[1] This is an application under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003, the “Act” by the proprietors of an hotel for the discharge of certain conditions in a Feu Disposition dated 1965. The conditions required inter alia the erection or maintenance, if already built, of an hotel or single dwelling housealong with a restriction of use also to a single house or a hotel. The applicants considered the conditions to be unduly restrictive. They are considering the future of the property or its disposal both of which might involve other uses which would not be permitted under the terms of the title restriction. The application was opposed by the joint proprietors of a house lying to the rear of the applicant subjects as well as the owner of an adjacent house.
[2] The parties agreed to the Tribunal dealing with the matter by way of written submission followed by a site inspection.
[3] The Tribunal has decided that, having regard to the terms of the legislation it is reasonable to grant the application.
[4] The applicants applied to the Tribunal for a complete discharge of certain specified title conditions contained in the Feu Disposition granted by the Attorney and Commissioner for John Evans Bidwell and Others as Trustees under Disposition and Deed of Trust by the Duke of Portland, with consent, in favour of Paisley Whisky Company Limited dated 16 March and registered in the General Register of Sasines for the County of Ayr on 21 April both in the year 1965. The applicants’ own title, a Disposition recorded on 30 May 1990 includes reference to the conditions first imposed in the Feu Disposition of 1965. The application appears to assume that these conditions remain valid. We have considered it on that basis.
[5] The conditions for which they apply for discharge of are as follows:-
“(Primo) The said disponees shall be bound within the space of two years from the date hereof to erect and build so far as not already done and to maintain and uphold in all time coming on the feu a dwellinghouse or hotel of the yearly rent or value of at least double of the feuduty hereinafter stipulated and that upon a site or sites and according to the stipulations hereinafter specified and all to be approved by or on behalf of the said Trustees or their assignees or disponees before the same shall be begun to be erected; (Secundo) The said dwellinghouse or hotel erected or to be erected on the feu as aforesaid shall be of the following description, videlicet:- the whole external walls shall be built of stone or brick or concrete blocks or concrete in situ, and the roof shall be covered with slates or tiles or Western red cedar shingles of a nature, quality and colour to be approved by or on behalf of the said Trustees or their foresaids: (Tertio) No outbuilding or other additional building or erection of any kind whatsoever, whether permanent or temporary, (other than the walls and fences hereinaftermentioned) shall be erected or placed on the feu without the consent of the said Trustees or their foresaids: (Quarto) No buildings or erections of any kind whatsoever shall be begun to be erected on the feu or to be altered in any way whatsoever until complete plans and specifications (including, if requested by or on behalf of the said Trustees or their foresaids, ground plans, elevations, site plans, drainage and all other sanitary matters) showing the proposed erection or alteration and prepared and signed by a Registered Architect shall be approved by or on behalf of the said Trustees or their foresaids; and under all the ground floors of the whole buildings erected or to be erected on the feu there shall be a layer of undercoating impervious to water in all forms; and the whole buildings shall be finished in a substantial and tradesmanlike manner and to the satisfaction of the said Trustees or their foresaids; and no buildings or erections of any kind whatsoever shall be erected between the said street or road and the building line of the said street or road; (Septimo) the building erected or to be erected on the feu shall in all time coming be used either as one single dwellinghouse or as an hotel which may, if the said disponees so desire, be licensed for the sale of excisable liquors provided always that any such licence shall be restricted to exclude the sale of excisable liquors on Sundays, and it shall not be in the power of the said disponees to subdivide or alter externally or internally the said buildings so that the same may be occupied by more families than one except insofar as is consistent with the use thereof as an hotel or to allow the feu or any buildings thereon to be used for any trade or manufacture whatsoever other than the trade of an hotel or licensed hotel as aforesaid, or for any noisome, noxious or offensive work or operation or for a steam, gas, electric, oil or other engine or for any other purpose whatsoever which may be a nuisance to the neighbouring feuars, proprietors or tenants, and all nuisances shall, upon being declared such by the said Trustees or their foresaids or their solicitors or factor (any of whom shall have full power to determine what are nuisances), be discontinued or removed brevi manu and that at the expenses of the said disponees.”
