1. This is an application for variation or discharge of a title condition which is an ongoing building restriction contained in a Feu Contract of 1933 under the terms of which a number of bungalows including the subjects of appeal were developed. The applicants wish to extend the bungalow at both ground and roof level, and have planning consent for their proposals. The respondent is an immediate neighbouring proprietor who is admittedly entitled to enforce the condition. He is opposed to the roof level element of the extension.
2. Applying the relevant statutory tests, the Tribunal has decided to vary the condition so as to permit the applicants’ proposed development; and to refuse the respondent’s claim for compensation.
3. A Feu Contract (including Feu Disposition) between A. Trotter and Trustees for the firm of Hepburn Bros recorded in the Division of the General Register of Sasines for the County of Edinburgh on 14 August 1933 (“the Feu Contract”) disponed seven pieces of ground with provisions relating to the building of some 71 dwellinghouses thereon. The Feu Contract provided inter alia as follows:-
“Declaring that the said dwellinghouses and offices to be erected upon the seven pieces of ground hereby disponed shall not be altered externally after the original erection thereof nor shall any buildings other than the dwellinghouses and offices before mentioned be put upon the ground without the written consent or approval of the Superior” (“the condition”).
4. The applicants Mark Gallacher and Mrs Trudi Elizabeth Strachan or Gallacher are joint owners of a house and garden at 28 Greenbank Grove, Edinburgh. They applied under both Section 90(1)(a)(i) and 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) for discharge or variation of the condition and also a determination as to its enforceability. The respondent George Robert Wood owns the house and garden at 30 Greenbank Grove. He opposed the application and asserted his entitlement under Section 53 of the Act to enforce the condition. At the hearing the applicants accepted the respondent’s claim of entitlement to enforce. They also limited the application to one to vary the condition so as to permit the specific proposed development for which they had obtained planning consent. The respondent had consistently indicated that he was not opposed to all aspects of the applicants’ proposals and that it was the roof level element involving extension beyond the original footprint of the building which he opposed.
5. Section 98 of the Act provided that such an application for discharge or variation “shall … be granted by the Lands Tribunal 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.” Section 100 lists the factors mentioned in Section 98.
6. The respondent alternatively claimed compensation under the provisions of Section 90(6) and (7) of the Act, under which the Tribunal may order payment of “such sum as the Lands Tribunal may think it just to award” in respect of “any substantial loss or disadvantage suffered” by “the owner, as owner of the benefited property”.
7. The applicants were represented at the hearing by Ms Locke, Advocate, instructed by Messrs Mowat Hall Dick, Solicitors, Edinburgh, who called Mr Gallacher and Nigel Hugh Mackay, LLB, WS, the applicants’ solicitor, to give evidence. The respondent was represented by Mr Nicoll, Advocate, who called the respondent to give evidence Both sides lodged productions, which were agreed to be what they bore to be and, with the exception of some of the content of an affidavit by the applicants’ architect, largely not contentious in so far as material to the dispute. The hearing of evidence and submissions lasted two full days and we must record our view that it was significantly longer than should have been necessary because of the slow and repetitive nature of the presentation on behalf of the respondent. The Tribunal carried out an accompanied site inspection.
Bachoo v George Wimpey 1977 SLT (Lands Tr) 2
Gilbert v Spoor [1983] 1 Ch. 27 (C.A.)
Cameron v Stirling 1988 SLT (Lands Tr) 18
Anderson v Trotter 1998 SC 925 (2 Div.)
Faeley v Clark, LTS/TC/2005/30, 28 June 2006
8. There was generally little real dispute about the facts, although there were some differences in emphasis, as is to be expected in such cases. The Tribunal have found the facts to be as follows:-
9. The applicants’ house at 28 Greenbank Grove is a bungalow built around 1933 and purchased by them in around 1997. At present, it has a lounge, livingroom, kitchen, two bedrooms and a bathroom downstairs and no upper level accommodation. The accommodation is basically as originally built, is modest in scale and requires modernisation. The house is on the south side of Greenbank Grove and has a relatively large garden with a very attractive southerly outlook featuring a view towards the Pentland Hills, albeit that at ground floor level that view is to some extent restricted by trees and also the roofs of houses in the next street, Greenbank Row. Towards the rear of the house, on its east side and between it and the boundary with the respondent’s house, there is a single garage which protrudes slightly into the rear garden.
