10 relevant to the issue of reasonableness.
31. We turn to consider the factors listed in section 100 for their bearing on the reasonableness of the application to renew. It does often help to consider the purpose of the condition (factor (f)) first. It seems clear enough that there was a purpose of protecting the amenity of this house and possibly the other houses, Nos. 4, 6 and 8 having the same superior. We agree with the respondents that the amenity to be protected was general, including the open outlook, but there was no specific protection of light. The applicants argue that the purpose was to protect the amenity of the benefited property, by which they appear to mean the present benefited property, but that cannot be right. The proprietors of 10 Forth Street, then a single dwellinghouse, were burdened not benefited. There was no discernible or, in our view, likely purpose of protecting proprietors of parts of the house against proprietors of other parts, although the eventual splitting of ownership produced that result. We have not heard argument as to whether there was a ius quaesitum tertio in favour of the proprietors of Nos. 4, 6 and 8, although it seems unlikely that the tests for implication of that would be met. It seems far more likely that the interest to be protected was that of the superior. It is not clear whether the superior had an interest in more building land in the vicinity, and there is no indication that he was an estate owner as opposed to an investor in land. Nor is the order, or indeed the date or dates, of building the houses absolutely clear (although they appear to have been built together notwithstanding the different dates of the instruments of sasine). It is, however, readily understandable that building to the rear of these houses might be thought to threaten the superior’s security. There may also simply have been a more general retention by the superior of control over development in the area, private planning control in the absence of public control, as was common in the nineteenth century.
32. We would add that in our view the indication that early owners of the whole house were artists, together with the apparent enlargement at some time of two windows, does nothing to indicate any additional particular purpose of protecting light. This is reinforced by consideration of the similar expression of building restrictions in the title of each of the three adjoining houses.
32. Factor (a) refers to changes in circumstances, including any changes in the character of the benefited or burdened properties or of the neighbourhood. The changes at No. 10, to which we have referred, concerned both the benefited and the burdened properties. The benefited properties neither existed nor were benefited at all when the burden was created. It is not just that benefited property was divided, thus multiplying the number of benefited properties: it is the burdened property which was divided. This does seem to us to be significant although we accept that the extent of physical change within No 10 is very limited. The limited extent of physical change does make it possible to visualize the house in its form as a single dwellinghouse, but it is simply not that any longer. We accept that it could in theory be restored to single ownership, but that seems unlikely. Proprietors who could never have been envisaged when the burden was created became (as the respondents accepted) benefited. In the absence of any objection from any other proprietors, the only persons seeking to keep this burden in existence are proprietors of properties which did not exist when the burden was created. The period of multiple occupation, although now replaced by the split into separately owned flats, seems to us to reinforce the degree of change. Things have moved on, not once but twice, since a single terraced dwellinghouse was conveyed subject to the creation of this burden. We accept that these changes do not make the burden inoperable, but we would characterize them, in the context of consideration of this burden, as changes in the character of both the benefited and the burdened properties and in any event changes which are material to the issue of the reasonableness of maintaining it. We do, however, accept that this is only one factor.
34. There are also some physical changes to be considered. The building of the conservatory at the subjects, which would seem to us clearly to be a ‘building’ and therefore contrary to the terms of the burden, is of itself of limited significance, although it does appear to indicate some form of agreement to depart from the burden. As we have indicated, we think it reasonable to regard the rear of Nos. 4 to 10 as the ‘neighbourhood’. We should therefore consider the relevance of the very substantial building to the rear of No.4. It seems likely from what we were told about the building, from our examination, and from the reference in the corresponding Instrument of Sasine for No.4 to ‘additional’ building, that there was a building there before Nos. 4 to 10 were built (albeit that that title was some 9 years later than the title of No.10), but also that that building has been extended since 1838. There is also a conservatory at No.8 and a shed at No.6, both also additions. None of these changes, including the additional building at No.4 even though that may have been quite substantial, may be of great significance individually, but taken together they do suggest that the burdens may not have had much actual application and enforcement. The alterations to the roof designs were in line with the provisions in the burden regarding that, but there is a picture of limited development to the rear of each of the four properties which were made subject to similar burdens prohibiting building.
35. As far as the wider locality of Forth Street is concerned, there have, firstly, been some extensions and new building behind No.12 and the other buildings to the east on the north side of Forth Street. The most striking is perhaps the ‘Steel House’, on the corresponding plot on the east side of Hart Street, although that replaced an earlier stables building. There are substantial extensions to the rear of Nos. 16 and 24. The applicants point out that these properties were apparently never part of the same title, and indeed might not have been departures from the terms of any burdens, and Mr O’Rourke accepted that they were of much less significance. They seem to us to add slightly to a picture of increasing building development to the rear of the houses on the north side of this street, although of considerably less significance than the position at Nos. 4 to 10. The position to the rear of the south side of Forth Street, where there is again a certain amount of building, notably the large offices which form part of Forth FM’s establishment, seems to us to be of no real relevance, partly because it is further away and partly because there was always a clear separate rear lane, with building of its own, on that side of Forth Street.
36. The respondents also relied on the degree of commercial intrusion in the vicinity. That has obviously produced a degree of change in the street itself, but we do not think that that it has had any real effect on the amenity protected by the burden. That said, the fact that two of the flats at the property itself are not, or at least not currently, residential, does not help the applicants’ attempt to show that there has been no significant change.
