[1] In this opposed application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for the discharge or variation of title conditions, the applicants are owners of two neighbouring houses. They wish to combine two areas of land to the rear of their gardens into one building plot, in respect of which they have concluded conditional missives of sale. There is outline planning consent, and fairly advanced design plans, for one dwellinghouse. The land, however, is part of an area which in 1962 was acquired jointly by the owners of six houses, including those of the applicants. This area was at that time split into strips added to the rear of each of the gardens, subject to detailed mutual building and use restrictions (“the burdens”) reflecting the owners’ agreement that use of the land was to be restricted to use as additional garden spaces. All the other current owners (now 5, following a sub-division of one of the houses) object to this application to relax these title conditions. The respondents who appeared at the hearing are the owners of the two semi-detached houses nearest to the applicants.
[2] The Tribunal has not been satisfied in the circumstances that it is reasonable to grant this application, which we have refused.
[3] The burdens were expressed at some length in a Feu Disposition by Geoffrey William Stead to David Peebles Brown recorded in the Division of the General Register of Sasines for the County of Renfrew on 29 June 1962 (“the first deed”) and also in a Feu Disposition by David Peebles Brown to Andrew Baker and others recorded on 31 October 1962 (“the second deed”). They are now narrated in the Burdens Sections of the applicants’ Land Certificates, REN11486 and REN15002 (and also in the objectors’ titles). For convenience, they are reproduced (as narrated in REN11486) in an Appendix hereto. Put shortly, the first deed was the acquisition from the previous owner of the area of land. This included a complete prohibition of buildings except garages, greenhouses, etc. without the consent of the superior and the respective adjoining feuars, the superior’s consent not to be unreasonably withheld. The second deed allocated the area of land among the (then) six owners and added, in some detail, further burdens. In summary, the garages, greenhouses, etc., were to be of such style, character, materials, dimensions and siting, as previously approved by a two-thirds majority of the superior and the respective adjoining feuars; were to be kept in good order and repair; and, if destroyed or damaged, either restored or removed and the ground restored. The ground was to be used only as garden, etc., ground solely in connection with the dwellinghouses, and kept in neat and tidy condition; and suitable fences, of materials approved by the same majority, were to be erected and maintained.
[4] The application, as clarified in submissions at the end of the hearing, is for variation of the title conditions, as specified in detailed proposed variations, to the effect of permitting the construction of a single two storey dwellinghouse in accordance with the outline planning permission granted by Inverclyde Council under reference IC/07/285. The respondents who appeared at the hearing opposed the application on the merits and also, in the alternative, each claimed compensation under Section 90(7)(a)(i) of the Act in the event of the application being granted.
[5] The joint applicants are Colin John Patrick Scott and Mrs Penelope Jane Scott, ‘Mossyde’, and Mrs Rosemary Nott, ‘Suncourt’, each Duchal Road, Kilmacolm. The respondents are Professor Sir Graham Teasdale and Dr Evelyn Teasdale, ‘Ardgryffe’, Mrs Janice Crean, ‘St Ronans’, Mrs Lorna Blain, ‘The Loaning’, John McKendry and Mrs Rosemary McKendry, ‘Rhencullen’, and Dr Brian O’Rourke and Mrs Jennifer O’Rourke, ‘Ainslie’, each also Duchal Road. At the oral hearing the applicants were represented by Gavin MacColl, Advocate, instructed by Miller Samuel, Solicitors, Glasgow, who led evidence from the applicant Mrs Scott, Gerald Hogan, Chartered Architect, of ‘Collective Architecture’, who spoke to the proposed house design, Alexander Carmichael, FRICS, who gave opinion evidence on the effect of the proposal on the amenity and value of the objectors’ properties, and John MacDonald, the prospective purchaser. The respondents Professor and Dr Teasdale were represented by Gail Joughin, Advocate, instructed by Miller Beckett and Jackson, Solicitors, Glasgow, who led evidence from Professor Teasdale and from Charles Rae FRICS, of D M Hall LLP. The respondent Mrs Crean was represented by Fiona Gordon, Solicitor, of Bradley Campbell & Co, Greenock, who led evidence from Mrs Crean and Alexander Hutchison FRICS, a consultant with Murray and Muir, Paisley. The respondents Mrs Blain, Mr and Mrs McKendry and Dr and Mrs O’Rourke, relied on their written objections and did not appear at the hearing. Various documentary productions, including photographs, were produced and generally agreed to be what they bore to be, subject to certain issues of accuracy. At the conclusion of the hearing, the applicants confirmed that they were not insisting on the application for discharge and would be content with variation, in terms which had previously been intimated, of the title conditions. Final submissions were in written form. The Tribunal also carried out an accompanied site inspection, for which the applicants had staked out the position of the proposed house in line with the plans produced at the hearing.
George Wimpey East Scotland Limited v Fleming and Others 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
[6] On the basis of the oral and documentary evidence and submissions and our site inspection, we found the following material facts established.
Background. In 1962 the owner of a substantial stone villa, Drumadoon, situated on the east side of Bridge of Weir Road, Kilmacolm contemplated selling the vegetable garden as a building plot. It was an area of ground lying on the west side of Bridge of Weir Road and extending to about 1 acre. It was steeply sloping and on its western boundary it adjoined the rear gardens of what were then six substantial nineteenth-century stone dwellings which fronted on to Duchal Road running parallel to Bridge of Weir Road. Following discussions the vegetable garden was sold to the six proprietors with each acquiring a strip of ground essentially as extensions to their gardens and with similar side boundaries. There was agreement among all these proprietors to include in their titles protection against residential development of any of the area. Accordingly, the burdens which are the subject of this application were created. None of the original purchasers still owns any of the houses. One house has since been divided, so that there are now 7 properties entitled under and bound by the restrictions. The additional garden areas thus created, together with the mutual burdens protecting that use and prohibiting development, are a significant additional feature of these houses.
[7] The applicants, who own Mossyde and Suncourt, the two end houses in the original row of six, envisage combining their adjacent rear garden extensions to create a site of about 0.1 hectare which would be approximately 40 metres deep and with a frontage to Bridge of Weir Road of approximately 24 metres widening to about 30 metres where the site adjoins the stone walls which defined the original rear boundaries. They have concluded missives for the sale of this plot to Mr MacDonald, conditional on this application succeeding. Planning permission in outline was granted by Inverclyde Council on 5 October 2007 for the erection of one dwelling accessed from Bridge of Weir Road. The “normal” conditions were attached but additionally there were a number of site specific conditions, viz. no building should project beyond the building line established by existing houses on Bridge of Weir Road to the south; any side windows should be opaque; existing hard and soft landscaping to the boundaries should be undisturbed; and various conditions relating to vehicular access were imposed. No design drawings accompanied the application and in the usual way further planning approval would be required for any detailed proposal. No conditions were imposed in the outline consent as to height or the number of storeys.