10. The respondent is the applicants’ immediate neighbour on the east side, separated by a mutual fence, hedge and shrubs. His house at No. 30 is a bungalow originally of similar proportions and layout but now with a degree of extension. He purchased in around 1987, by which time there were already (as is common in the area) dormer windows to the front and rear of the roof, creating upstairs accommodation comprising two small bedrooms and a bathroom. There had also been a small brick extension on the west side, in order to enlarge the downstairs bathroom. In the mid-1990s, the respondent added a basically flat-roofed conservatory extension, with all round glass windows, integrated with a livingroom on the west side of the rear of the house. No. 30 enjoys the same attractive southerly aspect as No. 28 and, again like No. 28, has a dual aspect to front and rear, i.e. the original design of these houses did not involve any visual aspects to either side. The respondent’s garage is on the other (east) side of the house, and his house (and the conservatory extension) are separated by slightly over one metre from the boundary with No. 28, and by a further 3.6 metres from the wall of the house at No. 28. The two house are similarly aligned, but No. 30 is nearly one metre higher than No. 28 as there is a substantial slope at this part of Greenbank Grove with a gradual (but not completely regular) reduction in roof ridge heights from east to west.
11. This part of Greenbank includes very approximately 200 bungalows (including the 71 provided for in the Feu Contract) developed around the same time in a carefully planned way so as to provide an attractive, approximately oval area, bounded to the west by Greenbank Road and to the east by Greenbank Crescent enclosing quiet residential streets, of which Greenbank Grove is one. Most of the bungalows are detached, a small number semi-detached, and many, like Nos. 28 and 30 Greenbank Grove, have substantial gardens, so that the houses make attractive family homes. To the west, the land slopes upwards towards the City Hospital site and Craiglockhart Hill but is screened by a row of mature tall trees which provide an attractive skyline visible to a greater or lesser extent from many of the gardens. The Feu Contract, presumably in common with other similar feuing provisions covering the rest of the area, regulated this development by providing in some detail the pattern of bungalow housing, with a clear scheme for the erection of bungalows to different levels of value, following clear building lines, etc. and to plans and designs to be approved by the superiors. It was, however, provided that the dwellinghouses were to be varied in design, so that the resultant development combined broad uniformity with individual variations in appearance. For example, roof pitches and house claddings were not identical but did provide a complementary appearance. The condition which is the subject of this application maintained control of alterations and further building with the clear purpose of maintaining the character and amenity of the area.
12. The general amenity of the area has been well maintained. In modern times, however, many families seek more extensive accommodation, with more spacious living areas, less sharing of bedrooms and more bathrooms. Many owners in this area have planned and carried out some form of extension. The predominant types of extension have been the addition of dormer windows to the fronts and rears of the houses, making upper floor accommodation possible, and ‘flat-roofed’ extensions or conservatories to the rear. In a minority of cases, however, there has been a degree of re-design and extension of the roof beyond the original footprint of the houses. This type of extension serves two purposes: firstly, it can increase the amount of accommodation added; and secondly, provided it follows the traditional hipped roof pattern of the bungalows, it can be seen as more in character with the bungalow type of house than ‘flat-roofed’ extension. In recent times, while modest flat-roofed extensions have may continue to be acceptable, more substantial flat-roofed extension, for example across the whole width to the rear of the houses, has been regarded by the planners as contrary to the style of the original bungalows.
13. The applicants have two growing children. They wish to continue to live in the Greenbank area and to extend as well as modernise their home. Their plans involve extending across the rear of the house, to a depth of some 4 metres, and extending the hipped roof of the property by increasing its height by some 700 millimetres and rotating the ridge from its present east-west line to a north-south line. The roof would thus present an elongated hipped shape to the rear of the house. On completion, the extended roof would be rectangular, as opposed to the present essentially square shape, but this change would not be obvious from the front of the bungalow. There would be new dormers to the front and rear and six velux windows on the rear and east elevations. The extension would provide a much enlarged family/kitchen/dayroom on the ground floor, with two bedrooms and a bathroom upstairs, resulting in a net addition of one bedroom and one bathroom as well as the extra space.