[6] Notice was served on adjoining owners. Two objections were received from Mr and Mrs David McCann of 9 Wallace Avenue, Barassie, Troon; and from Mr Doodson, 24 Beach Road, Barassie, Troon. All parties were in agreement that the matter could be appropriately dealt with by way of written submissions followed by a site inspection by the Tribunal. Both objectors included in their notes of objection the reasons behind their stance and the applicants lodged Answers thereto. Neither objector sought to respond to these answers and the applicants (as well as the objectors) were content for the Tribunal to use the application, objections and answers as the respective submissions of the parties. An unaccompanied site inspection was made on 11 February 2010. An internal inspection was made of the applicant subjects as well as the first objectors’ house. By agreement no internal inspection was made of the second objector’s property. A full external inspection was made of the locus.
[7] The first joint objectors opposed the application “to the nature of the title condition being granted a change of use” on the grounds that the subjects provided the only local hotel, restaurant and pub in the Barassie area; on the increased traffic flow and noise in Barassiebank Lane outside the times (sic) of the Tower Hotel and Sandcastle Nursery; the increased traffic near a primary school; the obstruction of any views from the upstairs windows of their property; the reduction in the value of their property; the overlooking of their property by “numerous flats” taking away all privacy; the reduction of natural daylight at certain times of the day due to the scale of flats being proposed; if flats were to be built this would be out of keeping with the period properties and finally that it would cause the objectors to cease plans to build into the loft area as they would no longer have a clear view of Arran.
[8] The second objector’s representation related to the plan to replace the Tower Hotel with flats which would be “a great loss to the area as there is no hotel or bar for several miles plus the fact [that] the toilets have been close to the shore which is very busy with cars and holiday makers.”
[9] The applicants answered by pointing out that although there was no other hotel in the vicinity there are other hotels and pubs less than a mile away and within easy walking reach of the residents of Barassie; that any reference to the building of flats was not relevant as there is no current proposal for the erection of flats on the site; a planning application had been lodged with the local authority by a previously interested party but this had been withdrawn; other interested parties had proposed nursing home use and that the applicants have applied for outline planning consent for demolition and the erection of flats purely to determine whether such a development would be permitted; that references to traffic noise, being overlooked and other matters related to a possible flatted development would be dealt with by the Local Authority in connection with Planning and Building Warrant Applications. The subjects could still continue as a hotel with a letting out of part as a children’s nursery if a purchaser could be found; the viability of the hotel depends heavily upon the Licensing facilities, the income from which has reduced in recent years and finally that the availability of public toilets in the area had no relevance to the current application.
[10] The subjects for which the application has been made comprise a rectangularly shaped plot with an irregular southern boundary having frontage (facing due west) to Beach Road and a rear frontage to Barassiebank Lane. A part 1, part 2 and part 3 storey building, the latter of which is in the style of a square shaped, centrally positioned tower occupies part of the site. The single storey sections are on both sides of the 2 and 3 storey parts (which occupy the central part of the site) as well as projecting out to the rear. This latter section is occupied as a children’s nursery whereas the remaining single storey sections are used as restaurant and bar. There are 4 letting bedrooms and a manager’s suite in the central core of the building.
[11] The main part of the building and the northmost 1 storey wing appear to be at least 90 years old whereas the southmost wing and the rear extension may be no older than 40 years. The main part is built of stone and slate while the two more recent extensions are of brick or concrete block and have flat or low pitched roofs.
[12] There is car parking both to the front and to the rear with access to the latter from Barassiebank Lane. The building frontage is in line with the adjoining properties and in front of all of them is an area laid out in grass. Across Beach Road is a further area of open grass leading down to the beach. The Isle of Arran can clearly be seen out to the west (subject to weather conditions).
[13] On the East side of Barassiebank Lane there are former local authority houses now apparently partly in private ownership. They are 2 storeys in height and at least one has converted part of the roof space to accommodation with rooflights. The properties opposite the applicant subjects to the rear have frontages facing east and accordingly have their access from the next street east, Wallace Avenue. The rear gardens face west onto Barassiebank Lane. There is also a range of old lock-ups with access from Barassiebank Lane
[14] There are 2 blocks of flats close by. The nearest lies one plot removed from the applicant subjects to the south and appears to be of 1980s vintage. A much more recent block lies further to the south. Both blocks are 3 storeys in height and extend across virtually the entire frontage of the respective sites. They take vehicle access from Barrassiebank Lane and both have lock-up garages provided.
[15] We have made the following findings in fact from our site inspection.
