[1] The applicants own the ground and basement part and the garden of a former terrace house built in around 1870. In order to permit the erection of a mews house which would be separately owned, they seek variation of title conditions which limit the dimensions of buildings at the mews lane to the rear, require consent to any building and prohibit sub-division. The applicants have planning consent. The application is opposed by immediate neighbouring owners (although not by two who have similar plans). There has not to date been any residential development in the mews lane, which presently has a number of garages and driveways and one artist’s studio.
[2] The Tribunal has decided to grant the application. The Tribunal has in this particular case had very much in mind that there appears to be a substantial prospect that allowing this application will open the door for other proposals to build mews houses, but on a consideration of the factors which we are required to take into account we have been persuaded that it is reasonable to grant the application. Further, the Tribunal has decided that no compensation is payable as we are not persuaded that any of the respondents who have claimed compensation will suffer any substantial loss or disadvantage in the form of adverse effects on the values of their properties in consequence of the variation.
[3] A Feu Charter by the Trustees of the deceased Sir William Fettes in favour of John Maule, recorded in the General Register of Sasines (Edinburgh) on 7 February 1870 (now Entry 1 in the Burdens Section of the Land Certificate MID69428 in respect of the applicants’ property), disponed an area of ground with provisions relating to the building of two terraced houses. The conditions provided inter alia:-
“That any stables, offices and other buildings to be erected on the said area next to the Meuse Lane shall not exceed Twenty one feet in width, the side walls shall not exceed fifteen feet in height and the Buildings shall not exceed twenty two feet in height including the roof and that the gables thereof shall be mutual and paid for as such …
“That our said disponee and his foresaids may divide the subjects hereby disponed into two parts by the mutual gable of said two houses to be erected … but it shall not be lawful to him or them to subdivide them into or sell them in smaller portions without the consent of us as Trustees foresaid or our successors as superiors of the said subjects … ”
[4] By Minute of Waiver by the Governors of the Fettes Trust, recorded in the General Register of Sasines (Edinburgh) on 7 February 1945 (now Entry 3 in the same Burdens Section), a split of no14 into two separate flats was permitted. The waiver further provided:-
“that the two houses shall consist of the ground flat and basement, which shall form one house, and the first flat and attics, which shall form the other house, that the basement or attics shall not be formed into or occupied as a single house and each of the two houses shall not be further reconstructed, sold, let or occupied as separate dwellings, that each house shall be used for private purposes and for no other purpose and shall not be owned or occupied by more than one family at a time and that the ground to the rear of the house is not to be built upon except with the consent of the Superiors being first obtained in writing … ”
[5] The applicants, David Esplin and Susanne Baird, are joint owners of the basement and ground floor flat, rear garden and rear garage at 14 Inverleith Terrace, Edinburgh. They applied under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to vary the above title conditions to the extent of allowing a mews flat to be built, for which they have obtained detailed planning consent. The Respondents, who oppose the application, are owners of the upper double flat at No14, the owners of the first floor flat and the second floor flat of No15 and the owner of No13, which remains as a single house. The applicants accepted that these respondents were benefited proprietors. A letter of objection was also received from the owner of an upper flat at No12. The owner of the ground and basement flat of No15 visualises a similar development for which he has applied for planning consent, and supports the application.
[6] In the event of the application being granted, the first four respondents seek awards of compensation, under Section 90(6) and 7(a) of the Act, in respect of the adverse effect on the value of their properties, stated as follows:-
No. 13 – £100,000+
No. 14 (upper flat) – £60,000+
No. 15 (first floor) – £20,000+
No.15 (second floor) – £50,000+
[7] The applications on the merits and for compensation were heard together. The applicants were represented by Stuart Clubb, of Messrs HBJ Gateley Wareing solicitors, who called Mr Esplin, Mr Jeremy Scott, his architect, of Michael Laird Architects, Edinburgh, and Mr Robert Heaney FRICS, chartered surveyor, of Messrs Dixon Heaney, Edinburgh, to give evidence. The respondents at Nos 13, 14 and 15 were represented by Fraser Geddes, of Messrs Fyfe Ireland, solicitors, who called Mrs Julia Higgitt the owner of No.13 Inverleith Terrace and Mr Jack McKinney FRICS MCIA, chartered surveyor, of Messrs Galbraith and Lawson, Glasgow, to give evidence. The primary facts were not in dispute. Both sides lodged productions, including written opinions from Mr Heaney and Mr McKinney. Mr Geddes helpfully spoke to a written submission. The Tribunal carried out an accompanied inspection of the site.
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
MacPherson & Fraser v Mackie and Others Extra Division, Inner House, Court of Session 2007 CSIH 7
Brown v Richardson LTS/TC/2006/41
Smith v Prior and Others LTS/TC/2006/06
Daniel Gerard Anderson and Another v Elaine McKinnon LTS/TC/2006/4
Ness v Shannon and Others 1978 SLT (Lands Tr) 13
West Coast Property Developments Ltd v Clarke and Others (merits) LTS/TC/2005/21
J & L Leisure Ltd v Shaw LTS/TC/2005/12
[8] We have found the following facts proved or admitted.
[9] The Terrace. Inverleith Terrace is part of an imposing terrace of stone built, late Georgian/early Victorian dwellings lying within a Conservation Area. The houses in the terrace were built over a period of time from about 1830 to 1870 and have accommodation at basement, ground, first and second (attic) floor levels. Although originally built for single families (no doubt often with servants), many of the houses have since been divided into flats, often some considerable time ago. For example, No14 was split into two flats in around 1945. The subjects are towards the west end of the terrace.
[10] The Subjects. The subject property forms the basement and ground floor flat together with the whole of the rear garden and the garage which is accessed from the mews lane. The ground floor has front access from street level and there is also basement access to the front and rear. The rear basement door leads out to a south facing garden which is about 10m (33 ft.) wide, the full width of the house. The garden has a depth of about 36m (118 ft.) to the south boundary wall which separates it from Inverleith Terrace Lane, the mews lane, which runs parallel to Inverleith Terrace. All the garden walls are stone built and have a height of about 1.8m (6 ft.) Situated within the south east corner of the garden is a single garage, brick built with a flat roof and dating from about 1960. Adjoining the garage, there is also a gravelled area potentially suitable for parking one small car, with a gate about 1.8m (6ft.) wide giving access to the lane. A low wall, surmounted by iron railings, has been built most of the way across the garden, some 16m. (52ft.) from the south boundary wall. Between this low wall and the back of the house is a landscaped garden, the main feature of which is a large birch tree. The garden, like the gardens on either side, slopes down towards the lane with a fall of about 2m (6.5ft.) over the length of the garden.
