1. This is an application to vary title conditions so as to permit an additional house on the applicants’ property. The condition is contained in a Deed of Conditions which relates to a group of five houses built in the 1980s and sharing a common driveway. Three of the other proprietors opposed the application. The applicants have not applied for planning consent for the proposed house but have provided an indicative drawing showing its approximate likely position.
2. The Tribunal has decided to refuse the application. Applications of this kind depend on their particular circumstances. In all the circumstances of this case, and having regard to the position at the site, the Tribunal is not persuaded that it would be reasonable to vary the conditions so as to remove the protection of the amenity which the conditions provide for the benefit of the applicants’ neighbours. The Tribunal considers the degree of uncertainty about the proposal to be an important factor in this case.
3. A Deed of Conditions granted by Grant Gordon Sutherland and Others as Trustees for the firm of Sutherland Properties dated 1 May and recorded in the Division of the General Register of Sasines for the County of Midlothian on 13 July 1984, provides inter alia:-
“(FIRST) the said lots of ground shall be used solely for the purpose of erection on each of the said lots of not more than one dwellinghouse each containing not less than three apartments with kitchen or kitchenette and bathroom with relative offices and, if desired, garage;
“(SECOND) the said houses shall be used solely as private dwellinghouses and for no other purpose whatever and none of said houses shall ever be in any way sub-divided or occupied by more than one family at a time and no additional buildings of any description shall be erected on said lots of ground without the written consent of us or our foresaids and no alterations or additions shall be made on or to the buildings erected or to be erected without our written consent as aforesaid and which buildings shall conform, in all respects, to any Local Authority Acts and the Town and Country Planning (Scotland) Acts or otherwise and in particular, no building of any kind (other than the walls and fences aftermentioned) shall at any time be carried out or erected on the lots of ground less than Twenty feet back from the back of the road ex adverso each lot of ground; All the ground of each lot shall, so far as not occupied by buildings as aforesaid, be used as ornamental or garden ground in front and at the sides and as such or as greens for bleaching or drying clothes at the back all in connection with the said dwellinghouse and for no other purpose whatever … ”
4. The applicants, as proprietors of 513c Lanark Road West, Balerno, Midlothian (“the subjects”), applied to the Tribunal under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”). As clarified prior to the site inspection, the application is to vary the title conditions to the extent of permitting sub-division of their property for the purpose of building thereon a second dwellinghouse. The application proceeded on the basis that the proprietors of Nos. 513a, 513b, 517a and 517b, to which properties the Deed of Conditions also applied, were or might be ‘benefited proprietors’.
5. Section 98(a) provides that such an application is to be granted only if the Tribunal are satisfied, having regard to the factors set out in Section 100 of the Act, that it is reasonable to do so. Section 100 lists a number of factors, including, in summary: (a) changes of circumstances since conditions created; (b) extent to which conditions benefit the benefited properties; … (c) extent to which conditions impede enjoyment of the burdened property; … (e) length of time since conditions created; (f) purpose of conditions; (g) whether there is consent such as public planning consent for a use prevented by conditions; (h) whether owner of burdened property willing to pay compensation; … and (j), “any other factor which the Lands Tribunal consider to be material”.
6. The application was opposed by the proprietors of Nos. 513b, 517a and 517b. With the consent of all the parties, the Tribunal decided, under Rule 26 of the Lands Tribunal for Scotland Rules 2003, to dispose of the application without an oral hearing on the basis of the parties’ written submissions, including some documentary productions and photographs, and a site inspection. The Tribunal carried out an accompanied site inspection, attended by at least one representative of each party, on 29 November 2007. The applicants were represented in the application by Messrs Anderson Strathern, who did not attend the site inspection. None of the respondents was legally represented. The applicants had before the site inspection exhibited a plan showing the possible position of a house (“the likely site”). At the site inspection, the position shown in the drawing was approximately marked out with garden canes. The Tribunal noted that the position shown appeared to encroach on the 20 foot ‘building line’ referred to in Condition (Second) and gave the applicants the opportunity to clarify, in writing, whether their application involved seeking a relaxation of the condition as it related to building within that line. The applicants’ solicitors confirmed that they were seeking a variation of the prohibition in relation to the building line.