[16] Barassie is a residential area lying immediately north of Troon. There is no discernable boundary between the two townships. Within Barassie there is only one convenience shop, a newly built primary school and the hotel which is the subject of this application. It provides the only public house and restaurant within the township. The remainder of the township is residential in nature with older properties nearest to the sea and more modern development to the rear. Troon has an extensive town centre with a wide range of shops as well as many hotels and restaurants of varying standards. The town centre of Troon is just over one mile away from the applicant subjects.
[17] In both Troon and Barassie development has been restricted to the landward side of the road running along the beach front, the area between this road and the sea being laid out as common grassed open space. The properties fronting Beach Road originally comprised Victorian style villas. At several locations older houses have been redeveloped with blocks of flats. In all cases these are at least 3 storeys high. By their nature they substantially obscure views of the sea from properties positioned inland of them.
[18] The applicant site is at least twice as large as the average plot containing the traditional single family villa fronting Beach Road with a correspondingly wider frontage. Several of the traditional villas in this vicinity appear to have been sub-divided.
[19] The public toilets originally available for the beach are now closed. The applicant subject, in co-operation with the local authority, provides a service by making their toilets available to the public with notices of their availability located both outside and in the entranceway to the public bar.
[20] The rear wing of the applicant subjects is let out and used as a privately run children’s nursery. Access is from Barassiebank Lane for both vehicles and pedestrians. Included in the let is part of the rear garden ground of the hotel used as a playground.
[21] There is much anecdotal evidence of the hospitality trade being under financial pressures.
[22] Like many Ayrshire towns Barassie and Troon are popular destinations for day visitors. By its very nature this trade is weather dependant and quite seasonal.
[23] The application was made to us under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 which gives us power, on an application being received from an owner of a burdened property against whom a title condition is enforceable to:-
(i) discharge it, or vary it, in relation to that property;
The applicants wish us to discharge the conditions contained in their title, as set out in paragraph 4 of this Opinion.
[24] In any application being made we are obliged to deal with it under section 98 and section 100 of the Act.
The appropriate part of section 98 is as follows:-
An application for the … discharge … of a title condition shall … be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that … it is reasonable to grant the application.
[25] Section 100 contains the 10 factors which we are statutorily required to take account of in considering an application. Those which apply to this application are:-
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);
(b) the extent to which the condition-
(i) confers benefit on the benefited property; or
(ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(j) any other factor which the Lands Tribunal consider to be material.
[26] We were not referred to any authorities by the parties.
[27] This application seeks the discharge of certain conditions the principal part of which is that the burdened subjects have to be used as an hotel or as a single dwelling house. There are associated conditions which relate to this restriction. The conditions were imposed in a Feu Disposition in 1965 when the property was sold by the Trustees of the Duke of Portland, then apparently the local estate owner. Whether such former feudal burdens remain valid or enforceable was not a question before the Tribunal, with the applicants proceeding on the basis that co-feuars of the original Hillhouse estate or their successors may be entitled to enforce. Although the conditions were first imposed in 1965 parts of the subjects are much older although the single storey sections may date back to about that time.
[28] The applicants appear to be contemplating the future of the property and wish to ensure that any change of use which might arise is not constrained by the title restrictions in their title. Earlier a planning application for the erection of 3 storey flats had been lodged by a prospective developer but this was withdrawn before any decision had been given by the local authority. Subsequently the owners, themselves, lodged a planning application for demolition of the existing buildings and the erection of flats but there has been no decision yet on this application. The applicants claim that this is simply an exploratory exercise to determine whether the local authority would accept such a use. They state that other interested parties have [other] proposed uses including a nursing home. Such a use would, of course, also fall foul of the title restriction. They also say that the existing use might continue if appropriate interest is forthcoming.
[29] The respondents’ objections can be characterised as coming within two distinct fields, firstly, what we would describe as amenity concerns and in particular the effect on their property of any block of flats replacing the existing hotel buildings; and secondly the effect on the community of any loss of the hotel. The applicants point out that it is by no means certain that flats will be erected on the site and reject the respondents’ arguments based on this use. While there may well be a valid argument against the basis of the respondents’ approach it is slightly disingenuous of the applicants to reject such an approach on the basis that they may not sell for a development of flats when they, themselves have made such an application. It is not unnatural for the respondents to focus their concerns on such an eventuality given the previous planning application, the current application and the history of flats being built on former house sites along Beach Road.
