1. This is an application, under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), for variation of title conditions by the proprietor of the upper flat in a traditional villa in which she also owns part of the basement. She proposes to convert her basement accommodation from their present use as storage to create a small flat for possible subsequent sale. The title conditions prohibit subdivision and occupation of her property by more than one family. The application is opposed by the respondent who owns the ground floor flat which also incorporates part of the basement; and it is also opposed by the owner of a neighbouring property which is also benefited under the title conditions in question.
2. The Tribunal has decided to refuse the application. Having regard to the statutory guidance on the issue of reasonableness, and in the particular circumstances of this case, we are not satisfied that it is reasonable to grant this application.
3. The title conditions in issue are contained in a feu contract containing a feu disposition by The Commissioners of Sir Michael Robert Shaw Stewart, Bt. in favour of Robert Walter Jamieson recorded in the General Register of Sasines for the County of Renfrewshire on 30 March 1880. The feu disposition conveys plots 1 and 2 and includes an obligation to:-
“erect and maintain on each of the said several pieces of ground before disponed … a villa dwellinghouse and cellars and a washing house therefor as aftermentioned which villa dwellinghouse to be erected on each of the said pieces of ground shall be two square storeys in height above the level of Forsyth Street aforesaid and not more or less but attic rooms may be constructed in the roof thereof subject to the provisions afterwritten and if such attic rooms are constructed there shall be no storm or other windows or skylights therefor in the side of the roof of the villa fronting towards Forsyth Street aforesaid … and each of them shall be either self-contained or divided into two self-contained possessions … each of which possessions shall consist of a flat if no attics are constructed and if attics are constructed one of the said possessions shall consist of the first flat and the other shall consist of the second flat and attics and each of the said villa dwelling houses if constructed self contained shall be occupied by only one family tenant or occupier and if constructed into two possessions as aforesaid each of the said possessions shall be occupied by only one family tenant or occupier and if attics are constructed they shall not be occupied as a separate possession but along with the second flat as before provided … and they shall be used exclusively by the tenant or occupier or tenants or occupiers of each villa dwelling house”
In accordance with these provisions, two villas, each with a ground and an upper flat, were duly built. The applicant’s house is the upper flat together with attic, 84 Forsyth Street, Greenock. Ms Crabbe’s house is the lower flat, No. 86, of that villa. The other respondent, Elizabeth Terris, owns the lower flat, No. 82, in the adjoining villa. It is agreed that Ms Crabbe and Ms Terris, as well as the upper flat proprietor of No. 80, are benefited under these title conditions, such clearly being the position under the provisions of the Act and quite possibly also under the pre-existing law, by ius quaesitum tertio. Each villa as built also had some basement accommodation, towards the rear. The titles to Nos. 84 and 86 each include basement cellars of unspecified extent, the uninhabitable sub-floor voids towards the front (where the ground slopes upwards) being apparently common property. The applicant’s proposed development would be in the basement occupied by her as owner of No. 84.
4. The applicant, as proprietor of the basement accommodation belonging to 84 Forsyth Street, Greenock (“the subjects”) applied to the Tribunal for discharge of the title conditions, amended prior to the hearing to variation by deletion of the particular passages shown in italics above which, in practical terms, prohibit the conversion of basement accommodation to create a self-contained flat for separate occupation or ownership. Representations opposing the application were received from Ms Crabbe and Ms Terris. Although it was in fact agreed at the hearing that the proposed variation would cause a reduction of 8.75% in the value, which was agreed to be £192,500, of No. 86, there was no claim for compensation, Ms Crabbe being clear that she was simply opposed to the proposed development of the basement space and indeed having been clear throughout that she would anyway exercise certain of her rights as proprietor to prevent it.
5. Accordingly, the single issue for the Tribunal, in terms of Sections 98 and 100 of the Act, was whether it was satisfied, having regard to the factors set out in Section 100, that it was reasonable to grant the application.
6. Ms Terris, while maintaining her objection, relied simply on her quite brief written representations and did not take any further part in the proceedings. Ms Crabbe, however, maintained her objections at an oral hearing following adjustment of the application and her representations. At the hearing, the applicant was represented by David Thomson, advocate, instructed by Brodies, Solicitors, Edinburgh. He called the applicant, her husband Robert Melville, who lives with her at the subjects, and Gordon Gibb, B Arch, Dip Arch, RIBA, ARIAS, LLM, architect, as witnesses. Ms Crabbe was represented by Craig Sandison, advocate, instructed by West Anderson, solicitors, Glasgow (of which firm Ms Crabbe is a partner). He called Ms Crabbe and Peter McConnell, Dip BS, FRICS, a building surveyor with Speirs Gumley, Glasgow, as witnesses. Both sides also relied on documentary productions and Mr Gibb, Ms Crabbe and Mr McConnell had submitted extensive reports and submissions. The tribunal had the benefit of these materials when carrying out its inspection of the locus before the hearing. They were treated as the witnesses’ main evidence, and subject to cross-examination, at the oral hearing. Following the hearing, counsel helpfully provided written closing submissions.
