This application, made in terms of the Title Conditions (Scotland) Act 2003, was for discharge of a title condition prohibiting erection of any dwellinghouse without consent of the respondent. The applicant had obtained outline planning permission for the construction of four dwellinghouses on the subjects, being land to the west of the former lodge house of the respondent’s mansion house, Lannhall, near Tynron. However, at the hearing of submissions, it became clear that the applicant was not seeking a complete discharge but simply a variation to allow construction on the lines of the planning permission.
At the outset of the hearing of evidence, counsel for the respondent explained that the respondent, Mr Collins-Taylor, did not object in principle to the housing development but wished to retain his right to control the detail of it. Although, at the stage of submissions, counsel seemed unwilling to repeat this explicit concession, the hearing was conducted on the basis of it and when Mr Collins-Taylor gave evidence he said that although he himself did not like the idea of housing he did not contend that construction of four houses was objectionable. His complaint was that he had never seen the detail of the applicant’s proposals and wished to preserve his right to control this.
The applicant was represented by Mr Steven Stuart, QC, who led evidence from the applicant, Ms McGregor and from Ian Smith Munro, BA, TP Dip., MRTPI who had been involved in the process of obtaining planning consent and had also worked with the respondent’s surveyor, Mr Gourlay, in attempts to resolve the boundary dispute between the parties.
The respondent, Mr Collins-Taylor, was represented by Mr John Mundy, advocate. The respondent and Mr George Gourlay, FRICS gave evidence and written evidence was tendered in the form of a statement signed by Mr R Thompson, a former proprietor of Lannhall, and an affidavit from Mr Eric Geddes. Mr Geddes was a director of Straith Estates Ltd who operated a farming business adjacent to the relevant property. He had written to the tribunal stating certain objections to the application but the company were not benefited proprietors in relation to the title condition and he did not appear formally as a respondent. His evidence related in the main to the boundary dispute and the conduct of the parties in relation to it.
The applicant had previously applied to the Tribunal for a variation of the title condition to allow a separate plot lying on the east of the drive, adjacent to the lodge house, to be used for construction of a dwellinghouse. By order of 16 January 1998 the Tribunal allowed the variation. The opinion attached to that order set out a full description of the relevant lands of Lannhall and the history of changes in the titles to various plots which had formerly been part of the Lannhall estates. It is unnecessary for us to repeat that material.
The burden was created in a disposition recorded on 24 October 1988. The full detail is set out in the said opinion. In essence it prohibited proprietors of the subjects from erecting any dwellinghouse without the prior written consent of the proprietors of the lands of Lannhall which consent was not to be unreasonably withheld.
Title Conditions (Scotland) Act 2003
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
West Coast Property Developments Ltd v Clarke LTS/TC/2005/21
McGregor v Collins-Taylor LTS/LO/1997/5
Near all the essential background to the present application can be ascertained from the opinion referred to above:McGregor v Collins-Taylor. The main physical changes since 1998 are that the proposed house under discussion in that application has been completed; the old hatchery buildings, later operated by the applicant as a retail outlet known as the Hen Hoose have been demolished. Mr Collins-Taylor has built the two houses in the area to the east of the drive which was described in that opinion as “the Austin ground”. He had planning consent for this purpose at the time of the decision. There was no dispute about these physical changes. The present subjects are the plot formerly occupied by the Hen Hoose and related parking and landscaping facilities. The plot is now level and bare.
Our surveyor member carried out an unaccompanied inspection of the subjects on Friday 24 April 2009. The President had visited the subjects in connection with the first application. The parties provided many photographs and a further formal visit seemed unnecessary in his case.
We heard some evidence of the personal circumstances of the applicant and her reasons for seeking to free the subjects for development. The evidence did point to a breakdown of personal relations between the parties. We had an impression that this was, in part at least, due to a failure to recognise that Ms McGregor was entitled to establish and insist on her right to prevent other people crossing her land with vehicles and stock even when it seemed that she had no particular reason to do so. Her desire to do so meant that the precise line of the drive had to be determined. But, it was accepted that the Tribunal did not have jurisdiction to determine that issue of heritable title. We do not think any purpose is to be served by attempting to determine the rights and wrongs of the conflicts which surrounded this matter. We are concerned with issues of heritable title and real rights. We return briefly to this point when considering factor (g) of section 100.
