[1] This is an application for variation of a title condition which is contained in a “split off” disposition of 1984, the terms of which included a requirement to construct within two years a dwellinghouse not exceeding one storey in height in accordance with plans and specifications to be approved by the disponers. The applicants accept that this created an ongoing building restriction. They wish to extend the existing single storey dwelling upwards to create accommodation at first floor level and have obtained planning consent for their proposal. The respondents who oppose this change are successors of the original disponer and are thus immediately neighbouring proprietors who are entitled to enforce the condition.
[2] Applying the relevant statutory test, the Tribunal has not been satisfied that it is reasonable to grant this application.
[3] The title condition is contained in a Disposition by David Edward Scott-Angell and others in favour of Steven Corry and Gillian Corry dated 25 April 1984 and recorded in the Division of the General Register of Sasines for the County of Stirling on 7 May 1984. The disposition was a conveyance of part of the garden ground of Mansefield, Main Street, Gargunnock, Stirling and provides as follows:-
“(First) Our said Disponees and their foresaids shall be bound to erect and complete upon the subjects of offer within two years or such other period as may be agreed between us and our said disponees or their foresaids following upon the date of entry aftermentioned a good and substantial dwellinghouse not exceeding one storey in height, in accordance with plans and specifications produced by our said disponees and their foresaids to us and approved by us prior to the commencement of any buildings works, declaring however that we shall not unreasonably withhold approval of the aforesaid plans and specifications.”
[4] The applicants, Mr and Mrs Corry, are joint owners of the house and garden known as Hillcrest, Main Street, Gargunnock, Stirling. They have applied under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“2003 Act”) for variation of the condition so as to permit the alterations for which planning permission has been received. The respondents, Derek MacLachlan and Vanessa Paynton, now own Mansefield. They oppose the application. The applicants accept the respondents’ claim of entitlement to enforce.
[5] Section 98 of the 2003 Act provides that such an application for variation “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”. Section 100 lists the factors mentioned in section 98.
[6] The applicants were represented by Robert Smith of Caesar & Howie, Solicitors, Alloa, who called Steven Corry to give evidence. The respondents were represented by Maurice Jamieson, Advocate, who called Vanessa Paynton to give evidence. Both sides lodged productions, which were agreed to be what they bore to be and were not contentious insofar as they were material to the dispute. The Tribunal subsequently carried out an accompanied site inspection.
Ord v Mashford and Others (LTS/LO/2004/16)
Daley & Another v Bryce & Another (LTS/TC/2005/15)
Smith v Prior & Others (LTS/TC/2006/06)
Daniel Anderson & Another v Elaine MacKinnon (LTS/TC/2006/04)
Mark Gallagher & Another v George Wood (LTS/TC/2007/02)
Fealey & Another v Clark & Others (LTS/TC/2005/30)
Reid & Gretton, Conveyancing 2005, pages 102 to 104
[7] On the basis of the evidence and submissions and our own site inspection, the Tribunal has found the facts to be as follows.
[8] The applicants’ house is a single storey dwelling built by them about 1985 following their purchase of the plot, which had the benefit of an outline planning consent, from the previous owners of Mansefield. The title condition was created at that time. The plot is relatively long, about 40 metres, and narrow, with an average width of about 10 metres. It slopes down from Main Street towards the south. An old single storey building on the site was demolished to make room for the new build. The common boundary with Mansefield is about 1.2 metres from the west elevation of Hillcrest. The boundary is formed partly by a brick wall, partly by a fence and partly by a deciduous hedge.
[9] The north gable of Hillcrest faces on to Main Street, Gargunnock, and is set back some three metres from the public road. Two windows in the north gable each give daylight to a bedroom. The main entrance is on the west elevation and this leads to a hallway which gives access to a utility room with “rear” access to the east elevation. Other accommodation which is all on the ground floor comprises two further bedrooms and a bathroom and kitchen facing west. About 1990 a living room extension was added to the western half of the south gable of the original building. It is accessed from the kitchen and has a window on the west elevation and full height glazed doors on the south elevation which lead to a small patio from which steps lead down to the garden. The height from ground floor level to the ridge of the roof is approximately 4.9 metres and the average overall height of the north gable from ground level is about 5.5m and at the south gable the overall height is about 5.9m.
