[1] This is an application under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) by the proprietor of a basement level flat (“the subjects”) to vary a real burden prohibiting structural alterations without the consent of (now) the proprietors of the other flats in the building, so as to permit the applicant to proceed with proposals (for which she has the necessary planning consents and building warrant) for certain internal alterations which involved down-taking some walls and partitions and were agreed to be structural. The application is opposed by each of the other three flat proprietors, who have concerns about possible damage to the building and their properties. Questions have also arisen in relation to conditions which should be attached to the variation order in the event of the application being granted.
[2] In summary, the Tribunal has decided that in the particular present circumstances it would not be reasonable to grant the application, but that the applicant should have the opportunity of considering her position further in the light of two possibilities, namely taking the removal of two structural walls out of her proposals or deferring a decision to allow monitoring and investigation of the recent cracks in higher parts of the building.
[3] The burden is contained in a Deed of Conditions by Greig Property Developments Limited dated 26 February and recorded in the General Register of Sasines on 8 March 1990. Clause 2(b) provides inter alia:-
“Each flat shall be maintained by the proprietor thereof at his own expense in good order and repair and no structural or external alterations shall be made to any flat or to any part thereof except with the prior consent in writing of the superiors.”
[4] Katherine Lackie, 9b Carlton Terrace, Edinburgh (“the applicant”), applied under Section 90(1)(a)(i) of the Act for an order varying the title condition in so far as applicable to the subjects to the extent of permitting her as proprietor of the subjects to carry out structural alterations to the subjects. The application was opposed by Dr John and Mrs Moira Sloss, Victoria Crowe and Michael Walton and Rob Swinney (“the respondents”), proprietors of the ground, first and second floor properties at said address. The application was heard on 21 and 22 January 2008. It was agreed that the respondents were benefited under the title condition, although an issue as to the extent of their entitlement prior to the coming into force of the Act was raised as part of the consideration of the factors listed in Section 100. The applicant indicated that she was prepared to agree to a number of conditions in the event of the application being granted. The respondents produced a longer and more comprehensive list of conditions which they would seek in the event of the application being granted. The applicant was represented by Ms Chan of Messrs Warners, Solicitors, Edinburgh, who called Michael John Curran, AMISE, and James Lambie McColl, FISE, MICE, each chartered engineers of McColl Associates, Consulting Civil and Structural Engineers, Edinburgh, and the applicant as witnesses. The respondents were represented by Ms Slee of Messrs Anderson Strathern, Solicitors, Edinburgh, who called Allan Mungall, MICE, chartered engineer of Mungall Associates, Consulting Engineers, Edinburgh and the respondent Michael Walton, The Bank House, Main Street, West Linton, as witnesses. The three expert witnesses were heard before the applicant and Mr Walton. Each also lodged various productions and parties agreed a Joint Minute of Admissions on certain facts. The Tribunal carried out a site inspection on 13 February 2008.
[5] Section 98(a) of the Act provides inter alia:-
“98. An application for the variation … of a title condition shall … be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that –
(a) … it is reasonable to grant the application.”
[6] Section 100 provides as follows:-
“100. The factors mentioned in section 98 of this Act are-
(a) any change in circumstances since the title condition was created (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);
(b) the extent to which the condition-
(i) confers benefit on the benefited property; or
(ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(d) if the condition is an obligation to do something, how-
(i) practicable; or
(ii) costly,
it is to comply with the condition;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
(j) any other factor which the Lands Tribunal consider to be material.”
Turner v Hamilton (1890) 17 R. 494
Lawrence v Scott 1965 S. C. 403
MacTaggart v Campbell LTS/LO/2000/23, 10.1.2002
George Wimpey East Scotland Limited v Fleming and Others 2006 S. L. T. (Lands Tr) 2
Ord v Mashford 2006 S.L.T. (Lands Tr) 15
Daly v Bryce LTS/TC/2005/15, 28.4.2006
Brown v Richardson LTS/TC/2006/41, 8.5.2007
[7] On the basis of parties’ agreement, the evidence, the submissions and the Tribunal’s site inspection, we have found the following facts to be admitted or proved.
[8] 9 Carlton Terrace, a ‘Grade A’ listed building, comprises a 2-storey basement and attic mid-terraced house located centrally in a circular terrace connecting Royal Terrace and Regent Terrace, immediately to the east of Calton Hill in central Edinburgh. The terrace is around 200 years old. The rear wall is a full 4 storeys in height, reflecting the difference between the front and back ground levels. The front wall is of polished grey ashlar and the back wall of rubble stone. The roof is slated. There is a sunken well to the street.