7. Parties also entered into a Joint Minute agreeing the present value of No. 86 Forsyth street at £192,500 and that the percentage diminution in the said value if the title conditions were “relaxed by the Tribunal so that they no longer prevent the development of the basement or cellars in the manner proposed by the applicant” was 8.75%.
Bolton v Aberdeen Corporation 1972 SLT (Lands Tr) 26
Solway Cedar Ltd v Henry 1972 SLT (Lands Tr) 42
Bachoo v George Wimpey & Co Ltd 1977 SLT (Lands Tr) 2
British Bakeries (Scotland) Ltd v City of Edinburgh District Council 1990 SLT (Lands Tr) 33
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Donnelly & Regan v Mullen & Ors, 17.2.2006, LTS/TC/2005/1
Daly v Bryce, 28.4.2006, LTS/TC/2005/15
West Coast Property Developments Ltd v Clarke & Others, 28.6.2006, LTS/TC/2005/21
Smith v Prior & Others, 17.11.2006,LTS/TC/2006/06
Smith v Elrick & Another, 20.11.2006, LTS/TC/2006/14
McPherson & Fraser v Mackie 2007 SCLR 351
Anderson v McKinnon, 12.1.2007, LTS/TC/2006/04
Brown v Richardson, 8.5.2007, LTS/TC/2006/41
Rennie, Land Tenure in Scotland, para. 13-27
8. On the basis of the evidence and submissions and the Tribunal’s own inspection of the applicants’ and Ms Crabbe’s properties, including the basement areas, we found the facts, so far as material, to be as follows.
9. Neighbourhood. Forsyth Street lies in the West End of Greenock and forms part of an area of housing built in the latter part of the 19th century. The streets are laid out on a grid pattern with dwellings of a similar architectural style, mainly comprising substantial stone properties, many of which were flatted when built or have been subsequently converted into flats. Although there is evidence of the widespread conversion of larger villas into flats and the conversion of basements to flats, there was no evidence of other nearby properties having a similar configuration where the upper flat proprietor also owned part of a basement and then developed it separately. On the basis of the planning consents granted there is evidence of the formation of a number of basement flats. The subjects are located just within the Greenock West End Conservation Area. More modern housing has been built nearby and particularly to the south west, on South Street and beyond.
10. Subjects. The subjects were built around 1880 on ground feued, along with the neighbouring plot, to a builder by the local landowner during a phase of development in this area. The feu disposition made extensive provision for the form, scale and type of the two houses to be built, with the design to be approved on the superior’s behalf. The subjects have the appearance of an imposing two storey villa with additional accommodation in the attic and basement. The building is principally of stone construction with a pitched slate roof and appears essentially unaltered internally and externally since construction. The front elevation faces roughly south east but for present purposes we shall refer to the front elevation as east and the rear elevation as west. The property was designed as two flats. 86 Forsyth Street is the main door, ground floor flat and 84 Forsyth Street is the first floor flat which is accessed from a porch situated on the north side of the property with stairs leading up to the first floor. From the first floor hallway a timber stair gives access to the attic bedrooms.
11. The respondent is the owner of No. 86 having lived there since 1954 and having inherited the flat some years ago on the death of her parents. The accommodation at ground level is vestibule, entrance hall, lounge, dining room, 3 bedrooms, kitchen, scullery with pantry off and bathroom. Neither the layout of the flat nor the internal details such as cornices, woodwork etc appears to have changed since it was built. The flat has not been modernised. An internal stone stair, which appears original, leads down from the hallway to the basement which also has a separate external side entrance on the south elevation.
12. The applicant owns No. 84, the upper flat, having acquired it in 2003. The accommodation, which appears unchanged from the original layout, has, on first floor, 3 public rooms, 2 bedrooms, bathroom and kitchen with 4 further bedrooms at attic level each with day lighting by way of a skylight.
13. Maintenance of certain common parts of the building, particularly rainwater goods and slating, has been seriously neglected.
14.The basements. There are basement rooms below the rear half of the property. The ceiling height of these rooms is around 2.1m. The ground floor flat has an internal stair down to its basement as well as a separate external access. The first floor flat gains access to its basement by way of a door on the rear, west elevation. The rooms occupied by the owners of the two flats for many years are clearly defined and identifiable. The shallow under-floor void towards the front of the house appears to be common and there is no identifiable division of ownership or occupation of this space.