[10] When the applicants built the original house, they had no family. They now have three grown up children, all of whom spend at least some time at home. They wish to extend the accommodation. They have obtained planning consent to create additional first floor accommodation. Their proposal envisages extending the ground floor accommodation at the south gable by infilling to the east of the present living room, removing the existing roof and raising the wall head by approximately 1.2 metres. A new roof is proposed with a marginally increased pitch from about 30 degrees to 34 degrees. The overall effect is to increase the ridge height by about 1.7m (5ft 6inches). The ground floor rooms would be reconfigured though the present ground floor ceiling height would be retained. The ground floor proposals though including an additional area towards the south east do not in practical terms affect Mansefield. A stairway would be created to access the first floor. The proposed accommodation would become on ground floor 2 bedrooms, bathroom, shower room, 2 kitchens, dining room and living room and on first floor 2 bedrooms, shower room, study and lounge. Two new windows would be formed in the north gable and a very large full height window formed in the south gable. Four velux windows, each approximately 1.4 by 1.14 metres, are envisaged on the west roof pitch to give additional daylight to the first floor rooms, with more velux windows on the east side which would not have any effect on Mansefield. The lower edges of these velux windows would be about 1.4m above the first floor level.
[11] The respondents are the applicants’ immediate neighbours to the west. The properties are separated by a hedge and fence. There is also a somewhat intrusive prefabricated sectional double garage close to the boundary which screens, to some extent, Hillcrest from Mansefield. The two houses are, however, offset from each other as the north gable of Hillcrest is approximately in line with the south gable of Mansefield.
[12] Mansefield, purchased by the respondents in 2001, is an attractive former manse, built about 1840 of stone with a slate roof. By contrast with the other houses in this part of Main Street, Mansefield faces east. Main Street slopes down in that direction to the middle of the village, giving Mansefield an attractive outlook and views over the village to the lower slopes of nearby hills to the east and beyond. Although Hillcrest, in particular, and other houses in the immediate vicinity have some impact on these views, the impact is reduced by the fact that they are all single storey.
[13] Mansefield is accessed at ground floor level by a traditional entrance with public rooms on either side of a central hall. The southmost front room does have a view of Hillcrest but this view is substantially screened by the double garage. The northmost public room which has a bay window has at present views of Hillcrest’s roof, though its walls are effectively screened by the boundary hedge
[14] Stairs lead to first floor level with three rooms facing Hillcrest. The south most room at first floor is a bathroom with obscure glass window. The central room is a small bedroom and has views towards the respondents’ property but the angle of the view is essentially in line with the north gable end of the applicants’ property. The north most bedroom does have a view of Hillcrest but only if the observer is standing in the north east part of the room. These front rooms all have views over the village including the roofs of nearby properties and with views to the hills. The applicants’ proposal would have some impact on the views from the first floor rooms as the roof and upper part of the walls would be more obvious and would restrict these views. The first floor master bedroom faces south and although it is possible to see Hillcrest the proposed changes would have minimal impact on the views from this room.
[15] Mansefield is separated from Hillcrest by a distance of approximately 11 metres. In front of Mansefield is a gravelled area giving access to the front door of the house, and to the double garage. A large garden, surrounded by mature trees lies to the south and extends to about 2000 square metres. The proposed extension of Hillcrest would substantially increase the mass of that house as seen from the front of Mansefield.
[16] Much of the garden of Mansefield is already visible from the ground floor living room window of Hillcrest. The additional window in the south gable would have a modest additional impact on the privacy of the Mansefield garden although this will be greater in winter as most of the trees are deciduous. A patio area has been formed adjoining the south gable wall of Mansfield which is largely screened from Hillcrest by the double garage and by the existing hedge.
[17] It would also be possible for the residents of Hillcrest to see into the garden of Mansefield if the velux windows had clear glass. Although it is proposed that the velux windows are constructed into the slope of the ceiling they are positioned at a height that would give a clear view into those parts of the garden closest to the house. The velux window towards the north end would give some limited view into some Mansfield rooms.
[18] There would also be some very slight loss of privacy for Mansefield at the front entrance from the two new first floor windows on the north gable.
[19] The westmost section of Main Street, Gargunnock, is a cul-de-sac. To the west of Mansefield, to its rear, are two further houses on the south side of Main Street, namely, Woodside, the east gable of which almost abuts Mansefield, and Tighnacoille. Woodside lies close to Mansefield but the two houses are sited in such a way that their proximity does not affect the views from each house and the impact on each others’ property is minimal. Woodside was recently substantially extended but not so as to have any effect on the amenity of Mansefield.
