[1] The joint owners of a detached house applied under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003) (“the Act”) for a discharge of conditions in their title which inter alia do not allow alterations without the consent of the superior and restrict the site to one house only. The applicants had secured planning consent for a substantial extension to the existing house and had also been given planning permission in principle for the erection of a house in a part of their garden ground. The house is part of a group of 20 houses constructed approximately 45 years ago around a “u” shaped crescent, the individual plots of which were sold off by the then local authority and which all contained the same restrictions in the respective feu dispositions. The owners of the house occupying the corresponding plot at the other end of the crescent had previously subdivided their garden and there was now an additional house at that location. A high percentage of the houses in the crescent have been extended at some point in their life.
[2] Objections to the application were made by 6 of the house owners in the crescent and a further 2 in an adjacent street, whose feus were originally also given off by the local authority and whose titles substantially contain similar terms to those which the applicants wish to have removed. In all cases the objectors simply conjoined with the owner of the house immediately adjacent to the applicants’ and the one most directly affected by the proposed extension by appending their signatures to that party’s objection, which was initially in fairly general terms, apparently directed at the proposal for the additional house. The principal objector then amplified his objections to the extension proposal, and the applicants responded.
[3] The Tribunal made a site inspection which took in the whole of the crescent and the immediately surrounding neighbourhood as well as an internal inspection of the principal respondent’s house. The Tribunal has decided, having regard to the terms of Sec 98 and 100 of the Act to grant the application, restricted to variation (rather than outright discharge) to the extent of permitting erection of one house in the garden of the subjects, and also the extension to the existing house, each in conformity with the respective planning permissions.
[4] The application form submitted to us, in the section headed “Particulars of title condition – (a) Nature of title condition” referred in shortened form to two burdens in the applicants’ registered title. The burdens were created in a Feu Contract containing a Feu Disposition by The Provost, Magistrates and Councillors of the Royal Burgh of St. Andrews in favour of William Valentine Hanlin recorded in the Division of the General Register of Sasines for the County of Fife on 8 June all in the year 1965 These title conditions are as follows:-
“and the Feuars shall not make any alterations to the said dwellinghouse and offices or erect any other buildings except with the consent of the Superiors and in accordance with Plans approved by them”
and secondly in clause (Fourth) as follows:-
“the Feuars shall be bound to maintain the area of ground hereby disponed so far as unbuilt upon as garden ground and to keep the same in a neat and orderly manner … ”
[5] The applicants seek a complete discharge of the title conditions set out above.
[6] The applicants applied as owners of 1 Horseleys Park, St. Andrews. The objectors who did not withdraw their objections were the owners of Nos. 2, 7, 9, 10, 11 and 14 Horseleys Park and Nos. 41 and 45 Canongate. By agreement of the parties the Tribunal proceeded by way of the written representations of the parties followed by a site inspection.
[7] Section 90(1)(a) of the Act gives us power, on an application received from an owner of burdened property against whom a title is enforceable to:-
“(i) discharge it, or vary it, in relation to that property;”
Section 98 of the Act sets out how we must deal with any such application.
“An application for the variation, discharge, renewal or preservation, 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.”
[8] There are 10 factors set out in Section 100 of which the following could be relevant to this application:-
“(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; …
(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.”
[9] Horseleys Park comprises a group of 20 houses arranged in a “u” shaped crescent around an open area of grass and trees. Both ends connect to Broomfaulds Avenue. Access and egress is available at both points and the crescent is of sufficient width to be two way for vehicles; all of the houses have driveways connected to the crescent.
[10] The surrounding area is residential in character with mainly detached houses all about 40 years old. It is within walking distance of the centre of St Andrews and convenient to main traffic routes. The locality has matured in a uniform way and presents an attractive blend of similar but not identical houses with well maintained gardens many of which have maturing trees and bushes. It would appear that the local authority originally sold individual plots (as in the case of Horseleys Park) as well as larger development sites to speculative house builders. The overall appearance is of a single complete development incorporating enough variety of individual houses styles to break up any sense of monotony but with a sufficient similarity to create a cohesive unit.
