1. This is an application by the proprietor of a ground floor flat in a large mansion house converted into 15 properties to vary a title restriction in relation to alteration of the structure. She seeks permission to convert a window into a French door so as to create a secondary access. The title conditions require the unanimous consent of the other proprietors for external structural alteration. Most but not all of the other proprietors oppose the application.
2. The Tribunal has decided to grant the application. Having considered the issue of reasonableness in accordance with the provisions of the Title Conditions (Scotland) Act 2003 (“the Act”), we consider that the balance favours the applicant. Looking at the matter objectively, we consider that this particular proposal, for which the necessary consents including listed building consent have been granted, will not to any material extent adversely affect the interests of any of the other proprietors.
3. A Deed of Conditions by William Forsyth, recorded in the General Register of Sasines for the County of Midlothian on 18 August 1986, provides inter alia in relation to the 15 houses created by the conversion of said subjects:-
“(SIXTH) no proprietor shall be entitled to occasion any external alterations to their house without the unanimous consent of all the proprietors of the other houses and without prejudice to the foregoing generality shall not be entitled without such consent to affix any external television aerial or other structure, nor any advertisement signs or name plates other than a door plate indicating such proprietors name;
“(SEVENTH) no proprietor shall be entitled to carry out any structural alteration to any part of their house separating said house from another house or from a part common or mutual to the proprietor of said house and other proprietors within the Development without the unanimous consent of all proprietors interested in said mutual or common item.”
4. The applicant, as proprietor of the Flat, No. 1 Midfield House, Lasswade (“the subjects”) applied to the Tribunal under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”). In her application, the applicant referred to the above two conditions and specified her proposal as “to replace the ground floor window on the south west elevation with an opening French Door and paving a small amount of the communal ground directly outside my kitchen to allow access from the pathway,” in effect so as to provide a new alternative access to her flat. The replacement of the window with a door is covered under the conditions. Paving the communal ground is, however, not a matter covered by either condition and therefore not a matter which comes under the Tribunal’s jurisdiction. The applicant is, however, a communal owner of the ground adjoining the window in question, and both sides have proceeded on the basis that such minimal paving of an area of communal ground which is presently part of a flower border, although no doubt not absolutely necessary, would be a natural consequence of the opening up of the new access door.
5. Representations opposing the application were received from the proprietors of 10 of the other 14 flats, viz Nos. 2, 4, 6, 8, 9, 11, 12, 13, 14 and 15. A representation supporting the application was received from the proprietor of No. 3. In all of these representations, a willingness to vary the conditions by removing the requirement for unanimous consent and substituting a requirement for the consent of not less than four-fifths of the other proprietors was expressed. However, such an application is not before us. The representations opposing the application referred to a history of disagreements between some of the residents and the applicant in relation to certain other steps alleged to have been taken by her involving the area of communal ground in the vicinity of the window which she is seeking to convert to a door. The ‘pleadings’ referred to an extent to the rights and wrongs of these other matters but the Tribunal is not concerned with this, other than to note, in so far as it may be relevant to the application, that there is an unfortunate background of mistrust and disagreement.
5. Section 98(a) of the Act provides that such an application is to be granted only if the Tribunal is 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 to be considered, including a residual category of ‘any other factor which the Lands Tribunal consider to be material.’ Accordingly, the issue for the Tribunal is whether, having regard to the statutory factors, the Tribunal is satisfied that it is reasonable, against the opposition of 10 of the applicant’s co-proprietors, to vary Condition (Sixth) to the extent of permitting structural alteration by the conversion of the window in question into a French door in accordance with the detailed plans provided, in order to facilitate the exercise of access to the applicant’s house from the communal ground adjoining it.
6. With the agreement of the parties and in accordance with Rule 26 of the Lands Tribunal for Scotland Rules 2003, the Tribunal decided to dispose of the application on the basis of written submissions and a site inspection. The latter was attended by the applicant and by Mr McLeod (Flat 12) and Mr Rouxel (Flat 15).