15. The basement of No. 86 has two principal rooms, one of which is used for the storage of garden equipment and other domestic items and the other is currently used as a coal cellar. The storage room extends to about 16.8sq.m and has natural daylighting from a window on the west elevation. Off this room is a former toilet but all sanitary fittings have been removed. There is a window to the former toilet but the party wall meets the west elevation wall at right angles to the window splay and a timber partition over the window ingoe separates the basements. The walls are plastered but the plasterwork is in a poor condition; some of the floor finishes have been removed and timber rot is evident. The room used as a coal cellar has a window on the south elevation and extends to about 14 sq. m. From this room there is access by way of a hatch to the under-floor void. The void varies in height but is typically between 0.7m and 0.9m and it is possible to crawl through it. Service pipes and cables which appear to serve both flats run through the under-floor void.
16. The basement of No. 84 has a similar total floor area of about 41sq.m; however, the layout of the accommodation is different. There is one main room, accessed from a small entrance hallway, and with a window on the north elevation and a disused fireplace opening. Also off the hallway is a small storeroom/cupboard under the stairs and what appears to have been a somewhat restricted former toilet. There is also access to a storage area which does not have any daylighting. On its east wall there is clear evidence of a former opening in the brick wall which in the past gave access to the under-floor void. This opening was blocked up by the applicant’s husband at some stage in late 2007. The basement of No. 84 lies below the rear bedroom, hallway and bathroom of the ground floor flat
17. There are a number of surface mounted pipes and cables which run from the under floor void through the basement rooms of No. 84. Some of these appear to be common and some appear to be exclusive to No. 86. Most of these service pipes appear to be in use but some may be redundant. Also pipework servicing the bathroom of No. 86 is visible in the basement of No. 84.
18. The party wall in the basement appears to define clearly the accommodation occupied by the applicant and the respondent. Although the basement rooms are now used only for storage, both basements were apparently used as maids’ accommodation until around the first quarter of the 20th century. Since then the accommodation appears to have been used principally for storage.
19. Rear garden and wash-house site. To the rear or west of the house is a garden which is divided into two approximately equal halves by a double timber fence about 6 feet in height. A gravelled path lies along both the north and south elevations. There is no access from the garden of No. 84 to the site of the former wash-house located in the garden of No. 86.
20. Titles. The title to No. 84 is now a registered title, under Title Number REN 111753. The description of the property is as follows:-
“Subjects within the land edged red on the Title Plan consisting of upper flat and attics, the stairway leading up thereto and the cellars in the basement at 84 FORSYTH STREET, GREENOCK PA16 8QY with the ground tinted pink on the said plan. Together with the right in common with the proprietor of 86 Forsyth street, aforesaid being the lower flat of the building comprising 84 and 86 Forsyth street, aforesaid (First) to the washhouse and ashpit tinted blue on the said Plan, (Second) to the solum on which the said building and the said washhouse and ashpit are built and free ish an entry to said washhouse and ashpit, (Third) to the drains and soil and other pipes of said building and access thereto when required, and (Fourth) to the whole other rights common and mutual to the proprietors of the said building.”
21. The title to No. 86 derives from a 1954 Disposition in favour of the respondents’ parents. This was not produced but apparently disponed the lower flat:-
“together with the cellars, water closet and other accommodation pertaining to the said lower flat situated in the basement of and entering from the south west side of the said flatted villa and also the interior stair leading thereto from said lower flat (which cellars, water closet and other accommodation are described in my” [OR POSSIBLY “the”] “title as the cellars in the basement of the said flatted villa entering from the back thereof )”
and common rights. That description of the basement property apparently dated from a disposition in 1945. Ownership, as opposed to occupation, of the flats, had first been divided in 1920, and the basement area had until 1945 been described in successive dispositions of No. 86 (from 1922 onwards) as:-
“the cellars in the basement of said building entering from the back”.
22. Applicant’s Scheme. The applicants received planning permission from Inverclyde Council on 8 December 2006 for a “change of use of basement cellar space to use as a flat.” Plans were attached to the application which showed the conversion of that part of the basement understood to be owned by the applicant to create a self-contained, one bedroom basement flat having additional daylighting from a new window on the rear elevation. Part of the garden ground would be allocated to the basement flat. Objections to the application had been submitted by the respondent and the owners of 82 Forsyth Street. The objection grounds were inter alia that parking problems would be exacerbated to the detriment of road safety and that the proposal would result in over development of the site.
23. In his report to the Planning and Traffic Management Committee the planning officer took the view that the proposed conversion would have no impact on the character and amenity of the residential area. Concerns raised by the respondent regarding communal access rights were not seen as a planning matter. Although it was acknowledged that Forsyth Street was a heavily parked area, the Head of Transportation and Road Services had offered no objection to the application. In October 2008 the planning authority granted consent for changes to the proposed internal layout. These changes were regarded in planning terms as “non material”
24. The applicants, as yet, have not prepared drawings for a building warrant application. The development as proposed would involve removing structural walls, enlarging and creating a new window on the west elevation, re-routing existing services and lowering the existing basement floor levels to ensure adequate headroom. Appropriate fire protection to adjoining property would form part of any approval of building warrant. The warrant would ensure that any alterations satisfied the minimum requirements of the building regulations and would address in detail questions of emergency access, noise transmission, ventilation and the removal of any smells. Adequate construction detailing and supervision during the works would be required. The new kitchen would require to be vented immediately below the bathroom of No. 86. It would not be possible to eliminate noise or smell emanating from the new flat entirely. Having regard to the existing situation in the basements, there would be no increased risk of fire.