[20] To the north east of Mansefield, on the north side of Main Street, is a modern single storey dwelling, Mossgeil, which lies approximately opposite Hillcrest. Further east on Main Street are two further modern single storey houses, Kamina and Highfield. On the south side of Main Street, beyond Hillcrest, there is a further small modern single storey house and then a row of single storey traditional cottages. The general impression of the immediate surroundings is that whilst there are a number of period properties, the majority appear to have been built in the last 30 years, but Tighnacoille is the only one built after Hillcrest.
[21] The applicants sought and obtained planning permission on 4 June 2009 from Stirling Council for the alterations to create first floor accommodation (but excluding the velux windows on the west side) notwithstanding the objections raised to the application by the respondents. The respondents’ objections had highlighted the proposed velux windows in the rooms on the west pitch of the roof. Permitted development rights for such windows were removed, making a further application for these windows necessary. In September 2009 a separate application was lodged to permit the installation of these additional four velux windows. One, in a bathroom, was to be obscured. In granting this consent the planning authority noted the following:
“This application proposes the introduction of roof windows along the (north) west elevation and the main policy consideration for these windows are whether they will result in any material loss of privacy … The application dwelling, Hillcrest, is approximately 14 metres from the objecting neighbour’s property Mansefield. The design advice notes for privacy states that: “In general a minimum 18 metres distance for privacy should be established between windows of habitable windows that are parallel to each other”. This guidance has been considered and it is not considered that these roof windows will have a material impact on the neighbour’s privacy for the following reasons:
“Hillcrest does not sit immediately in line with Mansefield. Taking a direct line towards this property only approximately the first 5 metres of the application site dwelling faces directly towards Mansefield. This ensures that only one of the roof windows will look towards this property. The remaining roof windows, one of which is an opaque bathroom window and the other two for a sitting room will look over the garden and driveway which is not considered to be a material loss of privacy. It is not considered that roof windows which mainly point towards the sky and not directly towards property windows will represent material loss of privacy. Furthermore even though the roof windows are low down on the roof plane they will offer oblique views of Mansfield due to the roof pitch. Hillcrest is also lower down than Mansfield by approximately 1.4 metres and this also helps to ensure that views from the roof windows are oblique due to the fact the main line of sight is on the wall between the lower and upper windows of the neighbouring property.”
[22] The applicants’ case submitted by Mr.Smith can be summarised briefly. He argued that the proposed conversion of Hillcrest will have minimal impact on the privacy and views of Mansefield and that it is reasonable to grant the variation sought. He argued that there was no clear purpose in the condition at the time it was imposed and that there is no reference in the title to issues such as privacy. Furthermore, the applicants could put velux windows in the existing roof and this would not breach the title condition. It was suggested that the real purpose was to stop a building of say 2, 3 or 4 storeys being built. With regard to the factors listed in Section 100 Mr Smith submitted that there was not any great benefit to Mansefield since if the proposal is allowed Hillcrest will still look like a house with one storey plus roof space and only one bedroom’s views of the village will be affected. The condition does impede the applicants’ enjoyment of their property. It is a small plot and there are only restricted ways in which Hillcrest can be extended since the planners are unlikely to approve further ground floor extensions. It is also submitted that in the 26 years since the condition was created there has been substantial change in the village with significant changes to the surroundings. Consent has been granted by the Planning Authority but it was acknowledged that this factor may be neutral. Mr Smith argued that having regard to the above and to the Tribunal’s site inspection, consent for variation to permit the development for which planning has been obtained, should be granted.
[23] On behalf of the respondents Mr Jamieson argued that the test of reasonableness had not been met. He submitted that there had been very little change in the locality since the condition was imposed. The respondents had acquired their property with knowledge of the title condition and were entitled to rely on the fact that Hillcrest would remain a single storey building. The parties disagreed over the extent to which the burden benefits Mansefield. The applicants considered their alterations would have minimal impact on the respondents’ property. The respondents considered that the impact would be substantial since the ridge height would be much higher with a second storey in the roof and there would be a loss of privacy. In contrast, changes that had taken place to other nearby subjects such as Woodside and The Birchfield had had no impact on their privacy or amenity. The title condition had little impact on the burdened property, which was a small bungalow located on a narrow site. If further extension was sought the applicants should build to the south avoiding the need to raise the height of Hillcrest. If the proposal went ahead it would change Hillcrest from a single storey house to a one and a half storey dwelling. As regards factor (e) the condition had been imposed about 25 years ago and little had changed in the surroundings apart from the construction of Hillcrest. The period of 25 years was relatively short in the context of a “private planning regime” and particularly when viewed against a background where little had changed in the vicinity. The purpose of the condition was to protect the amenity of Mansefield, to limit the height of any new building, to control what was built and to protect the privacy of Mansefield. Planning consent had been granted for the applicants’ proposals but from the respondents’ viewpoint that is not material since they judge planning matters against their own criteria and not in terms of s 100. Mr Jamieson concluded his submission by arguing that the onus rests on the applicants. The case for variation had not been made out.
