[1] The applicants seek variation of a title condition prohibiting business use of their premises for frying fish and/or chips. This burden was created in 1950 when the downstairs shop premises were split from the flat above. The downstairs premises have for some years been used as a café/bistro, with some chip frying in a deep fat fryer, with planning permission and without substantial opposition from the upstairs proprietors, for whose benefit the condition was clearly created. The application is to vary by deleting the prohibition in relation to frying chips. It is opposed by the upstairs proprietors. The Tribunal has decided, on an application of the statutory test in Section 98 of the Title Conditions (Scotland) Act 2003 (“the Act”), to allow the application subject to a condition in relation to the capacity of the deep fat fryer, in order to ensure that frying of chips will continue to be on the present restricted basis and that the purpose of the title condition will be respected.
[2] Iver Michael Hooper and Kerry Lynn Hooper, 34 MacDuff Street, Lossiemouth, as trustees for their firm of I and K Hooper, as proprietors of premises known as “EJ’s”, 16 Queen Street, Lossiemouth, (“the subjects”), applied under Section 90(1)(a)(i) of the Act to vary a condition in a Disposition by Andrew Souter in favour of Robert James Brown recorded in the General Register of Sasines for the County of Morayshire on 8 November 1950 and entered in the Burdens section of the applicants’ registered Title MOR4066, in the following terms:-
“(Third) The subjects hereby disponed shall not be used, let or suffered to be used by my said disponee or his foresaids for the business of cooking and/or retailing fried fish and/or chips”
The application was for variation to permit the cooking and/or retailing of fried chips. The application was opposed by William Henry Stephen Sinclair and Linda Sinclair, proprietors of the upper floor flatted property at 28 High Street, Lossiemouth, above the subjects, as benefited proprietors (“the respondents”). Parties were agreed that the application should be disposed of on the basis of written submissions and a site inspection. Prior to the site inspection, the Tribunal raised certain questions with the parties. The respondents did not respond or attend the site inspection, which was accordingly limited to inspection of the subjects and a look from the outside, including behind the wall of a locked rear garden belonging to the respondents and understood to be used by occupants of two other adjoining flats in Queen Street. The applicants were represented by Mr Davidson, solicitor, of Wink and Mackenzie, Elgin, who also attended the site inspection. Prior to the issue of this opinion and our Order, we intimated to parties our decision in principle and wording of the resulting variation, with the opportunity for comment and further consideration of the precise terms of the Order.
[3] There was no substantial disagreement on the basic facts, which the Tribunal has found to be as follows, on the basis of the submissions, documents provided and our site inspection.
[4] Prior to the ‘break-off’ disposition in 1950 containing the title condition, the subjects and No 28 High Street, Lossiemouth, apparently formed a single ground and upper floor terraced property, comprising a shop with upstairs living accommodation, on the corner of Queen Street and High Street. From about 1995, the subjects were in use as a shop and tearoom, and from about 2003 as a café/bistro, except during the last few months pending a proposed sale. They comprise, in summary a ground floor restaurant with glazed frontages to Queen Street and High Street with seating for 34 covers. To the rear of the restaurant is a toilet, stores and serving counter. Also towards the rear is access through to a single storey extension comprising the fitted kitchen with cooker, deep fat fryer, refrigerators etc. The respondents’ property is apparently a two-bedroomed corner flat with relatively low ceilings. The kitchen at the subjects is a former outhouse to the rear, with a flat roof which lies below the kitchen and bathroom windows to the rear of the respondents’ property.
[5] Certain alterations were made at the subjects by a previous proprietor in around 2003. In particular, a single unit deep fat fryer with an oil capacity of around 24 litres was installed, together with an extractor unit with a metal flue protruding above the flat roof within a few feet of the two windows in the respondents’ flat referred to. It was apparent from a menu board still on display in the subjects that they were thereafter used as a café serving meals which might include chips cooked on the premises. The opening hours had been 9am to 2pm and 5pm to 9pm, Mondays to Thursdays, with closing extended to 10pm on Fridays and Saturdays. The location is in one of the town’s main streets, which is a mixed residential and commercial street two streets up from the fishing harbour area.