7. The respondents have mentioned the possibility of compensation but that could be considered at a later date (probably also on the basis of written submissions) if the application were granted.
8. On the basis of the parties’ submissions, the documents produced and our site inspection, we found the following facts.
9. The title conditions relate to an irregularly shaped area of ground developed in the 1980s. This had been part of the grounds of a mansion house called ‘Leasingside’, which was entered off Lanark Road West. A firm called Sutherland Properties acquired the ground which they sold in separate lots for development, subject to the deed of conditions, by the individual purchasers. Seven houses were originally envisaged but in the event, apparently following discussions with the planners, the area was divided into only five plots and five detached houses built. A narrow common private driveway forks off approximately southwards from the original entrance drive to the mansion. This provides access only to the five houses. Nos. 513a, 513b and the subjects at No. 513c are substantial bungalows with larger plots, to the left of the drive, which then makes a 90 degree bend arriving, and ending, at the entrance to Nos. 517a and 517b, which are two-storey houses with slightly smaller plots. A long high hedge immediately to the right of the drive provides substantial (although not quite complete) screening of the site from the site of the mansion itself. Immediately to the south of the subjects, two other houses, at one corner of the original mansion grounds but developed and accessed quite separately, add to the irregular shape of the area occupied by the five houses. At the south end of the site, and particularly beyond it, the ground slopes away, affording outlooks towards the Pentland Hills to the south, both from the common driveway and from the rear of Nos. 517a and 517b. The ground, and in particular an area at the end of the drive, within the subjects’ present garden ground and between the existing house on the subjects and Nos. 517a and 517b, includes a substantial number of mature trees. At least in summer, the trees restrict the views from the drive towards the hills but this particular area makes a significant contribution to the attractive secluded amenity. The title conditions in issue, as well as controlling further building, provide for a building line 20 feet from the driveway. The Deed of Conditions also attempted to secure an open aspect on that side of the drive by prohibiting boundary fences, walls or hedges within the building line without the (then) superior’s consent (Condition (Third)). In fact natural hedges dividing the plots have been grown, but the general amenity to the front of the houses has been retained. The five houses as developed enjoy a very high amenity which is protected by the deed of conditions.
10. There have been a number of changes since the conditions were imposed in 1984. The mansion house was converted into a nursing home, with a substantial extension on its south side, on the other side of the hedge beside the drive referred to. Then the nursing home closed, the mansion was demolished and a modern block of 14 flats erected in its place, with an additional new detached house being built on the other side, closer to the entrance from the main road. In the result, that entrance has a substantially changed aspect, consisting now of a substantial modern block of flats with an additional new house to the right. However, as one proceeds down the private driveway which forks to the left and serves the group of five houses, these developments are largely screened by the hedge. The group of houses retains its immediate setting. The change of plan from seven houses to five occurred after the conditions were imposed. In 2002 the proprietors of No 513a obtained planning permission, apparently not for an additional house but for the division of that substantial house into two houses. No steps have apparently been taken so far to secure relaxation of the title conditions to permit that development and it has not been implemented. At a very much more general level, there has in this, as in other areas, been a continuing trend towards denser developments in one form or another.
11. The subjects occupy the second largest of the five house sites, broadly nearly square, but with a small extra area of ground at the point where the driveway bends round towards Nos. 517a and 517b. The existing house, No. 513c, is a substantial rectangular bungalow with an integral garage and facing the driveway. This house has by some margin the biggest footprint. The likely site occupies the extra area at the bend. This is the area referred to in Finding 8 between the existing house and Nos. 517a and 517b. This appears to be the only possible site for an additional house on the subjects. The likely site includes a number of mature trees of varying species. The likely site is substantially smaller than any of the others, being less than half the area of each of the two smallest sites and less than a quarter of the area of the subjects.