25. Parking. In the neighbourhood there is extensive on street parking and at the time of our inspection there was no evidence of a shortage of spaces. There is greatest pressure on parking spaces during evenings and at weekends when residents are most likely to be at home. The addition of one or two cars as a result of this proposed conversion of the subjects would have only a very slight effect.
26. 80 and 82 Forsyth Street. Nos. 80 and 82 comprise the property adjacent to the north. It was developed about the same time as the subject property by the same builder and to a similar architectural style. A number of external alterations have been made including the construction of a conservatory and a stair to the upper flat.
27. Effect on No. 86. The applicant’s proposed scheme would result in some diminution of the value of No. 86, because of its very close proximity and the particular effects on amenity; and also because there would be additional pedestrian access and a flat below as well as above No. 86. Further, a small flat might be seen by some as detracting from the immediate amenity by introducing a very small flat of lower value when the neighbouring property is of a more substantial nature with higher values.
28. Counsels’ submissions may be summarised as follows.
29. For the applicant, Mr Thomson, by way of introduction, submitted that the issue ought not to be decided by reference to imposition of an onus on one party or the other. The conditions here were old enough to have been the subject of a notice of termination under Section 20 of the Act (the ‘sunset’ rule) in which event the onus in any challenge to termination would have been on the holder of the condition. Cf Brown v Richardson, Donnelly & Regan v Mullen & Ors, and Church of Scotland General Trustees v McLaren. Further, the issue fell to be determined by the Tribunal in the exercise of its discretion as a specialist body.
30. Mr Thomson then dealt with three disputed areas of fact or law. Firstly, it was, he submitted, clear that the basement or cellar areas were divided in an effective manner and that that division was of long standing. Secondly, standing that division, the evidence had not established that the Ms Crabbe’s workmen had taken free access to all areas of the cellarage, as she averred. Thirdly, Mr Thomson criticised Ms Crabbe’s position in relation to her rights as proprietor. In relation to her objections, based on her common property rights, to, for example, interference with pipes and the like, accepting that these might have to be considered in other proceedings, they had no weight in these proceedings and indeed it was logical for this application to proceed first. Fundamentally, however, she was raising an issue of heritable right or title which fell outwith the Tribunal’s jurisdiction. Section 100(j) should not be construed so as to allow consideration of such issues. A dispute about heritable title ought not to be viewed in the same way as a refusal of planning permission (cf British Bakeries (Scotland) Ltd v City of EdinburghDC). The existence of this dispute was neutral. In any event, Ms Crabbe’s particular subjective opinion and decision not to consent to the development in any case, were not relevant to the issue whether the application was otherwise unreasonable.
31. Turning to consideration of the statutory factors, Mr Thomson referred to the general approach (cf George Wimpey East Scotland Ltd v Fleming, at 10-11). In relation to (a), he accepted that apart from some matters referred to by Mr Gibb, there had been no relevant changes in the character of the benefited or burdened properties, but submitted that the respondent’s approach to ‘neighbourhood’ was too restrictive (cf Ord v Mashford, at 24E). There had been an undoubted relevant change in circumstances in that the West End of Greenock no longer took the form of large detached houses occupied by one family, such properties having been divided into flats. On (b), it was accepted that Ms Crabbe’s property currently enjoyed some benefit from the burden, but that was collateral or incidental to its purpose and in any event the effects suggested by her of the proposed development were capable of being addressed by compliance with the building regulations and at the very least exaggerated. Shortage of on-street parking was not made out. Concern about transformation of the character of the two villas into blocks of tenement flats could be met by the restricted terms of the application and restriction of the Tribunal’s order so as to permit only the proposed basement development. On (c), in preventing the proposed development, the burden impeded enjoyment of the burdened property (cf McPherson v Fraser, Ord v Mashford), which was clearly of value and importance to the applicant. On (e), the title condition had been created in 1880, since when there had been a significant change in social circumstances making this an important factor in this case. On (f), the respondent’s characterisation of the purpose of the title condition as securing quiet and convenient use by two families only was misconceived: the clear purpose was not the protection of private amenity of individual proprietors but rather an early form of town planning (cf Anderson v McKinnon, Brown v Richardson and Daly v Bryce), as spoken to by Mr Gibb. On (g), given that purpose, the grant of planning permission was a factor of some weight (c.f. Daly v Bryce). On (h), it was plain that the applicant was willing to pay compensation on the basis of the agreed valuations, but this factor was neutral.