[8] Surroundings/neighbourhood. Duchal Road and Bridge of Weir Road form part of an attractive residential area in Kilmacolm. Many of the houses are substantial stone and slate villas or semi detached villas dating from about the end of the 19th century. However, there are also a substantial number of houses dating from the 1930s together with a number of good quality modern houses.
[9] The site. The applicants’ site comprises the garden extension land to the rear of Mossyde and Suncourt added to these properties in 1962. To the south lies Dalveen, a detached house dating from the 1940s but subsequently modernised. To the west the boundary is partly undefined and partly defined by the low stone wall which was the boundary of the gardens prior to the purchase of the additional ground. To the north the boundary is the wooden fence with Ardgryffe and to the east the boundary is the stone wall alongside the pavement of Bridge of Weir Road. The site slopes steeply to the west with a gradient of about 1:5. The top parts of the gardens enjoy very fine views over the Duchal Road houses to the Renfrewshire hills to the south-west. The gardens appear mature. The garden of Suncourt has been well maintained but the garden of Mossyde is somewhat overgrown. Some of the more mature trees will require to be felled if building takes place. There are apparently no Tree Preservation Orders.
[10] The Respondents’ Properties. Ardgryffe is the southern half of a large two storey stone villa, St Ronans being the northern half. It dates from about 1900 and while the major part of the house is two storeys there is also a substantial single storey rear extension. To this extension and projecting eastwards, the respondents, some years ago, built an architect designed conservatory which wraps around the rear extension. At its closest point it is about 3 metres from the boundary with Suncourt and about 10 metres from the nearest corner of the applicants’ site. A large glazed conservatory has also recently been built to the rear of St Ronan’s adjoining the original single storey rear extension. At its closest point, the conservatory of St Ronans is about 20 metres from the applicants’ site. Both of these conservatories are used as principal public rooms, each with an attractive aspect to the rear garden ground. The gardens to the rear of Ardgryffe and St Ronans are terraced and well maintained, with mature trees and shrubs being an attractive feature of both. Neither Ardgryffe nor St Ronans is presently significantly overlooked to the rear.
[11] The Proposed Building. Any property to be constructed will be substantially based on the design drawings produced to the Tribunal. A topographical survey of the site (but not including the property of the immediate neighbours) had been carried out and a comprehensive set of drawings with plans and elevations had been prepared on Mr MacDonald’s behalf by his architect, Mr Hogan. His instructions had been to design a contemporary family house which would take full advantage of the fine views to the south and west. In doing so he had taken into account a number of factors including the terms of the outline consent, the steeply sloping site, traffic issues, the scale of nearby property and the impact on neighbours including overlooking. His client had indicated to him his wish to have a large living room in a raised position to take advantage of the views. In an effort to judge the views and assess the possible impact on neighbours, Mr MacDonald had arranged for a scaffolding tower to be erected on site in the approximate position of the proposed master bedroom. The respondents, who had not been consulted about the design, were not given an opportunity to participate in this. A number of photographs had been taken of the views from the tower and of the extent to which the neighbouring properties were visible during summer when trees and hedges were in leaf. The respondents were not given an opportunity to inspect the tower or assess its positioning on site. Mr Hogan had discussed the draft drawings informally with the planners and they did not anticipate any problems with the design.
[12] The positioning of the building on the site means that the ground floor level would be about 3 metres below street level at the Bridge of Weir Road. The height at the eaves closest to Ardgryffe would be about 7.5 metres above ground level. At the rear, northeast corner of the building the eaves height would be about 6 metres, and the height to the roof ridge about 9.8 metres above ground level. The ridge would be about 15 metres above the ground level of the Ardgryffe rear patio. The design of the southwest elevation shows a terrace detail at ground floor level and two balconies at first floor level. To the southwest the elevation would be of white render with very extensive glazed units. The northwest elevation would be part white render and part stone, again with extensive glazed units albeit with opaque glass. The corner of the proposed building would be approximately 21 metres from the northwest corner of the site and about 31 metres from the corner of the Ardgryffe conservatory. At its closest point to the boundary with Ardgryffe the proposed house would be about 4.35 metres from the boundary widening to 5.55 metres at the northwest corner.
[13] Three medium sized trees, a cedar, a prunus and an oak grow towards the northwest corner of the site and would, together with trees within Ardgryffe and St Ronans, provide some limited screening of any proposed house. A horse chestnut lies close to the corner of the proposed building and it too provides some screening but it is likely to be removed in the event of construction. At least in winter the building proposed would be readily visible from both conservatories. In summer when the deciduous trees and shrubs are in leaf, the impact on the visual amenity of both Ardgryffe and St Ronans would be reduced but still substantial. Because of its closeness, size and height, the building would, even in summer, dominate parts of the gardens of these two houses, including sitting areas. There would also be some overlooking.
[14] Mr MacColl started with some observations on the evidence, accepting that issues of credibility, reliability and weight of evidence were matters for the Tribunal. In summary, he submitted that, on the material available to the Tribunal, the proposed variation would have no impact on the value of the neighbouring properties, nor would the proposed dwellinghouse have any material impact. The evidence of Mr Carmichael should be preferred, he being the surveyor with greater local experience and his investigations having been of greater scope. Mr Hutchison, it was said, had been provided with very little information about the proposed development, and Mr Rae appeared to have proceeded on the basis of negotiation of a compensation payment for waiver; and it was agreed that the properties would remain desirable and should be marketed at the same price. The site, being a separate plot, lent itself to development and there was extensive shielding from adjacent properties. An application for full planning permission in accordance with the plans produced was likely to be favourably received and it was Mr MacDonald’s intention to proceed in accordance with these. The planning authority would take into account the possible impact on neighbouring properties and the scale of the building. The proposed development was sympathetic to its surroundings and of high quality. If variation were refused, the applicants would lose the opportunity of selling the subjects. The occupiers of Ardgryffe would not be prevented from using their property as at present. Any impact on St Ronan’s was at its highest de minimis. The gardens of these properties could be overlooked from neighbouring properties. The additional garden ground was both a separate area and also a burdensome adjunct to the applicants’ properties. The Tribunal could be satisfied that any property constructed would be materially the same as shown in the plans produced.
[15] Mr MacColl submitted that in the application of Sections 90, 98 and 100 of the Act, the Tribunal had to weigh the various factors set out in Section 100 and, taking them all into account so far as applicable, decide whether, on balance, the variation sought would be reasonable (George Wimpey East Scotland Limited v Fleming, at 10L-11A). Significant weight would be given to factor (f), the purpose of the title condition (Ord v Mashford, at 20H-L).