[9] In or around 1988 a developer subdivided the house to create 4 individual flats (one per floor). The basement flat gains access by way of the external stair to the front sunken area while the flats on the ground and upper floors share the former entrance hall and stair within the building. The original internal stair to the basement was blocked off. A store or lumber room available for use by the ground and upper floor flat occupiers was created in the room on the right hand side of the shared entrance hall. The rear garden is owned by the owner of the basement flat. The Deed of Conditions which contains the burden was executed by the developer, as superior, the burden being one of a number of community burdens. Clause 17 of the Deed of Conditions conferred a ius quaesitum tertio (right of enforcement) on each proprietor to enforce its provisions against any other proprietor but subject to the right of the superior to waive, alter, modify or dispense with observance.
[10] The basement flat currently contains a lounge, two bedrooms (one with en suite shower room), kitchen, bathroom with a conservatory in the basement level extension to the rear. Although modernized, it retains a central section comprising a small narrow hall and corridor, several large cupboards opening off the corridor (apparently including the original wine cellar for the house) and a wardrobe of a bedroom. The works proposed by the applicant include the removal of the walls forming all but one of these cupboards and the wardrobe, in order to create an open dining kitchen area incorporating the hall. Also proposed is the formation of an enlarged en suite bathroom off the main bedroom by removing a dividing wall between the existing bathroom and study and closing off doorways between the existing bathroom and the hall and between the study and the lounge; and the existing kitchen will be converted into a further bathroom, this to be en suite with a bedroom being created out of the existing conservatory, increasing the number of bedrooms from two to three. These works include structural alterations.
[11 The applicant has obtained planning consent (including listed building consent) and also a Building Warrant. The building control department of the City of Edinburgh Council does not make their own calculation of the size and load-bearing capacity of steelwork required for projects such as this and relies on a self-certification system from the client-appointed engineer. The drawings produced included interior design drawings, showing the existing and proposed layouts and the extent of proposed removals of walls, and structural plans by Messrs McColl Associates, with detailed notes as to the required structural support works.
[12] Most of the walls and partitions which will be removed or broken through under the proposals may be load-bearing only to the extent that they support the floor immediately above, it being not possible to be sure which provide such support without exposure and further examination. Two lengths of walling (“the structural walls”) do, however, support walls which run up the full height of the building. They are approximately 2.6 and 1.0 metres long, at right angles to each other, but the longer of the two extends further, producing a span of around 4.5 metres. These structural walls are situated in the area of the proposed new kitchen/dining area.
[13] The removal of supporting walls and the creation of new openings in existing walls (“slapping”) is a common occurrence in building alteration work. Established procedures exist for carrying it out. These involve the installation of a temporary supporting framework comprising, firstly, the insertion of ‘needles’ under which a beam, jacked into place by turnscrews (“acrow props”), is placed. The wall is then removed and a lintel or supporting beam is inserted onto which the weight carried by the temporary support is transferred, the temporary supports then being removed. The load-bearing function of the wall removed is then carried by the new lintel or beam which in turn is supported by the walling or columns on which it rests. The work involved is highly skilled and not without risk. The support measures, including the necessary temporary support, require to be designed and specified by structural engineers, involving calculation of the load-bearing requirement in the particular circumstances. Account has to be taken of a number of factors, including the different structural design of older buildings, where, for example, the link between internal and external joints may not take the load out to the side and the precise function of the various building members may not be able to be established. Structural engineers provide method statements, which may require to be revised as the work proceeds and it becomes possible to assess the requirements more clearly or if any unforeseen problems arise. There are a number of critical points at which the contractors may require to be supervised and/or the procedure reviewed before moving on to the next stage. These critical points include the insertion of the needles, the jacking up of the props and the final point when the weight is transferred to the newly installed lintel or beam by unwinding the turn-screws. There are a number of building companies experienced in carrying out this type of work. Collapses or other serious damage do occasionally occur but in the main these arise due to inexperienced contractors and those who proceed without awaiting appropriate intervals to allow concrete to cure or the weight transference to be done gradually and smoothly. Vibration or settling down may result in minor cracking.