Much of the evidence was devoted to the issue of determining the exact line of the drive from the mansion house to the public road at or about its north end. It would appear that the failure to agree the line is attributable to motives remote from the direct issue of the title itself because the line of the drive presently runs across open ground and, on the evidence before us, the precise line is unlikely to be of critical significance to either party. It is clear that nothing we say can be expected to have any influence on the matter and we see no point in setting out the detail either of the evidence or our views on it. A court would require to determine this matter on the basis of the evidence put before it. We simply note that although we heard of disputed evidence as to the design of the original gates we did not hear explicit evidence as to when they were removed. It is probable that this was before the titles to the drive and adjacent subjects were separated. The supposed line of the original drive may therefore be of less importance than the line shown on the plan referred to in the 1988 disposition. For present purposes, it is sufficient to say that the main disputed issue was whether the remaining gatepost on the east side was a post for the main gates or for a pedestrian gate. The former would be broadly consistent with the copy plans available to us but the copy of the 1988 plan is far from clear and the original may give quite a different impression. If Mr Thompson’s sketch was accurate in its measurements, the line of the original drive would have been some eight feet farther to the west as it passed through the carriage gates. Even if, for any reason, the solum owned by the respondent should be found to lie somewhat farther to the west, there is no basis for it being significantly farther. The important point is that, whatever the precise line, we are satisfied that there would be room to build four dwellinghouses on the subjects.
There was no dispute between the parties on any issues of law. It was agreed that, in terms of section 98 of the 2003 Act, the Tribunal required to consider whether it was reasonable to grant the application having regard to the factors set out in section 100. It was not disputed that we should follow the approach to these factors set out in the cases of Ord v Mashford and George Wimpey East Scotland Ltd v Fleming. Counsel provided full written submissions setting out their contentions as to the weight to be given to each factor in the circumstances of this case.
It was not disputed that the Tribunal had to exercise a discretion under section 98, weighing up the various factors set out in section 100; nor that the order of listing in the section was not to be treated as an order of ranking. The weight to be given to each factor depended on the particular circumstances. It was usual to start by considering the purpose of the condition as that might affect the weight to be given to other factors.
It is clear that the purpose or intention of the title condition must have been to protect the amenity of Lanhall mansion house and policies. Amenity is a concept with various aspects. In the circumstances of the present case, the important one is that of visual impact but related considerations include privacy and concepts of scale or style. We look at the various listed factors with that in mind.
(a) There has been a change in circumstances since the title condition was created in 1988. The east side of the drive is now flanked by houses. The two built by the respondent have separate double garages of pitched roof construction similar in general appearance to the houses. The house, Cheyne Cottage, occupies the site under discussion in the last application. The lodge which was unoccupied and dilapidated in 1988 has been restored to use as a dwelling. The old Hen Hoose which was, by any standards, an eyesore, has been removed.
The extent of the policies of Lannhall has changed. The “Austin ground” to the east had been sold in 1994 although it was later bought back by Mr Collins-Taylor. The land on the west of the drive and to the south of the subjects was sold to CIROS, now Straith Estates Ltd, in 1990. Although little use is currently made of the drive for moving stock, either on foot or in floats, the proprietors of the CIROS land were in the habit of using the drive for that purpose and have right to continue to do so. We were told in course of the submissions that the respondent had retained title to the houses he has built. He had leased them. That may allow him to view them proprietorially and that may have an affect on his perception of their visual impact, and, indeed, may allow him an impression that his privacy has not been unduly invaded. However, there can be no doubt that they reflect a significant change. The Austin ground, although owned by the proprietors of Lannhall, can no longer be viewed as a part of the policies of that house; nor can the ground opposite it on the west of the drive. The original impression of the drive as essentially part of the policies of the manor house has radically changed. It is now simply a means of access to the various properties it serves. This is an important change. The character of the drive will not be significantly affected by the addition of housing on the west side.
For completeness it should perhaps be stressed that we accept that it is inappropriate to proceed on the basis of any comparison between the Hen Hoose and the proposed development. The latter was an eyesore and attracted a flow of visitors. Use for housing may be seen as an improvement. But, the Hen Hoose has, in fact, been demolished. The chances of the subjects being used for agricultural or industrial building, if the housing development could not proceed, were not explored in evidence. We can make no useful comparison between the use proposed and the likely use and appearance of the subjects if that use was not permitted.
(b) It may be noted that Mr Stuart made reference to the provisions of section 8(3) and suggested that the respondent had no sufficient interest to enforce the condition. However, we did not understand him to invite us to determine the case on that basis. He contented himself with the submission made under reference to factor (b). We are satisfied that the policies of Lannhall mansion house must now be regarded as limited to the amenity ground immediately surrounding it. As described in the previous opinion, the house is situated on a significantly higher level than the subjects and the parts of the drive now under discussion. The housing development will not be visible from the house. We consider that the right to control the fine detail of such development provides little, if any, benefit to the benefited subjects.