[24] The applicants require to satisfy us that it is reasonable to grant this application, having regard to the factors listed in Section 100 of the Act. Our task is to look at the evidence about the various factors and then weigh them up as a whole. The context in this case is an application to vary the title condition to the extent of permitting the proposed extension as specified in the two planning consents. (We would in fact add a stipulation, to which we were told the applicants would agree, that the velux windows on the respondents’ side should all be obscured). Although there is of course guidance in other cases, particularly Ord v Mashford, each case depends very much on its own facts and circumstances. As the parties appreciated, our site inspection plays a very important part.
[25] We have to look at reasonableness objectively. The applicants’ personal reasons for wishing this extension are of no particular concern. Equally, the respondents’ personal feelings do not necessarily reflect an objective view. In this case, perhaps not unusually, we did feel that the respondents’ concerns, both in their written submissions and in Miss Paynton’s oral evidence, were somewhat exaggerated. Considering that the setting of their house is already affected to quite a degree by the applicants’ house, we do not agree that the extension proposals would have a ‘dramatic’ effect, nor do we accept that the increased overlooking would have as much effect on the respondents’ privacy as they, no doubt genuinely, think.
[26] We do, however, find, on the evidence and on our own observations, that the mass of the extension would have a substantial effect on the setting of Mansefield and some, although very slight, effect on privacy. It would to an extent restrict its outlook and views.
[27] As the Tribunal made clear in Ord, the purpose of the title condition (factor (f)) often carries weight. In this case, we think that it is a very important factor. This is a particular title condition which, as we see it, has a very clear purpose expressed in a particular way. It was imposed when this particular plot, within the front setting of Mansefield, was sold to enable a new house to be erected in place of an existing single storey building. The applicants, who were party to this transaction, say that nothing particular was said about the purpose and it is submitted on their behalf that the precise purpose was not entirely clear. It seems to us, however, that this condition really speaks for itself: in the circumstances, the setting and amenity of Mansefield were to be protected by preventing building higher than a one storey house. The condition is clearly for the particular benefit of Mansefield, as opposed to the type of more general prohibition or restriction which is often encountered in titles. We do not think it necessary to explore the particular reasoning mentioned in a letter from the original seller, Mr Scott-Angell, produced by the respondents, but merely mention that it is consistent with our view of the condition.
[28] This was in our view a clear condition, which was specifically agreed by the present applicants themselves. It can be said that the condition was not precise as to the limit of height, so that it might be difficult to fix the precise limit, but it should be remembered that the plans were to be approved by the Mansefield owner, an additional control albeit his approval was not to be unreasonably withheld. It is clear and accepted that the present proposal goes beyond the limit. In our view it is significantly different from the addition of windows within the existing roof space.
[29] It might also be mentioned that there was no specific prohibition of future building, but the application is on the basis that the condition had that effect and that the present proposal would be in breach of the condition.
[30] In relation to changes of circumstances (factor (a)), there is in our opinion no material change of circumstances. To the front of Mansefield, the other modern houses affecting its setting (although not to the same degree as building in the Hillcrest plot) were all already built when the condition was created. There have been three changes in the immediate locality of Mansefield since the title condition was created. Firstly, there has been some extension to the southern end of ‘Hillcrest’. Secondly, there has been quite substantial extension to Woodside, immediately to the west of Mansefield. Thirdly, there is a new house to the west of Woodside. The first of these, if anything, slightly favours the respondents’ position: Hillcrest could be extended at ground floor level. The second and third of these do not seem to us to point at all to the reasonableness of the applicants’ proposed extension: they clearly do not affect the setting and amenity of Mansefield in any similar way, and there was no title condition involved. More generally, the applicants referred to extensions and general development, and, more generally still, the increased modern tendency to extend houses. We do not doubt that these things can be said about the village of Gargunnock as a whole, but in the context of the particular title condition, in relation to the height of Hillcrest, for the particular benefit of Mansefield, we do not consider them material.
[31] The extent to which the condition confers benefit on the benefited property, Mansefield, (factor (b)) in this case involves consideration of the benefit of protection from the particular extension proposals (and on the basis that we would add the condition requiring obscuring of the velux windows). As we have noted, we consider that the respondents have exaggerated this, but on our own, rather more limited, view of the effect of the proposals on Mansefield, we do consider that this benefit is substantial.
