1. This is an application under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 ( “the Act”) for the discharge of title conditions whose effect is to restrict the applicants to a single house and garage on their property. The land comprised in the applicant’s ownership is extensive and she has received planning permission for the erection of an additional four houses on the site. An objection was made by the original developer, who resides in the estate of which the applicant property forms part and who granted one of the titles containing building restrictions. The Tribunal dealt with the matter by way of way of written submissions followed by a site inspection and concluded that in the circumstances of this case, using the power available to us under the Act, to grant a variation of the condition so as to permit not more than 4 additional detached houses on the site, the plot sizes to be no less than 600 square metres each.
2. The original developer (now the respondent) acquired his land in various parcels. Part of the site now owned by the applicant was acquired from the former Clackmannan District Council by way of a Disposition in the respondent’s favour recorded GRS (Clackmannan) 31 January 1983, containing the following restriction:-
“(First) no buildings save any now existing shall be at any time erected on the subjects hereinbefore disponed, and the use of said subjects will be confined to amenity purposes…” (“Burden 1”)
The applicant’s title is registered in the Land Register for Scotland under Title Number CLK4917, with Burden 1 narrated in the Burdens section of the Title Sheet. The land so burdened comprises approximately the west-most half of the applicant’s land and fronts the local street known as Burnee.
3. The applicant’s title also contains the restriction created in the Disposition of the application subjects by the respondent, Alexander Bradie, to Andrew John Black and Another recorded GRS (Clackmannan) 22 June 1984, as follows:-
“(First) my said disponees and their foresaids shall be entitled to erect only one house and garage on the area of ground in this title and no other buildings shall be erected thereon…” (“Burden 2”)
Similar building restrictions were contained in other dispositions by the respondent as developer.
4. The applicant seeks discharge of Burdens 1 and 2. The respondent does not claim to be benefited under Burden 1 and the application so far as related to that burden is unopposed. The applicants are accordingly entitled, in terms of Section 97 of the Act, to discharge of Burden 1 without further enquiry. For ease of reference we shall henceforth refer to Burden 2 as “the burden”.
5. Section 98 of the Act provides:-
“An application for the variation, discharge, renewal or preservation, of a title condition shall, unless it falls to be granted as of right under section 97(1) of this Act, 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 … it is reasonable to grant the application”.
6. Section 100 contains the list of factors numbered (a) to (j) of which we are required to take account, as follows:-
“(a) any change of 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.
7. Intimation of the application was given by recorded delivery to the local authority and to the respondent Alexander Bradie residing in “Golf View”, Coalpots Way, Fishcross as the proprietors benefited under Burdens 1 and 2; and also to 26 surrounding proprietors some or all of whom might be benefited on the basis that Burden 2 was a community burden. Only the respondent objected. After a process of adjustment of the application and the respondent’s representations, the parties agreed to have the matter dealt with by way of written submissions and the Tribunal agreed. The respondent submitted an affidavit of his evidence along with a number of productions. We carried out an unaccompanied site inspection on 14 May 2009. We are satisfied that we can reasonably rely on the productions lodged with us as being what they bore to be. The applicant was asked on two occasions to provide a copy of the planning consent purportedly given, but failed to do so. Nonetheless we accept, as the respondent did, that there is planning consent for 4 additional houses on the undeveloped part of the applicant’s property.
8. From our perusal of the documents lodged and our site inspection we find the following facts to be established.
9. Fishcross is a small town lying less than 5 miles north of Alloa. It is almost entirely residential in character the bulk of the development being post war local authority housing but with several modern residential estates (including the one within which the applicant’s and respondent’s properties are located) on its perimeter. Much of the former local authority housing is now apparently in private ownership. The eastern boundary of the town is comprised by Alloa Golf Course.
10. The estate of which the applicant’s property forms part was developed in 3 main phases over a period of 25 years. The first section contained 8 detached houses on extensive individual plots of land. Three of these houses fronted Burnee, a residential street serving the original housing development in Fishcross. The remaining 5 houses overlooked the Golf Course and had southerly views. These were reached by way of a small track leading off Pitfairn Road to the North. Pitfairn Road is a main road leading through the village in a west/east direction. A further track leads off Pitfairn Road and runs to the rear of the 3 houses fronting Burnee.