Although Mr Collins-Taylor made clear his own preference for there to be no housing development of the subjects, he explained that, taking a pragmatic approach, he did not oppose housing in principle. He had built the houses on the Austin ground on the basis that there would be development on the subjects. His concern related to the detail. He accordingly opposed outright discharge and contended that if there was to be any change, it should be limited to a variation to permit development on the lines of the planning permission. As that has now been conceded by the applicant it is clear that the dispute is a limited one.
Mr Gourlay did give evidence of his opinion that the amenity of Lannhall House could be affected by the detail of any development He said that the nature of the proposed housing would have an affect and that the provisions in condition 10 of the outline planning consent would not give sufficient protection. However, he was not asked to elaborate his views as to the extent of that affect and we do not find this evidence to be of sufficient practical weight to be persuasive. We do not accept that there is any sound basis for a finding that variations of the particular detail of the buildings would be a factor of any great significance to the amenity of the house. We are not concerned with the particular taste of Mr Collins-Taylor. The matter must be viewed objectively. Other proprietors of Lannhall House might have quite different preferences. We are not satisfied that there is any risk of a development which would have an adverse effect on the mansion house if the development is controlled by the extant planning permission.
We heard some discussion of a need for further screening although nothing was made of this point in the submissions. This may have been in the exercise of a wise discretion. We are satisfied that there is no need for additional screening to protect the visual amenity of Lannhall House itself. There is no possibility of hiding the existence of the housing development from users of the drive. We can see no particular benefit in the subjects being screened from parts of the drive when they will be very obvious from other parts.
Mr Mundy submitted that there had been no material change in the benefit. We note, of course, that factor (b) does not require us to consider change. We accept that there has been no change in relation to the impact on Lannhall House itself. We accept that the nature of the policies of Lannhall House changed when the lodge and related ground was sold. That is the base date. However, we are satisfied that there was a time thereafter when the sense of the access road as being essentially the drive to the “big house” remained. That sense has gone. The impact of the development to the east of the road is to remove any sense of it being part of the policies of Lannhall House. The land to the west is in other hands.
(c) It is not disputed that use of the subjects for housing would be a reasonable use. The existence of the burden prevents that use unless the benefited proprietor consents or the burdened proprietor is able to persuade a court that the burdened proprietor is acting unreasonably in withholding that consent.
The practical implications of the burden are only too clear in the present case. The burdened proprietor has, in fact, been unable to develop the subjects for housing or realise the value of that use. Much of the subjects are currently hard standing and there is no other very obvious beneficial use which she might make of them although, no doubt, she might be able to derive a very modest rent if she was able to restore them to some other use. The burden is greater where personal disagreements prevent sensible discussion of consent. That is so even if the fault lies entirely on the burdened proprietor. It must be made clear that we are far from satisfied that any fault in the present case is one-sided. However, our point is simply that a requirement of a tolerable personal relationship between the current proprietors before the subjects can be developed is a significant additional aspect of the burden. The title condition clearly impedes enjoyment of the burdened property.
There was some suggestion that as consent could not be withheld unreasonably the burdened proprietor could not complain. We return briefly to this under reference to factor (j) below. We are satisfied that it is not a factor of much weight. The respondent has not consented to development on the lines of the planning consent. The applicant can only rely on the proviso by ignoring the burden and taking the risk of building or by incurring the expense of litigation in the ordinary courts. It is plain that her ability to sell would be greatly restricted if she opted for the former. The latter would leave her open to the stresses, expense and delays of litigation. But the contractual provision cannot operate to exclude the jurisdiction of the Tribunal. If a Court determined that the consent had not unreasonably been withheld using whatever criteria it considered appropriate in the context, the applicant would be entitled to invoke the jurisdiction of the Tribunal under section 98. In short the contractual provisions about consent give rise to potential complications but do not avoid consideration of the fundamental burden which is the prohibition on erection of dwellings.
(d) It was not suggested that this factor was relevant to the present case.
(e) We agree with Mr Mundy’s contention that this factor has no weight in this case.
(f) We have looked at purpose above and we shall return to the nature of the condition under (j) below. It is unnecessary to say more at this point.
(g) The existence of planning permission is a factor in favour of the variation. It shows that the use for building can be accepted as reasonable having regard to the general public interest. We do not see it as part of our function to look behind the grant of planning permission and the fact that it was said to be “highly controversial” is irrelevant for our purposes. Our concern is essentially with the protection of the private interest of the benefited subjects and a grant of planning permission will not usually be a factor of great weight. It is not of any great weight in relation to the issues in the present case.