14. The applicants were refused planning permission in 2002, apparently on three grounds, viz. the increase in roof height, the excessive extent of the rear dormer and their proposal to site a balcony outside the rear dormer. Their appeal against that refusal was refused by an Inquiry Reporter, but not on all of these grounds. The Reporter’s decision letter dated 20 March 2003 records his acceptance that the overall form of the roof as extended would complement the existing roof form and that as there were already variations in house forms in the street and nearby would not adversely affect the appearance of the appeal property or streetscene. However, he in effect agreed with the other two reasons for refusal. In 2005, the applicants presented a new application, with the same basic roof design but a reduced size of rear dormer and removal of the proposed balcony. That application was opposed by the respondent and two other proprietors but granted in May 2006. The respondent maintained a vigorous correspondence with the planning department in his attempt to oppose, and continues to maintain that certain aspects of the planning process were flawed, but has not initiated any legal challenge to the applicants’ planning consent.
15. The City of Edinburgh Council’s planning policy includes a policy of permitting “alterations and extensions to buildings which in their design and form, choice of materials and positioning are compatible with the character of the original building, will not result in an unreasonable loss of privacy or natural light to neighbouring properties and are not detrimental to neighbour amenity and character.” Two ‘development quality handbooks’, which are revised from time to time, give guidance (but not absolute design criteria) on implementation of that policy. Amongst other guidance, the current guidance on ‘House Extensions’ indicates that development above the existing roof ridge ‘will be resisted’; and also that a single dormer should be no greater in width than one-third of the average roof length. The applicants’ revised and approved plans do not meet these guidelines. That handbook also indicates that all extensions and alterations will be required to meet the provisions of the other handbook, ‘Daylighting, Sunlight and Privacy’. This guidance includes four specific (although relatively rudimentary) methods of objectively assessing daylighting and overshadowing. Only one of these, the ‘43 degree method’, is relevant to the impact of the applicants’ proposals on the respondent’s property. That test is comfortably satisfied. As far as privacy and overlooking is concerned, the applicants’ original proposal involving the roof-level balcony would have produced substantial overlooking. Under the present proposals, a person standing at the window in the upstairs rear bedroom will be able to look over parts of the respondent’s garden (just as a person similarly located in No. 30 could see parts of the applicants’ garden) but there will be no overlooking of any rooms in the respondent’s house from that window or any of the new velux windows.
16. The extended roof with the (blank) side of the dormer will have virtually no impact at all on the outlook of anyone looking from within the original house at No. 30. It will, however, produce a slight overshadowing effect on the patio, and in particular the conservatory, area to the rear of the respondent’s house, and it will have some effect on the view to the west. For anyone within the conservatory, the view to the west towards the Craiglockart Hill skyline is already affected (in varying degrees according to the exact situation and direction of sight of the viewer) by the shapes of parts of the houses Nos. 28, 26 and 24 and by nearer trees and vegetation. Depending on the height of the hedge and shrubs at the boundary, part of the eaves and gutter to the rear of No. 28 is visible. No. 26 has a modest flat roof extension at the rear. No. 24 has an unusual rear extension which, by contrast with flat roof extensions or extensions to the existing bungalow roofs, has its own separate hipped roof whose pyramidal form is part of the side aspect from the conservatory of No. 30, albeit further distant. The new shape will be particularly evident to persons such as the respondent and his family who are used to the existing situation but it will have no significant effect on the light and it will not dominate even the view directly out of the west windows of the conservatory. It will have only a very minor effect on the aspect to the garden and beyond. A person sitting in the conservatory enjoys little of the view to the west and mainly sees the immediate hedge and shrubs and the sky. Some of the sky view will be cut off. The effect of the roof extension and new dormer will be broadly equivalent to the effect of some existing extension on the other side (No. 32), which has no significant effect on the outlook or amenity to that side.
17. The works proposed by the applicants are expected to cost around £100,000, probably now slightly more. On current market values of Greenbank properties, No. 28 may increase in value by around or slightly less than the costs. Selling No. 28 and purchasing a detached house and garden with the increased accommodation which is provided by the proposals in the Greenbank or Morningside areas would involve a very considerably larger financial outlay in addition to selling and legal costs and stamp duty. Proceeding with a more limited type of extension, involving retaining the original roof but with the addition of dormers at the front and rear and a flat-roof ground floor extension would provide considerably less accommodation, and might face planning problems depending on the extent of the ground floor extension. It would also be reasonably seen as an aesthetically less attractive solution to the problem of extending a bungalow.
