1. This is an application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for the variation of a title condition to allow the erection of a double garage on an area of garden ground at Merchiston Bank Gardens, Edinburgh. The current title condition prohibits any buildings except a greenhouse of specified maximum dimensions. The applicants are thus unable to proceed with their proposal, for which they have full planning consent. Objections were lodged by a number of neighbours several of whom are agreed to be benefited proprietors. There had been a previous application under Section 1(3) of the Conveyancing and Feudal Reform (Scotland) Act 1970 in 1999 in respect of this same land for a variation to permit the construction of 2 semi-detached houses (Brown v Denny and Others). That application was refused and the then applicants apparently sold the land. Subsequently the current applicants erected one modern 2-storey house on unburdened land immediately adjoining and to the rear of this land. They now seek to build a garage to the front of that house on the subjects.
2. The tribunal in exercise of its powers under the Act has decided to grant the application.
3. The Disposition of the subjects by Finlay Ramage, SSC (Trustee of the late David Adamson) in favour of David Alexander Adamson FFS dated 23 May 1934 and recorded in the Division of the General Register of Sasines for the County of Edinburgh on 24 May 1934 contains the following condition:-
“And also with and under the following further burden and restriction that it shall not be in the power of my said disponee or his foresaids to erect on the subjects hereby disponed any buildings except a greenhouse (which greenhouse shall not exceed twenty feet in length ten feet in width and twelve feet in height) and which burden and restriction is hereby constituted and declared to be now and in all time coming a real and preferable burden upon and affecting and a servitude on and over the subjects hereby disponed … ”
4. The parties were agreed that the owners of the properties at Nos 2, 3, 4, 6 ,8 and 10 Merchiston bank Gardens are benefited proprietors. The respondents also claimed that the proprietors of 1, 1A, 5 and 12 were also benefited proprietors as these titles included a similar condition to that in the 1934 Disposition. The respondents accepted that the properties at Nos. 7, 9, 11 and 14 were not benefited proprietors but claimed that they were still affected proprietors. There is now no role for affected proprietors in the current legislation and there is no provision allowing us to take account of the position of parties who are not benefited and may simply be affected by any proposal. So far as the properties at Nos 1, 1A, 5 and 12 are concerned it would appear that they may have a valid claim to be benefited proprietors but as we have not been given a copy of the appropriate title deeds we can give no definitive view. This point is however of no consequence in the particular circumstances of this case as the properties which are agreed to be benefited comprise a substantial part of the whole terrace and the inclusion or exclusion of the remaining properties will not make any difference to the conclusion we will reach.
5. The application was made by Trevor Andrew Blackman and Stuart Alexander Matheson, 13 Merchiston Bank Gardens, Edinburgh, as proprietors of the subjects, which comprise an area of ground at that address. Representations opposing the application were made and maintained by proprietors at Nos 1, 1A, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14, although, as noted above, not all of these are benefited proprietors. The parties agreed that the Tribunal should deal with the matter by way of written submissions supplemented by a site visit. We received detailed submissions and responses on behalf of both the applicants and the respondents. At the site inspection on 11 December 2007 both of the applicants were present as well as the owners, or part owners of Nos 1, 7, 8, 12 and 14 Merchiston Bank Gardens. The applicants were represented by Mr Daniel Bain of Shepherd and Wedderburn, solicitors and all of the respondents were represented by Mr G Cameron of Stuart and Stuart, solicitors. Mr Cameron’s wife owns the house at 8 Merchiston Bank Gardens, one of the benefited properties.
6. During our site inspection we were given confirmation by the applicants that computer generated photo montages submitted by the respondents reasonably represented how the proposed development was likely to look when completed. Our inspection included a look at the site from first floor windows at two of the houses. We were also able to observe the position of a stake in the garden of No. 14 identifying the line of the front edge of the proposed garage as it would be seen from that house. Also at the inspection, the applicants sought and were given an opportunity to answer a matter raised by the respondents in their submissions regarding an alleged absence of prior notification. We gave the respondents 14 days to respond, and they did so.