[11] The Mews Lane. Inverleith Terrace Lane has a tarred surface and was adopted recently by the highway authority. Parking on the lane is now regulated by the Council and there are double yellow lines affecting much of the lane but with a limited number of spaces for residents’ parking. There are presently no houses along either side of the lane. On the north side of the lane there are some nine lock-up garages the doors of which front on to the lane. The style, size and construction of these lock ups are varied and they may be regarded as somewhat unattractive in their appearance with a number defaced by graffiti. There are also some garages, as well as a side entrance to Tanfield House, on the south side. The lane not only gives access to the garages and gardens of the Inverleith Terrace dwellings but it also provides access to three modern houses, built about 1995 in the grounds of a former church (now a marketing studio) at 18 Inverleith Terrace. The lane also leads on to Rocheid Path which runs alongside the Water of Leith and which is regularly used by pedestrians. The impression gained was that at present parking is well regulated and there did not appear to be a significant problem with congestion or unauthorised parking, but that that situation might change when Tanfield House is re-occupied as offices.
[12] Tanfield House. To the south of the lane and a dominant feature of the view from all the ground and upper floor rear windows of the terrace is the major office building Tanfield House, until recently occupied by Standard Life plc. From the mid 19th Century to the 1930s the site was a gas works; subsequently the site was used for various commercial uses including a print works. The offices were developed about 1990 over 3 floors and the building is sited about 10m, at its nearest point, from the south wall of the lane. The ground level of Tanfield House appears marginally lower than the level of the lane. A feature of this building is the roof garden with its three imposing glazed domes. A short time ago the building was sold and is now being reconfigured to create smaller office suites. It is understood that the roof will be altered to create a new, glazed top floor which will raise the height of the building but only to about half the height of the existing dome features. The building is partially obscured by screening trees growing within the Tanfield House site.
[13] Respondents’ Properties. Dorothea Brander owns the upper flat of No14, a principal public room of which is the first floor rear room with fine views of the Edinburgh skyline south over the rear garden, with Tanfield House prominent in the near to middle ground. Similar views are enjoyed by the first and second floor flats of No 15, owned respectively by Lucinda Tait and Christine Wilson. The flats are at present let out and in both, the living rooms are to the rear and therefore enjoy the attractive southerly aspect over the rear gardens to the city, again with Tanfield House prominent in the foreground.
[14] Caroline Higgitt owns No13. Like the adjoining houses in the terrace it has four storeys but it is somewhat narrower, the width of the site being about 7m (22 ft). The depth of the garden, which is similar (although narrower) to those of the adjoining properties, is about 35m. The house has a period rear bay window at basement, ground and first floor levels and from the ground floor bay window a French door leads out to a small cast iron landing with a spiral stair down to the garden level. The main public room is the first floor rear room and the main bedroom is at the rear on the second floor. Towards the bottom of the garden the boundary walls take a slight kink to the east. A studio of timber construction, which appears to have been built about 100 years ago, is located at the bottom of the garden. It is the full width of the site and has a gable frontage to the lane of about 6.5m (21ft.); its depth is 9m (29 ft.) and the ridge which is at right angles to the lane has a height of about 5.5m (18ft.). It is currently leased by an artist. The basement of the house is also let, to an acquaintance who shares use of the garden. In the middle of the garden is a fine mature birch tree which, in leaf, obscures the view of the studio from the house.
[15] The feuing provisions. Development of the attractive terraced housing along this part of Inverleith Terrace was regulated by the common provisions of a series of Feu Charters (or, in earlier cases, Instruments of Sasine). These set out a common scheme of development, with (at least in the earlier cases) an obligation on the superior to take later feuars similarly bound. There was quite detailed regulation of the dimensions, materials and design details of the terraced houses, securing, in particular, uniformity (although not complete symmetry) of the frontages. As far as the rear of the houses were concerned, provisions regarding the division walls and buildings at the mews lane were also common, although the only stipulations regarding such building were as to the maximum dimensions and the requirement that the gables of such buildings were to be mutual. Although occupation and ownership of many of the houses has (at least in the case of No 14, with the superiors’ consent) been divided, the uniformity, particularly at the front elevation, has been maintained. Such uniformity was never achieved, or, if so, has long since been departed from, in relation to building at the mews lane. However, the maximum dimensions of such building have generally been adhered to. Substantial open space, in the form of the gardens of the houses, was achieved and has been maintained. As far as use was concerned, there was a standard use restriction as follows:-
“That our said Disponee and his foresaids are expressly prohibited from allowing and shall not allow any brewery or distillery or any shops or yards for masons wrights smiths coopers weavers candlemakers nor crackling-houses nor slaughtering or butchering of cattle nor noxious or noisy manufactories nor nauseous chemical operations nor anything else which may be nuisances or occasion disturbance to any of the neighbouring properties to be erected or carried on anywhere within the premises”
There was no further specific provision in relation to use of any “stables offices and other buildings” erected at the mews. The provisions in relation to sub-division, letting, etc. were not entirely uniform. For example, there was a prohibition in the title of No 13 of division of the house for occupation by separate tenants but no such prohibition in the title of No 14. The variation in the 1945 Minute of Waiver, in relation to No 14, was not part of the common scheme as such.
[16] The Proposed development. The applicants obtained Planning Permission on 31 January 2007 for the erection of a mews property, involving demolition of the existing garage. The proposed development involves the erection of a two storey mews dwellinghouse “modern in style and constructed in natural stone on all elevations, with aluminium standing seam roof and treated oak vertical cladding detail on the front elevation”. As the proposal affected a listed building, it was passed to Historic Scotland but they determined that the application did not need to be referred to them for further consideration. Unusually, there is only one condition attached to the planning permission, that development should be commenced within 5 years, but the applicants’ architect nevertheless envisages following normal practice and seeking the Planning Department’s written approval to the use of the finishes proposed. Unlike the various existing garages and the artists’ studio at No 13, the house is to be aligned with its ridge parallel to the mews lane and the gables thus abutting the boundary walls on either side. The ground floor accommodation comprises a kitchen and dining area to the rear, and a double bedroom, bathroom and integral single garage. The dining area has glazed doors that lead out to a patio and there is a small area of garden ground beyond and at a higher level, being about 1m above the level of the patio. At first floor is a small study/bedroom, a landing with open living area, the main living area, and the master bedroom with dressing room and en suite shower-room. On the rear (north) elevation, i.e. facing the rear elevation of the terrace houses, there is a large window, providing light to the landing and two small ‘slit’ windows, one in the study/bedroom and one in the dressing room. There is in fact a discrepancy among the planning consent drawings, as the rear elevation does not show one of the small windows. The rear elevation drawing did not reconcile totally with the first floor plan both of which appear to have been approved by the planning authority. The ridge height of the proposed house is 7.26m (23.8ft.) whereas the ridge height of the adjoining studio is 5.45 m (17.9ft.) that is 1.81m (6ft.approx.) lower. The eaves height of the new building is marginally below the level of the studio ridgeline. The maximum depth of the proposed house is about 10.5m (34.4ft) and the distance to the rear wall of no.14 about 25.5m (83.6ft.). When Mrs Higgitt purchased 13 Inverleith Terrace in 2007 at a price of £1,250,000, she was aware of the planning application in respect of No 14.