[16] Mr MacColl submitted that while the purpose of the conditions was relatively plain, viz. to seek to prevent development other than minor development for garden purposes, the variation would not give rise to material detriment to the benefited proprietors and refusal would be significantly prejudicial to the burdened proprietors. On factor (a), there had been significant changes in social mores since 1962, with the result that it was now problematic to have such a large garden area (beyond the original gardens of the applicants’ properties) and unreasonable to maintain the burden. The burdens conferred no true benefit on the benefited proprietors (factor (b)), because the presence or absence of the conditions would not have any material impact on their value and an additional dwellinghouse would not adversely affect their amenity or result in any true diminution of their value. Nor did the conditions provide any greater material enjoyment, any impact on that being de minimis. The neighbouring properties would not be overlooked in any material fashion. The test of interest to enforce the burdens would not be met (section 8(3)(a) of the Act). Factor (c) also weighed in favour of the application, because the burden impeded the applicants’ ability to sell their additional parts of their land for legitimate purposes for which there was planning permission, with both a financial impact and the ongoing enforced joining of an area of land seen as undesirable. Factor (d) was not relevant. The burdens had been created over 47 years ago (factor (e)): this factor generally favoured the applicants as there had been more than ample time for the original parties to have departed. Factor (g), the planning consent, plainly also favoured the applicants, and although it was only outline consent additional substance could be taken from the evidence of the designs which would form the basis of the full application which, on the evidence, the planners were willing to entertain. The conditions already imposed should provide some comfort for the respondents. The authority would take account of the potential impact on neighbours when considering full permission. On compensation (factor (h)), on the evidence of Mr Carmichael, there was no justification for any award of compensation. Factor (i) did not apply. Some additional matters should also be taken into account (factor (j)): Mr MacDonald’s intention to develop in accordance with the plans shown; the sympathetically designed building of architectural merit, adding to the local built environment, would not be constructed if the burdens were maintained; and the development would be in a discrete plot, with the original wall and boundaries remaining in place.Weighing all these factors together, it would be reasonable to vary the burden as suggested.
[17] Mr MacColl’s submissions did not expressly cover the respondents’ alternative claims of compensation, but it is clearly implicit in the applicants’ case that the respondents would not suffer any “substantial loss or disadvantage” (section 90(7)(a)) in consequence of the variation sought.
[18] Ms Joughin’s submission for the first respondents started by pointing out that the applicants did not seek to be tied to any particular design or location (other than the condition in the outline planning consent in relation to the front building line). Ms Joughin submitted that the purpose of the burdens went further than merely to prohibit development other than as garages and garden ground. The two deeds expressly narrated the purpose of “providing and being used as amenity ground” by and for the benefit of the proprietors of the respective adjoining feus and dwelling houses. There was evidence that the seller had been willing to sell the land for less than might have been obtained for it as building plots because his neighbours, the six feuars at the time, wished to ensure it was not built on: specific arrangements had been made to create the burdens preserving the appearance of the ground above their houses as essentially garden in nature. Only garages or garden buildings, of one storey only, not particularly imposing and not to be lived in, were allowed, so that the houses benefited would retain their secluded rear aspect of trees and shrubs despite their being in the middle of a village or small town. The respective adjoining feus were specifically referred to as benefited. The ground rose sharply to the rear of the houses and there was a clear intention to protect the existing privacy and visual aspect, particularly where two-thirds majority approval of permitted garages or greenhouses was required. It would not be possible to build a house on any one of the strips. The purpose remained relevant.
[19] In Ms Joughin’s submission, it was important to note that none of the houses in Bridge of Weir Road culminating in Dalveen were built on the land acquired in 1962. Any effect of Dalveen on any of the houses was irrelevant. All the other benefited proprietors objected and clearly still appreciated the protection, privacy and outlook. It should not be assumed that owners of the applicants’ houses would necessarily find that less important now. Reference was made to the terms of the other three objectors’ representations. Dr Teasdale had made clear that they were aware when purchasing Ardgryffe of the protection of the ‘double feus’ and considered this valuable. The seller had been a party to the original agreement and had himself relied on the protection, as had Mrs Crean.
[20] Ardgryffe, it was submitted, would be the property most affected. The proposed plot lay partly behind Ardgryffe. The mock-up photograph gave an impression of how the house would appear from Ardgryffe. Building any two storey house would result in material detriment to the respondents’ enjoyment of their property. This was confirmed by the valuation evidence, which the Tribunal should accept, of Mr Hutchison and Mr Rae.
[21] Ms Joughin accepted that, but for the burdens, the proposed use of the property would be legitimate and reasonable, but submitted that it would not be reasonable to grant the application. The Tribunal had to balance the relevant considerations. She submitted that there had been no real change of circumstances, diminution in the demand for large gardens being not really to the point, as the burdens were about securing privacy and an unbuilt aspect. On the evidence, upkeep was not difficult or particularly expensive. The gardens gave extensive areas for children or pets. The benefit to the respondents’ property had been clearly spoken to. It should not be assumed that any of the present trees within the subjects would be preserved; the plans included large amounts of white render and glass windows and doors; and the fact that the respondents would be able to continue to use their houses and gardens was not the whole point. On the extent to which the burdens impeded enjoyment of the applicants’ properties, although they prevented the owners profiting from a sale, the burden would enhance enjoyment of the burdened property for many. Benefit to the purchasers of the new house should not be given any weight. Any additional costs of upkeep were not excessive. It was noted that the applicants did not rely on factor (d), the practicality or cost of complying with the condition. The length of time since the condition was created was not very long and there had been no significant change. On factor (g), while the outline planning permission was relevant, the conditions attached did not particularly help the owners of Ardgryffe. There was no indication of the dimensions of any house, and even if the Tribunal accepted indications which were to be given at the site inspection of the location, this was not necessarily where the house would be positioned. The house would probably be two storeys, facing west and with at least one balcony. The applicants were not offering any compensation. As to other material factors, it was of minimal relevance that the walls between the original gardens and the additional feus would be retained.
[22] Ms Gordon’s submissions on behalf of Mrs Crean on the merits were along very similar lines, with some elaboration of her position. The large garden and its privacy had been very important factors in her decision to purchase St Ronans. The privacy was of financial value and worth something to her. She had learned of the burdens before offering to purchase her property. She and her late husband had further exploited the privacy and enjoyment of their garden by erecting at considerable expense a large, frequently used conservatory enabling longer enjoyment of the garden from the house. They would not have done so had they known it would ultimately be overlooked. The proposed house, being white and of an imposing one-off design and out of character with the style of surrounding houses, would stand out. No satisfactory explanation had been given as to why so much glass and so many balconies, facilitating views including that of St Ronans and its garden, were necessary. Particular reference was made to the opinion of Mr Hutchison that there would be a reduction in the value of St Ronans on the basis of overlooking.
[23] In relation to the alternative compensation claim, Ms Joughin acknowledged the difference between loss as a consequence of the variation and loss as a consequence of building the proposed house, but, on the evidence, the likelihood of planning permission being granted for the proposed house meant that the likely result of the variation sought was that the house shown on the plans, or at least a two storey house of some sort, would be built. The opinions of Mr Rae and Mr Hutchison could be seen as reasonably held and giving a reasonable indication of what the actual loss would be as a result of the conditions being varied to allow such a house to be built. Their views were convincing and well reasoned. A sum somewhere between their figures of £30,000 and £50,000 would be appropriate for this loss of value, and, considering also the disadvantage to the respondents in relation to their own enjoyment of the property, compensation of £50,000 would be reasonable. It was stressed, however, that the respondents’ primary position was that they opposed any variation.
