This is an application by the proprietor of a ground floor and basement flat, forming part of a substantial stone villa, to discharge a title restriction which restricts occupation of that flat to one family. The applicant wishes to sell the mews cottage which presently forms part of the ground floor accommodation but the title condition has the practical effect of prohibiting this. Two of the proprietors of flats within the building oppose the application.
The title condition in issue forms clause fifth in the Disposition by Gordon Davidson Smith in favour of Abbey National Building Society and their assignees, recorded in the Division of the General Register of Sasines for the County of the Barony and Regality of Glasgow on 11 October 1950. The Disposition constitutes entry 3 of the Burdens Section of the Title Sheet for the subjects - GLA128316. Clause fifth thereof is in the following terms:-
“The subjects hereby disponed shall be used as a private residence for the occupation by one family only, and for no other purpose whatsoever;”
Applying the test of reasonableness set out in sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”), the Tribunal is satisfied that it is reasonable to grant the application but only to the extent of varying the title condition to enable the mews cottage to be occupied separately from the remaining ground floor and basement flat.
Having inspected the subjects and considered the submissions, The Tribunal are persuaded, on weighing up the factors set out in section 100, particularly the extent of the impediment on the applicant’s enjoyment of his property, that the condition should be varied. The terms of the variation will be to permit those parts of the subject property forming (1) the basement and ground floor flat and (2) the mews cottageto be used as separate private residences, each for occupation by one family only.
The applicant is Mr John Verrico, owner of the ground floor (left hand) and basement flat at 3 Dundonald Road, Glasgow. He seeks discharge of the title condition which he regards as “prohibiting sub-division” and restricting occupancy to only one family. The application was intimated to the three other flat proprietors within the building.
The application is opposed by Brian T Findlay and Samantha L Findlay, proprietors of the ground floor right-hand flat and by Maria D F Tomlinson, proprietrix of the first floor flat. All parties agreed that the matter could be dealt with on the basis of written submissions and an inspection by the Tribunal which was carried out on 2 April 2008.
No productions were lodged by the parties and the application is in a brief form as are the respondents’ submissions.
3 Dundonald Road is a substantial stone and slated detached villa built about 1874 and constructed over four floors with accommodation at basement, ground, first and second floor (attic) levels. The basement level is not the full depth of the building and this accommodation is combined with the ground floor left flat which also includes the mews flat to the rear. The ground floor is the only level in the house where ownership is split, the first and second floor flats being complete floors. The entrance door on the front (east) elevation gives access to the common hall from which there is access to the flats at ground level. A passage leads on to the stairway which provides access to the flats at first and second floor levels. This passageway, which separates the ground floor right hand flat from the left hand flat, continues to the rear of the property and gives the flat owners direct access to the rear courtyard.
Immediately to the west of the rear door is the mews cottage. This cottage has its own entrance from the courtyard and is self contained. It has been recently modernised internally and the accommodation comprises one public room, one bedroom, kitchen and bathroom. It is currently occupied by a relative of the applicant. There is no internal access to the remaining ground floor accommodation owned by the applicant. The ground floor (left-hand side) and basement flat owned by the applicant, has also been recently refurbished and has at ground level one public room, kitchen/dining room and bathroom. An internal stair leads down to the basement accommodation which comprises a master bedroom with en-suite bathroom and two further bedrooms and shower room. This flat is presently unoccupied.
It is understood that the ground floor flat (right-hand) has two bedrooms, one public, kitchen and bathroom and the upper floor flats are understood to have three bedrooms, one public, kitchen and bathroom. We were advised that the building is Listed Grade B and it lies within a Conservation Area. We were also advised that recent refurbishment of the ground floor and basement accommodation was carried out following receipt of a building warrant and that a completion certificate has been issued by the local authority.