[17] Other Proposals. The architect’s drawings show that a similar dwelling is envisaged in the garden ground of No.15. Planning consent for this has also been granted. The owner of No 12 Inverleith Terrace envisages similar development for which a planning application has been submitted.
[18] Mews houses elsewhere. Mews lanes and mews houses, often with mutual gable walls and continuous ridges, are a common feature associated with older town houses in Edinburgh. Modern mews house development is proceeding in Inverleith Place, north of the Botanic gardens and parallel to Inverleith Terrace, but at that location there are several older mews houses and an established building line.
[19] Mr McKinney is an experienced chartered surveyor who is not a valuation surveyor and only very occasionally values residential property. He had analysed sales information. He viewed No 14 Inverleith Place on one occasion. In his opinion, the proposed mews house was not in keeping with the design concepts of this terrace. The mews buildings were ancillary to the terraced houses, whereas the proposal was for a completely opposite use, non ancillary and separately owned. He contrasted the roof finish with the slated roofs of the terrace houses and also drew attention to timber lining in the walls and large roof windows on the south, i.e. mews lane, side. Parking in the lane was already restricted, and the proposal would introduce further vehicles and take out two or three parking spaces. The visual aspect to the rear of the houses would be impaired. The gardens were quite small for the size of the properties, and the proposed house plus its garden would occupy over 54% of the rear garden area. The outlook from the houses at Nos 13 to 15 would lose the open visual aspect at and to the lane. Such intrusion of the amenity of the outlook, introducing a house with a rectangular shaped roof area some 8 by 3 metres, would reflect on the values of these houses, there being at present no such development. Erection of a dwellinghouse would cause nuisance during construction (which he estimated at approximately 12 months); and also thereafter, due to the increased traffic and parking in the lane. Conservation Area Character Appraisal guidelines had not been followed, particularly in relation to the spatial pattern and to materials. A precedent for other such developments would be created. The houses had very high values. The sums claimed in compensation represented Mr McKinney’s opinion as to the impact on the values of the respondents’ properties, ranging from 7½% to 10%. In cross-examination, he accepted that there was nothing in the title conditions to rule out residential use of mews buildings, but considered that the intention was that such buildings would be ancillary. He insisted that there would be a small loss of parking space. He agreed that the outlook of No 13 towards the lane was restricted by the studio, but said that its owner had a clear outlook to the left and to the right. He did not agree that the interference with that would be minimal. While the gardens were at present overlooked, there would be additional overlooking by non-owners, including from a first floor. He questioned the ‘hope value’ suggestion in relation to No 13, because of its narrower width.
[20] Mr Heaney is an experienced chartered surveyor who has been involved in the valuation of mainly residential properties in Edinburgh since 1975. He had been asked to report as to whether or not the building or prospect of building a mews house would have a detrimental effect on the values of the house at No 13 and flats at Nos 13 and 14 Inverleith Terrace. He had had access to a report and valuation by his partner of No 13 in March 2007 on behalf of a prospective purchaser. He had viewed the location. He described the properties and their outlook, and the situation in the mews lane, where he noted there was no uniformity. He referred to the common situation of mews houses at locations like this in the New Town of Edinburgh and further afield and to recent such developments. Inverleith Place Lane was an example of such development in a similar environment. This might be expected to happen sooner or later in many of these situations. He said that there was no market evidence to suggest that the value of neighbouring properties was diminished by such development or the prospect of it at a mews back lane, assuming that the mass, design and materials of the proposed development were acceptable. In the present case the architects were a firm of considerable standing. In relation to No 13, he said that the value of a town house with garden and planning permission to build a mews house would be somewhere in between the value of a townhouse, garden and mews house and a townhouse and only garden. He would attribute some ‘hope’ value if there was planning consent at the neighbouring house. The proposed building would in his opinion not attract any more car traffic at the rear, and was superior architecturally to anything which had been built at the foot of neighbouring gardens. The occupation or ownership of the proposed house was not relevant to the valuation issue. In his opinion, the grant of permission for a quality dwellinghouse at the bottom of the garden of No 14 would in no way adversely affect the value of neighbouring properties, which would benefit from the tidied-up site, and would enhance the value of such properties which had control over the garden ground and access to the lane. Thus the value of No 13 would be benefited and the values of the upper flats wholly unaffected. Disturbance during the construction period would not affect the values. He did not know how Mr McKinney’s figures had been arrived at and did not find them credible In cross-examination, he agreed that there had been very little significant change on the terrace frontage and just a few insignificant changes at the mews lane. Building a mews house would produce a significant physical change but not a change in the character of the lane. He accepted that there was no market evidence showing that there was no effect on value. Others, including potential purchasers, but not any surveyor looking at that house, might take a different view. He accepted that visitors to the house might ignore the parking restrictions. He agreed that the house would be visible from the garden and lower floors of No 13, but did not accept that this foreground view influenced the value, so long as the city sky-line view was protected.
[21] Mr Clubb first accepted that there was a ‘common scheme’ and that the respondents were benefited under Section 53, or Section 52, of the Act. He referred briefly to the general approach of the Tribunal to the test in section 98: the factors listed in Section 100 were cumulative, and the decision turned on analysis of the particular facts rather than comparison with other decisions. He submitted that the purpose of the title conditions was to ensure the maintenance of the general amenity of the area and to confer on the superior the ability to exercise control over future alterations. The Feu Charter allowed development at the rear, within permitted dimensions. There was no prohibition of any type of buildings. The Minute of waiver allowed buildings to the rear, with consent. There was nothing to suggest any purpose of uniformity at the rear, compared to the very strict requirements at the front of the properties. There was no statement of a purpose of uniformity at the rear in the 1842 title conditions for No 13. If there were any purpose of uniformity, it had not been achieved. The purpose was not to prevent residential property to the rear: it was a leap of interpretation to take that out of the use of the word ‘building’ as opposed to ‘house’. There was a purpose of careful management, not blanket prohibition. The conditions, together with the control through the planning system, ensured that any proposed development would be carried out in a sympathetic manner.