7. On the basis of parties’ submissions, the documentary productions and our own inspection, we find the following facts, as to which there is little if any dispute, to be established.
8. Midfield House is a large mansion with outbuildings and substantial, attractively laid out grounds. The house was seriously damaged by fire around 1914 and re-designed by Sir Robert Lorimer. In 1985 it was converted into 15 properties, most being flats enjoying common ownership of the vast majority of the ground and a few being flats or houses with small adjoining private gardens. Broadly, the communal grounds include, on the north-west, front aspect, a large wooded expanse, driveway, garages and car parking; on the south-east, rear side, a large lawn (former kitchen garden); and, immediately adjoining the south-east and south-west sides of the house, more formal ornamental gardens, including a rose garden and lawn to the south-east and flower borders and beds, lawns, a pond and trees to the south-west. Several of the flats, including the subjects, have their main entrances within the original hall or upstairs in the house. Others take entrance from other sides of the building. None of the properties has a principal entrance on the south-east or south-west sides of the house, i.e. none is entered through the ornamental gardens. The ornamental gardens are separated from the grounds at the front of the house by a high wall through which there is an arched doorway about 0.9m (3 feet) wide.
9. The subjects comprise a one-bedroomed flat, entered from the main hall and incorporating one of the larger ground-floor public rooms of the house. Its windows all open to the south-west. The bedroom has two such windows. The former public room, which the applicant uses as a lounge, dining and kitchen area, has a curved bay with three windows and one further window, which is within the kitchen area and is the window which the applicant seeks to convert into a French door. All of these windows are of three-quarter depth, i.e. about 2 metres deep and extending from approximately 675 millimetres above the ground. They are astragalled, like all the other windows on the south-west side of the house - i.e. those on the ground and first floors and also on four roof dormers, facing the ornamental garden. They present an attractive, almost but not completely symmetrical, appearance complementing the ornamental gardens.
10. The applicant has obtained planning and listed building consent, and a building warrant, for the proposed conversion which will substitute for the window a door matching the original design, with astragals extending to the base of the door. A small outlet pipe, presently led through the wall underneath the window, will require to be re-positioned. The surrounding stonework will be made good to match that presently existing. The appearance of this attractive side aspect of the house will not be significantly altered. The advantage to the owner of Flat 1 of having this secondary access will be mainly one of convenience, for example in being able to take coal into the house, but it will also provide an improved fire escape route.
11. There is at present no other secondary access on the south-west side. Immediately round the corner, on the south-east side, Flat 2 has a secondary access in the form of a French door converted from the central window of a three-windowed 45° splay bay window. Similar conversion of one of the windows of the curved bay in the applicant’s flat would avoid taking access across the border but would be impracticable because of the curved shape of that bay. There are two other secondary accesses on the south-east side from one of the larger properties to the rear of the house. Both also open onto the ornamental gardens.
12. A straight stone paved path leads along this side of the house. This is separated from the wall of the house by a flower and shrub border approximately 1.5m (5 feet) wide. The border extends along to the curved bay window, the outer edge of which is flush with the path, and continues on the other side of it, leading past the one other ground floor window, which belongs to Flat 3. The new door will open directly onto this border, requiring access to be taken across it.
13. The border onto which the new door will open was formerly a more formal flower border but now has mainly shrubs. The continuation of the border on the other side of the curved bay window has a similar appearance. As well as traditional rhones, the external wall of the house on this side has modern gas supply pipes, ventilation outlets, etc. At ground level, two gas meter boxes are positioned in the border. Opposite the window in question, at the edge of the stone path, there has been placed a wrought iron appearance arched trellis, around 2 metres high.
14. Upkeep of the communal gardens is contracted out and charged among the proprietors in accordance with the provisions of the deed of conditions. This is organised by the Committee of the Residents Association established under the deed of conditions. Some residents have been allowed to ‘adopt’ – i.e. take over maintenance of – particular areas of the communal gardens in the vicinity of their properties. For example, the proprietor of an upper flat has tended another of the borders in the ornamental garden for several years. There has been friction between many of the residents and the applicant over her use, or proposed use, of areas, such as the border, outside her flat.