There is a small garden to the front of the property and a shared drive leads from the public road along the north side of the building and gives vehicular and pedestrian access to the rear courtyard. An original single-storey, L-shaped extension lies to the rear of the main house and defines the eastern and southern edges of the courtyard. While part of this L-shaped extension runs along the rear wall and forms part of the ground floor (right hand) flat owned by Mr and Mrs Findlay, part is at right angles to the rear elevation and is the mews style cottage owned by the applicant. Adjoining the mews cottage to the west is a small garage understood to be owned by Mrs Tomlinson and three further garages sited along the west boundary partly enclose the rear courtyard. Two of these are owned by the applicant and one by Mr and Mrs Findlay. In the southwest corner there is a former air-raid shelter which is used by the residents for the storage of refuse bins etc.
Dundonald Road lies in the Dowanhill area of Glasgow and close to Hillhead. Glasgow University lies to the east and is located within walking distance. Dowanhill is a very attractive and popular residential area. Most of the nearby properties are traditional stone and slated terraced villas, the vast majority of which have been divided into flats. There are also a limited number of detached houses the majority of which have also been converted into flats or used for non-domestic purposes such as care accommodation and health service provision. Immediately to the rear of the subjects is the Notre Dame High RC School which is a substantial complex of post-war school buildings. Access to the school is from Observatory Road which runs alongside the adjoining building 1 Dundonald Road. This building is occupied by the Notre Dame Centre which is a charitable and voluntary organisation.
Whereas Nos. 1, 3 and 4 Dundonald Road were originally all detached dwellings, the other properties within Dundonald Road are attractive stone terraced houses all of which appear to be sub divided into flats. Beyond Observatory Road to the south west is Bowmont Gardens, the north side of which was formerly part of the school. This terrace of traditional stone dwellings is currently being refurbished and converted to flats.
One noticeable feature of the neighbourhood is the extent of on-street car parking. It is clearly difficult for residents to find parking spaces throughout the day.
The applicant submits that clause fifth has the practical effect of prohibiting sub-division since occupation of the whole subjects, according to the clause, is to be by one family. He considers it is reasonable to grant the discharge sought on the basis that the house is already sub-divided into flats and he considers that further sub-division would not be unfairly prejudicial to any of the proprietors in the building.
In response to representations made by the respondents concerning the likely increased pressure on courtyard parking, the applicant considers that there is no difficulty with parking in the common courtyard. However, he indicated that his intention is to include one garage with the sale of the mews flat. He further submits that splitting his property into two will not devalue any other property in the building. The occupier of the mews flat will gain access from the courtyard by way of the mews flat’s own front door and indeed the mews flat owner will require no access to the main building through the front door. The respondents considered that if one split was permitted a precedent would be set leading to further subdivision. In response the applicant indicated that was not his intention and he was willing to give a formal undertaking that he would not seek any further subdivision of his flat.
Mrs Tomlinson objects to the application for discharge of the title condition restricting occupation of the applicant’s property to one family. She considers that the condition was created for the benefit of the existing owners and that this is still relevant. In her view sub-division of the applicant’s property would generate further occupants and would also set a precedent for further sub-division. She considers the courtyard which is used by the proprietors is already congested and allowing further vehicles to use this will cause additional problems with parking and manoeuvring of vehicles. In her view the title condition was framed partly with a view to limiting the number of people who could be reasonably expected to use the courtyard.
She commented that the previous owner of the applicant’s property applied for planning permission for alterations to the property and that some alterations were carried out internally and required to be removed. She claims that “Notwithstanding this there is still an enforcement order by the Local Authority and the Scottish Office in place against certain alterations.”
In her opinion the conditions in the title were designed to preserve the amenity of the properties and the granting of consent for sub-division would be likely to devalue the existing properties in the event of any sale. She considers the prime motive of the applicant in the sub-division proposal is profit and to enhance the accommodation’s letting potential. Accordingly she opposes the application on the basis that the condition imposed in the titles confers a benefit on her property which is as valid now as it was when the condition was created.