[11] The grassed area in the centre of Horseleys Park forms a significant open space which adds to the quality of the overall amenity in the wider area.
[12] The joint applicants own 1 Horseleys Park which is located at the north-west corner of the crescent. It has a frontage to Horseleys Park from where it takes access but there is a more extensive frontage to Broomfaulds Avenue from which it is bounded by a low rise wall with fence above. The front of the house faces Horseleys Park. The title area comprises 0.443 acres but this includes the half width of the adjacent streets. The area within the boundary walls is approximately 0.316 acres.
[13] The site is currently developed by a rather plain 2 storey house with a single storey flat roofed extension to the side which contains the main entrance and a single car garage. Beyond the garage but attached to it there is a large car port. The far wall of the car port immediately adjoins the boundary with 2 Horseleys Park owned by the principal respondent. The entire garden has been laid out although parts are now somewhat untended. Of the two boundaries which do not front public streets the north-east is mutual with No.2 but the back (north western) boundary is mutual with the rear of 3 houses in the adjacent street of Canongate, the owners of two of which are respondents who have maintained opposition to this application.
[14] The applicants’ proposals are twofold. Firstly they wish to demolish the single storey side wing and car port and erect a part 2 storey and part one and a half storey extension to the existing 2 storey house. The frontage of the existing house would be extended to the north-east to a point 1 metre from the boundary with No.2. It would then be extended back the full width of the current main house thus creating a rectangularly shaped footprint. The new extension would be 2 full storeys in height for approximately half of the extension and thereafter effectively one and a half storeys in height incorporating a lowered roof line. At this point the ground floor would be a garage, extending the full depth of the extension with a dressing room in the roof-space above. This dressing room would enter from the upper floor of a newly formed master bedroom in the 2 storey part of the new extension. Below this would be a proposed new entrance and a study. The apex of the roof of the existing 2 storey part of the house faces onto Horseleys Park but the roofs of the proposed extension would run at right angles to this and thus the ridges in the extension would run parallel to the crescent. The applicants have received full planning permission for this part of their proposals.
[15] The second part of the proposals is for a new house in a section of the existing garden ground facing Broomfaulds Avenue. These proposals have not been detailed and the applicants have an outline planning permission only described as being “Planning permission in principle for erection of dwellinghouse in garden ground”. Detailed plans of the proposed buildings need to be submitted to and approved by the local authority before development can take place. The applicants have a period of 3 years from the date of outline consent to make this further application. As part of the detailed application, plans showing existing floor levels and proposed levels are required as well as the relationship to any existing building within 18 metres. The position of any existing or proposed screening is also required. The local authority has stipulated that access for the new house is to be taken from Broomfaulds Avenue and have stipulated the visibility splays they require.
[16] The plot for which the outline consent has been obtained comprises the north-west corner of the existing garden and extends, according to the approved plan, to 0.104 of an acre. It occupies at least three-quarters of the length of the existing boundary to the houses which front Canongate, and if proceeded with would leave a short distance only (approximately 5 metres) of this boundary remaining with the existing house at 1 Horseleys Park. The proposed mutual boundary with the applicants’ existing house is stepped back at one point. No dividing fences or boundary walls are currently in place but the proposed line was marked out on the ground and visible during our site inspection.
[17] With one exception the houses in Horseley Park although individually developed create a clear impression of being part of an overall development of low rise one storey or at most one and a half storey houses. Many have been extended, mostly, but not exclusively so, to the rear, but in all cases these extensions are well integrated into the original building and into the general appearance of the crescent.
[18] The principal exception to this overall uniformity is the applicants’ house. The main part of the house is a full two storeys in height, an exception to the pattern elsewhere in the crescent. The length of the current side wing and in particular the car port appears excessive and out of balance with the rest of the house. In short the existing house does not have an attractive external appearance.
[19] Nos. 2, 3 and 4 Horseleys Park are particularly narrow sites with the individual houses built up close to both side boundaries. Other narrow plots are also prevalent in the crescent. The low rise nature of the majority of the houses means that, notwithstanding the closeness of buildings to side boundaries, there are no instances of high gable walls overlooking or appearing dominant to their neighbour.
