[1] This is an application by the proprietor of a chalet bungalow forming part of a 30-year-old residential development within the grounds of a major hotel and leisure complex. She has planning permission for substantial alteration and extension of her house. She seeks discharge or variation of a condition which restricts external alterations and which is contained in the Deed of Conditions applicable to the development. It is agreed that neighbouring proprietors are (at least under the current legislation) benefited under the Deed of Conditions. Several neighbouring proprietors oppose the application.
[2] The Tribunal has not been persuaded that it is reasonable to grant the application and has decided to refuse it. Put shortly, the Tribunal considers that although many minor alterations and extensions have taken place at the development in question, the applicant’s plans are of such a different scale and character as to materially affect the amenity which it is the purpose of the title condition to protect and which has thus far been maintained at the development.
[3] A Deed of Declaration of Conditions by Bovis Homes Scotland Limited recorded in the General Register of Sasines for the County of Perth on 12 December 1977 (“the Deed of Conditions”), entered in the Burdens Section of the applicants’ Land Registration Title Sheet, provides inter alia:-
“(Sixth) no alterations shall be made to the external appearance of any of the premises except with the prior written consent of the Superiors, such consent not to be unreasonably withheld.”
[4] Mrs Margaret Cocozza, as proprietor of 16 Airlie Court, Gleneagles Village, Auchterarder, Perthshire (“the subjects”), applied under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for discharge of the title condition. Several co-proprietors lodged representations and maintained objections to the application. At the hearing of the application, the applicant was represented by Iain MacLean, Advocate, instructed by Messrs HBJ Gateley Wareing, Solicitors, Edinburgh. Mr MacLean indicated that the applicant was prepared to accept variation of the condition to the extent of permitting the development for which she has planning permission. Four objectors, Lawrence Rutherford, James Crawford, Alastair Bennet and Isla White, proprietors of respectively Nos 19, 20, 15 and 17 Airlie Court, were jointly represented by Luise Locke, Advocate, instructed by Messrs Miller Hendry, Solicitors, Perth. One other objector, Mrs Fiona Hunter, proprietor of 13 Airlie Court, made a brief oral submission. There were a number of other objections which were in the form only of written representations. The applicant gave evidence, as did Mr Bennet, Ms White and Mr Crawford. The parties also lodged productions and agreed a Joint Minute of Admissions covering much of the formal evidence. The Tribunal subsequently inspected the subjects (at which the areas of the proposed extension had been marked out) and the location, in the presence of the applicant and some of the objectors but not of legal representatives. At the inspection, the applicant indicated that she had decided to drop two aspects of her proposals and to reduce the width of the extension on the east side. She was asked formally to confirm this amendment of her application, but in the event wrote to the Tribunal withdrawing her intention to change her submission. We have accordingly considered the application as it was presented at the hearing.
Ness v Shannon 1978 SLT (Notes) 13
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Smith v Prior LTS/TC/2006/12, 17.11.2006
Anderson & Anr v McKinnon LTS/TC/2006/04, 12.1.2007
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Brown and Another v RichardsonLTS/TC/2006/41, 8.5.2007
[5] There was little or no dispute about the basic facts. On the basis of the joint admissions, the oral and documentary evidence and the Tribunal’s own inspection, we have found the following facts established.
[6] The subjects comprise a detached, ‘L’-shaped, chalet bungalow with, at ground floor level, a lounge, bedroom with ensuite facility, study, kitchen and hall/dining area and attached double garage, and, at the upper level, two bedrooms and a bathroom, all of the accommodation being of quite modest dimensions. On the south-east, rear, side there is a small garden with an attractive outlook onto one of the golf courses and the Perthshire hills. There is garden ground on both sides of the house. On the north-west, front, side there is a further garden and driveway with an open aspect to the estate. The house is one of a stepped row of 11 similar, and similarly aligned, chalet bungalows in which the only upper floor windows are to the rear and thus not overlooking any neighbours. The applicant carries on her business as a management consultant from the house.