[22] Mr Clubb recognised that there had been little or no change in the character and appearance at the front. There had been change at the rear: the artist’s studio; different garages with differing heights and appearances; and a conservatory at No 15. The land had become run down, with graffiti, although the tarmaccing of the road represented some improvement. There had been sub-division of the properties at Nos 14 and 15, and the basement floor of No 13 had been rented out. There were mews developments at Inverleith Place Lane. Looking at the extent of benefit in the ability to resist this application, Mr Clubb submitted that the effect of the proposed house on the visual amenity would be minimal, considering the starting point of the permitted maximum dimensions; it was not accepted that privacy would be ‘destroyed’, that already being compromised, and it would be impossible to look into the first or top floors at No 13 and any of the rooms in the flats. Inability to develop as an owner ordinarily could was a substantial impediment, and this was not a case in which a burden had been accepted as part of an agreement. The condition was of considerable age. The existence of planning consent was not determinative but, since the purpose was a general amenity one, it should weigh in the applicants’ favour. There would be no damaging precedent as discharge was not being sought (c.f. Ness v Shannon) Parking in the mews lane was now controlled. Construction traffic would require to respect the rights of neighbours. The balance was tipped in favour of reasonableness. Finally, Mr Clubb mentioned that the 1945 burden was not in fact part of a common scheme.
[23] Mr Geddes also referred briefly to the legal framework: the Tribunal had to consider whether it was reasonable to grant the application in all the circumstances of the case, and weighing the statutory factors as a whole, with certain factors normally being given particular weight: generally, in order of importance, the purpose of the title conditions, the benefit conferred and the extent to which they impede reasonable use of the land; the use of precedent not normally being helpful. He went through the factors listed in Section 100. There had been no changes in circumstances relative to what was intended when the title conditions were created. There was a terrace of complementary townhouses with undeveloped rear garden areas with some ancillary buildings, i.e. the garages, sheds and the artist’s studio, all as envisaged in the titles (substituting cars for horses). This lack of change was important, the retained character being reflected in the area’s status as a conservation area, the ‘B’ listing of the terrace and the listing of No 13 as a building of historic or architectural importance. The benefits from the title conditions related to (a) amenity, and (b) restriction of use. There was detailed provision for uniformity and preservation of the appearance of the entire terrace, with the benefit of preventing the creation of, in effect, a new terrace at the rear. As to use, the only permitted deviations were ancillary, not residential buildings. It was recognised that the prohibition against sub-division was probably no longer relevant in that there had been considerable sub-division. But the restriction in the permitted dimensions of any ‘stables, offices and other Buildings’ was significant as showing an intention not to include buildings for residential use, as opposed to the ‘houses’ to be built in the terrace. ‘Buildings’ was equivalent to ‘erections’, as distinct from ‘houses’. It was inconceivable that residential buildings would have been permitted without restriction in use, occupation or the like, again as opposed to the provisions in relation to the ‘houses’. The clear implication was that buildings were to be for ancillary use, e.g. stables, storage, and offices in the older sense. Further, the superior had not reserved any right to consent to exceeding the height restrictions, by comparison with the 1945 building restriction. Building for residential use was prevented. The building was to be secondary or subservient. The benefits of uniformity and restriction on use remained just as valid. Permission for one residential property, leading inevitably to two others (Nos. 12 and 15) would radically alter the character of the Inverleith Terrace houses, removing the benefit from the conditions and defeating their purpose. There had been no deviation from the original plan.
[24] As to the extent of the impediment, Mr Geddes, under reference to dicta in Ord v Mashford, submitted that in the present situation all that the burden impeded was the realisation of a development value: there was nothing to prevent the applicants from enjoying their house and garden as a house and garden. This was not a case of excessive garden space; nor a reasonable requirement for family purposes; nor an alternative to maintaining a semi-derelict building. No doubt the benefit in financial terms might be substantial, but this factor should not weigh heavily, as against the benefit to the benefited proprietors, when the burdens continued to fulfil their original purposes. There was no “need” to do anything. The burdens were of some antiquity, but remained as relevant today as when they were written. Indeed, comparing this terrace with other streets with mews properties was testament to their effectiveness. No offer of compensation had been made, although this was not a significant factor in relation to the merits.
[25] The purpose of the conditions, already considered under ‘extent of benefit’, was extremely important, and was clear in all the documents, even if the applicants’ title did not say so in terms. To the extent that there was also a wider amenity purpose, the preservation of the privacy of the respondents’ properties, views and outlook, and of the nature and character of the service lane, that too was material. In relation to the existence of planning consent, the reasoning of Lord McGhie in Ord v Mashford was adopted: this should have very little weight if any in this application. There was also uncertainty as to what exactly was approved. There was no suggestion of any public interest in permitting this development.
[26] Under ‘any other material factor’, Mr Geddes stressed that the proposal here represented innovation and, unusually, would clearly have a direct effect on at least two neighbouring properties, thus setting a precedent. (c.f West Coast Property Developments Limited v Clarke and Ors). He also referred to a distinction between this case and Smith v Prior, in so far as there had been no attempt in that case to impose uniformity of design: here, the provisions were designed (this being their primary purpose) to protect the physical amenity of immediate neighbours and the character of the area. Brown v Richardson also did not involve a new purpose and an entirely separate development, and in that case, as in Anderson v McKinnon, there was reservation of the superior’s right to consent. Reference was also made to Ness v Shannon.
[27] Accepting that there were significant factual differences between this case and J & L Leisure Limited v Shaw, Mr Geddes pointed out that the Tribunal had in that case recognised that there were cases in which substantial adverse impact was demonstrated but the application still succeeded on the merits. The Tribunal had to consider whether in a hypothetical sale a seller who could point to the protection given by the burden would obtain a higher price than a seller who had to indicate that there was permission for this development. Adverse impact did not necessarily mean substantial effect on value. The Tribunal had decided that it did not require to form a view as to the actual market value of the property, and on the approach there followed even a relatively modest percentage effect of 5% would amount, in the case of No 13, to a very substantial sum of money. Mr Heaney’s distinction between the approach of a valuer and that of a potential purchaser was difficult to follow, and he had not – at least initially - really been considering the effect on value of the protection afforded by the title conditions, as opposed to the development. Mr Geddes submitted that the Tribunal was entitled to consider the adverse impact on value in relation to the merits, but even if the application were granted, a case of substantial loss or disadvantage suffered by each respondent had been made out. Mr McKinney’s evidence should be preferred. He had attributed that diminution to the move away from ancillary buildings to residential, producing the prospect of, as it were, roads on both sides. The conditions did not allow residential use and restricted the scale and mass of building. The result of varying the title condition would be a new terrace, with each house extending from one building to another. The original condition would be washed away. At No 13, it would not be possible to put much of a house there. With different roof proposals (as in the drawing for No 12, compared with the applicants’ proposal, the row of houses could end up as a hotchpotch. The scale and mass of what was proposed was materially detrimental, justifying an award of compensation.