[14] The drawings and specification of the structural support measures, in particular where the two lengths of structural walls are to be removed, were prepared by Mr Curran. Messrs. McColl associates have extensive experience of such design work, including in older properties of this kind. Because of the length of one of the spans involved, around 4.5 metres, i.e. the 2.6 metres of structural wall plus the remainder of that wall which it is proposed to remove, the drawings specify a central column within the proposed new kitchen area, effectively to half the length of the span and thus very considerably reduce the extent of deflection (bending downwards) of the beam when subject to loading. The deflection would otherwise be excessive. Also, because this is a basement and the exact nature of the foundations is not clear, provision has been made for concrete founds for the column and temporary supports. There is no criticism of Messrs McColl’s structural support design or specification on the information available to them. The measures have not been designed to the limit. As is normal practice, however, the design was prepared without full inspection and examination of the building, on the basis that a condition survey of the building, prior to the work commencing, or examination as the work proceeds, would reveal any need for revision of the design.
[15] Concern has been expressed about two matters. Firstly, an unusual buttress exists within the ground floor storeroom, within a few feet of the structural walls. This is old and formed in timber plastered over. There is a course of bricks on the upper face of the buttress. The buttress spans from the mutual gable with the adjacent terrace house to an internal wall of the shared entrance hall. It slopes upwards from the internal wall to the mutual gable. Its function is unclear. It would appear to be there to provide lateral support to the mutual gable.
[16] Secondly, some cracking is evident at several places in the upper part of the building, as well as certain floors being off-level. Gaps have appeared at certain points between floors and skirting boards, apparently indicating some sinking of the floors. With one exception these matters are of old standing and do not exceed what would be considered normal in a building of this age. Such features exist in many other buildings within the New Town of Edinburgh. Generally, the extent of cracking is unexceptional, particularly in comparison with older Central New Town buildings. More recently, however, new slight to moderate cracking has appeared in the back wall of the common stair used by the upper floor proprietors. This has not been monitored and the cause has not been established. There are a number of possible causes.
[17] Externally, the front and back walls of the building are in good condition and show no sign of defects. The back wall has been fully re-pointed within the last 7 years and defective stonework repaired.
[18] Competent design of such structural support does not eliminate the risk of damage to the properties above or to the building. However, provided the works at the applicant’s property are carried out to McColl Associates’ design (including any revision which they may consider necessary on further examination or during the course of the works) by skilled and experienced contractors under proper professional supervision, the risk of serious structural damage to the building is negligible. By contrast there is a risk, which can reasonably be assessed at up to 20%, of minor cosmetic cracking of plasterwork at upper levels during and for a period after the completion of the works without any negligence or failing on the part of the contractors. This would be caused by vibration during the works or possibly by deflection of the steel beam when this is loaded up. Insurance against non-negligent damage is available although difficulties and dispute can arise where the circumstances were foreseeable. The works other than the removal of the structural walls are relatively straightforward and the risk in relation to them would be of a different and lesser order.
[19] Ms Chan referred to the statutory test and to passages from the general guidance in Ord v Mashford. Under factor (a), she referred to a general increase in such works including structural alterations, and also to the extension under the Act of the power to consent to the other flat proprietors: previously, although the proprietors had a right to enforce, they did not have the right themselves to give consent (Turner v Hamilton; MacTaggart v Campbell). Looking at the purpose (factor (f)), it was not the purpose that the proprietors should have leverage through a right to consent: in the case of structural changes, there was no more than a need to satisfy the superior that the well- being of the building was being safeguarded. Under factor (g), the consents obtained, in particular the building warrant, did the very same thing, because it was confirmation that the Building Regulations were complied with, i.e. the minimum acceptable levels of safety provided for: the respondents could not require anything more. This did not include a requirement of a competent contractor, but the applicant had as much interest in this as anyone else and was prepared to undertake that. From the outset, she had tried to involve the respondents in ensuring acceptable measures and was willing to accept appropriate conditions to ensure that. As regards benefit and burden (factors (b) and (c)), it would be unduly burdensome if the application were not granted: the comfort that would be obtained form the ability to consent was minimal, compared with the extent of enjoyment of the property impeded. The applicant wished to make better use of the space occupied by cupboards in an old Georgian building. This was not a project for profit and it was reasonable for a homeowner to change property so that it could be enjoyed a little more. It was not possible to know which walls other than the structural walls might on opening up be found to be structural. In relation to factor (d), the applicant had already spent quite a lot of money, in trying to obtain consent, because of the condition. As regards factor (e), quite some time had passed and there had been changes. As regards (h), it was confirmed that the applicant was willing to meet any costs that may be incurred as a result of the works. Under (j), Ms Chan referred to the evidence in relation to the risk factor; the proposed mechanisms for ensuring that the respondents’ interests were looked after; and the extent of damage, if any, likely. All the witnesses had said that every building would have signs of movement and the presence of cracking was no surprise. The application was reasonable.