12. No application has been made for planning permission for an additional house at the subjects. In January 2007 the applicants submitted the plan indicating the likely footprint of the proposed house, but not any design details, to Edinburgh Council’s planning department. This shows an approximately square shape, some 9.5 by 8.9 metres, with one wall facing towards the common driveway and at its nearest point approximately 5 metres (16 feet) from the driveway. On 20 March 2007 a Principal Planner replied on a ‘without prejudice’ basis. She indicated that she had had concern about the impact of the proposal on trees within and adjacent to the site and that there was a tree preservation notice for trees along certain boundaries of the properties. It seemed unlikely that the proposal would directly affect trees subject to the notice, but other trees within the garden of 513c would probably be damaged. The letter continued:-
“In terms of the plot size shown the site appears large enough to accommodate a house which would have adequate amenity space and would not result in a loss of privacy or overshadowing of neighbouring property. However, the loss of trees is likely to adversely affect the amenity of the area and this will require to be fully assessed in any planning application.”
The letter indicated that a tree survey, and a plan of the services, would be required along with any application, in order to show how both the development and the services would affect the trees and roots. As marked out on the site during the Tribunal’s inspection the base of the proposed house appeared much closer to the driveway (approximately 3.2 metres (10’ 6”) than shown on the plan exhibited to the planners.
13. No 513b, as built, encroaches across the building line, being at its closest 3.5 metres (12 feet) from the driveway. Apparently, building closer than permitted under the deed of conditions was agreed or acquiesced in by the (then) superior and the other proprietors after a problem had been encountered in relation to trees.
14. The applicants’ submissions in support of the reasonableness of the application may be summarised as follows. The purpose of the title conditions was to preserve the amenity of the houses to be developed, but one further house would have no adverse effect on that. The deed of conditions had envisaged 7 houses. There had been material changes of circumstances, in particular the demolition of ‘Leasingside’ and substitution of 14 flats and a new 2-storey house; the planning permission for sub-division of No. 513a; and more generally, the move in the wider area towards smaller and more affordable houses. The conditions provided no benefit beyond that provided by planning legislation. No. 517a was substantially closer to No. 517b than it would be to the new house. The houses would be well screened from one another and the new development would only be seen from the estate road. The conditions impeded a legitimate use in respect of which the planners had given a favourable indication. The applicants would be prepared for their subjects to bear an extra share of common charges, i.e. each of the six plots would bear an equal share. Further development in the immediate area was unlikely. There had been no objections to the proposal to sub-divide No. 513a. The plots were not of a uniform size. A 1½-storey house would form a natural bridge between the 2-storey houses (517a and b) and the bungalows (513b and c). The applicants did not consider that compensation was relevant.
15. In their submissions the respondents pointed out that the originally envisaged seven houses had been reduced to five by the planners and now that five had been built another would disturb the established layout and reduce the amenity. To the extent that the original purpose had included the number of houses, the development of only five had changed the position. The conditions secured substantial benefit to the benefited properties: the properties fitted beautifully into the site, with a spacious layout, which protected from greater density and further exploitation. The environment, and in particular, the trees, were protected. No plans of the proposed new house had been submitted. The view from the estate road, including an attractive view towards the Pentlands, would be considerably affected. The proposal would result in a diminution in value to all the properties (including the subjects) and it would be unfair for a burden to be removed with such financial benefit to one party without substantial compensation. All the purchasers had been aware of the conditions.