11. The applicant’s property is one of the 3 fronting Burnee and is closest to Pitfairn Road but takes access from the track. The respondent’s house is one of the 5 overlooking the golf course and is separated from the applicant’s by around 70 metres and by other houses in the estate. The applicant’s house and the respondent’s do not share access arrangements.
12. The second phase of the development comprises a series of smaller bungalows all fronting Burnee. These houses have small plots with narrow back gardens. This phase lies immediately south of the part of the first phase containing the 3 houses but there is a small area of undeveloped land between the two phases.
13. The third and final phase consisted of 15 houses of which one was not completed until quite recently. These houses are of average size on appropriately sized lots and are constructed round Coalpots Way which was built as an access road and leads off Pitfairn Road. Access to the original 5 houses can be taken over Coalpots Way although the original track access is still available and is used. The respondent does not appear to retain any further areas of undeveloped land.
14. The whole development is attractive and in the main the houses and gardens are well looked after. We would expect the locality to be well regarded by any prospective purchasers.
15. Generally, the first phase of the development involved plots considerably larger than in the second and third phases.
16. The applicant’s property is the northmost of the 3 houses in the first phase of development. It appears to have been the largest plot and has extensive frontages to Pitfairn Road and to Burnee of approximately 80 metres and 54 metres respectively. It extends in total to approximately 0.886 acres or 3584 square metres. The house developed on the site (originally called “Devon Bank”, but now “Greenside”) is a single storey bungalow at the southeast part of the plot unaffected by Burden 1. It has recently been extended and is currently being renovated. It is not occupied at present. A timber palisade type fence has recently been erected enclosing the house and a reasonable area of garden ground. The only access now available to the house is from the track leading off Pitfairn Road. This track and Coalpots Way share a common junction with Pitfairn Road
17. The undeveloped land on the subjects, approximately 2700 square metres, is enclosed from both Pitfairn Road and Burnee by a high “leylandii” hedge. Both the grass and the hedge are overgrown and untended. Some cutting back of the hedge has in the past taken place with the offcuts left to decay on the plot.
18. The respondent’s house, “Golfview”, and one other house in the first phase, “Pennylea”, appear to occupy rather smaller plots than the other 5 houses in this phase. “Pennylea” gives the appearance of having been fitted into the original plot of “Golfview”.
19. Two new houses have recently been built within the estate developed by the respondent, the first being the final fifteenth of the last phase of development. This is owned by the respondent’s son. It immediately adjoins the respondent’s property at its rear. Another new house has been built fronting Burnee, just to the north of the houses in the second phase of development. Like “Pennylea”, this house lies in close proximity to the respondent’s house.
20. On the north side of Pitfairn Road 5 new villas have been erected. They all have driveways leading off the public road.
21. Within the former local authority houses on the west side of Burnee is an area of amenity land.
22. Planning permission for 4 new detached houses, apparently with direct access to Burnee and Pitfairn Road, on the undeveloped part of the subjects has been granted by the local authority.
23. For the applicant it was contended that the title condition was included in both dispositions to prevent injury to the amenity or value of the properties owned by the local authority or by the respondent. In the case of the local authority they now only had property on the other side of Burnee and the reference land is simply amenity land. The local authority no longer had sufficient interest to enforce the condition. There would be no injury to the amenity or value of its property were the condition to be discharged. Indeed, Clackmannanshire Council had already granted planning permission for the development of 4 houses. In respect of the respondent the property he retained was to the south of the burdened property and from his property he would not, or hardly, be able to see any of the proposed development. It was difficult to see what, if any, injury there would be to the amenity of his property. There had already been similar development in the surrounding area and in particular development by the respondent in close proximity to his own property. He had recently developed his own property by building another house immediately adjacent to his own. No detriment would thus occur.