37. The burden does clearly confer some benefit on each of the upper floor proprietors (factor (b)). Although subject to this tribunal’s jurisdiction to discharge or vary, it gives them a say extending to a right of veto over any proposed building in the rear garden. The extent of this is limited somewhat by consideration of the planning position, which clearly provides these owners with a degree of protection. On the evidence, the planners have indicated to the respondents that consent would not be forthcoming for the erection of a house, it being explained that there is the significant difference between this site and the site of the ‘Steel House’ that the latter had an existing building and no doubt the state of that was such that new development would be seen as improvement. Clearly also, the higher any proposed building was, the greater the protection which might be expected from the planners. It seemed to us that if any building at all were allowed, it would be unlikely to be of such a height as to seriously jeopardize the outlook from the benefited properties. The applicants of course can counter that planning policies may and do change – there is plenty of evidence of that in this area! That perhaps helps to focus the issue as being whether it is reasonable to allow the applicants to keep this burden created in such different circumstances or to leave the issue of use of this land to depend on current public planning considerations.
38. Consideration of factor (c), the extent to which the condition impedes enjoyment of the burdened property, is, in a case like this, something of a mirror image of (b). This is an impediment which requires the owners of the basement property to negotiate – again subject to the jurisdiction of this Tribunal – with all three of the upstairs proprietors. Again, however, to the extent that the planning prospects are limited, this impediment is reduced. Nevertheless, at a location such as this, where one might envisage possible planning consideration of a whole variety of potential uses, subject of course to the consideration which planners give to the interests of neighbours, we can well see the respondents’ interest in being able to pass a title freed of this burden. We do consider this to be factor of some weight in the issue of reasonableness.
39. Factor (d) has no application, this not being a positive obligation. In relation to factor (e), the age of the burden, the applicants correctly submitted that this does not of itself render the burden obsolete. Despite the ‘Sunset Rule’, the fact that the burden is over 100 years old does not, apart from the change of onus, necessarily add to the applicants’ task. Consideration of the purpose of the burden, along with the extent of change, is more important. In this case, we do consider that the lapse of 170 years adds at least a little, in a general way, to consideration of these factors. This burden was entered into in very different times. An impression which the applicants have been unable to dispel is that for a very long time it has had no real life.
40. We have already considered (f). As to (g), whether there is planning or other necessary public consent, the applicants of course point to the lack of such, and indeed to the indication given to the respondents that they may not get consent for a house on this ground, but we think that this factor is really neutral in this case. In the same way as the existence of consent may not assist burdened proprietors very much in an application to vary or discharge a burden which is clearly of a private type, so its absence, where there is no particular proposal before the Tribunal and the application is much more broadly based, is of little if any weight. The issue is not whether a particular proposal is reasonable, but rather whether this burden can reasonably be said to have any continuing usefulness at all.
41. In relation to factor (j), any other factor which we consider material, Mr O’Rourke draws attention to the lack of opposition from proprietors at No.8 Forth Street, to whom intimation of the application was made. We agree that this could slightly favour the respondents, particularly as this is the nearest property whose owners might point to any purpose of protecting their amenity, but in the absence of any evidence at all about their position or reasons for not opposing, we think it would be wrong to attach any weight to this.
42. We note that neither side has sought to address the lack of any evidence of any presence, or even the existence, in more recent times, of the superior, at any time since this burden was created. We shall therefore not give any consideration, or any weight either way, to that.
43. Drawing these various considerations together, we are not satisfied that it is reasonable to grant this application. In our view the picture in this case is of a burden whose continued operation in the very changed circumstances at the property itself, for the benefit of proprietors whose amenity it was not intended to protect, after such a long period of time, is hard to justify. We fully recognise that it is of some present benefit to the upper floor proprietors, and we bear in mind the evident statutory intention within the Act of giving the benefit of burdens previously enforceable by superiors to co-proprietors who usually have much better claims of legitimate interest, but that is of course subject to our jurisdiction. This condition is burdensome on the respondents as owners of the basement, to the extent that they must, if they contemplate building, negotiate with all the upper floor proprietors, with the possibility of having to apply to the Tribunal, or alternatively offer for sale a title subject to this condition. There has been some building on the ground, as well as to the rear of each of the other properties which (although this matter was not argued out) might be seen as having made up a common scheme. The benefited proprietors have their rights to object to any application for planning consent. In all the circumstances of this case, we do not consider it is reasonable for them to retain the additional private right conferred by this burden.
44. In Brown v Richardson, the Tribunal decided, on the general issue, that a building restriction in a feu charter of 1888 should be kept in existence, although we went on to vary it so as to permit an extension proposed by the burdened proprietors. Each case requires to be considered it on its own facts and circumstances, but we would point out that the situation in relation to changes of circumstances in that case was very different. There was no suggestion of any change in the character of either the benefited or the burdened property. We were impressed by the lack of change in that case, the houses and gardens having retained very much their intended character. The degree of change to the rear of the houses was also significantly less.
45. For these reasons, we refuse the applications to renew this burden. We are accordingly required to discharge it.
46. In the event of any application for expenses, we would propose to deal with that on the basis of written submissions in accordance with our usual practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 5 February 2008
Neil M Tainsh – Clerk to the Tribunal