18. When the respondent added the conservatory and integrated it with the rear livingroom, in 1992, he had a general understanding that roof-level extension of the type now proposed by the applicants would not be allowed. He had explored that matter in general terms with a solicitor for the (then) superiors on two occasions and understood that they would refuse consent as they were seeking to preserve the character of the scheme of development. He also understood that the planners would oppose.
19. The parties have each made reasonable efforts to resolve this dispute. Their solicitors corresponded. As there was no agreement, the respondent founded on the condition to obtain an interim interdict preventing the works from proceeding. They had a meeting which was also attended by the applicants’ architect and solicitor. The respondent tried to advance a suggestion that consideration should be given to curtailing the roof level extension to a point around the south end of the applicants’ garage, i.e. some one metre out from the rear wall of the house. Following the meeting, the applicants offered a slight compromise involving reducing the protrusion of the rear dormer by one half of a metre. The applicants have not made any offer of compensation.
20. The market value of No. 30 will not be reduced if the condition is varied so as to permit the applicants to proceed with their existing plans and they do so.
21. The applicants’ case, as supplemented in oral submission by Ms Locke, can be summarised briefly. They argued that their proposed extension was architect-designed so as to be sympathetic to the property and to the design integrity of the street, with all necessary regard for privacy, light and amenity. The lack of complete uniformity in the original building obligations was stressed, and there had been no height restriction. With regard to the factors listed in Section 100: there had been various changes of circumstances, viz. extensions of many of the properties, and in particular the respondent’s property; on the evidence in relation to the claimed views, etc., the condition did not substantially benefit the respondent, and the view to the west had not been a feature at all before the conservatory was built; on the other hand, prevention from carrying out the planned extension was a very substantial burden on the applicants, who had given their reasons for wishing the roof level extension; the condition was over 70 years old and lifestyles and expectations in relation to accommodation had changed; the purpose of the condition had been to maintain a relative degree of uniformity of appearance, preventing ill-considered, unattractive alterations, in order to maintain the development of bungalows of sufficient value to protect the feuduties, but not a blanket prohibition; there was planning consent, from which there had been no appeal; the applicants were not willing to pay compensation but this was in the circumstances irrelevant; and in relation to ‘other material factors’, the number of alterations and extensions in the area was stressed. The respondent, it was argued, was seeking to exert an undue influence on development by the applicants and thus interfering with their reasonable enjoyment of their property.
22. Responding to the claim for compensation, Ms Locke submitted that the respondent would not suffer any substantial loss or disadvantage. There had been no evidence of loss of value, and there had been evidence from Mr Mackay in relation to the potential uplift of street values. A privacy issue had been removed by removing the proposed balcony. The burden was not expressed as affecting views. The view to the south would not be affected at all and that to the west not visible from any seated position.
23. For the respondent, it was stressed that the application was only to be granted if the Tribunal was satisfied on the issue of reasonableness: there was no presumption in favour. The respondent had made proposals and offered a compromise solution, but no reasonable adjustments were offered by the applicants. The application was unreasonable having regard to the existing situation of the adjacent and related properties. The design had no material advantages over the alternatives available to the applicants. In relation to the statutory factors, it was accepted, in general, that there had been changes in lifestyle and some change in the neighbourhood, the general character of the changes being reflected in the changes at No. 30, roof level extension being a-typical. The condition gave the respondent the benefit (which he had formerly enjoyed through the expectation of enforcement by the superior) of enjoyment of the views of open sky, trees and Craiglockhart Hill without overshadowing, and this was very material. On the other hand, the burden on the applicants was minimal, given the alternatives available but not explored by them. Interference with their freedom as owners to use their property was not necessarily unduly burdensome if it involved no consideration for anyone over the fence. They were not prevented from enjoying their house as a family home, and ground level extension was not being impeded. The age of the condition should not be relied on in the balance: questions of change arose more under factor (a). The purpose of the condition was to protect the general or community amenity which had been achieved by the original regulation of the erection of the individual houses, by preserving and maintaining the general character of the scheme as a row of detached bungalows with garden ground and open outlooks to the rear. Protection of the amenity of individual buildings, the bungalows in the setting of their own gardens, was a fortiori of that. The planning process, which did not include any visit to the respondent’s property, did not involve any assessment of that; there was a distinction between it and this private issue; and the consent was not to be regarded as determinative or even particularly important, there being different general considerations, amongst which was a presumption in favour of development. In this case, there were the particular issues of private amenity, involving balancing the interests of the neighbours, with particular reference to the open aspect from the respondent’s patio/conservatory area. Reference was made to Faeley v Clark, Anderson v Trotter, Bachoo v Wimpey and Cameron v Stirling. The issue really turned on how factor (b) balanced against factor (c): marginal restriction of what the applicants could do against significant benefit to the respondent.