24. The respondent contended that as the condition existed in the titles of the other plots developed by him the burden was a community burden. No notice had been given to the other parties who were effectively benefited parties. The purpose of the condition was to create good sized plots which was required by the local authority at the time. The proposed development for which a planning consent had been given of 4 houses meant that the site would be more intensely developed than the rest of the estate. The public were benefited in that open space was retained and traffic congestion reduced. Any discharge of the condition would change the character of the area as the new buildings to be erected might not be of the same character as the other buildings nearby. The condition did not impede enjoyment of the burdened property. Any discharge could be a precedent and would risk destroying the existing vistas onto both the golf course and Burnee. Finally considerable traffic congestion occurred on Pitfairn Road. Particularly following the building of the new houses on the north side of the road, there had been a number of traffic accidents, and additional houses on the applicant’s site would exacerbate the situation especially at weekends and evenings when residents were at home. The respondent also made comments on the actions of the applicant in regard to the extension recently made to her house.
25. Section 25 of the Act defines “community burden” as being a burden applicable to two or more units and where the units are both benefited and burdened. Following the respondent’s representation about this, which may be correct, intimation was given to the other potentially benefited proprietors in the immediate vicinity. None of these additional parties registered any objection. The sole objection is from the respondent. It is a matter of significance that none of the parties who might be considered to be benefited and whose properties are very much closer than the respondent’s have objected. However, the applicant accepts the respondent’s title to object and in these circumstances we proceeded on the basis of his contentions.
26. The site inspection can play a significant part in assisting us to come to our decision. This is such a case. We were struck by the extent of the undeveloped land within the applicant’s ownership. It is considerably in excess of what might be considered normal or appropriate for a house of the applicant’s size or type. Even in comparison to the large plots in the first phase of development the area is very large. Much of the applicant’s land was clearly originally intended to be open space, at the behest of the local authority who conveyed the ground to the developer. The issue in this application is whether, now that the local authority does not seek to enforce the burden in its favour and indeed has given planning consent for additional houses, the building restriction imposed by the developer at much the same time should also be removed or relaxed in the exercise of our jurisdiction relating to private title conditions.
27. We agree with the respondent that the present untidy state of the ground should not be a factor in favour of the application.
28. The area of garden ground enclosed within the recently erected fence is not in our view unduly restricted or small. It fits in well with the size of gardens and plots in the last phase of the development, which it adjoins. The plots within the first phase are larger but the main part of this phase of 5 houses is located at the rear of the estate and has its principal outlook to the south. These houses, which include the respondent’s, are in any event bounded at their rear by the third and last phase of the development where the plots are quite modest. Of the houses in the first phase, most of which have large plots, only the other 2 houses at Burnee are close. Neither of these has raised any objection. Both houses face the former local authority development where the houses are very much smaller. They too are close to both the second and third phases of development where the plots are smaller.
29. The position regarding development in the immediate vicinity of the respondent’s property also appears to us significant. It is not easy for a benefited proprietor who seeks to uphold a building restriction to establish the benefit of the title condition to his property if, as in this case, there has already been corresponding development in the close proximity of that property.
30. Considering the factors set out in Section 100 of the Act we are satisfied that the purpose (factor (f)) of the original condition was to ensure larger than normal plots, in order to preserve the character and amenity of the development, but it is clear from the finished development that these larger plots only occurred in the first phase. Subsequent phases involved much smaller plots. The purpose therefore achieved a tangible benefit at the time for the 8 original houses (with the possible exception of the respondent’s own house and “Pennylea”), but, having regard to the subsequent development of the estate, we do not see it as having any particular ongoing relevance to the applicant’s land provided the proposed development is similar to the later stages of the development.
31. In so far as factor (a) is concerned, overall the character of the benefited and burdened properties and that of the neighbourhood has not changed significantly, but the local authority has not sought to maintain part of the land for amenity purposes and there is amenity land on the opposite side of Burnee. There has been much denser development in the vicinity. The first phase now appears in a somewhat different setting.