[24] Again, Ms Gordon’s submissions on behalf of Mrs Crean were similar. She referred to Mr Hutchison’s January 2008 figure of £15,000. His view was if anything conservative and should be preferred to that of Mr Carmichael. Again, Mrs Crean’s primary position was stressed.
[25] The legal approach, applying sections 98(a) and 100 of the Act, to the issue on the merits of this application is not in dispute and is as Mr MacColl’s submission summarised it. The Tribunal’s own inspection at the locus is particularly important in cases of this nature, as the parties clearly appreciated.
[26] We did at first wonder whether it might be difficult for the applicants to satisfy us that it would be reasonable to grant the application, when they were only seeking variation on the basis of an outline planning consent. The result of granting the application would be to allow them to build any two storey house for which they could get full planning consent. It is understandable that burdened proprietors may consider it appropriate to try to achieve variation of the burden before undertaking the full planning application, but this can sometimes be to their disadvantage in contested applications to the Tribunal, particularly where they are seeking, in the face of a building restriction in the titles, to develop on what may be seen as a sensitive site.
[27] In this case, however, on the material before us, we think that the applicants have provided a fair basis for our consideration of reasonableness. The application plainly relates to only one house. The applicants produced detailed, although no doubt not quite final, design plans and elevations, and they limited their application to a two storey house, a condition not actually included in the outline consent. We can accept the evidence of Mr Hogan and Mr MacDonald as credible and reliable in relation to the intentions. Bearing in mind particularly the topography of the site, we think that we can safely take the view not only that this is what is intended but also that its location will not materially change. It appears to us highly unlikely that any significantly more imposing two storey dwellinghouse would be likely to be contemplated or, if it were, to achieve planning permission. The theoretical possibility of some other proposal falling within the variation does not therefore appear significant. We can, as the applicants invited us to do, consider the reasonableness of the application on the basis of the plans produced. At our inspection, the applicants had helpfully staked out the position of the proposed house, in line with the plans and elevations produced.
[28] As an important if not crucial part of our decision, we have to decide, on the basis of conflicting evidence and our own look, both from the site itself and from the relevant parts of the respondents’ houses and gardens, whether the proposed house impacts on the amenity of the respondents’ houses, and if so, to what extent. We can take an objective view, distancing ourselves from the natural feelings of both sides. New houses do, to an extent, gradually blend in with their surroundings, and prospective purchasers, for example, may be very much less worried by a neighbouring building than those who have been involved in the dispute as to whether it should have been built. However, the question also involves consideration of the situation as it is and could reasonably be contemplated to be under the burdens as they stand.
[29] The drawings show a large, imposing house erected over both the applicants’ present rear gardens, which occupy a considerably elevated site and are also not simply straight extensions of the original gardens but are slightly angled towards the side of the neighbouring houses Ardgryffe and St Ronans. The proposed roof ridge is approximately 15 metres above the ground level at the rear of these two houses. The eaves height at its highest is some 7.5 metres and the ridge height nearly 10 metres. The house and garage have a large footprint. The design involving in particular large areas of white finish also contributes to our view as to the impact of the house. It is interesting that Mr Carmichael appeared to have formed his views on an assumption, which he thought worth mentioning, that planning would require a stone and brick outer wall and slate roofing. We make no criticism of the design, on which there were, as might be expected, conflicting views. We can accept that it might very well be regarded by many as an attractive architectural design which would contribute to the built environment, but we are here considering its impact on an existing green environment.
[30] There are, however, several trees and bushes both on the subjects and in the respondents’ gardens, so that there is certainly a degree of natural screening to be considered. There was a slight suggestion on the respondents’ part, at least in evidence, that screening, including existing screening, within their properties could not be relied on, but we would reject that as an unrealistic approach: the respondents plainly wish to maintain the current attractive natural look, to which trees and bushes contribute, of their own gardens as well as of the subjects. If the house were built, the respondents could indeed grow more natural screening, but that would both take time and necessarily involve substantial loss of light if it were to come close to screening all or even much of the proposed house.
[31] Two substantial trees in the middle of the subjects would clearly go. We can accept that two or three trees at the corner nearest Ardgryffe would likely stay, even although that does not yet appear to be guaranteed by the conditions of the present consent. There would also doubtless be low screening along the boundary. In our view, however, it is very unlikely that the chestnut tree within just a few feet of the corner of the proposed house would be retained. Mr Hogan fairly conceded in evidence that while it was wished to keep it, advice on that had not been obtained and he could not be sure that it would remain. We think that it may well be too close to the proposed house to stay.
[32] We did not have the advantage of being able to view from the proposed first floor height, as three of the applicants’ witnesses had had when the scaffolding tower was erected. It is perhaps unfortunate that no-one on behalf of the respondents was offered that opportunity. We did, however, see a panorama photograph taken on that occasion. The respondents apparently did not believe that this photograph could have been taken from that point. We accept that it was, but we also note that it is of such a wide angle, in our view very considerably wider than the eye naturally sees, as to give a misleading impression. It inevitably made features such as the respondents’ houses and conservatories, to the extent that they could be seen through the trees, appear much further away than they do to the natural eye.
[33] We did have the advantage, which no-one who gave evidence at the hearing had apparently taken, of being able to look from both, or rather all, locations. It would in our view be very difficult to form a reliable impression of the impact on the respondents’ properties without looking from within them and from their gardens. We were able to compare the respondents’ two ‘mock-up’ photographs, based (although not completely accurately) on the applicants’ plans, with what we could see from the same locations. Making allowance for the omission from the photographs of some of the screening which might be retained, and the addition of one or two items not shown in the drawings, we felt that these photographs did give a fair impression of how the new house would appear from Ardgryffe.
[34] We felt that the ‘overlooking’ aspect was somewhat exaggerated by the respondents, particularly Mrs Crean, although no doubt there would be some feeling of that, particularly with the balconies and terrace. The house would be angled slightly away from these other houses and there would not be overlooking windows to the side.
[35] However, we reached a clear view that the proposed new house would impact very considerably on the amenity of Ardgryffe and, although less, also substantially on the amenity of St Ronans. In our view the considerable mass of the house, on this higher site, would have a large impact. Even allowing for a seasonal difference, the impression from the scaffolding photograph of almost complete screening by trees does not accord with what we found: there are indeed several trees, but there are also substantial gaps through which the house would appear very prominently in view. The proposed house is itself large and high, and the sloping site adds to the impact. Dalveen can be seen from the respondents’ houses, but it is so much further away as to form a very minor part of the visual aspect.
[36] The present outlook to the rear of the respondents’ houses, from which Dalveen and also (on the other side of Bridge of Weir Road) Drumadoon can just be seen, is predominately of a most attractive, quiet and private green environment made up by the gardens protected by these mutual burdens. Bridge of Weir Road is so much higher and screened by trees as not to be visible at all. The proposed house would remove that environment on one side, substituting a dominating, close building for a significant part of the present immediate surroundings.