[7] The applicant has obtained planning permission for extensive alterations, involving extension on all sides of the house. This would provide, at ground floor level, a sun lounge, main kitchen, utility room, diningroom, a substantial office/gym with showerroom, kitchenette and separate access, study, bedroom with ensuite facility, guest suite with showerroom, kitchenette and separate access, covered porch and attached double garage; a mezzanine level bedroom over the guest suite; and, at the upper level, a lounge, a large sittingroom, master bedroom with ensuite and wardrobe facilities, and an external terrace central to the rear of the house but also leading round in front of the lounge to an external stairway. Many of the rooms would be larger than the existing rooms. The house would cater for a large number of visitors. The house would have a footprint approximately 230% of the existing, with floorspace, including the terrace, approximately 268% of the existing. The elevation plans show, at the upper level, two additional windows to the rear, and respectively three, four and one new windows on the front, north-east (side) and south-west (side) elevations. To the rear and on each side, the building would come within one to three metres of the boundaries (there being some degree of uncertainty, or possible uncertainty, about the location of each of these three boundaries). The parking area to the front of the subjects would be minimal.
[8] There are several residential developments within the extensive grounds of Gleneagles Hotel, part of the Gleneagles Estate. These developments appear to follow an overall plan using the attractive grounds to provide discreet, open and well landscaped small developments but also incorporating wide variations both in the character and in value levels. A 1984 sales brochure showed prices ranging from £33,000 to £250,000. Some of the developments, such as Balmoral Court leading off the main driveway to the west of the hotel, include comparatively small numbers of very large and luxurious houses and gardens apparently developed for corporate ownership. Others, such as Guthrie Court, include relatively modest blocks of flats. Airlie Court, towards the east side of the grounds and adjoining partly a corner of what is now the PGA Centenary Course and partly a wooded area, includes some of the smaller and more modest houses. There are around 27 houses, including, on the south-east side of the estate road, the row of 11 chalet bungalows, Nos 14 to 24.On the other side of the road, nearest to the subjects and their immediate neighbours, lie seven detached two-storey villas of different but complementary design and similarly modest proportions (Nos 7 to 13, No 13 being at the end of the road and lying between the two rows). Nos 7 to 12 are also similarly aligned and ‘dual aspect’, i.e. with windows predominantly to the front and rear but not to the side. Their garages protrude at the front but have linked pitched roofs at the same angle as the main roofs. They share a similar split pitched roof design with stone gable copings on each side of the main roof. Like the chalet bungalows, they are harled and finished in white paint, with brown window woodwork inside matching stone lintels. Together, they present a unity of design and decorative finish. The plot sizes vary, but are laid out so as to achieve a degree of separation and openness. Some eight houses in Airlie Court, also to the north-west of the estate road but towards the other end, are semi-detached. Many of the houses in Airlie Court were bought as holiday houses but the balance now is in favour of residential homes.
[9] The superiors were in fact not Bovis Homes, the developer, but British Transport Hotels Limited (now Gleneagles Hotel plc). The Deed of Conditions imposes a common scheme on the houses in Airlie Court. The conditions cover a wider area of residential development than Airlie Court (some 44 acres), and included an extended condition relating to the block of flats. There was a prohibition of letting separate parts of individual subjects and of use otherwise than as a private dwelling and no part was to be used as shops, offices or business premises (Condition 4); there were to be no additional buildings or other structures except with superiors’ consent, which was not to be unreasonably withheld (8); no vehicles were to be parked on the roadway or other than on driveways leading to garages (9); there was to be no interference with the amenity of other property owners or occupiers (10); decorative finishes, etc. were to be maintained, with the superiors having the right to determine the colour of external paintwork and to insist on uniformity of colour (12); feuars were forbidden from removing trees without superiors’ consent (14); and the insurance clause included an obligation to rebuild in accordance with plans approved by the superiors (18).