16. The tribunal is required to consider the factors set out in Section 100 of the Act and then decide whether or not we are in the circumstances satisfied that it is reasonable to grant the application. Each case has to be decided on its own facts and circumstances. In an application in relation to a real burden in the form of a building restriction, the relevance of the fact that the application is not linked to a specific proposal varies from one case to another, according to the circumstances. We appreciate that the decision whether to seek discharge or variation of the title condition before or after preparation of detailed plans and applying for planning permission can be a difficult one. However, while the Tribunal may in some cases be satisfied as to the reasonableness of an application without seeing a detailed proposal, the lack of such a proposal may in other cases make it difficult to satisfy the Tribunal.
17. We should start by giving our general view of the circumstances of this case. In our view, building another house on the likely site would almost certainly have some adverse effect on the amenity of this group of houses. As we see it, the likely site plays an important role in securing that amenity. It is not the only area of ground to the front of the houses on which trees, shrubs or grass contribute to the attractive secluded amenity, but its contribution is a major one. It seems to us probable that a new house in that particular area would be a substantial interference in the amenity which has been achieved and which is protected by the conditions. It is no doubt possible that more than five houses could have been built originally with a different allocation of the ground and obviously some smaller individual plots, and one might even imagine the subjects having had two houses built on them, with a different layout. However, with the houses as built, and in particular No 513c as built, an additional house in the only part of that plot on which a house could now be built would in our view significantly threaten the amenity. The applicants make the point that the plots of the houses are not of uniform size. This seems to us to underline the attractiveness of the amenity which has been created by the division of this irregular area of ground and non-uniform development in an attractive natural setting. It does not, however, mean that one more house can be put onto a comparatively very small site at this particular point without disturbing the setting. The applicants also point out that Nos. 517a and 517b are closer to each other than the new house would be to either, but we do not think that that really meets the amenity point. We agree with the respondents that there is a danger of creating an inappropriate layout and so damaging the environment and tree cover as to threaten the amenity. We also think that the admittedly quite major and physically close developments, culminating in demolition of the big house and its replacement with a block of flats, have not had any significant effect: it cannot be said that the secluded amenity of the five houses has been lost or compromised by the block of flats. The conditions can still play their part in protecting the setting of this group of houses.
18. We would mention that in reaching this view about the effect on the amenity we have attached little weight to the view of the Pentlands as such: that is not particularly protected by the deed and we do not think that protection of this view, from the common driveway when trees are not in leaf, should in itself be a factor of much weight in this case.
19. The applicants suggest that they have received a favourable informal indication from the planners. It seems to us, however, that that indication on the one hand suggests that the planners might well be satisfied in relation to issues of privacy and overshadowing but on the other hand confirms that there is an issue, which would need to be considered further, about the effect on amenity. The applicants in effect suggest that that issue should simply be left to the planners and that the benefited proprietors are protected in that way. That, however, would remove the particular private rights of the respondents under this deed of conditions. The question for us is whether that is reasonable in the circumstances as presented to us.
20. Consideration of the statutory factors often starts at factor (f), the purpose of the title conditions, if this can be ascertained. What was the purpose, and can it still be achieved? We are clear that, as the applicants themselves suggest, the purpose was to preserve the amenity of the houses built on the area affected by the deed of conditions. The plots were being sold, and bought, with the clear indication that a secluded high amenity setting would be created and preserved. Although Clause (First) would also require to be varied to permit an additional house, attention is focused on Clause (Second). The provisions of this clause follow a familiar form in such deeds of conditions, providing a number of ongoing restrictions, expressed with some variation of degree: there was never to be any sub-division or multiple occupation; no additional buildings were to be erected without the superiors’ (now, admittedly, the other proprietors’) consent; no building was ever to encroach on the building line; the front and side gardens were to be used as ornamental or garden grounds; and there was to be no parking of caravans, trailers or commercial vehicles. The provisions of Clause (Third) in relation to walls and fences are also designed to preserve the open front aspects of the houses. We do not overlook the developers’ original intention to build seven houses, but this seems to us to be subsidiary to the clear purposes of first creating and then retaining this amenity setting.