[20] Miss Slee helpfully provided a note of proposed findings in fact, and also of the conditions which, alternatively, in the event of the application being granted, the respondents would wish to see imposed. The respondents’ primary submission was that the application was unreasonable, fundamentally because the risk which the proposed worked posed for the respondents’ property was simply too great. It was clear from the preamble to the Deed of Conditions that it was concerned with the four properties and the rights and obligations of their owners. Although the superior had the right to consent, as well as a fairly standard reservation of the right to waive non-observance, a ius quaesitum tertio was expressly granted: there had been a third party right of enforcement even before the 2003 Act (Turner v Hamilton; Lawrence v Scott, at pages 406-7; and Reid at page 399, footnote 10), and there was therefore not so much of a change of circumstances as suggested on behalf of the appellant. Miss Slee addressed us on the evidence. In relation to the factors listed in Section 100, she referred first to the continuing purpose of the title condition (factor (f)). It was a factor of weight if this could be identified and achieved and if it was to protect from an identifiable harm, which protection would be lost (Ord v Mashford). This was different from a general amenity purpose: the clear purpose was to protect the structural stability of the building as a whole, and individual proprietors were given the right to enforce it. The fact that structural works were being proposed showed the ongoing purpose. This was clearly to protect individual proprietors, and in this case all the other proprietors had made representations and still opposed. The suggestion that the current Building Regulations superseded this condition was resisted. There had been such regulation in 1990. There was evidence that notwithstanding the building warrant, there might be damage. The respondents might suffer inconvenience, disruption, cost and heartache, in relation to their own property, as compared, for example, with a development on neighbouring property. Conditions of this nature were of great importance. The benefit to the respondents (factor (b)) was linked to the purpose: it gave them control over structural works and allowed them to say no if not satisfied. This was a much greater benefit than amenity. It gave them the right to satisfy themselves as to the structural stability and integrity. Neither the building warrant nor the safeguards which the applicant was willing to provide provided a fail-safe guarantee. In relation to the extent of the impediment on the applicant (factor (c)), this might not be of much relevance (Ord v Mashford at 25K-L), but on the basis that the applicant could proceed without taking out structural walls and could thus take down the majority of the walls in the area of the cupboards, she would have substantial enjoyment of her property. Her personal preferences were not relevant (Daly v Bryce). Factor (d) did not arise: there was no cost in complying with the burden. There was no change of circumstances (factor (a)), the burden having been imposed at the point of sub-division. It was not necessarily the case that people wished such open-plan design more often, but in any case that was not a change to which regard should be had. The burden was modern (factor (e)): it could not be said that the passage of time had made it redundant. In relation to the consents (factor (g)), it was accepted that this favoured the applicant, but the Tribunal might have regard for different considerations (Ord, Daly, Brown v Richardson, Anderson v Mackinnon). It was clear why the respondents did not have complete faith in the building warrant and wished to rely on their private rights. In relation to compensation (factor (h)), it was recognized that the applicant was prepared to provide insurance. In relation to factor (j), the fact that the applicant had been unaware of the existence of the burden was irrelevant: the starting point was the condition, of which parties were or ought to have been aware. The evidence about possible negotiations was also not relevant on the merits (George Wimpey). Finally, Miss Slee emphasized that the applicant had the possibility of achieving a large part of what she proposed.
[21] We should start by emphasising that the existence of our jurisdiction to discharge or vary conditions of this kind, essentially based on the reasonableness of the application, means that benefited proprietors are not entitled to take up a position based simply on their entitlement under the condition to refuse consent. The question is rather whether the relaxation sought by the burdened proprietor is reasonable in the circumstances prevailing. We should also be clear that what we are considering is not an application to discharge this condition, but rather to vary it to the extent of permitting the particular proposed works. The condition, which involves the four proprietors in mutual rights and obligations, would otherwise remain in force to cover, if necessary, future proposals by any proprietor to carry out structural or external alterations.