[30] While we can understand the emotions which might drive the respondents in a case such as this, particularly where they are not legally represented, we are wholly bound by the terms of the legislation which governs an application under the 2003 Act. Many of their concerns falling within the amenity category might be misplaced in an objection to the discharge of a restrictive condition in a title, if these concerns are not ones which the particular condition safeguards.
[31] Frequently a clear conclusion of the purpose (factor (f)) of the condition can inform us when we consider the remaining relevant factors. In many cases, however, there is no clear statement of what the original intention was when putting in the conditions. In these cases, because of what we see as the importance attaching to purpose, we normally endeavour to reach a conclusion on what this purpose might be from whatever is available elsewhere in the constitutive deed. In this particular case determining the purpose of the use restriction has not been easy. There is nothing elsewhere in the Feu Disposition which offers assistance. For their part, the applicants have suggested it might be to ensure that there was a mixed element in the development of housing in Barassie.
[32] We are in little doubt that the original part of the building dates back before the date of the Feu Disposition. Presumably one or other of the two uses either existed in 1965 or was contemplated. It might, of course, be that before 1965 the subjects were leased from the estate and the first occasion for incorporating the condition in a deed of ownership only arose when the subjects were sold (and indeed, feued) for the first time. Whatever the background we can accept that it is possible that there may have been some general amenity consideration in limiting other possible uses and there are, of course the conditions prohibiting so called noxious uses. However, we are clear that there is no indication of any purpose either of protecting the visual amenity of neighbours or of securing the presence of licensed facilities for the benefit of local residents.
[33] Factor (a) requires us to consider changes in circumstances in the burdened property, in the benefited property and in the neighbourhood. There has been no discernible change in the character of the subjects or of the benefited property. The burdened subjects remain as a small hotel and associated bar and restaurant and the apparently benefited properties all remain as private dwellings. The most noticeable change is in respect of the neighbourhood. There are now two blocks of 3 storey flats lying just to the south of the subjects. In addition the housing adjacent to the subjects in Beach Road now has a dated appearance. We think we can safely assume it looked much less old in 1965. Redevelopment of older residential properties with blocks of flats has been a recurring feature throughout the country as a whole and what has happened in Barassie very much conforms to modern trends, one which is likely to continue as existing buildings age and become more expensive and difficult to maintain.
[34] It is factor (b) which probably highlights most starkly the differences between the parties. The applicants consider there to be no benefit to the benefited property or the public. The respondents believe that the conditions give them benefits in the preservation of their amenity as well as benefiting the community by the provision of a hotel and pub as well as public toilets. The principal condition which the application seeks to discharge, essentially focuses on use. It allows, indeed requires, that the subjects be used either as a single residential unit or as a hotel. It restricts use to single family (except so far as is required for hotel use). Significantly it makes no provision regarding size, height or density. It says nothing about car parking. All of these matters are wholly within the discretion of the owners. Most importantly, so far as this factor is concerned, there is nothing in the condition which gives to the respondents the right to the view they currently enjoy from the upstairs rear of their property to the hills of Arran. There is equally no reference to a right of privacy or of protection of the extent of daylight enjoyed by them. Putting it starkly, if the applicants wished to build a multi-storeyed hotel on their grounds or to redevelop all of their land, nothing in the title condition could assist the respondents in any opposition to such plans provided the use conformed to that in the title. There is, of course, the need to satisfy the local authority in terms of public planning, which may go some way in allaying the respondents’ fears although we accept that such procedures are mainly focused on the effect on the public as a whole and not to an individual neighbouring party. We accept that an hotel and a public house can be an attractive aspect of any community but there are very many areas where this facility is not present with no apparent loss of attraction to the area. Likewise the availability of public toilets is a benefit to the general public, particularly to day visitors. But there are again many areas where such facilities do not exist or are not reliably available because of vandalism etc. The Act specifically refers to the extent of the benefit. We have concluded that the extent of the benefit to any benefited properties from this particular condition is, at best, quite limited.