21. Whether the purpose of protecting the amenity can still be achieved brings us on to consideration of factor (a), any changes in circumstances “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”. A change in the character of the benefited properties is that five, not seven, plots were sold and only five houses built: the conditions apply to the amenity of the houses as built and this is not just an issue of density but also involves the setting of the houses. A planning consent in relation to No. 513a would permit sub-division of that house, but not apparently the erection of an additional house. This change has not yet occurred, but in any event on the evidence would not seem to us to threaten the setting. The demolition of the mansion house and erection of a block of flats and one additional detached house undoubtedly represents a major change in the immediate locality, the flats being physically close to the five houses. However, we found that while this has indeed altered the appearance at the entrance from the road, it has done little to affect the setting of these houses: when one reaches the driveway serving the houses, the impact of the block of flats is, happily, minimal and the secluded setting is, in our view, not significantly affected.
22. The other change since 1984 relied on by the applicants is the general trend in the area (as in many other areas) towards denser housing, whether by sub-division, additional houses in gardens, smaller plots, new flats or whatever. This supports the general reasonableness of a plan to build an additional house in a garden, but it does not appear to us to have any very significant bearing on the particular issue.
23. Factor (b), the extent to which the conditions benefit the benefited proprietor, is of considerable importance. In the present case, the right of veto or control over the applicants’ proposal to build another house in this particular area of their garden appears to us to represent a considerable benefit to each of the three benefited proprietors who object to this application. Quite simply, this is a sensitive site which, in our view, plays an important part in the preservation of the amenity which is identified as being the purpose of the conditions.
24. It is also clear that the burden considerably impedes enjoyment of the burdened property (factor (c)). Whether the intention is to build a house for occupation by a family member, as the applicants suggest in this case, or simply immediately to realise development value, this is another important consideration. An owner of property is generally entitled to make any legitimate use of it, including for development. Where the proposal is to build a house, a title condition preventing that represents a considerable impediment although of course it would in this case also depend on planning consent.
25. Factor (d) in Section 100 of the Act relates to positive obligations and is not a factor of any weight in a case which primarily involves a restriction rather than a positive obligation. Strictly speaking, there is a small positive obligation to use all of the front and side ground as garden ground but compliance with that is perfectly practicable and not costly. Factor (e), the length of time which has elapsed since the conditions were created, is also not a factor of great weight in this case. It can be said that these are modern conditions whose relevance has not been particularly affected by the passage of time, although the applicants’ reference to a degree of change in relation to housing requirements in the area is of some general relevance. Factor (g), whether there is planning or other regulatory consent, does not favour the applicants. The informal indication which they have received suggests that while there would be no privacy or overshadowing issues, the effect on the amenity and in particular trees would need to be considered further. It cannot, therefore, be affirmed that building an additional house on the likely site has been accepted as reasonable in the public interest. However, in a case where the respondents’ interests may be protected to a different degree under the title conditions, this is not a factor of much weight. We also do not consider that factor (h), whether the applicants are willing to pay compensation, is significant in the issue of reasonableness in this case: there is nothing to take this case out of the ordinary situation in which, if the Tribunal made an award of compensation, the applicants would have the option whether to pay that or not to proceed.