[28] In answer on the claim of compensation, Mr Clubb relied on the evidence of Mr Heaney. He also pointed out that there was actual market evidence in the form of the purchase by Mrs Higgitt of No 13 at a full price of £1.25 million in knowledge of the planning application. Notwithstanding her preference against mews development, this was consistent with an element of value reflecting the potential for that. Further, it was accepted that building to a height of 22 feet, with a similar metal roof, was permitted under the conditions. The suggestion that the value would be affected the minute the building became residential should be resisted. The claims were just as incredible in relation to the upper floor flats. The facts in J & L Leisure Limited v Shaw were entirely different. Noise and disruption would be minimal.
[29] The general approach to application of the Act’s provisions in relation to discharge and variation of title conditions is now clearly enough established, was not the subject of any disagreement in this case and does not require elaboration again. We must be satisfied by the applicants of the reasonableness of the application, which in this case was limited to an application to vary the relevant conditions to the extent of permitting the development for which planning consent has been obtained; in considering whether we are satisfied of the reasonableness of the application, we are to have regard to the factors listed in Section 100 and reach an overall view; and comparison with the circumstances of other decided cases is generally of little or no value, as each case depends on its own facts and circumstances.
[30] In this case, the objections which have to be met on a test of reasonableness appear to us to be in two main areas: firstly, the principle of residential mews development in separate ownership; and secondly, the physical extent of the proposed dwellinghouse. In relation to each, in the particular circumstances of this case, we accept the relevance of the strong likelihood that the success of this application would lead to at least two further similar developments, at Nos 15 and 12 Inverleith Terrace. We would, however, add that it was our impression that planning permission would not necessarily be granted for other, or many other, mews houses along this lane. One aspect of the proposal which the respondents (and particularly Mrs Higgitt herself in her evidence) sensibly acknowledged was of little or no weight (at least in relation to the merits) was the design of the house and the materials proposed to be used: whatever one might think of these, and particularly the metal roof, the existing building restriction is silent on such matters.
[31] It will be necessary to look closely at the title conditions in their context. However, it is appropriate first to record some conclusions which we have reached on the factual position, particularly following our site inspection, which is always of importance in such cases.
[32] In relation to the position at the mews lane where it is proposed to build a two-storey dwellinghouse, Tanfield House is to our mind a major feature. Although screened to a small extent, it dominates the locality, even without the current work which is understood to involve raising its height by one floor. The proposed house (or houses) would be considerably lower. The amenity of the houses and flats in the terrace is considerably enhanced by an attractive cityscape view to the south, but the lower view is predominantly of Tanfield House. The proposed house will of course be slightly closer, but will make no substantial impact on this outlook.
[33] Contrary to what was submitted on the respondents’ behalf, we did not find the gardens to be particularly small. They are quite long. Further, they slope down. Any building at the mews (provided of course that it does not extend too far up into the garden) is a considerable distance from the houses. The proposed house will still be very much a secondary building. The house will have some visual impact, although only slightly more than the artist’s studio or building to the height permitted under the title conditions. It has to be contrasted with the present somewhat random pattern of garages, etc. Residential occupation obviously changes the character to some extent, but in view of the distance from the houses, the impact of that will in our view be limited, and, again, not significantly different from what is presently permitted by the title.
[34] Slightly more specifically, in relation to privacy, we think that there will be only a very slight effect, and that only on the ground floor of the houses, i.e., in relation to this application, only No 13. Mrs Higgitt has the large bow window, and also a balcony, at ground level. She thought that the upper floor of the proposed house would be at the same level, and also pointed out that she knows that she can presently be seen in the ground floor room from the lane. We are clear that the upper floor will in fact be somewhat lower, although that does not of course preclude some possibility of looking in. We are also satisfied that the design of the house, together with the distance, makes overlooking a very minor issue. Moreover, the existing situation is of course not one of complete privacy, the balcony and garden being overlooked from the rear of the houses.
[35] As far as the impact on the amenity of the lane itself is concerned, the respondents suggest that this proposed house, and the others anticipated, will have a substantial effect on traffic and parking in the lane. We do not agree. We can agree that there will be some effect, because we agree that occupiers of mewshouses (in which there could well be more than one car owner) may be more likely to use the lane (and there could also be service deliveries, etc.), but we think that this is marginal. Firstly, the lane is already used for access to garages and also the three very substantial modern houses which take their access from the lane. Secondly, there is tight regulation of parking in the lane. We observed traffic wardens there shortly after 8 a.m. one morning! Our impression is of an attractive quiet lane with very little traffic. The present character of the lane might possibly come under pressure when Tanfield House is re-occupied, but that would have nothing to do with the building of mews houses. We visited Inverleith Place Lane which had been referred to. As it happens, there are a number of existing mews houses on that lane but the basic character of the lane as a peaceful quiet lane at the bottom of the gardens of the substantial Victorian housing facing the main street, does not seem to us to have been affected by these (although that peaceful state of affairs is presently affected by construction work on new mews houses). We do not see some development of mews housing threatening the similar character of Inverleith Terrace Lane.
[36] The construction phase will of course impact on the amenity, and the applicants’ estimate of three months seemed optimistic, although, again, this will be at some distance from the respondents’ houses and any traffic disruption will not affect any of them, since none of them takes vehicular access to their property at the lane. Such temporary effects are in any event not relevant to the merits of the application to vary these conditions, which contain no special protection against temporary operations. The general prohibition of nuisance will continue to apply.
[37] Turning to the title conditions, the applicants broadly contended that these simply regulated general amenity and were simply intended to give the superiors an element of control. The respondents, on the other hand, maintained that the title gave them substantial benefits under two headings, protection of their amenity and restriction to ancillary, non-residential, use.
[38] We agree with the respondents that the original titles contain the clear implication of protection of the co-feuars as well as the superior. The earlier titles bind the superior to take subsequent feuars similarly bound, and indeed himself to observe the same conditions. The omission of any power of the superior to consent to departure from the permitted building dimensions reinforces this.