[10] Very nearly every house in Airlie Court (the subjects being one of the exceptions) has had some external alteration and extension. These have typically included conservatories, covered porches, small side extensions, e.g. to enlarge the kitchen or provide a utility room, and the like. Some houses have extended at two levels to the side or, in the case of the villas on the other side of the estate road, over the garage. Among the chalet bungalows, No 14 has a two storey extension to the side, at the rear, i.e. adding one extra window at ground and upper floor levels on the side away from its only neighbour in the estate (it being at the end of the row), a conservatory at the rear and a covered porch at the inside angle of the ‘L’; No 15 has a conservatory at the rear; No 17 has a conservatory, a small kitchen extension, a covered porch, and a garage extension, i.e. the ground floor bedroom adjoining the garage was extended and the garage pushed out towards the road; No 18 has a ground floor extension to the rear and a ground level single window extension to the side, also at the rear. Of the villas on the other side of the road, No 7 has a side two storey extension and a porch to the front, with the garage converted into accommodation; No 9 has an upper floor, one window, extension above the garage, linking into and extending the main roof and a ground level front extension up to the garage building line, plus bow window; No 11 has a ground level front extension to the garage building line; No 12 has a flat level ground floor rear extension; and No 13 has a small conservatory to the rear of its garage. To the extent that these various extensions are to the front or visible from the road, they have been carefully matched and finished to blend with the existing design and finish, with one exception relating to the gable coping stones which have not always been retained or replaced, apparently because they tended to cause some failure of the rendering. The character and unity of the buildings in Airlie Court has been retained. The houses continue to present a similar exterior appearance, maintaining the original design concept. With one apparent exception at No 9, the extensions have retained clear gaps of three to four metres between the buildings and their boundaries.
[11] Some of the larger houses at Balmoral Court have been the subject of extensive alteration and enlargement.
[12] The scale of the applicant’s proposals considerably exceeds anything at any of the other houses in Airlie Court. The proposals also incorporate several aspects not previously introduced there, including the width and length of the two storey side extension on the north-east side; the upper floor terrace; external stairs at the side of the house; the attic windows above the garage and other upper floor side windows. The windows on the front elevation, the two-storey extension gable on the south-west side and the new external stairs would present a new appearance towards the road. The extension to the (south-west) side and rear would introduce a substantial mass of building and also block out about half of the far view of the hills from the conservatory and upper floor windows of No 17. The extension to the (north-east) side and rear would introduce a substantial mass of building and have a serious adverse effect on the light to the front ground floor bedroom of No 15. The new upper floor side windows on the south-east side would overlook No 15. Use of the external stairs and upper floor terrace would disturb the privacy of, in particular, No 17.
[13]. The area of Nos 13, 14, 15 and 16 Airlie Court is slightly set apart from the other houses, partly because a high hedge separates no 16 from No 17 and partly because there is a substantial communal grass area between Nos 15 and 16 and the road. These four houses share a common driveway leading off the estate road. Construction traffic would represent a considerable disturbance, particularly to No 13. Parking of construction vehicles would almost certainly not be confined to the applicant’s property. Following completion of the extension, parking by the increased number of visitors would be likely to spill over into the common driveway.
[14] On behalf of the applicant, Mr MacLean first referred to the legal framework of the title condition and the Tribunal’s jurisdiction. He pointed out that as the result of the changes made by the Act, particularly Section 53, every proprietor at Airlie Court who could demonstrate an interest had a right to withhold consent, making it necessary to invoke the Tribunal’s jurisdiction. He referred to the test of interest to enforce, under Section 8(3)(a), and to the provisions of Sections 98 and 100: the factors in Section 100 were cumulative and not alternative, and the decision on reasonableness turned on analysis and weighing of the facts of the case, not on comparison with different cases.