26. The applicants have referred to some other matters, and we can consider, under factor (j), whether these are material. They say that they would be prepared to accept two one-sixth, in place of the present one-fifth share of common repairs obligations, and also to pay to make good any damage caused to the driveway by the building works. They suggest that further development is unlikely, and we can accept that this application, if granted, would not seem likely to create an unfavourable precedent. They also point out that the Tree Preservation Order does not cover the trees which would be involved in this development, but we do not think that that particularly favours their position, as it may slightly weaken the public regulatory control over the amenity. They say that there were no objections to the proposal in regard to No. 513a, but that seems to us to be a sufficiently different situation as not to affect the issue before us. For their part, the respondents point out that all purchasers were aware of the restrictions in the title conditions. That is a point which might be made in any application under this jurisdiction, because even where owners are not aware they must be taken as having accepted the title conditions. We do, however, regard the reciprocal nature of such deeds of conditions as of some relevance: purchasers accept the obligation not to build in their gardens in the knowledge that the other owners will be similarly obliged. The respondents also refer to an alleged lack of prior discussion. We would certainly agree that it is desirable to seek to discuss a proposal such as this with neighbours who have the benefit of title conditions in order to explore whether any agreement is possible, and the more it is possible at that stage to refer to plans which give a fair picture of what is proposed the better. Failure to do so might be relevant if an issue of expenses arises, but this will not generally affect the merits of the application. The same applies to any alleged delay in providing information: the case on the merits is to be decided on the information available to the Tribunal considering its decision. However, the continuing lack at that stage of a detailed plan, with the resultant uncertainty, is of significance.
27. It is important that the title conditions considerably impede the applicants’ enjoyment of their property. In our view, however, the purpose of the title conditions was to cover situations such as this where owners might, quite naturally, seek to add further development perhaps going as far as additional houses. This site is on a sensitive part of the development. There is a real prospect of substantial detriment to the amenity if another house is built in that position. We cannot on the information available accept that this would not have an adverse effect. Nor do we think that the changes referred to have altered the amenity to any material extent. It is not beyond the bounds of possibility that a modest building could be designed sufficiently sympathetically to the site. However, although they have located the likely site, the applicants have given no indication of the type of house or the design. They refer to a likely 1½-storey house as a ‘natural bridge’ between the subjects and No. 517a. One difficulty with that is that while that might very well be the applicants’ intention there is no guarantee that an owner of the subjects might not look for something higher. It would be possible in a case of this nature to allow the application subject to conditions such as a specific maximum height, but in this case we think that the problem goes deeper. It seems to us that any development on that site would require careful and sympathetic design. It is not for us either to usurp the position of the planners or to go into particular issues of design, but in this case we have no indication at all of the design. We are considering the application without any idea what the house would look like. Granting the application would leave the owners of the subjects free to build any type of house which, either now or at some later date, would satisfy the planners, and correspondingly would leave the adjoining proprietors with no rights beyond the right to make representations in the planning process.
28. The precise site of the house, coupled of course with the extent of interference with the trees, might well have an important bearing, but, again, is uncertain. Proximity to the driveway at effectively the head of the road would diminish the openness at that spot. Although we can see from the indicative plan the likely extent of encroachment within the building line, the applicants have not specified the extent of that, and indeed we found that there was some appreciable difference between the footprint shown on the plan and the positions staked out on our visit. However, in referring to this factor we bear in mind that there was such encroachment when No 513b was built, apparently for similar reasons as might push the applicants’ proposed house out towards the driveway.
29. The title conditions were set out at a time when there was also a system of public planning control. They are directed at exactly the issue which is concerning the adjoining owners. We recognise that the planners would consider issues of amenity, but such consideration may well not be at the same level as might reasonably be expected in the context of the title conditions. Our jurisdiction ensures that benefited proprietors are not always entitled to maintain the veto to which the conditions entitle them, or to hold the burdened proprietor to ransom, but the question is one of reasonable balance in the circumstances. It is not in our view possible on the information available to say that the extent of likely interference with the amenity is such that the adjoining owners’ interests could reasonably be met by an appropriate award of compensation. In our view, their interests are sufficiently strong as to make them reasonably entitled in present circumstances to retain the control which the deed of conditions gives them.
30. For these reasons, we are not satisfied that this application is reasonable and have decided to refuse it. Having referred to the proposed encroachment on the building line, we would add that in all the circumstances we would have reached the same view even if the building line were to be adhered to.
31. In accordance with our normal practice, any motions for expenses will be dealt with on the basis of written submissions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 10 January 2008
Neil M Tainsh – Clerk to the Tribunal