24. Alternatively, compensation under Section 90(6) and (7) should be awarded. The respondent would suffer substantial loss or disadvantage. The Tribunal should apply a broad view of this on the basis of its own inspection and in the absence of any particular evidence in relation to value. The view which was to be lost, which was priceless, was a natural feature of the occupation as owner. Reference was made to Gilbert v Spoor at pages 28C, 32E (Eveleigh LJ) and 36B-D (Waller LJ).
25. The positions on both sides in this case are entirely understandable. The applicants are, as everyone agrees, undertaking what is in modern times a normal and reasonable development of their family home. The respondent sees the particular proposals as having an impact on the outlook at the rear of his house and appreciates that the title condition presently entitles him to prevent the part of the proposals which causes him difficulty. His feelings are heightened by his previous understanding that the particular form of development would not be permitted by the planners or the superior. There is no doubt that the proposed extension at roof level, extending towards the rear outside the original footprint of the house, will be noticeable and will have at least some effect on the outlook from the respondent’s conservatory/patio area. We have to decide, on balance, whether the applicants’ proposals are in the circumstances reasonable. We shall first comment on certain aspects of the legal approach; then review some issues on the evidence; then consider the various statutory factors in the light of the evidence and the submissions; and finally indicate our conclusion on reasonableness having regard to the various factors.
26. We have to apply Sections 98 and 100 of the 2003 Act. The respondent correctly points out that there is no presumption in favour of such development by the applicants. The existence of the planning consent does, however, confirm the general reasonableness of the proposals from the public point of view. The respondents lodged a lot of material about what happened in the planning process. It is not part of our function to review whether planning consent was properly granted, either from a procedural point of view or on the merits. We have to consider a different set of factors which bear on the particular private law issue. We do, however, accept that as the issue of the effect of the proposals on immediate neighbours’ amenity is considered in the planning process as well as under our jurisdiction it is relevant to consider how planning guidance in relation to that applied in this particular case. This is not the same as applying the same standard.
27. The application, as it now stands, is to vary the condition so as to permit the applicants’ particular proposals to proceed. It is the reasonableness of that application which has to be considered. The respondent has made it very clear that he would not be objecting to other aspects apart from the extension of the roof. He would not have objected to a dormer at the rear, but since that would be on the extended roof, some distance outside the original footprint, his objection extends to that also. Our consideration of reasonableness in the light of the statutory factors should therefore relate to this dispute about the extension of the roof to the rear of the house, including the protruding dormer.
28. The most significant factual issue would appear to be assessment of the effect of the proposals on No. 30. It is perhaps fair comment on the evidence of the applicant Mr Gallacher that he was mainly concerned to achieve the space which he and his wife wish and had not evidently given very much thought himself to the effect on the respondent. He thought that that had been considered by the planners and their satisfaction on it was enough. Mr Mackay, however, during cross-examination on the issue of the effect on the value of No. 30, said that he actually did not think that potential purchasers would notice any effect of the extension. They would instead recognise the view down the garden towards the Pentlands. Mr Mackay, although of course the solicitor for the applicants, appeared to us to give his evidence in a balanced and objective way and his lengthy experience of the housing market lends reliability to his evidence. The respondent, on the other hand, clearly feels strongly otherwise. He asserted that there was an open outlook from the conservatory area to the west and that the views of open sky, trees and Craiglockhart Hill were ‘priceless’. He said the extended roof would ‘tower over’ that side of the conservatory, although he did at one point in his evidence accept that the extension might not actually affect the light coming into the conservatory.