[22] The applicant appears unfortunately to have been ignorant of this condition when she purchased her property and considered these alterations. We can, however, take no account of that: having taken the title which is subject to the Deed of Conditions, she must be taken to have known. Purchasers or existing owners of heritable property must realise that, if they contemplate alterations or changes of use, they need to consider the possible application of title conditions and, if necessary, obtain appropriate advice. The existence of public controls under planning legislation and building regulations should not be assumed to have supplanted title conditions. In some cases under this jurisdiction, the Tribunal can take the view that building issues do not really relate to the title condition in issue and can be left to public regulation, but it is clear in this case, as the respondents submit, that this particular burden has particularly to do with protecting the structural stability and integrity of this building and that it was entered into despite their being in existence at the time substantially the same system of building control as at present. We can only infer a recognition of the particular interests of the proprietors within the building and an intention to provide private, as well as public, control. The respondents having raised a concern, despite the existence of the building warrant, about the effect of the proposed works on the structure of the building, the existence of the title condition means that the applicants’ proposal must be considered applying the statutory test under our jurisdiction.
[23] The purpose of the title condition is in our view to regulate and control proposed structural alterations, in order to preserve the structural stability and integrity of this building. The reference to consent makes clear that it was not intended to be a blanket prohibition, but also that consent might be refused. The superior had to be satisfied that the structure was protected, and was entitled to refuse if not satisfied. The superior has now in effect been replaced by the other flat proprietors. Our jurisdiction, however, ensures that in the event of refusal the reasonableness of the request for consent can be considered by an informed third party in all the relevant circumstances.
[24] A legal issue as to the extent of the respondents’ rights before the Act came into force in November 2004 was raised. The applicant apparently accepts – and this seems clearly correct – that the provisions of the 2003 Act in relation to enforcement by co-proprietors in property communities, and in particular Section 53, ensure that the respondents are entitled to enforce the condition even although the superior has been abolished. Ms Chan submitted that this was a change from the situation prior to that abolition and that that was an issue relevant to the reasonableness of the application. The previous law was by no means easy to follow, but on the authorities to which we were referred we would agree with and follow the Tribunal President’s review of the position in MacTaggart v Campbell and Another, at page 16 onwards: a superior could, while retaining power to consent to a variation of conditions, give co-feuars the right to enforce (Lawrence v Scott), although such provision meant that if the superior did consent that would remove any right which could be enforced (Turner v Hamilton). To that extent, the Act, along with the Abolition of Feudal Tenure (Scotland) Act 2000 (as amended) has strengthened the respondents’ position: the superior is out of the picture and the reference to consent is simply ignored. However, we do not consider that change of circumstance to be of much weight, because in our view a responsible superior, faced with a request for consent to structural alterations, would have considered the interests of the other proprietors, being the owners of the building whose structural integrity was protected by the condition. If the superior then refused consent, an application to the Tribunal’s jurisdiction, albeit then under the Conveyancing and Feudal Reform (Scotland) Act 1970, would have raised very much the same issues as the present application. So we do not think that the improvement of the respondents’ technical legal position after the abolition of the superior has really made much of a difference in this case. What lies behind that consideration is our agreement with the respondents’ contention that this burden protects the interest which each and all of the flat owners had and still have in the structure of the building: there is nothing to indicate any separate motive or interest of the superior.
[25] There is one matter on which we can express a clear view before commenting on the evidence and considering the statutory factors in detail. This is that we are in no doubt that if the proposed works had not included removing the structural walls we would have been satisfied of its reasonableness. The dispute focused on the two structural walls, to the extent that we were not left very clear as to the extent, if any, of risk from removing the other walls, mainly the various other walls in the cupboard area but also the existing wall between the bathroom and the study, and indeed the other removals. No doubt there is always some degree of risk, but it was very clear to us that, as we have found, this risk is of a quite different, and lesser, order. We understood Mr Mungall’s concern to relate to removal of the structural walls. Mr Walton, while not going as far as to indicate that the respondents would withdraw their opposition, very fairly indicated that if the removal of the structural walls was taken out of the proposals, he would ‘feel a greater degree of confidence’ and it would be a ‘more workable plan’. Miss Slee also did not expressly concede that the application without the removal of the structural walls would be reasonable, but her submissions on factor (c) (extent of impediment), were on the basis that because the applicant could proceed to remove all the other walls the burden did not impede her enjoyment of her property. That submission, in our view, reflected the reality of the position, although we do not think it is established that these other works are not structural so that the condition did not apply to them at all. In our view, the balance would clearly swing in the applicant’s favour if the two structural walls were taken out of the application. To refuse consent or a variation, in relation to the removal of walls which might turn out to have this minor supporting function, would imply that an owner in the applicant’s position might not be able to remove any wall. The evidence we heard would not support that. We are of the clear view that, if asked, we would at least allow the application to the extent of permitting the works under exception of the removal of these two lengths of wall. In that situation, the reality is that the burden is in practice only impeding the applicant’s enjoyment of her property to the extent that it prevents her from removing these two walls and thus incorporating the space presently occupied by a cupboard entered from the bedroom – some 2.6 by 1.0 metres – into the proposed kitchen/dining area.