[39] We do, however, require to examine the extent of that protection. The respondents stress the title conditions producing uniformity. It appears to us, however, that there is no provision at all about uniformity of building at the mews lane. The respondents referred to a number of Feu Charters and Instruments of Sasine with very similar, although not quite identical, structures and provisions. They all follow a pattern of starting with very detailed prescription of many aspects of the building of the terrace houses, particularly their front aspect at Inverleith Terrace. The obligations to take other feuars similarly bound follow these provisions and, for example in the title to No 13, expressly precede that obligation with this purpose:-
“And in order to preserve the appearance of the Houses in the Terrace … ”
The very much more limited regulation of building at the mews, basically only by limiting the dimensions, follows after, as does provision in relation to mutual walls, forming the mews lane, sewers and drains, etc. Thus there is a clear requirement of uniformity of the houses, and this has been maintained; but there was no such requirement for building at the mews, and that also is reflected in the existing situation.
[40] The respondents also contend that there are conditions restricting such building at the mews to ancillary building which is not to be residential. We accept that the restrictions on the dimensions of any building at the mews were to ensure that any such building was secondary, of such a scale as not to impinge on the amenity of the houses. We do not, however, find any prohibition of residential use. Looking at the use provisions in the applicants’ title, we find first, at the outset of the detailed provision in relation to the houses, an obligation to “erect and thereafter maintain a Dwelling house”. This may perhaps be regarded as a positive use obligation which in effect restricts the terrace houses to residential use. The only other use condition is that reproduced at paragraph 14 above. This may look rather standard Victorian stuff, but it can be seen to be quite a discriminating provision. Breweries and distilleries are not allowed. In relation, however, to masons, wrights, weavers, etc., the prohibition is against such activity in the open (‘yards’) or on a retail basis (‘shops’). There is nothing against such actual craft activity, which could be business use though not retail, within any mews building. There are other provisions including general prohibition of nuisance. None of this prevents residential use, for example by the house-owner’s servants, guests, friends, wider family or, for example, a weaver, or indeed an artist. We do not agree that the use of ‘buildings’ rather than ‘houses’ prevents residential use. ‘Building’ is also used twice in the course of the detailed provision in relation to the terrace houses. We also do not agree that the permitted dimensions have the effect, or even the purpose, of preventing residential use, although no doubt they limit the scale of any such use.
[41] We agree that there is some indication that such mews buildings are to be ancillary. This, however, in our view emerges from the clause prohibiting sub-division (in the case of No 14, further sub-division, since this Feu Charter related to a double plot and sub-division into two dwellinghouses was envisaged and permitted). However, two points arise from that. Firstly, while there is such provision, and it is indeed one of the conditions of which variation is now sought, its wording seems to us to suggest a particular purpose of protection of the superior’s interests; and secondly, as Mr Geddes acknowledged, in relation to sub-division, it can be said that the pass has been well and truly sold, there having been over the years a lot of flatting involving division of ownership. As to separate occupation, as opposed to sub-division of ownership, it is difficult to suggest either that there was any prohibition of letting or that, if so, such prohibition remains reasonable. Mrs Higgitt herself lets two parts of her property, and the two upper flats at No 15 are also let. In our view, such requirement as there is in the Feu Charter in relation to the ancillary nature of any mews lane building is a factor of very little weight.
[42] The 1945 deed, however, which principally involved waiver so as to permit division of No 14 into two (but not more than two) properties, has also to be considered. There may be some technical difficulty about this deed. Mr Clubb mentioned just before the end of his submissions that there was no ‘common scheme’ involved in this deed. He did not follow this through with a submission that the respondents were not therefore benefited proprietors (and indeed the burden might have fallen with the abolition of superiorities), and the applicants’ whole presentation was on the basis of recognising that the respondents were benefited. In these circumstances, we ought perhaps to treat the 1945 provision, being in effect variation of the earlier feuing conditions, as still involving the common scheme and therefore still enforceable by neighbours. On that basis, there is certainly some further provision in relation to sub-division and indeed also separate occupation and letting, to be considered. However, that seems clearly enough to relate to the dwellinghouse, 14 Inverleith Terrace, and not to the ground as a whole.
[43] The later part of the 1945 Minute of Waiver introduced a building restriction, which would cover mews lane development, apparently in addition to the specific provision in the Feu Charter. Thus, there appears on the conditions as they stand to be both an absolute prohibition of such building beyond the dimensions permitted in the Feu Charter, and, further, a requirement for superiors’ consent which must apparently under the Act now be translated into a requirement for neighbours’ consent. That may not, however, add much because one could hardly envisage consent being (reasonably) withheld for building within the dimensions permitted in the Feu Charter.
[44] A further point about the building restriction appears to us to be relevant. This is the question as to what the stipulated dimensions, particularly as to ‘width’, actually mean. Was width related to the width of the whole plot, so that one was not allowed to build across more than 21 feet of its width? Or was it the distance back from the mews? To the extent that this question was touched on at the hearing, there seemed to be an accepted view that it was the former, and in support of that the use of the word ‘depth’ earlier in the Feu Charter, clearly referring to the permitted distance back from the street of the terrace houses, was mentioned. We are bound to say that reading the whole of the provision, including the stipulation that the gables of any mews buildings should be mutual, and also taking into consideration the normal concept in our experience of mews building, we consider that the provision envisages building along the length of the mews, thus producing mutual gables, with the restriction on ‘width’ limiting the extent of building back from that building line. Otherwise, with building not apparently being allowed to the full width of the plot, there would be no mutual gables. Nor would there be any restriction of the distance the building extended into the garden. Looking only at the 1870 Feu Charter regulating the double plot, it might be possible to see the provision as envisaging one building at the boundary between No 14 and No 15, but that seems a strained reading of the stipulation about mutual gables and it would not work in the deeds relating to single plots, such as No 13, which have the identical provision. The relevance of this is that the respondents may not be well founded in complaining of having to face the mass of the roof, rather than only the gable end, of the proposed house, when comparison is made with the type of building, in compliance with the restriction, which might reasonably have been expected.
[45] At all events, the conditions at least permit some building to a height of 22 feet and does not regulate the design or materials; and in our view, do not prohibit residential use, although there is some restriction of sub-division.