29. As we have indicated, we do consider it legitimate to look at the way in which this question of the effect on the neighbour’s amenity was considered in the planning process, as the respondent evidently invited us to do by lodging productions on the planning authority’s policy and guidance. The Local Plan policy is to allow alterations and extensions to existing buildings which ‘will not result in an unreasonable loss of privacy or natural light to neighbouring properties’. We have made findings about the two related guidance documents. Guidance in relation to increasing the height of the roof, and in relation to the size of the dormers, has not been followed in this case, but we do not consider that these matters in themselves have any significant effect on the issue before us. It may also be noted that flat roofs ‘may be appropriate on modest, single storey extensions’ but otherwise ‘… will not normally be allowed’. In relation to the ‘Daylighting, Sunlight and Privacy’ guidance, the affidavit from the applicants’ architect was clear to the effect that the extension fell within the overshadowing policy guidelines, under particular reference to a “43 degree method”. The respondent led no contradictory evidence and, asked specifically by the Tribunal whether he accepted that, refused to offer any view on the point. The Tribunal’s own consideration of that policy document and the diagram prepared by the architect to illustrate compliance on that method was that these guidelines were indeed comfortably complied with.
30. An important part of assessment of the effect on the respondent’s property is of course the Tribunal’s own inspection. The outlook to the west from the rear of No. 30 comprises vegetation in the form of shrubs and trees (with, on the horizon and forming a very small component, the tops of some of the trees which form the screen between the Greenbank estate and Craiglockhart Hill), the roofs of three houses and sky. The proposed extended roof will intrude into the open sky view. However, this will really only be evident to a person standing in the middle of the conservatory looking due west. Persons sitting in the conservatory will either be looking at a quite different aspect or mainly see the hedge and shrubs at the boundary. There will be some effect on evening sunlight in the area of the conservatory. There will be no significant overlooking and no effect at all on the respondent’s privacy. Appreciating the sincerity of the respondent’s views, we much prefer the view expressed by Mr Mackay to the effect that someone not used to the present position would barely notice the extension and we think it reasonable to anticipate that even the respondent and his family will in quite a short space of time become used to it. We noted something of which the respondent made no mention in his evidence, viz. the impact of No. 32 on the east side. That house protrudes slightly further into the garden, is rather higher and has additions in the form of a dormer and an extension neither of which blends in satisfactorily with the house design in the way which the applicants’ plans will. The impact seemed to us to be comparable to that of the applicants’ proposals. It also seemed to us to be very slight. The natural aspect to the rear of these houses is to the south not the east or the west.
31. It is relevant to consider the likely situation regarding the height of vegetation at the boundary. The respondent suggested that there had been some form of agreement to limit the height of this to some 2 metres. We have not found any such agreement, either formal or informal. The evidence was that in the past the applicants had been prepared to cut down the hedge on their side to approximately that height when asked but they had started to let it grow higher in anticipation of the extension. An unfortunate incident had occurred in which the applicants’ hedge had again been cut back. It seems reasonable to anticipate that if the extension is built the applicants will, as they at one stage offered to do and are certainly entitled to do, allow some screening to grow up a bit again (hopefully on a co-operative and agreed basis). Although that will of course also itself affect the light and the distant views, it will have the effect of further screening, which we think could reasonably be thought quite attractive, in particular for persons in the respondent’s conservatory.
32. Overall, therefore, our view is that while the roof extension will undoubtedly be noticeable and will have some overshadowing effect, it will in due course blend in and its impact on the amenity of No. 30 will be slight.
33. We should mention two other areas of evidence. Firstly, we have accepted that the respondent had a general understanding that this type of roof extension would not be permitted, with the result that his outlook to the west was, as it were, safe. We did note, however, that the respondent apparently did not refer any detailed plans to the superiors or anyone else. We find it slightly difficult to accept that the superior would necessarily have refused consent, particularly if planning consent was obtained. It is also clear that there are now a few – perhaps half a dozen – comparable similar roof extensions in the locality. The planners would appear to have moved from opposition to such roof extensions, as manifested in their original refusal of the applicants’ plans, to acceptance, although no doubt on a case-by-case basis. The Reporter who considered the applicants’ appeal did not find a difficulty with this aspect. In other words, such things do move on and the security which the respondent felt in the 1990s (and which we accept we should consider as part of the issue of reasonableness) does not currently seem to have much justification. We rather doubt whether the superiors, if still in existence, would have persisted in opposition.