[20] The houses in Canongate are generally two storeys in height while those in Broomfaulds Avenue are generally one and a half storeys high. Substantial extensions have been made to two, at least, of the houses in Canongate which bound the applicants’ property. There is a reasonable extent of screening from trees and bushes along the boundary at the point where the new house will be positioned.
[21] The green in the centre of the crescent is a valuable amenity feature and is likely to add to the value of the houses which front it. It is not referred to in the original feu dispositions for the houses in the crescent and the owners in Horseleys Park do not appear to bear any of the costs of maintenance. It is well maintained and it is assumed the local authority undertake the maintenance programme.
[22] The proposed extension to No.1 would increase the floorspace, currently existing inclusive of the car port, by about 47%. The footprint, i.e. the site area developed by building, would increase by 29%. Although the original two storey part of the house is not altered the combination of it and the proposed extension would create a significantly larger building mass than currently exists. The two sections of lowered roof-line in the new extension will help to break up what would otherwise be a substantial area of roofing and introduce some variety into the appearance of the extended house from the road. It will, nonetheless, be substantially larger and have a much higher roof-line than any of the other houses in Horseleys Park.
[23] Even after any disposal of the land for which outline planning permission has been obtained, the garden ground which would remain with the existing house after the extensions have been completed would be appropriate in comparison to the general pattern of development in this neighbourhood.
[24] No.2 Horseleys Park has been extended to its rear and now comprises quite a large bungalow although its size is not immediately apparent from the front. A single car garage lies on the mutual boundary to the applicants’ property. This is connected to the house thereby creating an enclosed small patio area between the garage and the main part of the house. This patio has been extended further into the rear garden. At this point it is bounded by the boundary wall and a recently added fence erected above it which runs for the length of the boundary with No.1. The principal access to the back garden of No.2 is from the kitchen into the enclosed patio area. The window in the kitchen looks into the enclosed courtyard but it also has a rooflight to provide additional daylight. The existing buildings of No.1 cannot be seen from the kitchen. Beyond the kitchen there is a bedroom and en-suite bathroom. Both have (rather smallish) windows facing No.1. The existing two storey house can be seen from these windows but at a set back position. Part of the roof of the car port is also seen.
[25] The part of the rear garden of No.2 at and behind its garage is its principal place for sitting out.
[26] The proposed new extension would have a windowless gable wall positioned 1 metre back from the mutual boundary between Nos. 1 and 2. This will be two storeys high at the apex of the triangularly shaped gable end. Beyond this, when looked at from No.2 would be the higher gable of the two storey part of the proposed extension along with the side view of a dormer window proposed for this section and then the original two storey house. The general ground level of No.1 is very slightly above that of No. 2. The new gables will be seen from the windows of the bedroom and its en-suite bathroom.
[27] The route of the sun’s traverse is such that there should be little shadow effect on No.2 or its garden from the new extensions.
[28] Any new house erected in terms of the outline planning permission will, because of existing building lines, lie behind No 43 Canongate with the front and back gardens adjoining the respondents at Nos. 45 and 41 respectively.
[29] No authorities were referred to us by any of the parties to the application.
[30] The applicants, in their application to us reviewed the factors in Section 100 of the Act. They considered there to be many changes of circumstance (factor (a)) arising from the number of the houses in Horseleys Park which had been extended and the additional house erected in the corresponding site at the other end of the crescent. The conditions sought to be discharged impeded their enjoyment of their property as they could not extend it to accommodate their family needs, nor could they sell, or develop themselves, the spare plot (factor (c)). The conditions had been in existence for 45 years (factor (e)) and during that time many other extensions had been carried out as had been the building of the new house at the opposite end of the crescent. Under factor (g) the applicants had Full Planning Permission for the extension and a Planning Permission in Principle for the vacant plot. They were not offering compensation factor (h) as other properties had already been extended. Finally, under factor (j) they pointed out that their existing plot was a large one, located on a corner, the new house would not be easily seen from the remainder of Horseleys Park and the proposed extension had been designed to blend sympathetically with the surrounding properties.