[26] We turn to the position in what is clearly the real dispute, in relation to the two structural walls. We have not set out the submissions made to us on the evidence, particularly of course on the nature and extent of the risks to the structure of the building, but we have taken account of these in making our findings, recorded above. It seems to us that the three experts did not really differ on the central issues. Not surprisingly (and entirely properly), they came from different standpoints. Mr Curran and Mr McColl are experienced structural engineers who understandably and, we think justifiably, considered that the structural works here were well within their design and supervision capabilities and they would be able to deal with any matters which arose once the works commenced, while at the same time acknowledging openly and clearly that the only way to eliminate risk would be not to do the work at all and that there was a distinct possibility of the works adding minor cosmetic cracking within the flats upstairs. Mr Mungall came primarily from the position of his considerable experience and practice in investigating mishaps with this kind of work, but he clearly had a high regard for the others’ abilities and did not criticize their design in any way. His starting point in this case perhaps arose from his initial view – again, we think not only understandable but correct at that point in time – that the proposal in relation to McColl Associates involvement through the works would fall short of the type of supervision required. He may have been slightly more pessimistic about the risk (the experts did not use the same grading of cracking, so their views on that risk cannot be directly contrasted), but his analysis was essentially similar. Assessing percentage risks is an art rather than a science, and we did not think that the witnesses were really far apart on that.
[27] As matters have progressed, a broad consensus has emerged that if the application is successful the structural work would only proceed on condition that it is supervised by McColl Associates and that an experienced contractor is employed. On that basis, on the evidence (and leaving aside for the moment the particular concerns expressed about the buttress and the existing cracks upstairs), the risk of either collapse or serious structural damage is negligible. However, there is a real risk, reasonably assessed at up to 20%, of minor cosmetic cracking. The applicant accepts that she would be responsible for the repair of any damage, whether or not negligently caused, and indeed would accept a condition that appropriate insurance against non-negligent damage should be taken out.
[28] As regards the old buttress, whose purpose is presently unexplained and which therefore may or may not be of any relevance, we take the view that the involvement of McColl Associates adequately ensures that due consideration will be given to whether this adds to either the temporary or the permanent support requirements, or indeed calls the whole works into question.
[29] In relation to the new cracking, there is agreement that this requires to be investigated, which must involve monitoring to see whether it is ongoing (something which it was suggested that the proprietors might wish to organize, regardless of the applicant’s proposals). As we understand it, its cause may be difficult to establish and the question, in relation to the present application, is whether there is any reasonable anticipation that the proposed structural works in the basement might contribute to something which could be more serious than mere minor cosmetic cracking. From our observation at the site, this new cracking, manifesting itself on the main stairway and possible also the top flat, was certainly noticeable and ran from the top left corner of the back stairwall down to the mid point of the wall to the right. We can understand the concern about it. It seems to us that, without the investigation and monitoring having taken place, there is a reasonable question as to whether the structural works in the basement might contribute to a problem elsewhere in the building. One might not expect work in the basement to affect a problem towards the top of the building, and Mr McColl did not think that it would, but Mr Mungall did say that once there is some movement at one weak point, works elsewhere might, as it were, find that point of weakness and contribute to it.