[37] It follows from this that we were not persuaded by Mr Carmichael’s evidence. We were slightly surprised by his view that the proposed house would have no detrimental effect whatsoever on the respondents’ properties. He seems to have been of the view that there was, or might be expected to be, adequate screening. He referred to the possibility of more trees being added if necessary, but we do not consider that that could be assumed, certainly not on such a scale, or within such a timescale, as to provide a reasonable answer to the respondents’ concerns. We felt that Mr Rae and Mr Hutchison gave a much more realistic view, which accords with our own after considering the plans and elevations and spending some time assessing this from various viewpoints. It may be very difficult to put a figure on effect on value, but we are in no doubt that the proposed house would have a considerable detrimental effect on the amenity to the rear of, in particular, Ardgryffe. Ardgryffe has only a small front garden bordering on Duchal Road and the amenity setting of its back garden, on which its conservatory also capitalises, seems to us to be an important positive feature of the property. While the same points apply to St Ronans, we think that the impact on its favourable amenity is considerably less, but still substantial.
[38] We also agree with Mr Rae and Mr Hutchison that the owners of Ardgryffe and St Ronans would suffer reductions in the values of their properties if this application were granted. As Mr Rae put it, this protection against development to the rear is just one of a number of features which combine to create the value of these houses. They would clearly remain attractive houses in a very good residential location, and they would still of course have the use of their own extended gardens. However, we think that the major compromising, by a house of the proposed size and design, of the attractive green space to the rear of the houses would have a substantial effect. This is not just the possibility of neighbouring development. There is outline planning consent; there are conditional missives; and there is a clear intention to proceed to build the house shown, at least approximately, in the plans and elevations produced.
[39] In answer to a question in cross-examination, Mr Carmichael introduced, for the first time, into his consideration of the effect on the values of the neighbouring properties the suggestion that the precedent might confer some positive additional value from the prospect of similar development. This, however, almost certainly depends on the prospect, in each case, of a neighbour joining in the enterprise. Given our views as to the attraction of the existing situation, this seems highly speculative. The assumption that planning consent would be obtainable seems reasonable, but it involves the further assumption that these burdens (which would still arguably apply to Ardgryffe and St Ronans if this application were granted) could be overcome, which could not necessarily be taken for granted. Further, allowance would have to be made for the likely effect on the values of the existing houses, which would clearly not only lose most of their back gardens but also suffer serious losses of amenity. We are not persuaded that there would be such a ‘hope’ value of any significant amount in the particular circumstances.
[40] Assessment of the reduction in value caused by removal of one of a number of composite positive features of a property is extremely difficult. Even if there were comparative evidence supporting such an effect, it would be difficult to isolate the amount. There was mention of the positive effect, adding to the value, in the case of a modern estate to which a protected amenity area had been added. That only assists in a very general way. Even accepting that there is such an effect, as we do, the exercise is speculative. It did appear to us that Mr Rae was using his experience of payments made for waivers rather than attempting the more difficult exercise of assessing the reduction in value. We did, however, find Mr Hutchison’s evidence on this reasonably satisfactory. He had viewed both properties, and in fact given opinions on the reductions in value of each, in January 2008, when there had been no detailed plans. He recognised the theoretical relevance of the ‘hope’ value caused by the precedent. Basing his assessment, very broadly, at 3% for St Ronans and 6% for Ardgryffe, he had suggested a reduction at that time, in the case of St Ronans, from £565,000 to £550,000, and in the case of Ardgryffe from £550,000 to £520,000. The capital figures would clearly have been affected by the subsequent downturn in the market, as to the extent of which, in relation to these properties, there were competing views. Recognising also that things had moved on in relation to the plans, we find ourselves in broad agreement with Mr Hutchison’s percentages involving this differentiation between the two properties. In such an imprecise matter, we are content to proceed on Mr Hutchisons’s figures of £30,000 and £15,000. These are clearly substantial sums which are relevant to the merits of the application, as well as to the amount of compensation if it arises.
[41] We do agree, as the respondents also acknowledged, that the proposed house would, but for the condition, represent natural development (albeit somewhat on the large side) on an obvious residential site. The pattern of development in that locality would certainly have led one to expect probably three houses on quite substantial plots in the area which had previously been part of the Drumadoon property although separated from it by the road. This small green area runs against the pattern of development. That of course is because of the agreements entered into in 1962 involving, crucially, the mutual real burdens. We are not at all surprised that at least outline planning consent for a house has been granted. Private title conditions are not considered relevant to planning applications. Further, although the planners do consider the impact on neighbours, they tend to consider specific issues of overlooking or overshadowing in accordance with planning guidance which may well not prevent a grant of full planning consent in this case.
[42] The context of an application of this kind is different, so that a grant of planning permission, while certainly confirming that a proposed use is, in a general sense, reasonable, and therefore favouring the applicants, may carry relatively little weight. We have to consider the list of factors set out in section 100 of the Act.
[43] The purpose of the title conditions (factor (f)) is often an important starting point. In this case, we generally accept the respondents’ submissions on purpose. It is not always easy to discern the purpose, as opposed to the meaning and effect, of title conditions, from the actual provisions, particularly in older deeds preceding the jurisdiction to discharge or vary title conditions. In the present case, however, the purpose of protecting the private amenity of the owners of the houses to whom the strips of land acquired from the owner of Drumadoon were allocated, is clearly spelt out, as is the intention to benefit those owners. Apart from these express provisions, it would be clear from the detail of the provisions that the purpose was to bind owners, including subsequent owners, into the prohibition of residential development, with each owner having a right of veto: the superior was not to withhold consent to such development unreasonably, but each owner had the absolute right to do so. Similarly, the use restriction, to use as garden ground, was enforceable by any of the other house owners. Further, although some erections – garages, greenhouse, etc. – were permitted, approval of their style, character, materials, dimensions and siting, was required from a two-thirds majority of the owners and the superior, i.e. at least three (arguably four) other owners would require to agree these specific details. These clear and detailed provisions can be contrasted, for example, with the type of general building restriction which could often be seen as being in the nature of a general planning restriction conceived substantially in the interests of the superior or developer. In this case, there is no discernible purpose of benefit to the superior.
[44] It was obviously a central part of the 1962 arrangements that the land was divided among six house owners and added to their gardens, and we should not forget that the respondents would not lose any of their gardens if this application were granted. However, the burdens went beyond that in ensuring that none of the owners would interfere with the character of this land or use any of it as anything other than garden space. It is perhaps unusual to come across arrangements so clearly applicable to, and in the interest of, all the owners. No doubt the owners at the time appreciated the benefit, which they had already enjoyed without any entitlement, of this higher area of ground, overlooking their houses and gardens, remaining undeveloped.