[31] The principal representation was made by the owner of No.2, Mr Fleming. He was supported by several of the other owners in Horseley Park as well as the two owners in Canongate. The respondents considered that a discharge would result in material detriment to both the value and enjoyment of the benefited properties. The entire development had been designed to provide an environmentally friendly green corridor free from development and was a major feature of the area and contributed to the saleability and value of the properties. Although not clearly stated this would appear to be a reference to the open area in the centre of the crescent but may also be a reference to the scale or density of development. While accepting that many extensions had been carried out to properties in Horseleys Park, these had been done with discretion and in keeping with the existing properties. A new house would not be in keeping with the existing area and its amenity. So far as the extension was concerned four rooms in No.2 would be affected by a loss of natural light and sunlight due to the size and proximity of the extension. The gable wall to be built close to the boundary would tower above the adjacent house at No.2 creating an oppressive environment. A blank wall would be all that would be seen from 4 rooms within the principal respondent’s house. The size of the extension was disproportionate to existing houses; there were no 2 storey extensions in Horseleys Park. In summary, while Mr Fleming understood the wishes of his neighbours to upgrade and enjoy their property his concern was in regard to its size and extent and in consequence the loss of natural light he would suffer and the impact such a large extension would have on his family life.
[32] In response to Mr Fleming’s particular objections, the applicants pointed out that their proposals incorporated a lower roof level closest to Mr Fleming’s house, that there were only two rooms in Mr Fleming’s house from which the proposed extension would be seen, a bedroom and a bathroom, both of which had small windows and that Mr Fleming’s existing garage already created a dark area at the back door. The end wall of the new extension was planned to be 1 metre away from the boundary and that it would be finished with a white rendering which would assist in reflecting light. No windows are planned for the end gable which contrasts with the current situation of an existing stair window overlooking Mr Fleming’s house. Finally the extent of the applicants’ land was almost half an acre and the proportions of the proposed extension were in keeping with the existing 2 storey house. There were already 2 storey houses adjacent in Canongate and Broomfaulds Avenue and while there were no such extensions in Horseleys Park this was simply because there were no two storey houses apart from the applicants’.
[33] The applicants appear to accept that all the objectors, including the two proprietors in Canongate, are entitled to the benefit of these title conditions, and we have considered our decision on that basis without expressing any opinion on its correctness.
[34] It would not appear appropriate simply to discharge the conditions if we found in favour of the applicants, because that would leave the applicants free of any restriction in relation to further development while the remaining proprietors would remain bound under the corresponding conditions in their titles. Variation so as to permit the proposals on which the application is based would be more appropriate.
[35] It seems to us that the two proposals raise different issues. It might be possible also to consider their cumulative effect, but we do not consider that this really arises in this case.
[36] We can deal first, and quite shortly, with the proposed new house in the garden. The planning permission is only in outline, for one dwellinghouse, so that the proposed size and dimensions are not yet known. However, the site within which the house would be built is identified. This enables us to form a reasonably clear impression of its location, although not to be certain about its height. It would effectively be a house on Broomfaulds Avenue. It is a proposed development which mirrors the development which has already taken place of an additional house in the garden of No.20 Horseleys Park. It would seem to us to have virtually no impact – certainly no significant impact – on the other Horseleys Park owners, and also to fit in perfectly acceptably with the other houses in its immediate vicinity. It could not be described as over-development.
[37] The garden of the proposed house would abut, in varying degrees, the rear of the gardens of Nos. 41, 43 and 45 Canongate. Nos. 41 and 45 are objectors. No. 43, incidentally, appears particularly well screened by trees within its garden.
[38] As far as the impact on No.41 Canongate is concerned, we are satisfied that there is no real question of any significant impact: the house itself would be unlikely to come close to the small stretch of common boundary and we cannot believe that it would have any real effect on that property.