[32] We do not in fact consider overlooking to be of much significance: having regard to the relative locations of the houses and the angle of the roof of Hillcrest (albeit slightly increased under the proposals), we think that in practice overlooking from the velux windows (even if opened) would be very limited (and, as we have said, we would anyway stipulate for all of them to be obscured). There would be some additional overlooking from the upper floor at the north end of Hillcrest, but the angle would be such as to make this minimal. There would also be additional overlooking at the south end, but it should be remembered that that end of Hillcrest already overlooks much of the garden of Mansefield and the area of that garden in immediate view is not a sitting area. The additional loss of privacy would in our view be very slight.
[33] We do, however, feel that the mass of the extension, involving building up the walls and raising the roof ridge level, would have quite an effect on the front aspect of Mansefield. The attractive setting and the outlook over the village and hills have already been affected, in particular by the building of Hillcrest, but would in our view be further restricted to a significant degree. To our mind, these are just the sorts of effects from which the condition provided, and clearly still can provide, protection. In view of the sensitive location of the site to the front of Mansefield, we consider them to be of some importance.
[34] Turning to the extent of the impediment (factor (c)), clearly prohibition of an extension with which the applicants would otherwise, as owners of Hillcrest, be able to proceed, amounts to an impediment which is not negligible. This is qualified to some extent by the suggestion that there may be room for further extension at ground floor (or possibly lower, in view of the slope) level. We also note, although this is of course only one way of looking at the matter, that there was no indication in this case that the extension would add value to an extent above the cost of the work. It did seem to us in a very general way that this particular mode of extension – removing the roof, building up the walls and building a new roof – might well prove an expensive way of extending. It did not seem to us a particularly natural type of ‘enjoyment’ of this burdened property. The applicants have an attractive house large enough to bring up a family and there was no suggestion of any need to modernise or upgrade the accommodation. Again, they themselves agreed to this impediment. This is, however, a factor which supports the reasonableness of the application.
[35] Factor (d) has no application to operation of the condition as it arises in this application.
[36] 26 years appears to us a relatively short period since the condition was created (factor (e)). Consideration of this factor is often considerably influenced by consideration of changes in circumstances, including perhaps general changes, which affect the assessment as to whether the purpose of the condition can still be fulfilled. However, as discussed above we do not think there is anything of that kind which points to the reasonableness of this application.
[37] We have already considered factor (f).
[38] The planning consents clearly point some way towards the reasonableness of the application (factor (g)). However, as has often been pointed out and Mr Smith appreciated, this may not be of much relevance where the condition in question is a purely private one. This title condition is not analogous to general planning policy, but rather a particular protection applicable even where planning consent can be obtained.
[39] The respondents lodged a good deal of material about the planning process, although Mr Jamieson sensibly did not place much reliance on it. On the one hand, it can be said that overlooking and privacy (but not the protection of views) are planning considerations, so that it can be said that these matters were considered in the planning process, although the respondents are evidently not happy with the outcome. On the other hand, we have to take our own view of these factors in the context of this title condition rather than general planning considerations, and this is what we have done.
[40] Neither side placed any reliance on factor (h).
[41] Factor (i) has no relevance to this application.
[42] Mr Jamieson made a very brief reference to the position about discussions, or perhaps the lack of them, between the parties, as possibly relevant to factor (j), but we do not consider that there is anything in this which is material to the decision on the reasonableness of the application, and we have not identified any other factors which we consider relevant.
[43] Drawing these considerations together, our view is that this is a condition with a particular purpose of providing benefit to Mansefield. It is a condition agreed to by the applicants themselves and clearly aimed at ensuring that Hillcrest would only be at single storey height. It is not a very old condition. The circumstances have not in our view materially changed. Protection from the applicants’ proposals is in our view a substantial benefit which, on the accepted basis that the condition still applies, is clearly in line with the purpose of the condition. Against that, the applicants have planning permission, so that their proposal can be said to be reasonable in a general sense, and prohibition of proceeding with the proposal does represent some impediment of their enjoyment of their property.
[44] Balancing these considerations, we are not satisfied that it would be reasonable to grant this application based on this particular extension proposal.
[45] For these reasons, we have decided to refuse this application.
[46] If any issue as to expenses arises, this can be considered on the basis of written submissions, in accordance with our usual practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 9 July 2010
W Douglas Ballantyne – Deputy Clerk to the Tribunal