15. The various submissions make allegations and counter-allegations in relation to the conduct of the applicant and of the respondents or at least some of them. The applicant suggests that the proposal would enhance her flat and also be to the benefit of others. She points to the Planning (including Listed Building) Consent and Building Warrant obtained. She refers to the consent and lack of opposition from proprietors with windows on this side of the building, and argues that her proposal would increase the values of others’ properties.
16. The respondents point to the benefit to them of their right to refuse consent to this proposal. This, they say, gives them the right to enjoy the amenity of these communal grounds, particularly in relation to the flower beds and the area immediately adjacent to the applicant’s flat. Having no entrance doors, this area had the feeling of not being ‘owned’ by any resident and was available for recreational purposes. The burden on the applicants was not heavy: her windows, if properly maintained, could easily be opened, and she could site a coal bunker within her flat. The conditions were only slightly over 20 years old. 10 out of 14 co-proprietors were opposed. At the site inspection, Mr McLeod added that the integrity of the structure of the building was important.
17. We have to have regard to the factors listed in Section 100 of the Act and decide whether we are satisfied that it is reasonable to grant this application. The application is not to discharge or remove any of the title conditions, but merely to vary the condition prohibiting external alterations so as to permit the proposed conversion of a window into a French door, in the situation where the condition requires unanimous consent but most of the residents in fact object to the proposal. As we have indicated, it is this proposal which we are considering and not the history of other controversial matters relating to the applicant’s use of the communal ground. However, we do bear in mind that the proposal does inevitably involve taking access across the flower bed and we must consider the reasonableness of that rather than simply looking at the structural alteration in itself.
18. We often start our consideration of the factors listed in Section 100 by looking at the purpose of the title conditions in question, in their context (factor (f)). In our view, Condition (Sixth) is aimed at preserving the external appearance of this attractive building. Further, like Condition (Seventh), which we think has the purpose of protecting the structural integrity of the building, unanimous consent is required for any alteration. Compared with requirements elsewhere in the deed for majority, or four-fifths, consent, this underlines the importance of these purposes. We certainly accept that this side of the house presents a most attractive appearance which has been retained in the conversion to flats. If the applicant’s proposal could reasonably be seen as threatening the external appearance of this building, that would be an important factor against the application. However, we have found that it does not. To the contrary, by following the design, particularly the pattern of the astragalled windows, in our view this will not disturb the appearance. Indeed, we are not sure that the respondents really sought to persuade us that it will.
19. Strictly speaking, it can be said that preservation of the amenity of the ornamental gardens on this side of the house, particularly of course the flower bed outside the window in question, is not part of the purpose of this title condition. We do, however, recognise that the conditions as a whole, together with the layout of the building as it has been converted, create a pleasant quiet ambience on this side of the house. We have considered whether this proposal interferes with that in the way suggested by the respondents. We do not, however, consider that can properly be said. Obviously, if the applicant, or any other resident, were to disturb the appearance of the flower bed, or conduct themselves in some objectionable manner in that area, that would interfere with the ambience. We note that Clause (Fourteenth) of the deed of conditions imposes a general obligation on all the proprietors to use the common parts ‘only for their proper and natural purposes and with due regard to the interest and amenities of the other proprietors’. However, having considered the appearance of the flower beds, on either side of the curved bay and also immediately on the other side of the stone path, we simply do not consider that the opening out and use of this access, by the substitution of a door for a window, is going to have any such effect. In reaching this view, we have noted the present state of the flower beds and the extent to which items such as gas meter boxes and the like have already intruded. We have also noted the existence of other secondary accesses, not on this wall but on the other aspect of the house fronting onto the attractive area of ornamental gardens to the south-east. It seems to us that these attractive areas to the immediate south-east and south-west of the house run into each other and are all really part of one ornamental area. The three other secondary accesses in this area do not in our view in any way spoil the appearance and we cannot think that this carefully designed conversion will do so either. Nor do we think that the slightly increased use of the quite short distance of path leading round from the front of the building to this point will have any significant effect on the amenity of this area of the communal grounds.