34. Secondly, the respondent was concerned that the applicants would in fact, on their present plans, be able to use the area outside the rear dormer window as a balcony and thus revive the ‘overlooking’ problem involved in their first plans. He correctly identified that there was still a flat area outside that window. It is a full length window. We were told that it would open inwards, and the approved plan (to which our variation order would make reference) does stipulate that there will be a protective barrier. The space in front will be a roof area with lead flashings. Use of it as a balcony would appear to be impractical and in any event would be a breach of the planning consent.
35. We turn to consider the factors listed in Section 100 of the Act. In relation to (a), circumstances in the locality have changed to some extent since 1933. Living styles have changed There have been a great deal of extensions in the form of dormers, rear buildings and conservatories, including of course at No. 30. The change which is pertinent to the dispute as to whether roof level extension should be allowed is that there have been a small number of such extensions, most strikingly at No.109 Greenbank Road at the other end of Greenbank Grove. The extensions at Nos. 24 and 32 Greenbank Grove are also worth mentioning, because it seems to us that the impact of each of these on the immediate neighbours is slightly similar to that of the applicants’ proposals. In relation to (b)(i), the extent to which the condition confers benefit on No. 30 by enabling its proprietor to prevent the roof level extension of No. 28, it follows from our assessment of the impact of the proposals that the extent of this is only slight. Looking at (c), the extent of the burden, we find that inability to proceed with this part of their plans is a considerable impediment to the applicants’ enjoyment of their property. The respondent naturally plays this down, contending that development of upstairs accommodation of similar extent to that in his own house would not be much different and that, had they been willing to explore further his proposed compromise, taking the roof extension forward only to the line of the garage roof of No. 28, the difference would be even less. In our view, however, there is a significant difference in the space which would be achieved. Further, it seems to us that the applicants have reasonably chosen to avoid a flat roof on their ground floor extension, and indeed if they reverted to that might well face planning difficulties, given the size of that extension. Acceding to the respondent’s alternative proposal would have had a substantial adverse impact on the applicants’ plans. As regards (e), the age of the condition in question, despite its being quite old, we do not think this adds anything significant to the changes mentioned under (a). As regards factor (f), the original purpose of the condition, we find the respondent’s own formulation of this during his evidence, viz. regulation of further building with the purpose of maintaining the general character of the estate, appropriate. This is a feuing condition which was admittedly not, before the impact of the 2003 Act, enforceable by co-feuars. There are no stipulations, and there is no wording, which would indicate a particular purpose of protecting neighbours although of course neighbours would be among the proprietors who would benefit incidentally from maintenance of the general character. Mr Nicoll contended that a purpose of protection of immediate neighbours was a fortiori of the general purpose, but we cannot accept that. Rather, there was a general purpose, in the interests of the superior and no doubt the community, but not a particular purpose of protecting neighbours. It can also be indicated that the layout and design of the original housing, achieved by application of the feuing conditions, clearly points to ‘dual aspect’, i.e. aspects (in the case of Greenbank Grove) to the north and south but not to the east or west sides. There is no indication of protection of outlooks to the sides. On (g), the existence of planning or other regulatory consent, here there is of course planning consent, which thus slightly favours the applicants. It does so, however, merely in confirming reasonableness from the public point of view, leaving the particular private issue to be decided under our jurisdiction. We entirely accept Mr Nicoll’s submissions on that, and in particular that the planners’ apparent satisfaction on issues of daylighting and privacy does not remove these areas from our consideration.
36. It has not been suggested that any of factors (b)(ii), (d), (h) or (i) has any bearing on this case. Factor (j) is the residual category allowing us to consider any other factor which we consider material. We consider the fact that the respondent erected his conservatory at a time when he considered his outlook to the west side secure of some limited relevance here. It is also relevant to mention the respondent’s willingness to consider some roof extension, as far as the garage line. However, that would seem to us problematic because it would involve substantial rebuilding of the roof, at least to the rear of the house, for only very slight gain, and it would also leave a substantial flat roof on the ground level extension.