[15] Looking at the statutory factors, Mr MacLean first made submissions about the purpose of the condition, giving the superior the ability to exercise control, but not absolute control, over alterations. The condition did not identify grounds for witholding consent. There was nothing to indicate a purpose of protecting the private interests of immediate neighbours, such as in privacy and light. The power to withhold consent was to be exercised in the interests of the general amenity of the development, i.e. a role not dissimilar to the role of planning permission. Mr MacLean accepted that that purpose could still be fulfilled and that there was some present benefit to neighbouring peoprietors. The purpose was, however, not to preserve absolute uniformity in external appearance, and there was nothing to suggest that scale or size was a factor of particular significance, although size might affect the general amenity. A type of alteration previously accepted might be difficult to refuse, but the converse did not necessarily follow. Evidence as to the actual practice of the superior before 2004 was limited and of questionable relevance. On change of circumstances, unaltered houses were the exception rather than the rule, so if the purpose was to ensure a uniform external appearance, that had not been achieved. Another change was the increase in the proportion of permanent residents, which might lead to changed demands in relation to the nature of the accommodation. The houses generally had been altered and the open plan aspect changed, diminishing if not losing that advantage. On the question how the applicant’s proposals would impact on benefited owners, there was no suggestion of any adverse effect on value or saleability, and the changes to the front elevation would not result in material detriment to other owners’ enjoyment of ownership of their properties: the impact on general amenity would be de minimis and the extent of benefit to the benefited proprietors therefore very limited indeed. Objectors other than immediate neighbours had not established any interest to enforce the condition and therefore to oppose the present application. The immediate neighbours were in a stronger position, but their concerns were not well founded. As to the extent of the burden, an owner’s enjoyment was impeded if she was prevented from carrying out alterations to enhance and improve the property; and while the burden must of course have been accepted, there was no evidence that the applicant was aware that it would be transformed into an absolute prohibition by an uncertain number of neighbouring proprietors. There had been speculation as to the uses to which the extended house might be put, but the applicant’s motives were not important, although she had explained her intentions entirely reasonably. The age of the condition was not of great significance in this case. As to the planning consent, accepting that this was not determinative in the face of a private title condition, where the only discernible purpose of the condition was to protect general amenity, the significance of the consent was greater. The application had been appraised and cognizance taken of objections. Mr MacLean referred to the terms of the planning appraisal approving of the design. Both general amenity and the interest of neighbours had been considered. On concerns about setting a precedent, Mr MacLean submitted that as the condition would remain in place, future proposals could be considered on their own merits. On concerns about construction traffic, the applicant acknowledged the requirement to respect neighbours’ rights and avoid causing legal nuisance. Car parking would not be a problem.
[16] In conclusion, Mr MacLean acknowledged that the proposed alteration was major, and larger than any other previous alteration at Airlie Court, but submitted that much of it would not impinge on anyone but immediate neighbours and even the impact on them was not very significant. First floor windows looking onto Airlie Court were an innovation of minimal significance for general amenity, the houses opposite being two storey houses. The balance was in the applicant’s favour. A chapter of evidence concerning a boundary dispute with Ms White should be disregarded as irrelevant: the applicant would be proceeding at her own risk.
[17] On behalf of the respondents whom she represented, Ms Locke first countered Mr MacLean’s reference to the lack of specification within the title condition by looking at the context of the development, in particular the provisions in the Feu Contract by British Transport Hotels in favour of Bovis Homes, making clear the developers’ obligation to comply with the stipulated planning layout and have the superiors’ approval of plans, elevations, etc; and also the 1984 sales brochure. The general style had been maintained, suggesting a coherent attitude by the superiors. Clause 9 of the Deed of Conditions was clear in relation to parking.
[18] On the statutory factors other than purpose, Ms Locke submitted first that despite the many alterations, the change of circumstances was insignificant. The chalet bungalow concept had been maintained. The significance of the trees growing up was limited. Changes should be considered in their context, for example in relation to the plot sizes, e.g. the extension of the garage at No 17, the layout of the neighbouring plots being different. The benefit to the benefited proprietors was the maintenance of the unity and character, particularly the coherent architectural structure, of Airlie Court with its particular 1970s design: the applicant’s proposals flew in the face of the architectural integrity. Relaxation would set a precedent, permitting a stateable case by other applicants. The respondents were not against change but that had to be reasonable in the circumstances. As to the extent of the burden, the applicant had bought in the knowledge of the condition and had been the owner of No 11. She was aware of the size and nature of existing alterations. The condition was reciprocal. The length of time since the condition was created was neutral. In relation to planning consent, there was no evidence of the planning authority having visited and taken cognizance of the size of the site. The location of the garage had not been reconciled with the extent of the mutual access. The proposed extension was close to the boundary with No 15, and there was a boundary dispute with No 17. Planning consent was not necessarily conclusive. In relation to ‘other material factors’, the boundary dispute was relevant because to allow the application would prejudice Ms White’s position; the mutual access to Nos 13 to 16 was in common ownership – it would be a matter of concern if the applicant had nowhere else to park; the applicant had bought a house on a smaller plot and her proposals amounted to over-development; and there was evidence of overloading of the sewage provision.
