1. This application to vary a title condition is a sequel to a previous contested case involving the same subjects (Ord v Mashford, 10.3.2005, LTS/LO/2004/16, reported at 2006 S.L.T. (Lands Tr) 15). In that application, the Tribunal varied the title condition in question, which contains a building prohibition, to the extent of permitting the erection of a single storey dwellinghouse on part of the subjects. The Tribunal’s Opinion can be referred to. Such a house has been built.
2. This application arises because the current proprietors of the burdened subjects proposed, and obtained planning permission, to build a garage in addition to the house. This application for a further variation has also been opposed by the benefited proprietors. However, that opposition in principle has been withdrawn, leaving some quite limited argument in relation to the benefited proprietors’ submission that certain conditions should be attached to the Tribunal’s variation order, and also a disputed claim by the benefited proprietors for compensation. With the consent of the parties, the Tribunal has decided on these issues without a full hearing, but with a site inspection. The Tribunal had the benefit of written submissions supplemented by some helpful final oral comments on the occasion of the inspection by the solicitors acting for the parties (Ms Leslie of Messrs Morton Fraser on behalf of the applicants and Mr Geddes of Messrs Fyfe Ireland on behalf of the respondents). One matter which might be mentioned is the slight complication that the benefited property is in fact only a part of the subjects owned by the respondents, viz. the main garden on the north side of their house, although the earlier case (which involved the merits of the application but no claim for compensation) was by agreement considered on the basis that the house went with the benefited property so that it was appropriate to consider at least the merits without making the distinction.
3. On the previous occasion, the Tribunal’s Order involved restriction of the permission to build a single storey dwellinghouse by (a) imposing a building line, restricting the permission to a defined area on the north side of the subjects; (b) imposing a maximum ridge height of 220.98 metres above sea level; and (c) specifying a roof pitch of 35 degrees or thereby. In the present case, the respondents’ submission, as developed orally, was that our order further varying the title condition should be subject to the following conditions:-
(a) to permit the construction of only a single storey double garage on that part of the subjects specified in the grant of detailed planning consent;
(b) to limit the height of the garage to the lower of 220.98 metres above sea level or that specified in the planning consent;
(c) to limit the roof pitch to 35 degrees or thereby.
Mr Geddes argued that these conditions were necessary on the basis that the conditions attached in the previous Order referred to only the house. In written submissions, the respondents had also sought a use restriction, prohibiting use as residential accommodation, and a condition that no further building would be permitted. However, on the basis that the specific restrictions (a), (b) and (c) above were imposed, Mr Geddes indicated that he would not press these further matters.
4. The applicants opposed all the conditions sought as unnecessary. As far as the height and pitch restrictions were concerned, these were not in their specific terms opposed but were said to be unnecessary because the applicants considered themselves bound by the previous conditions.
5. The Tribunal has decided that the specific restrictions (a), (b) and (c) above are appropriate. While there is little reason to think that the applicants have any intention of doing anything different (they are of course restricted to their planning permission and indeed had commenced building the garage on the site specified in that permission), it appears to us correct that the previous order, with its conditions, would not cover the present building and therefore that it is appropriate to make the corresponding conditions on this occasion. That will provide a degree of comfort to the respondents in relation to the extent and use of this development. Although we have not had submissions on this we have some doubt as to whether a use restriction could be tacked on to this variation order without the consent of the applicants (Title Conditions (Scotland) Act 2003, section 90 (11)), because it could be seen as ‘imposition’ of a burden. We would in any event have been slow to impose a use restriction when the matter at issue is one of the extent of building permitted. Further, conditions prohibiting further building would add nothing, because the original prohibition, although varied, still stands.
6. The respondents acknowledged that any compensation award would be minimal, and requested a sum of £3,000. Mr Geddes explained that the respondents’ opposition had never been about money but they had a real concern about the effect of building on the subjects which had previously been an open field, originally a paddock, affording them a pleasant view and environment to the front of their house. The effect of the garage on its chosen site was actually worse than that of the new house as built, the latter being largely unseen from the respondents’ house and having, as Mrs Mashford acknowledged, fitted into the space well. The unobstructed view of the garage, on the other hand, would affect views from one downstairs and two upstairs main rooms of the house, and also from an attractive verandah area beside the front door.