Brown v Denny & Others – dated 31 March 2000 (LTS/LO/1999/25)
Ord v Mashford (2006 SLT (Lands Tr) 15)
George Wimpey East Scotland Limited v Fleming (2006 SLT (Lands Tr) 2)
Anderson & Anr v McKinnon - dated 12 January 2007 (LTS/TC/2006/04)
Brown v Richardson & Anr - dated 8 May 2007 (LTS/TC/2006/41)
Graham & Fletcher v Parker - dated 14 March 2007(LTS/TC/2006/25)
Smith v Prior & Others dated -17 November 2006 (LTS/TC/2006/06)
Railtrack plc v Aberdeen harbour Board – dated 17 December 2001 (LTS/LO/2001/13, 14-21 and 28-31)
7. From the submissions received as well as its site inspection the Tribunal has found the following facts established.
8. Merchiston Bank Gardens is a short street situated in a primarily residential suburb of Edinburgh between Colinton Road and Morningside Road approximately 1½ miles due south of Princes Street. It is characterised by stone built houses of varying architectural styles and type, many of which are in excess of 100 years old. There is an attractive street pattern with several narrow roads bounded by stone garden walls. The area is quite densely developed but there are many trees of varying ages and size. The variety of house types, their age and the stone construction which predominates, coupled with the varied street pattern and the contrast created by the trees creates an attractive residential area convenient for the city centre. Although the overall impression is one of generally old buildings some modern development has taken place, in particular the very modern 2-storey house built by the applicants on the plot immediately west of the subjects. Adjacent to this there is a house incorporating both traditional and modern construction. There is a 3-storey block of flats, probably around 20 years old, behind a stone boundary at the junction of Merchiston Bank Gardens and Albert Terrace. On what might be considered to be the northern boundary of the immediate locality there is a very extensive 1960/1970s college complex which is unattractive and unsympathetic in design to the overall area although it does incorporate the old Merchiston Castle. The overall character of the locality is best described as a residential area containing a wide variety of architectural styles and individual features. It is much favoured as an area to reside in and is likely to command high values.
9. Merchiston Bank Gardens which leads off Albert Terrace runs generally north/south and is a cul-de-sac although there is a footpath connecting to Merchiston Bank Avenue which in turn joins Colinton Road. The east side of the street comprises a terrace of ten 2-storey and attic stone-built houses with slated roofs. These houses have very small front gardens which are generally gravelled or paved over. On the west side, the subjects occupy a central position, there being two semi-detached cottages, one storey and attic in height, to the south and a detached one storey and attic former gardener’s cottage to the north. This latter cottage sits at right angles to the street. There are footpaths on both sides of the cul-de-sac. None of the terrace houses, apart from the end-most one (No. 1), has off street parking; the semi detached house (No. 12) lying immediately adjacent to the subjects also has off-street parking, as does the former gardener’s cottage (No. 14). Only No. 1 Merchiston Bank Gardens has a garage within its precinct. Parking restrictions apply in the street, with resident spaces as well as parking meters.
10. The subjects are rectangular in shape and have a frontage to Merchiston Bank Gardens of 81 feet. They extend back a distance of some 66 feet and slope slightly downwards from the street. They are enclosed by a low rise iron railing and are currently laid out as garden ground, with small trees and bushes fronting the road and lawns behind. A paved driveway leads off the street. There are hedges to No. 14 to the north as well as a holly tree growing on the boundary. A water feature has been created with low rise walls in the centre of the lawns.
11. The applicants secured planning permission in 2002 and subsequently built a very modern 2 storey house on the plot of land immediately adjoining the subjects to the rear or west. This house sits hard to the boundary line no doubt positioned there so as to avoid the title restriction. Access to the house for both pedestrians and cars is taken over the subjects by way of the driveway positioned alongside the northern boundary. The house incorporates a single span roof overhanging the walls and sloping upwards from the front wall of the house to the back wall. This roof is clad in zinc. The front and side elevations are cement rendered to first floor height with timber panelling above. The highest point of the roof is in line with the apex of the more traditionally formed roof of the adjacent house to the north. The most significant features of the house are its modern, almost minimalist, style and the roof covering which is quite dominant when seen from the road.