32. Factor (b) requires us to consider the effect on the benefited proprietor, in this case the respondent. We consider there is likely to be, at its highest, very limited effect on his property. The new development, if it proceeds will barely be seen from the respondent’s house, which in any event faces the opposite direction. There already has been recent development closer to his house than the applicant’s site and most of the development between Pitfairn Road and his property involves smaller houses on smaller plots. We have therefore concluded that little weight should be given to Factor (b).
33. By contrast there is considerable impediment on the applicant (factor (c)). The area of land within her ownership is clearly too large for the size of house and this must create difficulties, if not potential expense, in maintenance. In addition there is the potential loss of proceeds from any ability to sell the land for development. Such proceeds are part of the enjoyment which the applicant would, but for the burden, be entitled to expect from her ownership.
34. The condition has been in existence for about 25 years. This is not an unduly lengthy period but neither is it very recent. Factor (e) can be considered to be fairly neutral.
35. Factor (g) is in the applicant’s favour. There is planning consent for 4 houses on the undeveloped land.
36. Factor (h) was not raised and is also neutral.
37. We do not consider there to be any other factors which are of significance in this case. We do not consider the respondent’s concerns over traffic congestion or propensity for road accidents to be particularly relevant to our consideration. We are not satisfied that these issues were part of the purpose of the condition when it was first introduced and in any event the local authority will have considered these matters in their consideration of the applicant’s planning application.
38. Nor do we put much weight in the circumstances of this case on the respondent’s argument regarding precedent. Generally, cases before us are judged on their individual merits and it would be wrong to reject an application which otherwise justified a favourable decision simply because such a decision might be used in future by another applicant. That said, there may be cases in which an application clearly involves the first development of a particular kind at a location where it can be said that, if granted, it would obviously be followed by others and it would not be reasonable to ignore it. We do not think that this arises here.
39. Weighing up the factors as a whole, we are satisfied that it is reasonable to remove the restriction to one house at the applicant’s property. We can either grant the applicant’s request for a complete discharge or we can use our power of variation to grant a more limited relaxation. In this case, the application expressly narrated a proposal for an additional 4 houses, in line with the planning consent. We accept that this building restriction was designed not only to create but also to maintain the character and amenity of the development and can still play a part in that in the context of the estate as it has now been developed. Four houses would appear to us to be the maximum number which the undeveloped part of the applicant’s site could accommodate and still maintain the character and amenity of the current development. The respondent claimed that 4 houses in addition to the applicant’s existing house would be over-development and demonstrated this by reference to aerial photographs of parts of the existing estate marking areas containing 4 houses. We have some sympathy with this position but require to take account of where the applicant’s property is situated. It has extensive road frontages and the development on the opposite side of both Burnee and Pitfairn Road involves much smaller houses and plots. We have concluded that the applicant has made out the case, in the context of this title condition, for her proposal to add 4 houses. This was the proposal to which the application related and to which only one objection was received. We do not, however, consider it reasonable to remove the restriction altogether.
40. We also bear in mind that we have not been supplied with the detailed plans for which there is planning consent. In these circumstances, we think it appropriate also to ensure approximately equal plot sizes in order to preserve the character and amenity of this estate as it is. The undeveloped area on the subjects, i.e. outside the designated garden ground of the existing house, is approximately 2700 square metres. To allow some reasonable leeway, we shall in our order varying the title condition also fix a minimum plot size of 600 square metres. We shall also restrict the variation to detached houses only reflecting that all of the houses in the 3 development phases are detached. Beyond that, we consider that matters of house type, design and style in this particular case are appropriately left as matters of public planning regulation.
41. We would mention that we exhibited this opinion in draft to the parties and allowed either to submit any further representations on the specific matter of variation on these particular terms, as the application had been for a discharge and there had been no specific submissions in relation to more limited variation. Neither side made any further submission.
42. For all these reasons, our decision is to grant the application, but only to the extent of varying the burden so as to permit the erection of not more than four additional detached dwellinghouses, the plot sizes to be not less than 600 square metres each.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 August 2009
Neil M Tainsh – Clerk to the Tribunal