[6] The change of use to café/bistro, and the subsequent installation of the deep fat fryer and extractor flue, all have planning permission. The installation in around 2003 of the fryer and flue involved two planning applications, a retrospective application having been required for the flue. There is no indication that the respondents objected to either planning application. The respondents have complained on very isolated occasions about the smell, these being occasions on which by mistake the filters on this equipment had not been changed. The respondents have not otherwise sought to enforce the title condition, apart from their opposition to the present application. The present application has been made because the proposed purchasers of the subjects require the condition to be varied.
[7] In summary, the applicants submitted that there had been changes in circumstances since 1995, namely the changed use of the premises. The appropriate planning consents for the deep fat frying had been obtained, requiring appropriate ventilation and filtering equipment, viz. a proper extraction system as required in terms of the planning permission. The benefit conferred by the burden on the benefited property was preserved by the use of this equipment. The burden prohibited a use of the premises which had been approved by the appropriate planning and environmental health authority. It restricted operations which might be carried out on the premises, to the detriment of the applicants. The prospective sale would not proceed unless the condition was varied. The title condition had been created to preserve the amenity of the upper flat before filter and ventilation equipment of the type installed were in existence or could be anticipated.
[8] The respondents referred to a number of matters, primarily smell. The “expelair-type” machine on the flat roof below their kitchen and bathroom windows had proved ineffective and people had become lazy and not changed the filters nearly often enough, leading to unpleasant aromas. They did not relish the thought of this on a much bigger scale. The roof covering both properties was in desperate need of repair. Fryers in fish and chip shops were very noisy, and they believed the property was to become a takeaway establishment. The drainage could not cope with the rigours of business use.
[9] The applicants countered that during their time, first as managers and since 2005 as owners, there had been only one complaint to them and none to the environmental health authority. The other residential proprietors had not complained. (The respondents in answer to this said that new tenants had only very recently moved into these other properties.) Reference to roof repair obligations was irrelevant. The subjects were not, and would not become, a fish and chip shop. There was no title restriction on the extent of use. The fat, like other waste, was put out as commercial waste and not through the properties’ drainage system.
None
[10] In an application of this kind, we are required, in terms of Section 98 of the Act, to consider whether we are satisfied that the application is reasonable, and to have regard in this to a list of factors set out in Section 100 (a) to (j), including any other factors which we consider material. Some of these factors have no application in this case
[11] One factor which is always considered important is the purpose of the title condition. In this case, it seems completely clear that when the shop premises were sold, as a ‘break-off’, by the proprietors of the upper flat, this condition was imposed in order to prevent the premises below ever being used as a fish and chip shop and thus protect the amenity of the upper flat. That purpose seems to us to remain good. One can perhaps imagine that if such a condition were being created now it would be couched in wider terms so as to catch other food uses which have become prevalent since 1950. However, it must be noted that quite a variety of uses, including for example use as a restaurant, public house or off-licence, were not prohibited, nor was there any prohibition on the hours of operation of any business carried on at the subjects. In approaching the present application, therefore, we should bear in mind the very obvious and continuing purpose of preventing use as a catering takeaway establishment for the sale of fish and chips, but we should also note that a number of other uses are not prohibited.
[12] It appears to us to be a material change of circumstances that the premises have since 1995 been operated as a café and not a shop, a use which is consistent with the title condition. That appears to us to point some way towards the reasonableness of limited frying of chips, albeit of a different order from the substantial frying, and perhaps late night disturbance, which a takeaway fish and chip establishment may be expected to involve. In relation to the problem of smell, we are also prepared to accept that modern ventilation and extracting apparatus can render at least a small fryer very much more tolerable than might have been anticipated in 1950. We have the clear impression from the respondents’ submissions (and to some extent lack of them, particularly following some specific questions posed by the Tribunal before the site inspection) that, with the use of the fryer and flue, installed in 2003, this problem has only very occasionally been experienced.
[13] The extent of benefit to the respondents from the title condition is an important factor. We are in no doubt at all that the benefit of protection against the development of a takeaway establishment serving fish and chips is substantial. The application, however, would preserve the prohibition against frying fish, which would go some way towards preserving this benefit.