32. On behalf of Ms Crabbe, Dr Sandison said that the statutory framework was familiar and uncontroversial. He referred to the three prohibitions which the application sought to discharge, viz. sub-division, occupation by more than one family and use by others. Understanding of the purpose of the title conditions (Factor (f)) was key to the issue (cf Ord v Mashford, at 20J-K, and Church of Scotland General Trustees v McLaren at para 37). The feu contract did not apply beyond the two villas and there was no material showing any intention to form part of any wider feuing scheme (in contrast, for example, with Smith v Prior). The absence of any express reservation of a right to waive was significant. The building plan was specific, rather than merely prescribing minimum value of the buildings. If the particular prohibitions in issue here had been merely in the superior’s interest, one would have expected a right to waive. At least in part, preservation of the private amenity of the proprietors of the two villas was a significant purpose of the imposition of the conditions, even if there was some self-interest in the feudal superior in relation to ongoing feuing of the neighbouring areas. That would mean, turning to factor (a), that the neighbourhood was simply the set of four properties. There had been no material change in their character. Even on a wider view of ‘neighbourhood’, there was no change of circumstances relevant to the purpose identified. The need of the residents for peace and quiet, etc., was no less, and if anything more, in 2008 than in 1880. Other basement development in the west end of Greenock was not significant (cf Bachoo v George Wimpey & Co Ltd, at page 5). It had not been shown that there had been any other conversion at a similar private amenity scheme. The proposed development was an unusual and potentially unreasonable use of, in effect, a discontiguous pertinent of the upper flat. The failure to refer to any similar development called the reasonableness of the proposal into question.
33. On factor (b), Dr Sandison referred to the agreement that there would be a significant diminution in value of Ms Crabbe’s property and to her various apprehensions referred to in evidence and reasonably maintained. As matters presently stood, in the absence of specific, concrete proposals as to how they were to be addressed in the design and construction of the basement unit, those issues were real and significant to a reasonable householder of ordinary sensibilities, and any measures taken would not eliminate them. The benefit afforded by the conditions was no different in type or degree from that contemplated at the time the feu contract was entered into. On (c), the conditions had not rendered the basement sterile, there being a variety of normal and reasonable uses available (cf Bolton v Aberdeen Corporation, at pages 28-9, Daly v Bryce and Solway Cedar Ltd v Hendry, at page 45). The impetus for the proposed development was purely financial, whereas the price recently paid by her for her property could be assumed to reflect the title conditions (cf Ord, at 25K-L, Smith v Elrick at para 37 and West Coast Property Developments Ltd v Clarke). Further, arguably, it was not merely the title conditions which prevented the proposed development. As to the extent of the applicant’s property, it was not presently known when and how the existing layout of the basement accommodation was created, but there were grounds to suppose that there had been significant alteration and the applicant had recently blocked up a hatch which had allowed free passage for the respondent and her workmen, so that the respective titles did not clearly demarcate areas in exclusive or common ownership. Also, Ms Crabbe had made clear that she would not consent to any alteration to common property (including the solum) or property subject to mutual rights.
34. On factor (e), Dr Sandison submitted that the age of the conditions was not in itself of any moment if, as submitted, their purpose continued or could continue to be relevant (cf Ord, at 25L; Church of Scotland Trustees, at para 42). Modern conditions had not rendered the building sterile in whole or in part. On (g), the planning consent was of no moment, and compliance with planning policies did not per se render an application reasonable (c.f. Ord, at 21B-D, Daly, and British Bakeries (Scotland) Ltd v City of Edinburgh District Council). Further, there was a difference between the basis on which that consent had been given, in relation to use of the garden ground and the applicant’s evidence at the hearing. The Tribunal had not been provided with sufficient details of the development to enable it to determine whether the relaxation sought was reasonable. On (h), the applicant’s evidence was that, despite agreeing the extent of loss which would be caused by relaxing the title, she was only willing to pay compensation if the development actually went ahead, a matter outwith the Tribunal’s control.
35. Ms Terris’s representations briefly state her reasons for opposition. Firstly, development of basement and/or attic spaces into separate dwellings would greatly affect the nature of her property and considerably reduce its value: from the owner of the lower half of an impressive villa, she would become owner of a third or fourth part of an over-developed property. Instances of such development in the neighbourhood were regrettable and detracted greatly from the character of the area. Secondly, with no off-street parking available, and large trees on both sides of Forsyth Street, parking spaces outside these houses were restricted and further sub-division of either would lead to parking difficulties.
36. The general approach to deciding applications of this kind is familiar and, subject to one submission made by Mr Thomson, uncontroversial. We have to decide whether it is reasonable to grant the application. We have to have regard to a statutory list of factors, reflecting matters which have been found relevant in the balance between the holders of title conditions and burdened proprietors who have the statutory right to seek their removal or relaxation, and then reach an overall view on reasonableness.