[19] Mr MacLean replied briefly on two matters. He pointed out that the applicant’s title gave her a right in common, along with the proprietors of Nos 13, 14 and 15, to the driveway serving these properties. He also submitted that Ms Locke’s reference to the Feu Contract in favour of Bovis, in relation to construction of the Deed of Conditions, was wrong, because these were obligations on Bovis at the stage of building the development and there was no indication of any intention to transfer the same sort of criteria to the burdens imposed on successive owners of the individual houses.
[20] The general approach to the exercise of the Tribunal’s jurisdiction to discharge or vary, now regulated by the Act of 2003, is not in dispute and was accurately summarized by Mr MacLean. As presented at the hearing, this is an application to vary to allow a particular development. We require to consider whether we are satisfied that the application is reasonable, having regard to the factors set out in Section 100, taken together, in the light of the particular proposed development.
[21] We have made the findings of fact which we consider necessary and material, but we should explain our position on certain matters which were discussed, to a greater or lesser degree, in the evidence but on which we have not made definite findings. First, we referred to uncertainty about the locations of each of three boundaries. The boundary with No 17 Airlie Court has been the subject of some dispute. Ms White has claimed that a small portion of the land occupied by the applicant, and over which a part of the proposed building, or at least the proposed site of the applicant’s oil tank, might lie, belongs to No 17 and not No 16. As we understand it, this portion is included with the applicant’s registered title plan, her title being registered with full indemnity, and the Keeper of the Registers has not indicated any willingness to rectify, nor has Ms White intimated any formal rectification proceedings or appeal. We are not in a position to adjudicate in these proceedings on that dispute. The applicant would take any risk of subsequent challenge. Then, to the front of the subjects, while there may be no room for doubt about the legal boundary, the boundary suggested in the plans attached to the planning consent appears to extend further to the north-west and into the common driveway than the registered title plan. We say ‘suggested’, because, strangely, although the three other boundaries are delineated on that plan, this boundary is not marked and one is left to infer its position from the delineations of the others. This might possibly have influenced the planning appraisal in so far as directed at the parking position, and it might also affect certain comments and area calculations by a Mr Hood, who apparently designed the extension proposals, in a documentary production which was, however, neither agreed nor spoken to in evidence. Then, on the south-east boundary with No 15, we gathered on the day of the site inspection that there may have been a slight difference of view between the applicant and Mr Bennet (Mr Bennet having apparently staked out a boundary which may have been less favourable than his title!) and no precise measuring under reference to title plans had been undertaken. In reaching our findings, at para.13, in relation to space for parking, we have used the title sheet plan, but beyond that we have not found it necessary to look into these issues.
[22] We have also not made findings in fact about the actual planning process. Points were made about the fact that there were three planning applications and on the suggestion that the planners’ appraisal might not have followed any actual inspection of the site. A slight confusion arose during the hearing about the approved plans and if we were granting the application we would require to be certain that the details of our order were correct, but for present purposes the general position was clear, viz. that the proposal before us was on the basis of plans substantially approved in the second planning application but with the addition, following a third application, of the proposed external stairway on the south-east side. There was reference to opinions within the planning appraisal about the quality of the existing house design and how the extended house would fit in, but these were not tested and were in any event given in the context of public planning guidelines.
[23] We have also not found it necessary to make findings on a question which was raised as to whether the sewage and drainage arrangements serving this particular area of the development would be threatened by the alterations and additional provision required. We consider that this is essentially a matter of service provision which has no real bearing in this particular case.
[24] Mr MacLean’s submissions were clear and very much to the point. At their heart was his submission about the purpose of the title condition, and he also pressed on us the views that there had been substantial changes of circumstances in respect that almost every house had been extended in some way and that the effect of the applicant’s proposal, whether looked at from the point of view of the general amenity of the development or the interests of the immediate neighbouring proprietors, was minimal. We agree with quite a lot, but not all, of his submission about the purpose of the condition, but on the evidence and our own look on the spot, we are unable to accept that the existing extensions are as relevant as submitted or that the effect of the proposed extensions would be minimal.