[14] The burden as it stands at present does in our view substantially impede the applicants’ enjoyment of the premises. Use as a café is not prohibited and the subjects have become a café. So it is a real detriment to be prohibited from frying chips on a modest basis. As it happens in this case, the effect of this detriment, preventing the applicants from selling the subjects, can be seen to be very substantial.
[15] More than 50 years have elapsed since this condition was created. As we have indicated, the basic purpose of preventing a “chip shop” remains good despite the passage of time, but it can perhaps be said that the increasing development over the years of a culture which includes modest cafes at which small scale frying of chips might be anticipated suggests that with the passage of time the complete prohibition of that activity has become somewhat harsh.
[16] The existence of the planning consents appears to us quite important in this case. It means that the regulatory authorities have taken the view that use of a chip fryer on this scale, with a modern ventilation flue, is acceptable at this location. However, this is only one factor, and the respondents as benefited proprietors can claim their separate private interest which involves other considerations, particularly the purpose of the condition and the extent of benefit to the proprietors entitled to that benefit.
[17] The issue as to whether the owner of the burdened property is willing to pay compensation has not been raised and in this case appears to us to be neutral.
[18] The other factor for consideration as possibly material, applying Section 100(f), is the fact that this limited chip frying has gone on, with the full knowledge of the respondents, for around four years, without challenge. There seems to us to be a strong element of acquiescence here. The respondents, despite being specifically asked about this, have not suggested that they either opposed any of the planning applications, asked environmental health to consider action or themselves took any step to enforce this title condition. This has become an established use. That could not be claimed to be relevant to any proposal to extend the existing use, but it does, again, seem to us point towards the reasonableness of limited chip frying in the context of a café.
[19] The respondents’ concerns about the roof and the drains appear to us to be completely irrelevant to this application.
[20] Weighing all these factors up, we are of the clear view that it would not be reasonable to remove the prohibition of a traditional fish and chip shop. That, however, is not what is sought. The applicants suggest that by leaving the prohibition of frying fish the benefit of the condition to the respondents will be preserved. It seems to us, however, that the protection to which the respondents are reasonably entitled under the condition will only be preserved if there is protection against any substantial change in the nature of the frying operation. If there is such a condition, however, we are satisfied that the balance of reasonableness supports the lifting of the absolute prohibition of commercial frying of chips. We gave the parties the opportunity of commenting on such a possibility. The respondents did not respond. We understood the applicants to be concerned about any specific hours restriction (which they rightly say is not in the present condition). They and the purchasers would no doubt prefer the variation sought to have no condition attached, but on the other hand the whole tenor of the application has been that it is to secure the existing use. We decided that the application should be granted, subject to a condition in effect limiting the capacity of the fryer to around the capacity of the fryer which has been installed, so as to ensure that the essential benefit of the condition, protection against use of the premises as a fish and chip establishment or the like, is preserved. We do not think, however, that some restriction of the business hours is appropriate or justified.
[21] The established limited chip frying activity has, as will have been seen, played a part in our consideration of this application. We should, however, add that we would have reached the same conclusion if this application had reached us on the basis of a proposal, for which planning permission had been granted, to instal such a deep fat fryer. Our decision is essentially based on the reasonableness, in our view, of permitting such limited frying, with modern equipment, in an establishment which has become a café, and not on the fact that such use is established.
[22] As indicated above, we gave the parties the opportunity to comment on a draft order. In response, the applicants provided the information about the capacity of the existing equipment, but otherwise did not comment. The respondents did not respond. Our draft included limiting the dimensions and capacity of the fryer and also compliance of the flue with environmental requirements. Having considered the position, we have decided that limitation of the fryer’s capacity, plus compliance of the flue with environmental requirements, is the appropriate condition to make. We have accordingly varied the title condition to the extent of permitting the cooking and/or retailing of fried chips, provided that said cooking utilizes a deep fat fryer not exceeding an oil capacity of 30 litres and such metal flue as complies fully with environmental regulatory requirements.
[23] Any application for expenses can be considered, in accordance with our normal practice, on the basis of written submissions. It may be appropriate in this case to express a provisional view, subject of course to consideration of any submissions which may be made, that the applicants have not in fact had complete success, since we have imposed a significant condition on the variation order which they sought, and that it may be appropriate for there to be no award of expenses either way.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 11 September 2008
Neil M Tainsh – Clerk to the Tribunal