[45] There is nothing to suggest that this clear purpose could not still be fulfilled. However, we of course have to consider the various other factors which bear on question whether it is reasonable now to override it to enable the applicants now, in effect, to remove their properties from the scheme entered into in 1962.
[46] We do not consider that there is any significant change of circumstances (factor (a)) which would favour the applicants’ position. We can see no change in the characters of the benefited properties, except that at least Ardgryffe and St Ronans have incorporated and developed the strips allocated to them in 1962 into attractive terraced gardens and also built conservatories which take advantage of the outlook, including over the subjects, to the rear. Nor is there any change in the character of either the burdened properties or the immediate neighbourhood. There has been one sub-division among the six houses, and a sprinkling of more modern buildings in the wider area of this part of the town, but no real change in its residential character or in the density of development. There is a conservation area on the other side of Bridge of Weir Road.
[47] The applicants, however, rely under this head on what they describe as significant changes in social mores, rendering such large gardens problematic. We accept that considerations of this kind, although more general and therefore likely to be of less weight than changes in the character of the particular properties or neighbourhood, can be relevant under factor (a). However, we are not persuaded that changing attitudes to larger gardens amount to a change of circumstances of any weight at all in this particular case. The argument was based on Mrs Scott’s evidence alone. She told us that she regarded the additional garden added in 1962 as a liability. We can appreciate that is a view which some might take, and we accept that it came to be her personal view. We also accept that gardens generally have tended to get smaller. Looking at the matter objectively, however, we think that at this particular location the garden would not be regarded as abnormally large and would be seen by many as a positive attraction compared with having another building on the elevated site. None of the three surveyors offered any support for Mrs Scott’s view. Mr Rae said that he would not advise that this was an adverse factor and that privacy and private space were high on the list of purchasers’ demands. The evidence suggests that the other owners at this location value this extra space. Mossyde is the end house in the row of six and its original garden, both to the front and at the rear, was larger than those in the middle of the row, so that the benefit of the building restriction might be more limited than to Ardgryffe and St Ronans. However, the owner of Mossyde in 1962 must have considered the arrangements to be of benefit and we are not persuaded that this factor should count as a change in circumstances bearing on the issue of the reasonableness of an application to remove this protection from the other owners’ titles.
[48] Our finding in relation to the impact on the amenity of Ardgryffe and, to a lesser extent, St Ronans, leads us to the view that the burdens confer on the benefited properties the very considerable benefit of protection from residential development within the area which was the subject of the 1962 agreement (factor (b)). That can be seen both as a protection against the impact on resident owners and also as protection against a reduction in value of their properties. As we have indicated, we do not accept Mr Carmichael’s view that the proposed house would have no detrimental impact on the amenity of Ardgryffe and St Ronans. We are also, as we have said, in clear agreement with Mr Rae and Mr Hutchison that there would be a substantial negative effect on value. The benefit to the owners of the other three houses, The Loaning, Rhencullen and Ainslie is clearly not so strong. Nevertheless, there is the indirect benefit to all the owners of protection against setting a precedent of development, although we are not so sure that this would have any effect on the monetary value of these other properties and indeed that has not been specifically suggested.
[49] The burdens clearly also considerably impede the enjoyment of the burdened properties (factor (c)). But for the burdens, the applicants would be free to sell these two areas of garden ground which, together, form a natural building plot in relation to which there is a grant of outline planning consent. In answer to a question by the Tribunal, Mr Rae gave an approximate figure for a serviced residential plot in Kilmacolm of £150,000 and said that the slope on the site would not cause major development problems. Any value of these two areas subject to the burdens would presumably be minimal. We accept that this is a relevant factor of some weight. We do not, however, consider that the burdens are particularly burdensome apart from this loss of development value.
[50] Factor (d) was not relied on. Factor (e), the length of time since the condition was created, raises an interesting issue in this case. The length is 47 years, but how does that fact on its own, i.e. where it is not accompanied by any significant changes of circumstances, impact on reasonableness? The period is neither particularly long nor particularly short. The burdens were clearly expressed as, and intended to be, permanent and were not simply contractual, but of course that is generally the position in these cases. The applicants point out that none of the original parties to the 1962 agreement any longer owns any of the properties, and it might be suggested on the basis of the letter from Martin Stead, son of the owner of Drumadoon who sold the land in 1962, that this was in the nature of a neighbourly agreement among friends, making it reasonable after an appropriate period of time, and after all the original owners had left, to bring it to an end. However, Mrs Crean and her late husband purchased in 1967, not long after the agreement. The Teasdales bought (in 1994) from one of the original owners, a Mr McDonald, who evidently referred to the 1962 arrangements when they were viewing. Professor Teasdale said that this was an important factor in their purchase, and we accept that. There was also some evidence of some reliance on the burdens in 1991 when one owner was thought to be marketing part of this area. In our view, in the circumstances of this case, the burdens are not so old as to be a factor pointing to the reasonableness of the application. To the contrary, this factor appears to us at least slightly to favour the respondents: if there should be any reasonable time limit in such circumstances, on which we reserve our opinion, we think that it is some way short of having been reached in this case.
[51] We have considered factor (f), the purpose of the burdens, above. Since it is very clear and also clearly still capable of being fulfilled, we regard it as strongly favouring the respondents’ position.
[52] Factor (g), on the other hand, favours the applicants. There is outline planning consent. It is in general reasonable to build a house on this site. That should be slightly qualified by recognising that the particular proposal has not yet been approved by the planning authority. Although we accept the evidence that the planners appear generally happy with it, neighbours’ objections to the particular plans have not been considered. The limited relevance of this factor, particularly where the private title condition clearly goes well beyond, indeed departs from, normal planning guidance, must also be recognised. We are asking a very different question, in the context of these particular title conditions, from that asked by the planners, for whom the title conditions have no relevance.
[53] Although the applicants are not apparently willing to pay compensation (factor (h)), we regard this factor as neutral in this case. If we were to find in the applicants’ favour and award compensation, they would have to pay that or give up their application. Inclusion of this factor in the statutory list does illustrate the clear position that a discharge or variation may be held reasonable under the statutory test even although it will cause some substantial loss or disadvantage.
[54] Factor (i) has no application. In relation to the other factors invoked by the applicants (factor (j)), firstly, we accept that it is Mr MacDonald’s intention to develop in accordance with the plans shown to us. This slightly strengthens factor (c): the applicants are prevented by the burdens from proceeding with a real concrete proposal which otherwise appears very likely to come to fruition. It also underlines the reasonable certainty as to the result which would follow from granting the application. Secondly, however, we are not sure that it would be right for us to take a view on the architectural merit of the proposed house, or, if we did and agreed that it was a sympathetically designed building of architectural merit, that it would add much to our finding that it is quite clearly in itself a reasonable proposed use of the land. We appreciate the consideration that there is a general demand for housing and accordingly permitting a house to be built on this site is a reasonable use, but an aesthetic preference, not shared by everyone, for a strong modern architectural design does not, as it seems to us, add to the case of reasonableness under section 98, at least in a case of this nature where the title condition reflects private rather than public interests. Thirdly, again, we do not think that the existence of some of the original Victorian boundary walls adds to the applicants’ case. We have already noted that this is a natural separate plot which, but for the burdens, would be entirely suitable for residential development.