[39] From the attractive back garden of No.45 Canongate, it is possible to think that a house, possibly more than one storey, on the other side of the wall, would have quite an impact. However, it became clear to us, standing at the approximate position of the proposed house, that this is illusory, the result, apparently, of the shape of the plot, and the alignment of its garden, of No.45. In fact, there is only a relatively small triangle which would almost certainly be part of the front garden, within the proposed site, which could have any impact on No.45, and that, because of the angles, is, again, substantially screened by a tree in the garden of No 45.
[40] In that situation, the benefit to Nos. 41 and 45 Canongate of the protection from development in the garden of the applicant property is in our view very slight indeed. Inability to proceed with such development would substantially impede the applicants’ enjoyment of their property. A similar development at a corresponding position in the Horseleys Park development has taken place. The purpose of these title conditions would not in our view be threatened by this development on one of the larger sites. Without rehearsing the application of all the factors listed in section 100 of the Act, in relation to the proposal to build a house, we are entirely satisfied that the application in relation to that proposal is reasonable.
[41] We turn to the application as relating to the proposed extension, which has given us considerably more concern because of its scale. It will be seen from our findings that this proposal would create a significantly larger building mass than currently exists, making a substantially larger building with a much higher roof-line than any of the other houses in Horseleys Park. In our view it would clearly have at least some impact on the principal objector’s property, and it would also have some visual impact on the crescent. We do not think that it could be of any concern to the Canongate proprietors, who are essentially in a different street some way away from this building. There may also be some reason to doubt the strength of concern of the more distant Horseleys Park objectors, who might for example have some difficulty in establishing interest under the test in Section 8(3) of the Act. However, the principal objector, Mr Fleming, is entitled to take both the particular objection in relation to the impact on his property and the more general objection about the impact on the crescent.
[42] In this case we have, helpfully, the particular proposals for which there is detailed planning permission. We have to consider whether we are satisfied that it is reasonable to grant the application, having regard to the factors set out in Section 100. Each case has to be considered in its own particular circumstances, so that although the Tribunal has quite frequently to consider applications of this nature, there is no real guidance, other than in very general terms, to be had from decisions on other applications. Our consideration of the statutory factors in this case, remembering that we are considering both the particular impact on No.2 and the more general impact on the crescent, is as follows.
[43] (a) – While the applicants have referred to a number of other extensions in Horseleys Park, and indeed No.2 has itself been extended to the rear, we agree with the objectors that none of these can be said to have been of such a scale or impact as to support the reasonableness of this particular application. We looked from the crescent at the addresses to which the applicants referred in this predominantly bungalow estate, and could see nothing which could have the same degree of impact, either on the crescent as a whole or, so far as we could see, on the immediately neighbouring properties. We should recognise under this head the applicants’ indication that their house is now in need of modernisation, but that does not really address the reasonableness of the scale of the proposed extension. There does not seem to us to be any other relevant change of circumstances, the crescent having generally maintained its attractive amenity.
[44] (b) – As far as the extent of benefit to the benefited properties is concerned, and relating this to the particular proposal, i.e. the benefit of the power of veto over this proposal, we consider first the position of No.2, Mr Fleming’s property. Again, we refer to our findings above. Put shortly, the extension would produce a considerable building mass sufficiently close to, although not up against, the boundary as to have quite an impact on this side of No.2. However, this side of No.2 (by contrast with the attractive garden area to the rear) could not be said to be presently particularly attractive, consisting of a driveway leading to a garage. The building mass would have an impact on the light from windows in two rooms. Sunlight, particularly in the garden, would not, in our view, be affected to any significant degree, although no doubt slightly more in winter. Certainly, the mass of the building, with larger, higher and closer gables and roofs, would be very much more evident in the garden than that of the present house at No.1.
[45] We can well understand why Mr Fleming, while making clear that he does not object to some extension, wishes to retain the right to prevent this proposal, although it should be remembered that reasonableness is an objective issue and sometimes the impact of a new or extended building can feel worse for the neighbour who has become used to what was there before.