12. Up until at least 2000 there was a dilapidated summer-house (the permitted greenhouse), positioned on the subjects, approximately midway along the frontage and about one third of the way back from the front.
13. The terraced houses on the east side of the Gardens have large oriel-windowed rooms at both ground and first floor. The first floor rooms are in certain cases used as lounges or drawing rooms. The views from the first floor include the roofscape of the houses opposite as well as the gardens there. No. 1 has been sub-divided with an external stair leading to the flat on the first and attic floor.
14. The houses in the terrace at Nos. 1 to 10 Merchiston Bank Gardens benefit from an openness and more extensive outlook because of the absence of a building on the subjects and the cottage style nature of the houses at either end. This contributes to the character of the immediate locality.
15. The subjects and the respondents’ properties all lie within the Merchiston and Greenhill Conservation Area.
16. The applicants propose the construction of a double garage to be located at the north-west corner of the subjects, at the bottom of the existing driveway. This will be 19 ft. 7 inches (6 metres) in length, 18 ft 0 inches (5.5 metres) in width and 11 feet 8 inches (3.6 metres) in height. It is designed to be similar if not identical in appearance and finish to the main house. The roof will overhang the walls and will be, like the house, in one pitch and clad in zinc. The garage door will be of timber, again to match the house and the walls will be cement rendered; there will be full height windows facing south. The back wall of the garage will be positioned hard against the boundary of the plot (which at this point adjoins the neighbouring house in Merchiston Bank Avenue). It will be approximately one metre away from the north boundary common to No. 14 lining up with the edge of the existing driveway.
17. Full planning permission was given by The City of Edinburgh Council on 23 March 2007. It was conditional only on the development being commenced within 5 years of the date when consent was given.
18. Both parties lodged detailed submissions, which are summarised as follows.
19. The applicants reviewed the various factors set out in the Act and argued that there had been a significant change in the character of the burdened property by reason of the house erected by the applicants on the immediately adjacent property as well as the driveway formed on the land itself. They claimed that the proposed garage would not be extensively visible from outwith the applicants’ property because of the number of mature trees and shrubs between the street and the proposed garage. In addition the downward slope of the ground would tend to make the garage appear lower. As the applicants’ existing house is set well back from the road the building of the garage in its intended place would not break any existing building line. It was to be built with an appearance sympathetic to the applicants’ existing house. Furthermore it would hide the garage and rear buildings of the adjacent house at 7 Merchiston Bank Avenue. A full planning consent had been issued by the local council following a report by the planning department which considered the impact of the proposal on the Conservation Area and whether the development would have any effect on the amenity of the surrounding area. It had been identified that there would be some effect on the front garden of No. 14 Merchiston Bank Gardens but that the extent of over-shadowing would be minimal and would not be considered sufficient to adversely affect the residential amenity.
20. The respondents firstly identified the definition of purpose as set out in the Tribunal’s earlier decision and emphasised that the Tribunal’s finding in 2000 that the purpose was still as relevant then as it was in 1934 when first imposed. They then went on to analyse the conclusions of the planning department of the local authority when planning permission was granted for the applicants’ house. In particular they referred to the acknowledgement of the local authority that overdevelopment and erosion of garden ground through sub-division was the principal threat to the area. They pointed out that the applicants had designed their house without a garage in the land un-restricted by the title condition and they were aware that they would not be able to build it on the reference site because of the restriction in title. Furthermore the original plans prepared for the site and which did not proceed following our decision in the earlier case, incorporated a garage. They submitted that the terrace of ten houses was specifically designed to take advantage of the unbuilt on gardens so that all of the individual houses were able to have views over the garden. They particularly referred to the effect on appearance of the design adopted for the garage and in particular the nature of the roof being in one section and sloping towards the front. The zinc cladding had no empathy with the predominate stone and slate construction which prevails in the surrounding area. Finally the respondents stated that the proprietors of the terrace houses had purchased in the full knowledge of the restriction in the title of the reference property and that it was particularly important to them and where purchases had been made recently had been an influence on the decision to buy.