[30] Having already touched on several of the factors listed in section 100 of the Act, we can briefly summarise our position on those which were referred to:-
(a) Such slight changes in circumstances as there have been since the title condition was created are of very little weight. It is probably correct that there has been a general increase in property owners improving by alterations or extensions, as opposed to moving, but no particular change at or in the neighbourhood of this building has been referred to: if anything, an increasing propensity to alter within buildings confirms the continuing purpose of this condition. It is the case that one flat proprietor now in effect has to seek the consent of each of the others, and not just of the superior, but as we have indicated this does not seem to us to be a change of significance when the reasonableness of an application to relax a condition which is clearly conceived in the interests of the property owners is under consideration.
(b)(i) In general, there is a clear benefit to the respondents who are (like the applicant) benefited proprietors in the protection afforded by this title condition. We agree with Miss Slee that protection from the risk of damage to the structure of their building is important to the owners, and while there is no reason to think that the applicant would have proceeded irresponsibly, for example in relation to the selection of a contractor, it is clear that the title condition provides more protection than building control. In relation to the particular circumstances, bearing in mind that the application is only to vary and would be granted but for the proposed removal of the two structural walls, the benefit lies not only in securing involvement and safeguards additional to those provided through the building warrant but also in the ability to prevent the applicant from removing these two walls. We would ignore temporary inconvenience: there is nothing in the condition to indicate any special protection from temporary works. Short-term problems, including very minor damage which the applicant would make good, falls into the same category. It should be remembered that the condition relates to the structure of the building. Protection from the risk of more serious problems, including the risk that these works may contribute to a developing problem in the building manifested by the recent cracks, is much more significant. The involvement of McColl Associates and competent contractors certainly reduces the risk, but, as matters stand, there is uncertainty in relation to the existing cracks.
(c) The applicant as owner of the basement flat would be entitled, but for the condition, to proceed with works for which she has the necessary public consents. The condition therefore clearly impedes her enjoyment of her property. It is readily understandable why she wishes to develop, in particular, the central cupboard area to produce more useable space. As we have seen, however, in reality the burden is only preventing her from removing the structural walls and thus incorporating an area of some 2.6 m2 into the kitchen/dining area, and retention of the structural walls would remove the need for a column or pillar having to be incorporated into the design. We can well see that space in the area is at a premium and re-design may not be too easy, but it does not prevent the applicant from utilizing most of the present cupboard area. It seems reasonable to suggest that a purchaser of a basement flat in an old building with large cupboard areas should not necessarily expect that the walls could all be removed.
(d) We agree with Miss Slee that this factor is not applicable, the condition here not being a positive obligation, and expenditure in relation to the attempt to have the condition varied is not relevant to the issue on the merits.
(e) The length of time since the condition was created is, in itself, normally of limited relevance, it being far more important whether the condition remains live and capable of fulfilling its purpose. The condition is not particularly old.
(f) We have already set out our view of the purpose of the condition. The purpose remains in our view entirely appropriate and viable.
(g) The applicant’s planning consent has no real bearing on the issue in this case. The fact, however, that she has also obtained a building warrant is relevant and in her favour. It indicates that her proposals, including the structural works as designed by McColl Associates, are accepted as having met basic building standards, albeit they proceed on the basis of self-certification in relation to the calculations of loads to be borne and measures required. However, the evidence has shown that conditions not included in the warrant are required in order to ensure that the work is carried out competently; that, however competently the work is carried out, the risk of some damage cannot be eliminated; and that there is some unexplained recent cracking higher up in the building.
(h) We do not regard this factor as having any weight in this case. Although the applicant is willing to undertake responsibility for repairing any damage which may be caused by the work, that is something which should almost go without saying.
(j) The applicant’s willingness to accept a number of conditions or safeguards is certainly a material factor. Appropriate supervision by McColl Associates and ensuring the employment of a competent contractor would provide significant reassurance. A degree of ongoing involvement by Mr Mungall in the respondents’ interests would also be useful. A period of monitoring of the cracking upstairs, before this work commences, also seems entirely appropriate, but it seems to us that there is a degree of difficulty in respect that it is possible to envisage circumstances in which there might, perfectly reasonably, be disagreement between Mr Mungall and Mr Curran and Mr McColl as to how to proceed or, more likely, whether it was safe to proceed. We can readily envisage them discussing co-operatively and arriving at acceptable solutions to questions arising during the works. It did seem to us, however, that they were not necessarily at one in their approach to the buttress and the recent cracks. There might be a need for some form of third party resolution of such difficulties, but it is difficult to see what form that might take. We can imagine a responsible superior requiring such monitoring to be undertaken before a decision on the request to him for consent was given. We have also considered whether the history of discussions or negotiation is of any relevance. Normally, this is not relevant to the merits although it might sometimes have a bearing on expenses. In this case, we have wondered whether the respondents’ failure to agree to a second meeting between the experts might be relevant, as it may have contributed to the uncertainty about the buttress and the cracks upstairs. We had the impression that there would have been more certainty about some matters had such a meeting taken place. However, the onus is on the applicant to satisfy us that the application is reasonable and if the applicant required access for her expert to investigate that matter further, there were steps which could have been taken, independently of any question about discussion between the experts, to ensure that the evidence could be laid before us. Therefore, without considering the rights and wrongs of this matter, we do not think it is material to our decision on the merits.