37. Mr Thomson made a submission, related to the age of these title conditions, on onus. He argued that because they were more than 100 years old, and might therefore have been subject to the termination procedure under the ‘sunset’ rule, which if disputed would have led to an application by the benefited rather than the burdened proprietor, there should be no substantive onus on the present applicant (or indeed on the respondent). Because of the written submission procedure followed, Dr Sandison did not in fact respond to this submission, but there has been no request for, and we have not found it necessary to allow, an opportunity to do so. In relation to the legal, or persuasive, onus, we do not accept the submission because Section 90 of the Act in our opinion makes it clear that we require to be satisfied that it is reasonable to grant the application. The structure of that section seems to make it clear that, in the case of title conditions which are more than 100 years old, that legal onus is on the burdened proprietor if the termination procedure has not been invoked and on the benefited proprietor if it has. We do accept that the evidential onus will depend on the particular circumstances and it is a legitimate matter for comment that the burdens here are old enough to have qualified under the ‘sunset’ rule. However, the point might be made about the present application that the applicant is not in fact arguing for the discharge of this title condition. While the application, as amended, really amounts to an application for discharge of the prohibitions of sub-division, etc., the applicant made clear in her evidence that she was not applying for such an order as would, for example, enable her to sub-divide the first floor and attic floors. Unlike a ‘terminator’ under the ‘sunset rule’, she is seeking relaxation, to permit one particular development, of burdens which she accepts should remain in place. In any event there is, as Mr Thomson pointed out, in the end of the day simply an overall issue as to the reasonableness of this particular application.
38. Before addressing the statutory factors to which we have been referred, we should record some general impressions. As is usual in such cases, our inspection has played an important part in our consideration of this case.
39. There has unquestionably been a substantial degree of sub-division in this neighbourhood, which lies at the edge of a Victorian ‘New Town’ development characterised by fine villas. The visual impact, as far as the houses and gardens are concerned, is quite limited. Little modern architectural style has been introduced.
40. We can readily accept that although the wide streets easily accommodate passing traffic, there is a degree of parking pressure, although we doubt whether one or even a few more sub-divisions would really have much effect on that.
41. The applicant’s proposal would have little effect on the visual impact, even at the actual site. However, on the evidence, it is certainly unusual in respect that it involves development as a separate residential unit of basement space owned along with an upper flat, so that it would require the lower flat proprietor to tolerate a dwelling below as well as a dwelling above. Further, it involves squeezing an additional residential unit out of only a small part of the basement, which is something of an alteration of the character of the house as a whole, although it might on the other hand be said that this reduces its effect. Being at such close proximity, it would involve a real risk of some increased noise and a slight risk of kitchen smells. It would require some quite significant structural change in this area of the building, viz. removal of two supporting walls, addition of windows and, as appeared to be accepted, excavation, to an unidentified extent, of the solum. There was general evidence, which we accept, that these things could be done in compliance with building regulations, as of course they would have to be, but no detailed explanation how. We had the impressions that this had not yet been addressed, certainly not in any detail, and that such compliance was likely to be at the minimum compliant level.
42. It did not seem to us that questions about the garden were of much significance. The division of the garden into two ownerships, since the title conditions were created, does not seem to us to either support, or count against, the reasonableness of the application. Apparent uncertainty as to further division of the garden space currently owned by No. 84 does not seem to us to have any effect on No. 86.
43. We shall address Ms Crabbe’s assertions that she is anyway entitled to prevent this development, because it would encroach on her proprietorial rights, under factor (c), the factor under which it was introduced into the argument. At this stage, we would merely mention that we were not particularly impressed by her attitude to these matters. She seemed determined to develop any possible technical argument about her rights, rather than (in fairness, perhaps as well as) addressing the reasonableness, in the light of the title condition, of the applicant’s proposal. Whatever the legal arguments either way (which were not explored in submission, none of the relevant titles having been produced), there appeared to be little reasonable basis in fact for the assertion that the development would involve encroachment on her property: there is apparently no definition in the titles of the boundaries of ownership in the basement, and there was no suggestion of any previous claim by her, her parents or any predecessors, to ownership or possession of any part of the basement which has clearly for many years been occupied along with No. 84. Whether or not No. 86’s workmen, if they could not get access in a more straightforward way, crawled round the sub-floor area to obtain access to service pipes in the basement occupied by No. 84, appears to us to be of little relevance. Further, the mere fact that Ms Crabbe might be able to assert her proprietorial right in common property in a technical way so as to prevent any interference otherwise than for maintenance, etc. purposes, does not, in general, seem to us to carry much weight in an argument about reasonableness: there must be many development situations in which, on a purely technical basis, the co-operation of another proprietor during the works would be legally required, so that relaxation of the burden does not technically achieve the right to carry out the work. Looking at the matter objectively, such co-operation might quite reasonably be anticipated to be forthcoming.