21. Section 98 of the Act makes clear that we are only to grant this application if we are “satisfied, having regard to the factors set out in Section 100 … ” that it is reasonable to grant it. The listed factors which are or might be relevant in this case are, in outline:-
(a) – changes in circumstances;
(b) – the extent to which the condition confers benefit on the benefited property;
(c) – the extent to which the condition impedes enjoyment of the burdened property;
(e) – length of time since condition created;
(f) – purpose of the condition;
(g) – whether there is consent of, e.g., planning authority for use which the condition prevents;
(h) – whether burdened proprietor is willing to pay compensation;
(j) – any other factor which tribunal consider material.
This application is for a specific variation, to enable a particular detailed proposal (and nothing else) to proceed. We should therefore make our assessment, not in relation to discharging the burden as a whole – the applicants do not seek that – but in relation to the particular proposal. For example, are there changes in circumstances which have any bearing on the reasonableness of the proposal? What is the extent of the benefit of the condition, in relation to this particular proposal?
22. Although the previous Tribunal was considering an application under the previous legislation – the Conveyancing and Feudal Reform (Scotland) Act 1970 – the principles applicable remain substantially the same. We are clearly of the view that our starting point is the same. That Tribunal heard extensive evidence and found that the purpose of this condition was to preserve the special amenity and character of Merchiston Bank Gardens and to protect the outlook from the terrace on the east side of the street, and that that purpose was “as valid and appropriate today as it was when the obligation was created”. Having the garden was regarded by all of the objectors then as a very significant factor in their decisions to buy and in the continuing pleasure they derived from living in this street. There has been no attempt in this application to persuade us of any different position, and we in any event agree with it. However, this application is based on a very different proposal, both in character and in scale. The respondents suggested, at least in the early stages of these proceedings, that the previous Tribunal decision should rule this application, but in our view the present proposal is very different. Further, the situation in which this application arises is at least slightly different, in respect that the applicants’ house, in very close proximity to the subjects, was not present when the previous application was being considered.
23. As ever in cases of this nature, our site visit was very important, and we were also greatly assisted by the photo montages showing how the proposed garage would fit in. Before making our assessment of the statutory factors, we should indicate two general findings. Firstly, in our view there is no one feature or design which predominantly creates the character of this locality. There are a number of stone built terraces but they are not of uniform design. Some buildings are higher than their neighbours so that there is no common roof height. Merchiston Bank Gardens itself contains a mixture of quite high terrace houses opposite traditional bungalows which are only one storey and attic high. There is the openness of the unbuilt on garden on the subjects, as well as the very modern house to the rear. There is an adjoining house which is an amalgam of modern and traditional and which mirrors in part the appearance of the applicant’s house. The pattern of the streets clearly also contributes. It is the sum of the individual parts which makes this locality what it is. The openness of the subject land of course makes a very important contribution.
24. Secondly, our objective assessment is that the proposed garage will have only a minimal effect on the amenity of the houses in the terrace. We can well understand the differing reaction of the owners of these houses. They have been through a number of processes in relation to development proposals and are bound to associate this garage with their feelings about the whole issue of preserving this open area. Looking at the matter objectively, however, and not forgetting that the garage will make a bigger visual impact from upper floor rooms across the road, in our view it will occupy only a small part of the site, on lower ground in one corner at the rear. There may be differing feelings about the impact of the applicants’ house on the immediately adjoining site, but the fact is that it, as well as another development immediately to the north-west, is now there. In that physical context, we do not consider that the garage will itself create an impact, and we consider that the amenity effect of the open space, with its grass and trees, will be preserved. In reaching this view, we do appreciate that the distinctive zinc plated garage roof being at a lower level than that of the house will be relatively more prominent, especially from upper floors across the road, but we are nevertheless of the view that the overall effect on the objective viewer would be of something which blends in with the buildings around, does not occupy a very large part of this garden ground and does not significantly alter the effect of this open space. In our view, the subjects will, even with this garage, remain as an attractive green area which plays a very important part in the amenity of the street.