(h) Parties tacitly accepted this as a neutral factor in the present case. As in most cases it may simply be assumed that the applicant is willing to pay such compensation as may be found appropriate by the Tribunal. No claim in terms of section 90(7) has been made in the present case.
(i) This does not arise.
(j) The respondent suggested various additional factors which should be taken into account. The main one was the supposed difficulty over access to the subjects. It was not contended in submissions that there was any difficulty over use of the drive by the potential new occupiers. That was an issue which had arisen in the previous hearing and was dealt with in the opinion of the Tribunal in 1998. It was decided that access over the drive for residential purposes was within the scope of the rights reserved to the subjects. The supposed problem related to identification of the precise line of the drive. It was suggested that variation of the condition should not be granted until the boundary issue was determined. However, we are entirely satisfied that the subjects are big enough to allow four houses to be built whatever the precise line of the drive. We accept that practical difficulties arise over the uncertainty in this matter. There may be a need for further discussion with the planners. But Mr Munro gave clear evidence to the effect that even if Mr Gourlay’s apparent view of the line of the drive was correct, there would be no difficulty in accommodating the houses. That was not contradicted and, having regard to the scale of the proposed houses and the available land, it is plainly correct.
The respondent suggested that we should have regard to the applicant’s conduct in her dealings with the other proprietors having an interest in the access road. It was suggested that this could be described as a high-handed attitude. We are not persuaded that this was so. In any event, we are not persuaded that the applicant’s attitude has any real relevance to the issues before us. Mr Mundy used it as a justification for the respondent being apprehensive about the applicant’s intentions. However, we accept that in relation to the subjects her intention is to sell. The scope for exercise of any personal whim on behalf of the applicant merely to irritate the respondent is very limited and we do not consider this a factor of sufficient weight to have any bearing on our decision.
We have had greater difficulty with the last point made. The written submission was in the following terms: “The condition confers a right on the respondent to exercise some degree of control over the development. … It might be said that the respondent has never sought the detail. On the other hand, the applicant has not canvassed the proposal with the respondent and the obligation is on her to obtain consent”.
In the 1998 opinion the Tribunal discussed some of the implications of the requirement of consent and a provision that consent would not be unreasonably withheld. However, the fundamental burden was identified as being the prohibition on erecting a dwelling house and that clearly is the substantive matter before us. We accept that there may be circumstances where the practical implications of the obligation to obtain consent are relevant. In the previous application, the Tribunal observed that there might be difficulty in dealing with an application where detailed plans had not been put to the benefited proprietor for approval. We accept that this is a factor which we should consider in terms of section 100 (j).
However, in the circumstances of the present case, we are satisfied that no particular weight can be attached to the point. In broad terms, we think that the applicant was correct to think that, in light of Mr Collins-Taylor’s attitude to her planning application, there was little prospect of his giving consent to her request. But, we consider that in the context of the present case, the detail provided of the proposal to build on the lines of the planning consents produced was sufficient to require a positive response from the respondent. If he wished specific reassurance on a particular issue he could have asked for it. As matters stand the position is that the applicant is prevented from building because the respondent has not given consent in circumstances where we consider that it would be reasonable to allow building to proceed on the lines of the planning consents.
Taking all the factors into consideration we are satisfied that, principally for the reasons discussed at (a) and (b) above, the condition should be varied to allow building on the lines of the planning consents.
As discussed at the hearing it is no longer the practice of the Tribunal to make an Order expressed by reference to the terms of the planning consent. We seek to identify the essential conditions so that they can appear explicitly in the title. In some cases this requires applicants to provide additional detail allowing, where appropriate, explicit restriction on height or location, and style. In the present case, for example, we are not satisfied that it is necessary to specify the precise positioning of the houses or the extent of garden ground to be allocated to each. But we think certain points from the terms of the outline planning permissions should be included.
In short, we are satisfied that it is reasonable to vary the condition so as to allow construction of four separate dwelling-houses on the subjects; each to be single storey with a roof of traditional pitch and clad in slates; and with sash and case windows of predominantly vertical form. We have not identified any specific issue of detail likely to have a particular impact on the benefited subjects. In particular, we consider that little purpose would be served by attempting to specify screening measures.
We certify the case as suitable for employment of counsel. We reserve the question of expenses.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 May 2009
W. Douglas Ballantyne – Deputy Clerk to the Tribunal