[31] Weighing all these matters up, with the continuing valid purpose of the condition in mind, and considering the degree of protection which it affords to the other proprietors and the extent of the burden on the applicant, we have reached the view that, but for the problem of the recent cracking within the building, it would be reasonable to allow this application subject to appropriate conditions. Removing structural walls in an old building like this carries a degree of risk and the respondents’ feelings about such operations are understandable. However, it is clear that the structural works have been competently designed, and the evidence that, generally, problems can always be solved was not really disputed. With experienced and competent contractors, adequately supervised, the risk of structural damage would be negligible. Although there is an appreciable risk of minor cosmetic damage, it seems to us that this, together with the very short period of disturbance and inconvenience during the structural works, is not really the problem which the condition addresses and represents the kind of disturbance which normally does not prevent applications from succeeding. In our view, it would be entirely consistent with the purpose and intention of this title condition, as well as the benefit which it provides to the flat proprietors, to allow this application subject to conditions which would go some way beyond the requirements imposed through the building control system. As we have mentioned, we do not consider that the existence of the buttress, whose relevance would no doubt be considered further by McColl Associates, makes this application unreasonable.
[32] However, the recent unexplained cracking, which may still be moving and might therefore indicate some movement in the building, alters the position. While this may be shown not to be a problem, we consider that as matters stand the respondents’ concern is reasonable and they are entitled to reassurance about it. To proceed in the face of that concern, when further investigation may be expected to make the position clearer, would not be reasonable. To allow the application on the basis that there would be ongoing monitoring and investigation of the cracking appears to us inappropriate.
[33] In this situation, we would in the particular present circumstances refuse the application. However, having regard to our reasoning, we feel it appropriate to allow the applicant to consider her position further. Firstly, we think we should allow her an opportunity to consider revising her proposals, taking out the removal of the two structural walls. In that event, out intention would be to allow the application. In that case, we would consider parties’ submissions as to the extent, if any, of conditions required for this more straightforward work.
[34] Secondly, we have considered the position should the applicant wish to hold onto her present proposals with a view to demonstrating that the recent cracks do not give cause for concern about removal of the structural walls. We have indicated that but for this problem we would have allowed the application. In these circumstances, if the applicant still wished to consider the full works, it would in our view be just as inappropriate to refuse the application on the ground that the monitoring and investigation has not taken place as it would be to allow the application on the basis that such monitoring and investigation is to be carried out. It may be that further investigation will show that there is not a continuing problem or at least not one which will be affected by the applicant’s works; or further investigation may not rule out the respondents’ reasonable concerns on this matter. We are not therefore in a position to indicate what our final decision would be, but we think the applicant should have the opportunity of proceeding in this way.
[35] In the circumstances, we shall allow the applicant a period of 42 days to consider the position and advise whether she wishes to take the structural walls out of the proposals, have the application further deferred to enable monitoring and investigation of the cracks with a view to pursuing the existing proposals, or neither of these courses, in which latter event we shall simply refuse the application.
[36] If the applicant indicates a wish to pursue the monitoring and investigation possibility, we shall, unless either party wishes a procedural hearing to consider the arrangements further, sist the proceedings for a period of 9 months to allow time to set up and evaluate a 6 month monitoring period. We would expect this to proceed in a co-operative manner and we would obviously hope that it will enable parties to reach agreement as to the outcome, but shall if necessary arrange a further hearing (or if appropriate consider matters further on the basis of written submissions).
[37] Finally, at this stage, we recognize that under at least one of the above scenarios, expenses will not necessarily follow ultimate success, but that matter too can, if necessary, be considered further.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 May 2008
Neil M Tainsh – Clerk to the Tribunal