[46] As far as the impact on the crescent generally is concerned, we have a situation in which this house on the corner already stands out to some extent as a not particularly attractive element in the mix of houses. The proposed extension can be seen as slightly improving the present appearance, but also as increasing the mass of the house out of proportion to the layout of the rest of the crescent. It would dominate at least this part of the crescent. Again, there is some benefit to the owners, at least in this part of the crescent, in the power of veto, but the picture is a bit mixed.
[47] (c) – The condition again obviously significantly impedes enjoyment of the burdened property by restricting the normal entitlement of the owner of property to develop it within the constraints of public planning regulation. It is relevant, however, also to bear in mind when reasonableness is the issue that, as we understand it, the objections are not to extension in itself but to the scale of that extension.
[48] (e) – The condition was created 45 years ago. This particular factor tends to be linked with the extent of general change. On the one hand, it would be reasonable to expect property owners to be considering extension, etc. after this period (sometimes much sooner). On the other hand, the general character of this area appears not to have changed significantly. In the circumstances of this case, we do not consider that this factor points either in favour or against the reasonableness of the application.
[49] (f) – The purpose of the title condition can be of considerable significance. If a condition can be seen to have been imposed for the particular protection of another property, for example when part of a garden is sold for the development of another house and the seller seeks to protect the particular amenity of the original house, or when something in the expression of the condition reveals a particular purpose, for example protection of a view, it is important to consider whether the condition is still achieving the particular purpose and how the proposal looks against the purpose. In this case, the condition imposed by the local authority when apparently selling individual plots in the area is more generally expressed in standard terms. However, there would, we think, have been a concept of the type of development in the area and an intention to create and then preserve its amenity. So the purpose, as we see it, was one of generally protecting the amenity of the locality, including that of the houses in the locality. It was therefore in this case a purpose not dissimilar to general planning control. The purpose, however, clearly remains relevant because the amenity has been well preserved.
[50] (g) – The grant of detailed planning permission for the proposed extension favours the applicants’ position, perhaps slightly more so in the light of our view that these conditions are of a general kind not dissimilar from general planning control. The planning process will have considered similar issues. However, Mr Fleming in particular has the private right carried by these title conditions and although the issues may be similar they are not determined by the outcome of the planning process. So this is a factor, but only one factor.
[51] (h) – No point has been raised about compensation. We regard this factor as neutral in this case.
[52] (j) – The applicants mentioned what they described as the sympathetic design of the extension under this heading. This is really part of the assessment of the extent of benefit from the conditions in this particular case.
[53] Drawing all these considerations together, we have come to the conclusion that this application, restricted to variation so as to permit the two proposed developments, is reasonable. We appreciate in particular Mr Fleming’s feelings about the extension, and accept that it will have some visual impact on his immediately adjoining property. His objections were fairly and moderately put. Ultimately, however, it seems to us that the effect within No.2 will be quite limited. In the garden, the mass of the extension will be quite visible, but what has particularly swayed us is the present situation with which the extension is to be compared. No.2 is a house on a narrow plot whose side aspects make little or no contribution to its amenity: it is a house which draws its amenity from the front and the back. In so far as there is an outlook to the side, it is already of a built environment, partly consisting of No.2’s garage. The effect on the patio area of No.2 will also be quite limited. The existing impact of No.1 is not particularly favourable. While there will be some effect on light, there will not in our view be any significant overshadowing or loss of sunlight. As far as the more general impact on the crescent is considered, we would regard this very differently if this house was in the middle, or main part, of the crescent, but it is already at the end and slightly isolated. We have reached the view that the additional impact of the extension, while again noticeable, will also be quite limited. In these circumstances, we do not think that it will conflict in any significant way with the purpose of the conditions and we think that the degree of impediment to the applicants in not being able to carry out a development for which they have planning permission outweighs the benefit to the objectors of being able to prevent it.
[54] For these reasons, we have allowed this application, restricted, as we have said, to variation so as to permit the erection of one dwellinghouse on the site identified in the outline planning permission, and extension in accordance with the detailed planning consent.
[55] If any question of expenses arises, this can be considered 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 2 July 2010
Neil M Tainsh – Clerk to the Tribunal