[25] We agree with Mr MacLean that this title condition is directed more at the general amenity of the development than at the particular interests of immediate neighbouring proprietors. In viewing the purpose, however, it is appropriate to consider the context of what the development was. The evidence from the sales brochure, the historical fact of detailed control by the superior in the original Feu Contract in favour of the developer, and of course the evidence on the ground, shows a clear development concept. The title condition, although silent on the reasonable approach to requests for consent, in our view had the purpose of enabling the superior to control external alterations and extensions in order to preserve the development in line with that context. We agree that the condition does not provide for and cannot have had a purpose of preserving absolute uniformity. It seems clear, however, that the aim was to protect the amenity of the development by retaining control over alterations which might affect the general appearance and character. The concept involved small developments with a wide variation in the size and value of the houses in each, with careful planning of their layouts, and we are in no doubt that the purpose of preserving the amenity created by the development concept extends to preserving the different characters created at the various locations by different types and levels of housing. The size and extent of alterations and extensions are in our view relevant to that. At Airlie Court, and in particular at this end of Airlie Court, the concept basically involved two rows of relatively modest houses of different but complementary design, attractively laid out and landscaped with a coherent and balanced provision of space.
[26] Of course, if that character of the housing at this location has been lost or substantially affected by developments since the condition was created, that is highly relevant to the issue of reasonableness, and factor (a) in section 100 directs attention to changes in circumstances at the location (or elsewhere if that is considered material), the assessment often being a matter of degree. As Mr MacLean submitted, such changes need not involve changes in the character of the neighbourhood and it is legitimate to point to changes at individual properties and consider how these impact on the issue of reasonableness. Further, it is not fatal if previous changes have not gone as far as the applicant’s proposals: it is not uncommon for applications to our jurisdiction to involve going further than what has gone before and such applications may and sometimes do succeed. We also accept that the attitude of the former superior to enforcement of the condition may not in itself be relevant, the question being as to the actual extent of change, although material change may often have occurred when the superior became inactive or not occurred because he maintained an active regard for the burden in considering requests for consent. The applicant here points to the number of changes, but their nature and scale are also relevant. It will be evident from our findings that they really have not in our view changed the appearance or character of the housing at this location, so that the purpose of the condition can still be fulfilled. This is very much a matter of impression obtained from visiting the site. We have also found that the applicant’s proposed changes are of an altogether different scale and, in respects such as the extent of upper (and mezzanine) floor provision including windows to the side, the upper floor terrace and the external stairs, also different in nature. In reaching that view, we do not ignore the fact that, to some degree, the extensions involve the rear of No 16 and would thus not all be apparent from the estate. Put shortly, the extensions so far have preserved the unity and character of the housing and we do not think they advance the case for reasonableness of the applicant’s proposal, which in our view substantially interferes with that unity and character.
[27] Further, as will again be clear from our findings of fact, we have not accepted the submission that any adverse effect on the amenity of the development would be minimal. Again, scale is an important, but not the only factor, here: No 16, as it is proposed to be extended, would in our view look out of place in Airlie Court. Similarly, we have found specific adverse effects on the immediate neighbours: a substantial blocking of the outlook from No 17 and intrusion, from the terrace and stairs, into the privacy secured by the design and arrangement of these houses; substantial overshadowing and overlooking of part of No 15; and a level of increased traffic and parking in the open common driveway shared by Nos 13 to 16 which is out of line with the layout of these houses and affect their amenity. We appreciate that, in the application of planning guidelines, these adverse effects on neighbouring amenity have not been deemed sufficient to justify refusal of consent, but in the context of this title condition we do not consider them to be minimal.
[28] Turning more specifically to the factors listed in Section 100, we have dealt with the main argument under (a), change of circumstances. Two other changes were referred to. We can accept the evidence that the proportion of residence, as opposed to use of the houses as holiday homes, has shifted in favour of the former, but we do not see this as advancing the applicant’s argument. On the one hand, we can see that it might lead to an increased level of (entirely reasonable) demand for better and bigger accommodation. On the other hand, that might be seen as reinforcing the need for reasonable control, in the interests of the amenity of the neighbourhood, over the extent of such proposals. The applicant’s proposal seems to us to go beyond the level of accommodation which might reasonably be expected in Airlie Court. The other change referred to was some reduction in open space, but we do not think that that has had such an effect on the neighbourhood as to affect the issue before us.