7. The respondents submitted that this particular development did not cause the respondents any substantial loss or disadvantage. Compensation had not been claimed on the previous occasion, leading to the conclusion that that variation did not lead to any loss of amenity. The location of the garage was behind the building line set in the previous case. Visibility was restricted by the large beech hedge in front of the respondents’ property, and there was to be further screening in the form of a fence on the applicants’ boundary. The previous area of ground had not been of such high amenity. The benefited property was the respondents’ garden ground, but even taking the subjects as a whole it was difficult to imagine any loss of amenity. The garage was not very close to the respondents’ house and could not be seen from their sitting room. There had been no special view which required to be protected. If the garage were not there, the view would be to the gable end of another property.
8. The Tribunal attaches no weight to the fact that a claim for compensation was not pressed on the previous occasion. The question on this occasion, the new house having been built, is whether permission to add a single storey garage in its particular site will cause the respondents as owners of the benefited property substantial loss or disadvantage. We are prepared, without deciding the point, to proceed on the basis that the owner of the benefited property is also, and will almost certainly continue to be, the owner of the house at 4 Manse Drive. We had the advantage of seeing the partially constructed garage, but note, firstly, that it presently makes a rather unattractive sight, consisting of dark inner brick and being apparently used as a repository for building materials, but, secondly, on the other hand, that it is some way short of its final height. Except to the extent that it will be screened by a fence on the applicants’ boundary, it was clear to us at the site that the garage will be visible from one downstairs room and a pleasant verandah of No. 4, despite the high hedge, because of the gap at the entrance to the drive of No. 4, and it will also be visible from two main upstairs rooms. It will scarcely, if at all, be visible from the respondents’ substantial side garden. We also note that it is within the building line fixed on the last occasion and it will be slightly lower in height than the new house. There is no doubt that from its higher location the front of No. 4 enjoys a reasonably open outlook across this part of Biggar, although this is restricted to some extent by the tall hedge which the respondents themselves retain. However, as the Tribunal noted on the last occasion, this outlook does take in quite a number of houses. In particular, the two semi-detached houses at Nos. 17 and 19 Broughton Road are in the close vicinity of (although not directly in the same line as) the new garage, and the new house is also visible, although more to the side. It is our view that the new garage will ‘blend in’ to the surroundings: the respondents may very naturally continue for some time to be conscious of it, but, looking at it objectively as we must, we doubt very much whether, for example, any prospective purchaser of No. 4 would pay any particular attention to it or be adversely influenced. Moreover, apart from the fact that we were told that there will be a fence on the applicants’ boundary, we note that the applicants would under the existing title position be free, for example, to park cars or even vans or lorries, leave children’s toys lying around, or alternatively grow trees which would restrict the view, in the area where the garage is being built.
9. In these circumstances, we are not persuaded that this variation will cause the respondents as owners of the benefited property and therefore also owners of 4 Manse Drive any substantial loss or disadvantage. In reaching this view, we have not applied any ‘percentage’ test and we have also accepted that the respondents were not simply claiming some form of solatium for their personal feelings (which this tribunal cannot under the statutory test award) but rather claiming that there was a real, albeit unquantifiable, effect on their property (which we could award, despite the absence of any valuation evidence, if it met the test of ‘substantial’).
10. Our decisions are accordingly as follows:-
(i) We shall grant the variation sought, with the following conditions attached to our Order:-
(a) erection of a single storey double garage only, in the position shown on the revised plan, which is in fact attached to the Building Warrant.
(b) the height of the garage may not exceed the height shown on the plan to the Building Warrant; and
(c) the roof pitch may not exceed 35 degrees or thereby.
(ii) We refuse the respondents’ claim for compensation.
11. Parties are agreed that any issue as to expenses is reserved for subsequent determination 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 21 December 2007
Neil M Tainsh – Clerk to the Tribunal