[35] The conditions burden the property. They restrict the use the owner can make of his property to the two uses stated. If maintained, the flexibility (subject to local town planning restrictions) which normally accrues to owners is not available to the owners of these subjects. This may affect their value and will affect the opportunities which the owners could normally legitimately take advantage of. The site is a large one, much bigger than the adjacent sites occupied by single family homes. Restricting the use to one house and one family would in a market sense be unrealistic. The site would be excessively large and be likely to be seen as presenting difficulties in maintenance. Splitting the existing building into a number of residential units or even holiday flats would not be allowed. Continued use as a hotel could be quite burdensome particularly if economic circumstances militate against such a business. Redevelopment as a hotel may not be an economically viable option particularly in an area best known for day visits. There is, in addition, the restriction against the sale of excisable liquors on a Sunday. While this may have been an acceptable condition in 1965 in the circumstances of 2010 it appears quite restrictive. It is likely to affect the business financially. We have therefore concluded that the conditions, which the applicants are seeking to have extinguished, do impede enjoyment of the property to a significant extent. Factor (c) therefore favours the applicant.
[36] It is debateable whether technically the condition is strictly an obligation to do something (factor (d)) as it is referred to in the act. However there are some obligations stated which may come into this category. If so, however, we consider that these can adequately be considered under factor (c).
[37] Factor (e) relates to the age of the burden, here a period of 45 years. There are many burdens which are much older than 45 years. It is always difficult to draw a firm line in the sand and say that up to a certain age a burden might be considered recent whereas anything beyond that is old. We do not regard 45 years as being particularly old when considering ages of title burdens. Neither, however, can it be termed recent. We have concluded that, on balance, and in the circumstances of this case, this factor favours the applicant.
[38] We have already addressed the purpose of the condition. The applicants’ suggestion might indeed be the most probable one. But if so, such a requirement (to provide facilities in Barassie or to create a mixed development) appears anachronistic in the current economic climate. It no longer seems practical or even sensible. Market forces are now generally accepted as being a better judge over the long term of what is required in any given situation. We have already said that we do not see the purpose in any material way supporting the respondents so far as their amenity arguments are concerned.
[39] Although the applicants have applied for an outline planning consent none has yet been granted. We do not know what has been applied for and cannot speculate or form a judgement as to whether it will be granted or on what conditions. We certainly cannot make an assumption that the current application will be granted and will therefore, because of the title condition, be prevented from being acted upon. Factor (g) is therefore neutral.
[40] The applicants have stated that they regard the payment of compensation as being inappropriate (factor (h)). The respondents have made no comment. We normally regard this, as again, being neutral on the basis that if a waiver or discharge is granted and there is an ascertainable loss by a benefited party we would order such compensation to be paid. Such a situation, we have found, very rarely arises. We will therefore maintain our general approach of regarding this factor as again being neutral in this case.
[41] The final factor which may be relevant in this case is the so-called “catch-all” one (factor j). The applicants refer to the continuance of a small hotel as being difficult and also refer to the condition prohibiting further expansion by building. They also state that disposal as a going concern is hampered by the conditions. While the latter seems to us to be the case there is nothing to prevent further building provided the use restrictions are complied with. We consider the applicants’ representations under this factor have been dealt with by us elsewhere. However there is one matter, not previously raised, which might appropriately be considered under factor (j) and that is that there appears to have been a past breach of the condition (in relation to the use of one of the buildings as a private children’s nursery) which has apparently not been objected to. While the overlooking of such a breach may be a sensible or practical approach to matters which now may be regarded as of little consequence, it does reinforce the view that these conditions have been becoming obsolete and that the present objections relate more to general planning issues than to entitlement under these conditions.
[42] Weighing the various factors as a whole, we consider that these conditions are now outdated. They may in practice (if they are still enforceable) prevent the erection of flats which will have an effect on the objectors’ visual amenity. They do not secure the presence of a hotel or public toilet facilities. These considerations raised by the respondents are, on a proper approach in terms of the legislation, in our view outweighed by the burden on the applicants, both in preventing alternative development and in the expense of maintaining one or other of the permitted uses. We are satisfied that it is reasonable to allow this application and discharge these conditions.
[43] We accordingly grant the application and reject the respondents’ objections. Neither party raised the issue of expenses. Given the sensible decision of the parties to avoid the expense of a hearing and all parties’ use of the original application and representations we would hope that there would be no issue of expenses. However we will allow an application to be made if any party so wishes. In accordance with our normal practice any such application would be dealt with by written representation.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 March 2010
Neil M Tainsh – Clerk to the Tribunal