Mr and Mrs Findlay also made representations. They opposed the application as they consider that there is already a problem with congestion in the communal access areas and the addition of a further flat would exacerbate this issue. Furthermore they consider that adding a fifth property to an existing four-residence building would devalue the existing flats and the property would not be enhanced in any way. In their view, if consent was granted this could lead to further splits in the future which it would be difficult to prevent, leading to potentially “multiple occupancy” in the property.
Clause fifth requires the applicant’s property, like all the other flats within the building, to be occupied by only one family. The applicant wishes to separate his ground floor and basement flat from the mews cottage to form two separate dwellings, with each being occupied by one family. The practical effect of this title condition is, however, that sub-division (and subsequent sale on the open market) is prohibited. Physically the mews cottage is already separated from the remainder of the applicant’s ground floor accommodation. It has its own front door and is already self- contained. When, or if, work was done to block an internal access is not known but the applicant indicated that alterations which he made to his flat were carried out with a building warrant and that a completion certificate has been issued by the Local Authority. The applicant also indicated that his refurbishment works did not require a planning consent. Mrs Tomlinson contends that unapproved works were carried out by a previous owner and that the Local Planning Authority raised an enforcement order which is still in place. Without knowing the background to any previous planning consent which may have been granted or having any documentary evidence of the present planning position it is not for the Tribunal to comment further on these matters.
Mrs Tomlinson considers that the prime motive of the applicant is to make profit and to enhance the accommodation’s potential for letting. Mr Verrico did indeed indicate that he is a developer whose business involves the development and refurbishment of residential property. However, consideration of the motives of the applicant is not a matter that the Tribunal can or should address. All we should consider in assessing the application to discharge the burden are the various factors set out in Section 100 of the Act. This allows us to apply the overall test of reasonableness (Section 98) in deciding whether to grant the application.
Turning to the factors in Section 100, we refer to the general observations in relation to purpose set out in Ord v Mashford and others 2006 SLT (Lands Tr.) 15. The Tribunal explained in that case the significance of Factor (f), the purpose of the title condition, if that can be identified. It influences the assessment of other factors, such as change of circumstances, benefit, impediment and the period of time since the condition was created. Assessing the impact on the respondent of the discharge sought is invariably assisted by consideration of an identifiable purpose or intention behind the title condition.
In our opinion, the purpose of the obligation is to preserve the amenity of the building as a whole by restricting use of each flat to a private residence and further protecting the amenity of the various flats by ensuring that each is occupied by only one family. The granter of the foundation titles, in addition to binding the proprietors of the individual flats bound himself and his successors to the same conditions. He may have retained one of the flats within the building for some time before selling off and ending his interest in the property. Subdivision of each flat is therefore, at present, in practical terms prohibited as would be occupation by more than one family. It is noted that the wording in the 1950 Disposition substantially replicates the terms of the 1874 Contract of Ground Annual (between Andrew Robertson and John Findlay, recorded 21 March 1874 – Entry 2 of the Burdens Section of GLA128316) which restricted occupation of the whole villa to only one residential user. The title condition restricting occupation to one family also has the effect of preventing multiple occupation of each flat.
We now consider the other factors in Section 100. Factor (a) deals with change in circumstances. Superficially it might be argued that there has been little physical change since the houses were built in the late Victorian period. The fine terraces and detached stone villas remain. However, a number of significant changes have occurred since the burden was created in 1950. Over the last fifty years the villas have been progressively divided, such that the majority now comprise flats occupying individual floors. The sub-division of 3 Dundonald Road into 4 flats took place around 1950 and since that date there has been no obvious external change. Nevertheless, since the 1950s there has been change at least to the extent of owners and occupiers accepting progressively smaller flats. Another change that has occurred since the 1950s is the greatly increased extent of car ownership and the impact that this can have on both off-street and on-street parking. The very intensive, and at present unregulated on street parking, is a feature of the neighbourhood.