44. These things said, the lower flat owner does have a reasonable interest in structural questions which might be raised about any proposed development. Whether, and to what extent, concerns arising out of that interest impact on the reasonableness of the application, depends on the particular circumstances. In some cases, it may be reasonable for such questions to be left for consideration by the building control authority; in others, even the obtaining of a building warrant may not exhaust the scope for the reasonable concern of the holder of a title condition.
45. This brings us to consider the factors listed in Section 100. It is often helpful to consider the purpose of the condition (factor (f)) first. There was disagreement on this. In our experience there is nothing unusual in the lack of any expression in a burden provision, particularly one of this vintage, of its purpose, and we are required to consider the purpose even without such provision. It does not therefore assist the respondent to point out the lack of material pointing to any general planning purpose relating beyond the two villas permitted by the feu contract to be built: there is equally no expression of any purpose of benefiting the proprietors rather than the superior. It seems to us that the feu contract does, as Mr Thomson contended, exhibit the type of planning control commonly exerted by superiors in the era before public planning control. We think that could be so even if Mr Gibb was not able to show that the superior here did own neighbouring land. However, we also uphold Dr Sandison’s submission that there was also a purpose of providing not just for the building of the two villas but maintaining their amenity at least to some extent for the benefit of the owners. The deed envisages up to two owners at each villa, does not reserve to the superior any right to waive, and takes proprietors bound to bind their successors. There is no express ius quaesitum tertio, but, although it is not necessary to decide this specific issue, there would appear to have been a strong argument for its implication.
46. When it comes to considering change of circumstances therefore (factor (a)), we think it appropriate to consider the surrounding neighbourhood as well as the two houses at Nos. 80 to 86. As far as those four flats are concerned, i.e. the benefited and burdened properties, we did not understand Mr Thomson to place much reliance on Mr Gibb’s findings. We do not think that there has been any material change in the character of the basement cellarage of No. 84, which may or may not have had some change of layout or even extent since 1880 but appears always to have consisted of two main apartments with low ceilings and minimal fitting out, and probably a toilet. There appears to have been old use as servants’ accommodation (possibly, but possibly not, residential), and more recently intermittent use as a meeting or play room and storage. There does not appear to have been any substantial physical change to the basement of No. 86, which likewise appears initially to have included servants’ accommodation and latterly to have been used as storage. As mentioned, we do not consider the alteration of the garden arrangement of any significance. The applicant did not substantiate the suggestion that there had been sub-division of the upper and attic floors at No. 80: it appears that the attics of both villas are used together with the upper flats as living accommodation.
47. Again as mentioned, the surrounding neighbourhood has seen quite a lot of sub-division and whether or not persons such as Ms Terris regard this as regrettable, it is a factor which goes in favour of the principle of some sub-division: if there was a general planning purpose to the condition of limiting the number of residential units in the interests of the general amenity of the area, that purpose has really gone and been replaced by public planning considerations permitting, in general, such sub-division.
48. As to factor (b)(i), however, we are in no doubt that the condition confers significant benefit on No. 86. It prevents a building development which would, as has been agreed, diminish the value of Ms Crabbe’s property by 8.75%. Presumably, this reflects both the general benefit of being able to prevent the imposition of an additional flat below and also the various particular matters such as smell, noise, etc., relied on. We were not much impressed by the suggestion of significant additional fire risk, and think that the other matters could be and were somewhat exaggerated, but they are certainly not negligible. We accept that overall there is significant benefit to Ms Crabbe. Further, the condition gives her effective control, allowing her to resist any such development until satisfied on the detail of what is involved. The submission on her behalf places some reliance on the absence of specific, concrete proposals. The question for us is the weight, if any, to be given to that in the issue of reasonableness. We would not give weight to a neighbouring owner’s insistence on control over minor building details, but in this case we find no indication as to how some significant features of the work involved are to be carried out. This appears to us to be a factor of some significance having regard to the nature of the proposed development and its location underneath Ms Crabbe’s property.
49. As to factor (c), there is no doubt that inability to develop one’s property as one wishes, even purely for financial gain, significantly impedes one’s enjoyment of the property. The fact that the property can be enjoyed in its existing state, continuing its existing use – in this case, really only as storage space – is of only slight relevance. However, the burden must be assumed to have been known to the applicant when she, quite recently, purchased the upper flat (although there is nothing to indicate whether this had any effect on the sale price).