[55] Having considered these factors, we must weigh up the issue of reasonableness, considering the relative importance of each factor in the circumstances of this case. Doing so, we regard the purpose of the burdens as particularly important in this case. It is very clear and remains capable of fulfillment. The application, although only for variation, would in our view “drive a coach and horses” through it. The burdens afford substantial benefit to the respondents, who are all five other proprietors in a scheme which gives each of them the right to veto residential development and use of this land. We have found no significant change of circumstances favouring the reasonableness of the application. We have also taken the view that in the case the burdens cannot be said to be so old as to make it reasonable to cast them aside. We have considered the extent of the burden on the applicants, the outline planning consent and the fact that the proposed development would, at least in general terms, appear reasonable but for the burdens. If the application is refused, the applicants will not be able to realise the development value which this strip of ground would have but for the scheme of mutual burdens.
[56] We have also considered whether, although we accept that the variation sought would result in substantial loss or disadvantage, it would be reasonable to meet that with an award of compensation. The applicants understandably did not advance the argument this way, because their case was that there would be no loss or disadvantage to the respondents. The legislation, however, clearly envisages such an approach in an appropriate case. It is sometimes appropriate in relation to a proposal to build a house, or perhaps a substantial extension, in the face of a title restriction, even where, as in this case, the benefited proprietors make clear their primary position that they wish the application refused. In this case, however, we consider that the impact of the proposed house on at least the owners of Ardgryffe and St Ronans would have such an effect on their enjoyment of their properties that it would not be reasonable simply to compensate them with a monetary award. In our view, weighing up all the relevant factors, these owners are reasonably entitled to keep the protection against the applicants’ proposal to build a large and high house on this elevated site.
[57] We are not satisfied that this application is reasonable. It will be refused.
[58] Had we been granting the application, we would have awarded compensation to both Professor and Dr Teasdale as owners of Ardgryffe and Mrs Crean as owner of St Ronans. In her submissions, Ms Joughin recognised that Mr Rae’s figure of £50,000 for the reduction in value was somewhat in excess of that of another valuer, but nevertheless submitted that £50,000 would be appropriate, so as to include something, in addition to the reduction in value, in respect of the disadvantage which the Teasdales would suffer in their own loss of enjoyment of their property. We would not have endorsed that approach, and would have awarded £30,000 to these respondents, in line with the views expressed above, and £15,000, the amount submitted for, in the case of Mrs Crean. We note that the other respondents had not submitted such claims, although it might not have been too late for them to do so if they considered that they could quantify any relevant “loss or disadvantage” suffered by them as owners of benefited properties by reason of the variation granted.
[59] Finally, we would mention that any issue in relation to expenses can be disposed of on the basis of written submissions in accordance with the Tribunal’s normal practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 22 December 2009
Neil M Tainsh – Clerk to the Tribunal
Feu Disposition by Geoffrey William Stead to David Peebles Brown and his heirs and assignees, recorded G.R.S. (Renfrew) 29 Jun.1962 (“the first deed”, as expressed in the Opinion):
“(First) Whereas the said piece of ground has been purchased from me for the purpose of providing and being used as amenity ground by and for the benefit of the proprietors of the respective adjoining feus and villa dwellinghouses thereon bounding the said piece of ground on the west-south-west and south-west (the said proprietors being hereinafter for brevity referred to as "the said respective adjoining feuars") and has been or is about to be partitioned and conveyed in separate portions to the said respective adjoining feuars in accordance with an agreement made amongst themselves so that each of the said respective adjoining feuars will acquire and become possessed of a portion of the said piece of ground situated adjacent to their respective properties, it is hereby provided that the only buildings which the Vassals shall be entitled to erect on the said piece of ground hereby disponed and the respective portions thereof into which the same has been or is to be partitioned as aforesaid, shall be private Garages, and if desired by any of the said respective adjoining feuars, a Greenhouse, summer-house and Garden Hut or Garden Tool-house, all for the use only of the said respective adjoining feuars, and all such as are usually attached to or used in connection with private dwellinghouses, and no further buildings or erections other than the said garages, green-houses, summer-houses, garden huts and garden tool-houses, shall be placed on the ground without the consent of the superior and the said respective adjoining feuars, which consent of the superior, however, will not be unreasonably withheld; (Second) The Vassals shall keep the piece of ground hereby feued suitably enclosed along the boundaries thereof except so far as may be necessary for purposes of access and egress to and from the respective portions into which the said piece of ground is to be partitioned as foresaid, and to and from the said Garages and others and except also along the south-south-east boundary thereof where no boundary enclosure is required, with walls or fences or other suitable enclosures; (Third) It shall be not lawful to the Vassals to occupy or to convert the foresaid buildings or erections or any part thereof for use other than garages, summer-houses, garden huts and garden tool-sheds as aforesaid and in particular they shall not be occupied or converted into manufacturing premises of any kind or for any purpose which may be deemed a nuisance or which may injure the amenity of the neighbourhood for dwellinghouses or otherwise.”