20. The applicant has not sought to rely on any material changes of circumstances since the condition was created (factor (a)). In relation to factor (b), the extent to which the condition confers benefit on the benefited properties, i.e. the other flats, clearly the condition is of importance, but when one considers the benefit of insistence on vetoing this particular proposal, we simply do not consider that there is any real benefit. We do not think that insisting on maintaining this window as a window is of any real benefit to the other proprietors. In relation to factor (c), the extent to which the condition impedes enjoyment of the burdened property, i.e. Flat 1, while we do not think that the inability to make this particular alteration is a major impediment, this is a factor of some weight. Without such a condition, the applicant as owner of this property would be free to make alterations to, as she puts it, enhance her property. Having seen this situation, we can agree with the applicant that this will to an extent enhance her enjoyment of the property – mainly, no doubt, for her convenience, but this is nevertheless a right of enjoyment which, as owner, she would otherwise (subject to the need for public consents) have.
21. We agree with the respondents that this is not an old title condition (factor (g)). It, along with the rest of the deed of conditions, was created to regulate the divided ownership of this attractive property after it was flatted, in the interests of all the proprietors. The particular purpose of this condition, preserving the external appearance of the building, remains good. If there were any significant adverse effect on the external appearance, there would be no reason why this relatively modern title condition should not be adhered to.
22. The consents obtained in this case (factor (g)) are of some relevance. Our consideration is not identical to that of the planners, so that planning consent does not necessarily count strongly in an application of this nature. However, the existence of the planning permission, listed building consent and building warrant does indicate that there has been consideration of matters of amenity and the structural integrity of this important listed building.
23. Neither side has placed any reliance on factor (h), willingness to pay compensation, and we do not consider it to have any significant bearing in this case. That leaves factor (j), ‘any other factor which the Lands Tribunal consider to be material.’ We think it is relevant here to consider the extent of the opposition, where the title condition requires the unanimous consent of the other owners. We are bound to say, however, that the opposition does appear to have been coloured by the feelings of other proprietors about other events involving the applicant. We must look at the reasonableness of this particular application and what it involves. We do note that Ms Linn, the proprietor of Flat 3, not only did not object but went to the trouble of submitting a statutory representation in which she supported the application in terms which seemed to us to be measured and sensible. She confined herself to addressing the particular proposal and indicated that she ‘cannot see any reasonable reason to object’.
24. The applicant suggested that her proposal would increase the value of the other properties. While we can see in a general sense that upgrading of individual flats will be to the benefit of the whole, we do not think that any such increase, related to this particular proposal, has been established, and we give no weight to this argument. Equally, however, we see no reason for the other proprietors to fear any reduction in values.
25. Weighing all these factors up, we are persuaded that this application is reasonable notwithstanding the opposition of most of the other proprietors. We have looked objectively at the purpose of these title conditions and simply do not consider that that purpose is in any way threatened by the applicant’s proposal. Inability to proceed would be a real impediment to the applicant’s enjoyment of her property, whereas insistence in the condition cannot in our view reasonably be described as a substantial benefit to any of the other proprietors. We do not think that the integrity of this most attractive area of ornamental ground is threatened by this proposal.
26. We have therefore decided to grant this application.
27. Nothing in this decision is to be taken by anyone as authorising any unreasonable use of the common parts. The applicant must realise that she is not entitled to make use of the area adjacent to her flat as if it were her own.
28. In the event of any issue arising in relation to the expenses of this application, the Tribunal will follow its normal procedure of considering that matter 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 11 January 2008
Neil M Tainsh – Clerk to the Tribunal