[46] Accordingly, while accepting that these title conditions were intended to benefit the neighbouring owners and were not simply general planning requirements in the interests of the superior, we can only agree to a very limited extent with the respondents’ submissions about the effect, and purpose, of these title conditions and the extent of the benefit involved in the ability to prevent the applicants’ proposal. We do agree that they provide some protection of the amenity by limiting the dimensions of building at the mews and thus creating and preserving the open spaces in the unbuilt areas of the building plots, now of course attractive garden areas. We accept that this amenity remains significant although it has been influenced by the appearance of Tanfield House. We also agree that the applicants’ proposals have some impact, although, as we have said, the impact appears to us, viewing this situation objectively, considerably less than the respondents, particularly Mrs Higgitt, feel it to be, and it also has to be remembered that the protection was not complete because some building at that location (and the corresponding locations in other gardens) was allowed.
[47] With that introduction, we can address the factors listed in section 100 relatively briefly. As to (a), change of circumstances, there has been some change at the properties themselves, in the form of the somewhat random building of garages, the artist’s studio, etc., generally as envisaged in the Feu Charter, but no material change in the gardens. In the immediate locality, Tanfield House, a dominant building which affects the relative impact of proposed residential development at the mews, has been built, although this site was, at the time of the original scheme, a gas works (mentioned in both No 13’s 1842 title and the Feu Charter of 1870). There has obviously been some increase in and change in the type of traffic using the lane, and there are some modern houses taking their access through it. These changes have not altered the character of the benefited or burdened properties. There has been quite a lot of sub-division into flats. There has not, however, so far been any residential mews development. At a very much more general level, mews houses either newly erected or created from former stables or the like, have been developed around central Edinburgh with the passage of time, so that there is nothing unusual about the development proposed. These, however, are really only the sort of general changes which reflect the age of the title conditions and are of relatively little significance compared with consideration of the purpose of the conditions and the (present) extents of benefit and burden.
[48] As to (b), the extent to which the conditions confer benefit on the benefited property, our consideration so far shows that we think that there is some benefit but the view which we have formed of the effect of the proposals, combined with our view as to the effect of the title conditions, means that this is really quite limited. Certainly, the conditions prevent a house of the proposed dimensions, but the additional height and footprint over the permitted dimensions and therefore the building which might reasonably be anticipated, is in our view quite small, particularly when the existing impact of Tanfield House on the outlook is considered. The more modest size of building permitted under the Feu Charter (and likely also to be permitted under the 1945 deed even if this still has effect) would make only slightly less impact. The existing artist’s studio, a substantial feature of the outlook from No 13, makes this easier to visualise. The overlooking possibility arises only from the quite limited provision of windows in minor areas on the upper floor of the proposed house and does not in our view arise at all in relation to the basement of No 13 or the upper floors of any of Nos 13, 14 and 15. In relation to the ground floor of No 13, this overlooking is in our view only minimally worse than overlooking from the lane. The respondents refer to the imposition of a new residential street where there was none on this side of their properties, but we consider that a gross exaggeration. Rather, there will continue to be a quiet mews lane with some buildings and now a few mews houses but still not very much vehicular and pedestrian traffic and parking (unless the parking position changes again for other reasons). There is no realistic protection from separate occupation. The control over sub-division of ownership has not stopped that happening within many of the terrace houses and seems to us to have little weight.
[49] As to (c), the burden of not being able to build, for subsequent sale, a dwellinghouse of these dimensions and for which there is planning consent, and instead being limited to a more modest size of building which could not be sold as a separate property, appears to us substantial.
[50] It is not suggested that (d) applies. We have really already taken account of factor (e) in our consideration of change of circumstances: the age of the conditions is of itself of limited relevance but enables account to be taken of the type of gradual but very general changes there mentioned. In relation to sub-division of ownership, one might also refer to the vast increase in house ownership since 1870.
[51] We have, again, already largely covered factor (f), the purpose of the title conditions. This goes beyond their legal effect and meaning, so far as it is possible to do so, given that the purpose is not often expressed. As we have indicated, no purpose of uniformity of building at the mews can be detected, but from the building restriction, along with the provisions in relation to the mutual walls and the use restrictions, we can discern a clear purpose of protection of the amenity of the garden areas: the mews building is not to be too intrusive, and the uses of both the houses and the mews buildings are not to be of such a character as to disturb the amenity.
[52] Factor (g) directs attention to the question whether there is planning or other regulatory consent for a use prevented by the condition. Here, of course, there is planning consent and this is therefore a factor which favours the applicants. It is, however, well recognised that this is seldom of much weight in relation to private title conditions. While the planners do pay attention to matters relating to neighbours’ amenity, they are not looking at these from the perspective of the title conditions and are not necessarily applying the same standard. What we think we can take from this in this case, along with Mr Scott’s evidence, is that the planners do recognise the sensitivity of sites within conservation areas and, while matters of architectural taste and design are not really for us, a certain standard of design and control of materials is required. The apparently inadvertent omission of expressed conditions in this case does not cause any particular problem because the Tribunal’s order can, by reference to the planning consent drawings, ensure that the conditions are incorporated into any order varying the title conditions.
[53] We do not regard factor (h) as of any importance in this case. The applicants have not offered compensation but if the Tribunal were to uphold the claims for compensation the variation order would be conditional on payment.
[54] Factor (i) has no application. Under (j), any other material factor, the respondents stress that this would be an innovation, establishing a precedent. We accept that, and have it very much in mind.
[55] Drawing all of this together, we are on balance persuaded that this application is reasonable. In relation to the building restriction, we recognise that it was expressed as absolute and there was no express power to waive. We take the view, however, with our consideration of all the other factors in mind, that while this was expressed as absolute in 1870, it is reasonable now to allow breach to the limited extent proposed. No doubt separate mews housing was not envisaged in 1870, but residential use was not prohibited. Separate ownership was prohibited, and this enables the respondents here to take a stand against the development of housing on the lane, but our assessment after a close look at the site is that this will not in fact be nearly as disturbing as they fear. As far as the three upper flat objectors are concerned, they will of course see this house, and foreseeably one or two more, but we think that for them the matter is simply one of outlook and we simply do not think that the impact of this addition to their outlook, at a considerably lower level than Tanfield House, and in place of what is there at present, is significant. Mrs Higgitt, having the whole house at No 13, is certainly in a slightly different position. However, what we have said about the upper level flats applies to her upper floors. Her basement seems to us to be unaffected. The additional overlooking of her garden and balcony seem to us to be minimal. Her outlook from the ground floor will be affected slightly, but it must be remembered that her garden, with the ‘intrusion’ of the artist’s studio, is the primary outlook and of course will remain the same so long as that is her choice. We stress again the distance, and the slope down, to the site. Her strong feelings in the matter are, we are completely satisfied, genuine and understandable, but we simply do not consider that this will have a substantial effect on her enjoyment as owner and occupier of her house, or her garden (which she already shares with a tenant), or of such access as she takes to the lane. Weighing the benefit to her against the burden of the condition on the applicants as owners of their property, and on our consideration of the nature, effect and purpose of the existing title conditions and of the particular and general changes since 1870 (recognising that the extent of change is limited), we consider the variations sought to be reasonable. We shall grant the application, subject of course to our consideration of the claims for compensation which in this case have, sensibly, been made at the same hearing.