50. Ms Crabbe also relies under this head on her ability otherwise to prevent this development. We are not inclined to give much weight to this, beyond the consideration which we have mentioned of her reasonable concern over interference with common property. There may be cases in which the proposed development runs so contrary to neighbouring proprietorial interest as to be unreasonable, but in the present case it seems to us that, considered objectively, the burden itself is a significant obstacle to the development. Dr Sandison made no attempt to establish Ms Crabbe’s legal right to prevent the development on other grounds, and simply referred to the existence of other issues. We could speculate ourselves as to the possible outcome on these, but it seems reasonable to follow the course advocated by Mr Thomson: one proceeding must necessarily precede the other and there is nothing unreasonable in taking this one first, in which case it would be wrong to pre-judge the outcome of others. This may be one respect in which the new formulation in the Act of the grounds of application for discharge or variation can lead to different treatment of an issue such as this, but in any event we doubt whether Dr Sandison’s submissions as to Ms Crabbe’s subjective position would themselves have led to refusal of an application under section 1(3)(c) of the Conveyancing and Feudal Reform (Scotland) Act 1970.
51. It was not suggested that factor (d) has any application in this case. As to factor (e), the age of the burden, clearly it is a very old burden, old enough to be the subject of termination procedure under the ‘sunset rule’. There clearly has, as the applicant contended, been substantial social change since the conditions were created, manifested in a pattern of sub-division of these larger Victorian properties.
52. As to factor (g), in this case there is planning consent but no building warrant. Planning consent is not determinative, and the private interest under the title condition may import additional considerations. To the extent that the purpose of the condition was a general planning purpose, we accept that the consent goes a long way towards establishing reasonableness, but we have also identified the more particular interest of the owners of the four flats. As to building warrant, it was not suggested that this could not be obtained, but the absence of any evidence of even the preparation of building warrant plans, when there are structural issues in which Ms Crabbe has a reasonable interest, does in our view have a bearing on the reasonableness of this application.
53. As to factor (h), we agree with Mr Thomson’s submission that this factor is neutral. Despite its wording, the Tribunal took the agreement on diminution of value as meaning, in practical terms (as the applicant in her evidence clearly understood it to mean) that if the application were granted and Ms Crabbe agreed to the development proceeding, the applicant was offering the resultant sum as compensation. If we are wrong on this point, Dr Sandison’s submission appeared to us to have a basis in ransom considerations which we should not entertain under this legislation.
54. Neither side has asked us to consider factor (j). We do not require to consider further Mr Thomson’s submission on construction of Section 100(j) in relation to Ms Crabbe’s reliance on her proprietary rights.
55. Drawing all these considerations together, we do accept that the title conditions partly reflect general planning purposes in the area of this ‘New Town’ development. To that extent, the conditions belong to a bygone age. As there has been substantial sub-division in the locality in the period since, we would therefore accept, as a generalisation, as the planners clearly do, that sub-division, or further sub-division, might be reasonable in this locality. However, we have also found a particular purpose, not just of building conditions determining what was physically to be built, but also of continuing protection of the amenity of the up to four houses once built. We appreciate that this burden does not prevent use of the subjects as sleeping accommodation. However, having viewed the basement area as it stands we really do not consider that to be at all a likely prospect. In practice the burden, while not prohibiting some use of the subjects for storage or possibly some form of recreation, does prohibit occupation and use of the character proposed. Ms Crabbe therefore has in our view a reasonable interest in reliance on the continuing burden. That interest goes into the balance of reasonableness.
56. The parties’ agreement on the extent of diminution of value clearly confirms that factor (b) quite strongly favours at least Ms Crabbe. We have considered whether this is nevertheless a case in which her interest would reasonably be met by an award of compensation rather than refusal of the application, since factor (c) of course favours the applicant.
57. This proposed development appears to be different from the pattern of sub-division in the locality in that it would require the benefited proprietor to tolerate a separate ownership below as well as above. It also appears to us to be somewhat squeezed into a tight space, leading to reasonable concerns about the effect on the building as well as the ongoing amenity effects. The evidence has shown that No. 86 would be affected in a number of ways, albeit that these would be minimised by adherence to building standards. Its value would be substantially diminished. We have recorded our impression that although planning permission has been granted and we accept that it is likely that building standards could be met, it is reasonable to be concerned as to exactly how. Weighing matters up, we have reached the view that despite the age of the burden, the degree of change in the locality and the extent to which the burden impedes the applicants’ enjoyment of her property, it is not reasonable to allow this application.
58. We have reached this decision on a consideration of Ms Crabbe’s position, No. 86 clearly being considerably more affected than No. 82. There was no evidence from which we could conclude that there would be any substantial effect on that property. We would not have upheld Ms Terris’s objection if it had stood alone.
59. For these reasons, we have refused this application.
60. Dr Sandison included in his submission an application for expenses and certification for the employment of junior counsel. Mr Thomson did not cover that matter. We shall follow our normal practice of considering expenses on the basis of parties’ written submissions, unless either requires us to arrange an oral hearing.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 January 2009
Neil M Tainsh – Clerk to the Tribunal