25. We turn to consider the factors listed in Section 100. As regards (a), changes in circumstances, in our view there are some significant changes. Section 100(a) requires us to consider (without prejudice to the generality) any changes in the character of the benefited and burdened properties and in the “neighbourhood” of the properties. Here, we find no change in the character of the benefited properties but there has been a change in the character of the burdened property. This was formerly and at the time when the condition was created apparently a nursery garden, with a greenhouse as permitted under the burden. It is now the ornamental front garden of a dwellinghouse. The greenhouse, which at the time of the previous case was still there although dilapidated, has gone. There is now a driveway used by cars. A degree of improvement, but also the incursion of motor vehicles, has to be borne in mind. As regards the neighbourhood, the most significant change is the erection of the new strikingly modern dwellinghouse immediately adjoining the subjects. Another new building, 7 Merchiston Bank Avenue, with a partially modern design, is also quite apparent, in varying degrees, from the terraced houses of the benefited proprietors. There is a 3-storey modern block of flats just off the end of the street, although this is of less significance. These changes have not in our view altered the basic character, and the burden remains highly relevant, but the immediate setting of the subjects has changed in a way which does affect consideration of the particular proposal to build a garage, which in our view will substantially blend in whereas in the past it would have had quite a striking impact.
26. As regards (b), the extent of the benefit to the benefited proprietors of the condition which prohibits the building of this garage, there is no doubt that the benefited proprietors obtain (perhaps to varying degrees) the substantial benefit of the view of the garden from their public rooms. The extent, under present circumstances, of the benefit of being able to prevent this proposed garage from being built, has to be considered. We have indicated our general view that the garage located close to the new house, at a lower ground level than the street and screened to an extent by the trees on the site, will not in the circumstances have a significant adverse effect on the amenity. There is a driveway in which cars are parked, perfectly consistently with the title condition: to that extent, this is not a complete innovation on green space.
27. There is a further consideration in the assessment of the effect on amenity, and therefore the extent of the benefit from the condition. This is that the condition does permit a greenhouse, albeit one of approximately half the size of the proposed garage. We should not speculate about purely theoretical possibilities under the title as it stands, but it does seem reasonable to have in mind that the owners of the subjects, who appear very likely to continue to be the owners of 13 Merchiston Bank Gardens, might well, as an alternative to a garage, decide to build a greenhouse, also in a style to match the house and therefore similar to (although of course smaller than) the proposed garage. It appears to us that the benefit afforded by the title condition in relation to this particular proposal is actually rather limited.
28. As regards (c), the extent to which the condition impedes enjoyment of the burdened property, the starting point is that, in the absence of such a burden, the owner would have the right, like any owner of property, to use or develop it as he wishes, subject of course to planning control. No doubt the addition of a garage can be viewed as a relatively minor development, but garages clearly add considerable utility, and perhaps value, to houses in cities. We know that there is planning consent, so this is a substantial impediment.
29. As regards (e), this condition, now over 70 years old, is quite old, but the significance of that is very slight where, in general, it is clear that the purpose of the condition remains valid and appropriate.
30. We have already considered (f), the purpose of the title condition. We accept that the purpose remains valid, so that the question is the extent, if any, to which the particular proposal will conflict with or undermine the purpose.
31. In relation to factor (g), there is of course detailed planning consent for this particular proposal. As we have seen, this affects assessment of the extent of the impediment. Beyond that, however, the planning consent is, in a case of this kind, of very limited significance. It shows general acceptance of the reasonableness of the proposal, and the effect on neighbours’ amenity is relevant to planning, but it does not necessarily follow that the standard applied by the planners in their assessment of that issue is the same as in the assessment of the issue before us. The Tribunal’s previous decision in relation to these subjects of course illustrates the limited relevance of planning consent, at least where the interests protected by the condition are predominantly private rather than public, and the Tribunal’s approach under the 2003 Act is no different.