[56] While this Opinion has been in preparation, we have been advised that the planning application for another mews house, at No 12, has been granted. It will be understood that the prospect of this happening, bringing the number of prospective mews houses to 3, was already before us and taken account by us as likely to happen. In these circumstances, we did not consider it necessary to seek further submissions arising out of that slight change in the circumstances.
[57] Having considered the competing expert opinions in the light of our findings about the situation at this location, we are not persuaded that any of the respondents who have claimed compensation will suffer any substantial loss or disadvantage, as owners of the benefited properties, in consequence of the variation of the title conditions which we have decided to grant.
[58] The claim was based on the effect on the values of the 4 benefited properties. The issue is whether in a hypothetical sale the benefit of the title conditions in question would have a positive effect on the value – would it hypothetically produce a higher price than if there were permission for this development involving a building to be sold as a separate dwellinghouse and of bigger dimensions than permitted under the conditions. The question is not, as Mr Heaney appeared at times to think, simply the effect on value of such development on the basis that such development is to be expected at such a location: the hypothesis is that in the ‘before’ situation this proposed development would not be permitted.
[59] Such an effect on value can be very difficult to demonstrate as there is rarely any comparable market evidence, but that is not fatal. Further, we accept that failure to identify values of the whole properties is also not fatal – while it can be helpful to have such values, to enable for instance the percentage effect to be considered, this is not essential to the exercise.
[60] It has to be remembered that the comparison is with the position under the burdens before variation: the informed hypothetical purchaser would know that they do not constitute a prohibition of building, only a restriction on the dimensions, and they do not in our view prohibit residential use. This hypothetical purchaser would also know that the existing outlook towards the foot of the gardens is dominated by Tanfield House.
[61] We are of the clear view that variation of the burdens so as to permit this proposed development will have no effect on the value of the double upper flat at No 14 and the two upper flats at No 15. Each of these is in our view so elevated from the site of the new house (or houses) as to be unaffected. Of course they will be aware of the change at the mews, particularly during the construction period, but in our opinion any ongoing impact on these properties will be minimal. These properties have no rights in the gardens or garages. Consideration of what is presently on the ground and what might reasonably be expected under the existing conditions is relevant. The flats presently have an outlook which includes, in the lower field of vision, the various existing garages, the artist’s studio, Tanfield House and the modern houses in the grounds of 18 Inverleith Terrace. The residential element of the mews development does not appear to us to have any effect at all on them.
[62] No 13 requires separate consideration. Parts of it are closer; its ground floor will potentially be very slightly overlooked; and its garden abuts the site of the house. However, the effect on the garden should not be exaggerated. There will be minimal effect on sunlight and very little effect on daylight as a whole. The direct outlook from the house towards the mews is to, first, the garden of No 13, then the artist’s studio, then Tanfield House, all of which will be unaffected. Any effect on the attractive southerly cityscape view would only be at points from which it was already considerably restricted. Mrs Higgitt’s concern is about the effect of residential development. She feels that that will change the character of the mews, but as we have indicated the present conditions do not prevent residential use although they do prevent the development of separate houses for sale.
[63] We accept that there is no market evidence either way. In this connection, we do not think that reliance should be placed on Mrs Higgitt’s own transaction. Firstly, we accept her explanation of the circumstances in which she decided to proceed with the purchase, albeit that may have involved proceeding at the same price as arrived at before knowing of this proposed development. Secondly, in any event, Mrs Higgitt purchased with the protection of the title condition.
[64] The issue therefore becomes one of competing expert opinions. Accepting, as we do, the genuineness of Mrs Higgitt’s feelings about the innovation involved, we must look, with the benefit of expert opinion, at how the market would view this. In this sense, there is no inconsistency between Mr Heaney’s acceptance that some potential purchasers might consider the matter significant and his view as to the effect on the market as a whole.
[65] Mr McKinney appears to us to have been founding on his approach to the effect of the title conditions, an approach which in a number of respects is out of line with our analysis, and on his views of the effect on the amenity, which are also out of line with the views which we have reached. Further, Mr McKinney simply does not have experience of the Edinburgh residential market, whereas Mr Heaney does: the fact that Mr Heaney has not in his experience come across such an effect on value is significant. Mr McKinney also appeared to us to blind himself to consideration of possible ‘hope value’ in this situation. It is in our view clearly correct to at least consider the possible positive effect on the value of No 13 if these properties within this common scheme are enabled to develop the areas at the foot of the gardens in this way. It was suggested that the plot of No 13 would be too narrow for substantial residential development, but this is difficult to square with the fact that the existing house on it fetched £1.25 million. We do not suggest that this is a substantial item, but Mr McKinney’s unwillingness to even consider it makes it more difficult for us to accept his opinion. We also find Mr McKinney’s actual figures for the effect on the values of the flats, considering their actual situation, fanciful: we can understand the argument for a relatively modest percentage on the value of No 13, producing a substantial figure, but we fail to see how such figures for the flats can be realistically suggested.
[66] Despite our reservations as to whether Mr Heaney always had the correct test in mind, we have reached the view that his opinion is to be preferred, even in the case of No 13 where the view that this might have some effect is at least understandable. Essentially, his view on the impact on the amenity enjoyed by these properties coincides with ours. We are not persuaded that the market, as opposed to a more subjective viewer, would reflect the loss of protection against this development, in comparison with what is permitted under these title conditions, in any substantial way.
[67] For all these reasons, the Tribunal will make an Order varying the title conditions to the extent of permitting the proposed development and the sub-division and sale of the proposed house; and refusing the claims for compensation. As mentioned above, there are problems with the planning consent documents, and enquiry revealed that this was not just a matter of the presentation of evidence to us: the consent itself lacks certain conditions which would be expected, and there is a discrepancy in the approved drawings. The Tribunal’s order will deal with this by referring to the specific drawings, which do specify materials, etc., in their notes, but also making clear that the detail in Drawing No 05A (rear elevation) should reflect the window detail on Drawing No 04A (first floor plan).
[68] The Order will reserve all matters of expenses, and in the event of any issue arising about these it would be our intention to dispose of that on the basis of written submissions in accordance with our usual practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 June 2008
Neil M Tainsh – Clerk to the Tribunal