Feu Disposition by David Peebles Brown to Andrew Baker and his heirs and assignees, recorded G.R.S. (Renfrew) 31 Oct. 1962 (“the second deed”, as expressed in the Opinion):
“The said subjects have been purchased and acquired by me for the purpose of providing and being used as amenity ground by and for the benefit of the respective adjoining Feuars and their respective adjoining Feus and the Villa dwellinghouses thereon, which adjoining Feus are situated bounding the said subjects on the west-south-west and the south-west, and the said subjects have been or are about to be partitioned and are to be conveyed in separate portions to the said respective adjoining Feuars so that each of them will acquire and become possessed of a portion of the dominium utile of the said subjects situated adjacent to their respective Properties; AND CONSIDERING that in addition to the conditions, obligations, restrictions, prohibitions and others specified and contained in the said Feu Disposition in Entry 3 of the said subjects, it has been agreed by and among the said respective adjoining Feuars, who have requested me to arrange and provide, that certain further and additional conditions, obligations, restrictions and prohibitions shall be imposed on the said subjects and the respective portions thereof to be conveyed to each of them respectively, all as hereinafter set forth; (First) Whereas it is provided in the said Feu Disposition that the only buildings which the Vassals shall be entitled to erect on the said piece of ground shall be private Garages, and if desired by any of the said respective adjoining feuars, a Greenhouse, summer-House and Garden Hut or Garden Tool House, all for the use only of the said respective adjoining feuars, and all such as are usually attached to or used in connection with private dwellinghouses, and that no further buildings or erections other than the said Garages, Greenhouses, summer-Houses, Garden Huts and Garden Tool Houses shall be placed on the said piece of ground without the consents therein mentioned, it is hereby further provided and declared that the said Garages, Greenhouses, Summer-Houses, Garden Huts and Garden Tool Houses which may be erected on the said piece of ground and the respective portions thereof into which the same has been, or is to be, partitioned as aforesaid, shall be of such style and character and of such materials and dimensions and according to such designs, plans and specifications and on such sites and in such positions as shall be previously approved of in writing by a two-thirds majority of the Superior and the said respective adjoining Feuars which approval the Superior and the said respective adjoining Feuars shall be entitled to grant or to withhold until the same shall be amended to their satisfaction, all as the superior and the said respective adjoining Feuars shall think proper, and when so approved of, the said Garages, Greenhouses, Summer-Houses, Garden Huts and Garden Tool Houses shall be erected in accordance with the designs, plans and specifications and others so approved, and shall thereafter be maintained in good order, condition and repair, and no alteration or deviation shall be made from the designs, plans, specifications and others so approved, without the previous consent in writing of a two-thirds majority of the superior and the said respective adjoining Feuars, and when erected the same shall not be used for or converted into any other purpose than that for which they were originally erected as private Garages, Greenhouses, Summer-Houses, Garden Huts and Garden Tool Houses attached to and in connection with the respective Villa dwellinghouses belonging to the said respective adjoining Feuars by whom they were erected, to which use and purpose the same are hereby absolutely restricted in all time coming; (Second)The Vassals shall be bound as aforesaid to keep said private Garages and other erections on the said piece of ground and the respective portions thereof into which the same has been, or is to be, partitioned as aforesaid, constantly in good order, condition and repair, and in the event of the same or any part thereof being destroyed or damaged by fire or otherwise, the Vassals shall be bound to restore the same to their original condition within one year of such destruction or damage, and without prejudice to the foregoing obligation, the whole sums which may be received from the Insurance Company with whom they may be insured shall be expended at the sight of the Superior in rebuilding the same or repairing the damage, providing always and declaring that, in the event of the proprietors of any of the said Garages or other erections which may be destroyed or damaged as aforesaid not desiring to re-erect or restore the same after such destruction or damage, they shall be bound in that case to take down and remove the Garages or other erections so destroyed or damaged and to dress off and maintain the sites thereof in a neat and tidy condition and use the same as part of the unbuilt on or unoccupied ground hereinafter referred to; (Third) the said piece of ground and the respective portions thereof into which the same has been or is to be partitioned as aforesaid, so far as not occupied by the said Garages, Greenhouses, Summer-Houses, Garden Huts and Garden Tool Houses, which may be erected thereon as aforesaid, shall be used and occupied by the Vassals and the said respective adjoining Feuars, as garden, recreation and amenity ground only in connection with their said respective Villa dwellinghouses on their said respective adjoining Feus, and each of the said respective portions of the said piece of ground shall be kept constantly in good order and in a neat and tidy condition, and while the same or part thereof may be used for the growing of vegetables or fruit for kitchen-garden purposes in connection with the said respective Villa dwellinghouses, the same shall not be used or occupied or let for Market-garden purposes or as allotments, but shall be kept solely in the ownership and occupation of and for the use of the said respective adjoining feuars in connection with their said respective Villa dwellinghouses and not otherwise; And the said respective portions of the said piece of ground shall continue to be owned, occupied and used in connection with and as an adjunct to the respective adjoining subjects comprising the respective Villa dwellinghouses to which the same are respectively attached, and the same shall not be sold or disponed or used or occupied in whole or in part separately from or otherwise than in connection with the said respectively adjoining subjects comprising the said respective Villa dwellinghouses but shall continue in all time coming in the ownership, occupancy and use of the said respective adjoining feuars as aforesaid, providing always and declaring that in the event of any of the said portions of the said piece of ground being reacquired by the superior at any time through or in consequence of the operation or enforcement of the irritant and resolutive clauses and provisions hereinafter written or otherwise in any manner of way then and in that event the same shall be dealt with and disposed of in such way and manner and on such terms and conditions as shall be decided upon by a majority of the Superior and the Vassals, other than the defaulting Vassal; (Fourth) Whereas it is provided in the foresaid Feu Disposition that the Vassals shall keep the said piece of ground suitably enclosed along the boundaries thereof, except so far as may be necessary for purposes of access and egress to and from the respective portions into which the said piece of ground is to be partitioned as aforesaid, and to and from the said Garages and others, and except also along the South-South-East boundary thereof where no boundary enclosure is required, with walls or fences or other suitable enclosures, it is hereby further provided and declared that suitable mutual division fences of such materials, dimensions and design as shall be previously approved of by a two-third majority of the Superior and the said respective adjoining Feuars shall be erected along the boundaries dividing the said respective portions into which the said piece of ground is to be partitioned as aforesaid from one another, which mutual division fences shall thereafter be maintained and upheld in good order, condition and repair and when necessary renewed and thereafter maintained as aforesaid, and the expense of erecting and maintaining and renewing the said mutual division fences shall be borne by the proprietors on each side thereof at mutual expense; (Fifth) Without prejudice to anything hereinbefore written, but in corroboration thereof and in supplement thereto, it is hereby provided and declared that it shall not be lawful for, nor in the power of, the Vassals, to place on the said piece of ground hereby disponed, or on any of the portions thereof into which the same is to be partitioned as aforesaid, any erection other than the walls or fences enclosing the same and the said Garages, Greenhouses, Summer-Houses, Garden Huts and Garden Tool Sheds as hereinbefore specified and provided, and the said Garages and others, when erected, shall not be used or occupied as, or converted into, any commercial or manufacturing premises of any kind, nor shall the same be used for any purpose which may be deemed by a two-thirds majority of the Superior and the said respective adjoining Feuars to be a nuisance, and the said piece of ground hereby disponed and the said respective portions thereof, so far as not used and occupied for the erection of walls or fences and the said Garages and others as hereinbefore specified and provided, shall remain open and unbuilt upon in all time coming and shall be occupied and used as Garden, recreation and amenity ground only by the said respective adjoining Feuars as adjuncts to and in connection with their said respective adjoining properties all as hereinbefore provided and shall not be let, occupied or used for any commercial or other purpose whatever, and it shall not be lawful for the Vassals to deposit any dung or rubbish on the said piece of ground hereby disponed or do any act or thing which may be considered by a two-thirds majority of the Superior and the said respective adjoining Feuars to be objectionable to the neighbouring proprietors, or which may injure the amenity of the neighbourhood for dwellinghouses or otherwise; and the stipulations and prohibitions contained in this Article as well as the stipulations and prohibitions hereinbefore written, are hereby created real liens and servitudes in favour of the said respective adjoining Feuars as well as in favour of the Superior, with right to the said respective adjoining Feuars, or any of them, to enforce the said stipulations and prohibitions against the other respective adjoining Feuars or any of them.”
Certified a true copy of the Appendix to the decision of the Lands Tribunal for Scotland (Scott and others v Teasdale and others) intimated to parties on 22 December 2009
Neil M Tainsh – Clerk to the Tribunal