37. Turning to our overall conclusion on reasonableness, we rather agree with Mr Nicoll that this comes down, substantially, to balancing burden and benefit. Consideration of two or three of the other factors – change of circumstances, purpose and the existence of planning consent – favours the applicants, but none of these seems to us to have very much weight in this case. In our view, the burden on the applicants clearly outweighs the benefit to the respondent of being able to insist on his objection. The further elements are those which we mentioned above under factor (j). It is unfortunate that the respondent built his conservatory in that position in the belief that there would be no interference with the aspect to the west. However, one cannot protect for all time against development on neighbouring land, and in any event we have found the impact on the respondent actually to be slight. Finally, there is the respondent’s willingness to compromise slightly on the roof extension and, as the respondent would have it, the applicants’ unwillingnesss to consider such compromise. However, we have found that there would be a considerable effect on the applicants’ plans, and our assessment of the balance of benefit and burden should, again, in our view prevail. Overall, we have been persuaded that variation of this condition to the extent of permitting the development for which the applicants have planning consent is reasonable. We shall grant the application, to that extent.
38. We must refuse the respondent’s alternative claim for compensation for two separate reasons. Firstly, as we have found that there will be no diminution in the value of No. 30 in consequence of the variation order which we are making, there is no relevant claim of ‘loss or disadvantage’. Secondly, even if we are wrong in that, any such loss or disadvantage is in our view not ‘substantial’.
39. We can accept that it is not necessary to lead expert evidence on loss of value, and also that quantification of any such loss in a case of this kind is extremely difficult. However, we are still not able in this case to accept that there will be any such loss. We are indeed not sure that either the respondent in evidence or his counsel suggested that there would be. The claim was apparently being advanced on some more general basis. At all events, we have made the finding, based on Mr Mackay’s evidence, supported by our own impression, that the applicants’ extension (or, more accurately, their ability to proceed with it as a result of variation of the condition) will not have any adverse impact on the value of No. 30. Quite simply, we do not think that this would be reflected in the property market: we simply do not think that the impact of the proposed extension is sufficient. The respondent referred to the view as ‘priceless’ – that could mean a number of things but it does not alter our view on value.
40. We would not go so far as to say that there can be no other relevant basis for an award of compensation, although we do not think the respondent either gave notice of one or even identified one in submission. However, Section 90(7)(a)(i) of the 2003 Act, reflecting the previous compensation provision, requires the loss or disadvantage to be suffered ‘by … the owner, as owner of the benefited property’. That does seem to rule out any award of compensation or solatium to the respondent in respect of his personal disappointment. In the absence of any other particular consideration which would affect any owner of No. 30 as such owner we cannot identify a relevant claim.
41. We have not found the views of the Court of Appeal on the question whether a view enjoyed from the vicinity of but not from the benefited property itself could amount to a ‘practical benefit of substantial value or advantage’ secured by the restrictive covenant of any assistance. Indeed, we note that Eveleigh, L.J., pointed out that the provision there in question did not refer to any restriction for the benefit or protection of land (Gilbert v Spoor, at [1983] 1 Ch. 32E-F): the restriction in the provision which we are considering to loss or disadvantage suffered by the owner “as owner of the benefited property” would seem to correspond to that sort of restriction.
42. If we are wrong in that, however, we cannot categorise any loss or disadvantage as ‘substantial’. We have some sympathy for the respondent in the circumstances but do not feel able to see the effect on him as a ‘substantial loss or disadvantage’.
43. Finally, we would mention that any issue in relation to expenses can be dealt with, following the Tribunal’s normal practice, on the basis of written submissions.
| Representation: | ||
|---|---|---|
| for the applicants: | Ms M L S Locke, Advocate, instructed by Messrs Mowat Hall Dick, Solicitors, Edinburgh | |
| for the respondents: | Mr S D D Nicoll, Advocate, instructed by Messrs Morisons, Solicitors, Edinburgh | |
| Heard: | Edinburgh, 12 and 13 July 2007 | |
| Sitting: | J N Wright, QC I M Darling, FRICS |
|
| Decision issued: | 22 August 2007 | |
LTS/TC/2007/02
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 22 August 2007
Neil M Tainsh – Clerk to the Tribunal