All the flat proprietors at 3 Dundonald Road (except the top floor proprietors) own garages accessed off the rear courtyard and assuming these are used for parking and assuming residents use the courtyard in a considerate manner the extent of any increased congestion caused by permitting separate occupation of the mews cottage is not considered material. Whilst the vast majority of buildings are in residential use, there are also a number of non residential users nearby, most noticeably the high school to the rear and the Notre Dame Centre at 1 Dundonald Road. It is also noted that the former school accommodation in Bowmont Gardens is being converted into flats as opposed to conversion back to the original terraced villas.
Factor (b) requires consideration of the question as to how much benefit the condition confers on the benefited proprietors. As far as the respondents are concerned there will be a loss of amenity as, in their view, even one subdivision will generate additional occupiers which in turn will lead to congestion in the courtyard. Furthermore they consider their properties will be devalued as a result of any further subdivision. In the Tribunal’s view the impact on the amenity of the respondents would be modest, in the event of separating the mews flat from the ground floor and basement flat. The mews flat already has a separate access to the courtyard and the proposal will not of itself create greater congestion in the courtyard. There was no evidence to support the view that the value of the respondents’ property would be adversely affected as a result of this application being granted. Our impression is that it is unlikely to have any material impact. We consider that such impact, if any, is likely to be minimal.
Factor (c) highlights the extent to which the title condition impedes the enjoyment of the subjects as the burdened property. The restriction to occupation by only one family, when there are already two self-contained dwellings is clearly relevant here. The separation works appear to have been carried out with the approval of the Local Authority. In practical terms there is currently an inability to sell the properties separately and we consider this is a significant impediment. We appreciate the respondents’ argument that the applicant is a property developer whose primary objective is profit but the fact remains that the title restriction is a very significant impediment to the effective use and potential sale of the property particularly having regard to its present layout.
Factor (d) is not relevant in this case. Factor (e) requires us to consider the length of time which has elapsed since the condition was imposed - in this case some 58 years. This does seem of significance; the original title condition envisaged occupation of the house by one family, no doubt including staff. Following the Second World War there was considerable demand for additional housing but particularly for smaller more manageable homes. In about 1950 the villa was split into 4 flats the biggest of which is the applicant’s property. Since then the trend towards smaller flats has continued and against this background we consider that the age of this restriction is of some relevance and favours the applicant.
Factor (g) – the planning position – is of limited relevance in this case. The applicant asserts that planning and listed building consent was not required for the refurbishment work that he carried out: only a building warrant was required and this was obtained. No changes have been made externally and the sub-division of the applicant’s flat into two does not affect, for example, the views from or the extent of daylight reaching any of the respondents’ flats.
Factor (h) has no particular relevance in this case and factor (i) is not applicable.
Factor (j) allows the Tribunal to consider any other issue which it feels is material. The respondents raised concerns about creating a precedent. That by allowing one sub-division this could lead to further future sub-division and this might lead to “multiple occupancy”. The Tribunal does treat each case on the basis of the particular circumstances and in this case the applicant has indicated a willingness to give an undertaking that he will not seek to further split his property into separate ground and basement flats.
Weighing up the issue of reasonableness in the light of all these factors we consider the application should be granted but only to the extent of granting a variation (and not the discharge sought) to permit those respective parts of the subject property forming (1) the basement and ground floor flat and (2) the mews cottage to be used as separate private residences, each for the occupation by one family only. Our main reason for concluding that such variation should be granted is that, in our view, the burden on the applicant, prohibiting occupation by more than one family and in practical terms preventing the sub-division and separate sale of the mews flat outweighs the benefit to the respondents in continuing to be able to enforce the condition as originally imposed. By granting variation, as opposed to discharge, we have sought to recognise the concerns of the respondents that by permitting one split a precedent would be created that could at a future date lead to multiple occupation of each flat.
Any issue in relation to expenses can be dealt with, following the Tribunal’s normal practice, on the basis of written submissions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 13 May 2008
Neil M Tainsh – Clerk to the Tribunal