32. Factor (h), whether the burdened proprietor is willing to pay compensation, appears to us to be neutral in this case. There appears to be no live issue as to compensation. The respondents did argue in their original representations that should the 2000 decision be, as they put it, “reversed”, they should receive compensation related to costs incurred by them. This might possibly have a bearing on any question as to the expenses of this application, but we agree with the applicants’ submission that it is not an indication of anything which could entitle the respondents to compensation under the relevant provisions of the Act (Section 90(6) and (7)).
33. We should consider three other matters for their possible relevance under factor (j). The first is the respondents’ understandable frustration about the sequence of events. The applicants went to the considerable trouble and expense of building the house on the adjoining site, without incorporating or leaving space for a garage on that site. They must have known, and in any event must be taken to have known, about this title condition and indeed the Tribunal’s view of it. Is it reasonable for them to rely on the change of circumstances brought about by the building of their house? How can they claim that the burden is a substantial impediment when they built the house without providing for a garage? We do not ignore these feelings but do not think we can give much effect to them. The Tribunal will not allow applicants to profit from their own wrongdoing, for example to rely on circumstances produced by their own breaches of conditions, but that is not the position here. It might be thought unreasonable to, as it were, ‘engineer’ a situation in which an application is required. However, proprietors are entitled to develop their land as they choose. This application relates to the reasonableness of relaxing the burden on this land. There is, in any event, no evidence to the effect that the applicants could have developed a garage on the adjoining site. Further, in considering the change in circumstances brought about by the building of the other house, the Tribunal is not considering the applicants’ personal needs, but rather the physical situation pertaining.
34. Another matter on which the respondents placed some reliance was the view expressed by the planners, in the course of recommending the grant of the applicants’ application to build their house, as to the value of this garden to the character of the area. We do not, however, consider that this adds anything, there being no doubting that value. Indeed, if the planners’ approach were being relied on, it would have to be noted that on two separate occasions they have approved of development on the site, once indeed of two houses on it.
35. The remaining ground of objection by the respondents was an alleged lack of prior consultation. This was the matter on which the applicants were allowed to comment at the site inspection as it was raised at a late stage. The applicants did circulate their neighbours very shortly before their planning application to erect a garage, but the parties have differing versions on the question whether there was any actual consultation. We cannot reconcile the evidence on this, but in any event do not consider that it is material to our decision. We certainly encourage parties to seek to discuss proposals in an appropriate manner at as early a stage as possible. Any unreasonableness in that regard might have a bearing on issues of expenses, but we have to consider the reasonableness of the proposal as it comes before us.
36. Drawing all this consideration together, we certainly accept the continuing application and relevance of this building restriction. Its purpose is to protect the amenity of in particular the terraced house owners. This makes it very much a question of assessing the effect of the particular proposal on their amenity and therefore reaching a view on the extent of the benefit. If the double garage would have any real detrimental effect, the respondents should be allowed to rely on the building restriction. In our view, however, in the particular circumstances which we have reviewed, including the changes at the subjects and in their setting, the effect on the amenity will be minimal. The benefit of the condition to the benefited proprietors in relation to this proposal is therefore also minimal. The condition is a substantial impediment to the applicants’ enjoyment of their property. Giving such weight as we can to the way in which this application has come about, we are satisfied that it is reasonable to grant the application. We would add that had we reached a different view on the double garage proposal, we would have considered whether it would be reasonable simply to substitute “garage” for “greenhouse” so as to permit a garage no bigger than the permitted greenhouse. It would, we think, have been difficult for the respondents to resist such a conclusion.
37. In these circumstances, we allow this application and will order variation of this title condition to the extent of permitting the erection of the proposed double garage, in accordance with the plans produced to us. This will be done by widening the existing exception to the building restriction to cover a double garage as shown in the applicants’ plan and in accordance with the planning permission, with the result that the condition will not permit any further development, e.g. of a greenhouse or the like.
38. In the event of their being any issue in relation to expenses, the Tribunal can in accordance with our usual practice deal with these 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 28 January 2008
Neil M Tainsh – Clerk to the Tribunal