[29] Factor (b), in the context of this application, involves consideration of the extent of benefit involved in the right to refuse consent for this development. It will be evident from our findings and discussion so far that we consider this to be of considerable benefit to the respondents, whether it is approached from the point of view of the general amenity of the development or from the particular points of views of the individual neighours. Although the question of setting a precedent is very much in the respondents’ minds, it is not necessary to look at it from that point of view: the applicant’s extended house would itself be so out of place as to stick out and substantially adversely affect the amenity at least of the properties at this end of Airlie Court. We would mention that in reaching this view we take no account of the temporary disturbance and inconvenience during construction.
[30] Factor (c) requires a look at the extent of the burden on the applicant. Of course, but for this condition, she would be entitled like the owner of any property to develop it (subject to planning consent) as she wished, so that being prevented from doing so does considerably impede this way of enjoying her property. However, it is clear from the evidence that this condition has not been used to prevent some quite substantial extension of houses at Airlie Court and there is nothing to suggest that neighbours would oppose reasonable proposals of an order similar to what has gone before. The extent of impediment to the applicant’s enjoyment of her property is thus considerably reduced. Like many other owners in property communities, the applicant has, since the changes effective in November 2004, required, apparently for the first time, to approach neighbouring proprietors for consent. That can, of course make the burden in practice more onerous, although in the present case it seems somewhat unlikely to us that the superior would have consented. In any case, the Tribunal’s jurisdiction, together with the Act’s provision in Section 103(1) in relation to expenses, provides a deterrent to opposition to reasonable proposals.
[31] Factor (d) has no application in this case. Neither counsel regarded (e), the age of the condition, as of significance in this case. We have already looked at (f), the purpose of the condition. Under (g), the applicant can of course point to the existence of planning consent, indicating public approval of her proposal. Mr MacLean appreciated that this was not determinative in a case such as this, but submitted that weight could be given to the consideration in that process of both general amenity and the interest of neighbours. Without in any way criticizing the planning decision in this case, there is nothing to indicate that the purpose of this title condition, or the interests of the estate community, played any part in the decision. So this factor, while supporting the applicant’s position, has quite limited weight in relation to this application to vary the condition. We would add that this is not the sort of old condition, pre-dating public planning control, that can be seen as simply the equivalent of the modern public system and having little, if any, real life or continuing purpose and therefore unlikely to prevail over a planning consent. We have to take our own look in the context of this private title condition, and while quite often the two systems reach the same result it is not necessarily so.
[32] Neither (h) nor (i) has any significance in the circumstances of this case. In relation to (j), other material factors, we have already referred to the boundary dispute with Ms White and to the question about the drains and sewers. We do consider the small size of the applicant’s plot as having a bearing, particularly in relation to the protection which the condition provides to neighbours. The closeness of the proposed extension to the rear boundary is not a matter of any concern, but the closeness to each of the other boundaries adds to the picture of an unreasonably large extension, both from the point of view of the general, spacious layout of the development and from the point of view of the immediate neighbours.
[33] In summary, looking at the circumstances of this case, on the basis of the parties’ competing submissions, we are far from satisfied that this application is reasonable. We do not consider that the changes of circumstances relied on go towards making it reasonable; we think that the condition reasonably provides substantial protection to the benefited proprietors and is only impeding the applicant’s enjoyment of her property because of the scale and nature of her proposals; and the condition has a valid purpose which remains capable of fulfilment. The planning consent is not a factor of sufficient weight to overcome the conclusion that this application has not been shown to be reasonable. We have refused the application.
[34] We should emphasise that this is a decision in the particular circumstances of this case. However, we would also mention that, while we did not hear any further submissions on the application as it would have stood if the applicant had altered her proposals as indicated at the site inspection, our conclusion would almost certainly have been the same. Removal of the external stairs close to the boundary with No 17 would have reduced the intrusion on that privacy, and the withdrawal of the garage extension would have reduced the parking problem, but the scale and appearance of the proposal would still in our view have been unreasonable in the light of the title condition. However, the applicant may of course wish to come up with fresh proposals and these would have to receive reasonable consideration by her neighbours, as it will be obvious that some extension of this house may well be considered reasonable.
[35] Any question as to expenses, if this cannot be agreed, can be considered by the Tribunal on the basis of written submissions in accordance with our normal practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 2 May 2008
Neil M Tainsh – Clerk to the Tribunal