Stuart Fyfe and Another v Aileen Benson and Others

Introduction and Summary

[1] This is an application, under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), to vary title conditions so as to permit the building of an additional house in the applicants’ existing back garden and sub-divide their property. The title conditions are contained in a 1966 Deed of Conditions executed by the building company which owned the area of residential development land which was gradually developed and on which the applicants’ house was built in about 1984. Essentially, the conditions prohibited such building without the approval of plans and the consent of the developers as superiors, and restricted use of the property to a single dwellinghouse and garden. The application is opposed by some neighbouring proprietors who are accepted, at least for the purposes of these proceedings, as having title (although not necessarily interest) to enforce the conditions. The applicants have planning consent for the proposed new house, for which there are detailed plans. Three of the respondents were immediate neighbouring proprietors who were jointly represented at the hearing. Claims by these respondents for compensation in the event of the application succeeding were also heard.

[2] As in all such applications, the Tribunal has reached its decision on the basis of the particular facts and circumstances, following our own site inspection. For the application to succeed, we would require to be satisfied of its reasonableness as against each of the respondents. In the event, the Tribunal was not satisfied, in relation to the objection of one of the respondents, Mr Montgomery, that the application is reasonable, and has therefore refused the application. The Tribunal would have been satisfied that the application, as it related to all the other respondents, was reasonable and should be granted (subject to awards of compensation in favour of Mr McGlone and Mr Gillespie). Our reasoning for these conclusions is perhaps best summarised at Paras [64] to [66] below.

The Title Conditions

[3] These were contained in a Deed of Declaration of Conditions by Mactaggart & Mickel Limited dated 27 September and recorded in the Division of the General Register of Sasines for the County of Ayr on 10 October 1966, and were in the following terms:-

“(FIRST) No house or building whether of a permanent temporary or portable nature shall be erected on the said area of ground nor shall any addition enlargement alteration rebuilding or reconstruction in whole or in part be made to any house or building on the said area of ground until the plans thereof have been approved and written consent thereto given by the Superiors …

“(SECOND) the house is to be used and occupied solely as a private dwellinghouse and the ground effeiring thereto as a garden and for no other purpose whatever and shall not be sub-divided nor occupied by more than one family at a time …

“(FOURTH) … and no further boundary divisional or other walls or fences, trellis works, ornamental fencing or draught boarding fencing shall be erected anywhere on the subjects …

… ”


[4] The application was heard at an oral hearing on 9 and 10 June 2011. The applicants, Mr and Mrs Fyfe, 36 Pantonville Road, Seamill, West Kilbride, were represented by Mr Geddes, Solicitor, of Anderson Strathern, Glasgow, who called as witnesses Mr Fyfe and Mark Shanks, BSc, MRICS, of Allied Surveyors Scotland plc, an experienced residential valuation surveyor based at Saltcoats, to give evidence. The respondents Mr Gillespie, 3 Carlung Place, Seamill, Mr Montgomery, 12 Ardneil Avenue, Seamill, and Mr McGlone, 41 Caldwell Road, Seamill, collectively referred to for ease of reference as “the respondents” (all of whose properties, despite their addresses, either abut or are in the immediate vicinity of the proposed new house), were all represented by Mr MacColl, Advocate, instructed by Mitchells Roberton, Glasgow, who called as witnesses Mr McGlone, Mr Gillespie, Colin Cogswell, BSc, DipArch, of Munro Architects, Kilmarnock, and John McHugh, MRICS, of D M Hall, Irvine, also an experienced residential valuation surveyor. A written statement by Mr Montgomery, who was unable to attend because of illness, was accepted as the equivalent of his oral evidence. The parties lodged productions, as to which they indicated a level of agreement at the outset of the hearing. Their final submissions were, by agreement, in written form (with opportunity for supplementary submissions in answer). Ms Benson, 31 Caldwell Road, and Mr Roos, 39 Caldwell Road, also maintained objections, which were before the Tribunal in written form, but did not attend the hearing. The Tribunal carried out its own site inspection.

[5] The documentary evidence revealed disagreement about the exact height above ground level of the proposed house. This was helpfully resolved, following discussion at the beginning of the hearing, by the applicants’ agreeing that the ridge height of the proposed house would, as a condition of the variation order sought, not exceed 5 metres above a datum point, at the corner of the applicants’ property, shown on two of the productions. The helpful ‘mock-up’ photographs professionally prepared by Mr Cogswell on the basis of the respondents’ understanding of the applicants’ plans therefore required adjustment to show the actual proposed height sought.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
George Wimpey East Scotland v Fleming 2006 SLT (Lands Tr) 2
Smith v Prior & Others LTS/TC/2006/06
Faeley & Another v Clark & Others LTS/TC/2008/56
Colin Scott & Others v Graham Teasdale & Others LTS/TC/2008/56
Corstorphine & Shand v Fleming & Others LTS/TC/2010/06
Esplin & Baird v Higgitt & Others LTS/TC/2007/48
J & L Leisure Limited v Michael John Shaw LTS/TC/2005/12
West Coast Developments Ltd v Clarke & Others LTS/TC/2005/21

The Facts

[6] On the basis of the evidence, parties’ agreement and our site inspection, we found the following facts proved or admitted.

[7] West Kilbride is a small town interlinked with the adjacent town of Seamill on the Clyde coast about midway between Ardrossan to the south and Largs to the north. The underlying topography is of a level area adjacent to the coast to the rear of which is a quite steeply rising hill area with a promontory facing the sea. The boundary between the two townships is not clear but it appears that West Kilbride is on the upper levels while Seamill occupies the coastal strip.

[8] In 1966 Mactaggart & Mickel Limited (“M & M”) purchased an area of land of about 55 Acres comprising part of the hill area including the promontory along with the plateau area at the top. It was irregularly shaped and adjoined established areas of residential development from which access was able to be taken. Part only of the site has been developed over a number of years. M & M are no longer active on site, but appear to have sold off an area to a speculative builder who is currently developing speculatively built houses.

[9] The topography of the area has influenced the development which has taken place. In general the roads run round the contours of the hill and promontory. Houses on the side of the roads at the lower level generally have views over the roofs of the houses on the lower levels and out over the firth to Arran or if constructed on the promontory to both Arran and to points further south. The houses on the upper side of the roads tend to have much more restricted views through gaps between their opposite numbers on the lower side of the road. In all cases the foreground comprises other houses and their roofs. Many minor adaptations have been made to secure as much of the view as is practically possible. By contrast houses on the plateau have level grounds but seldom have views unless they are at the edge of the hill. Even those houses, however, benefit from views from parts of the roadways serving them. The presence of the adjacent firth and the Island of Arran and the availability of views contribute to the general amenity of the area

[10] The greatest part of the M & M development took place on the upper parts of the hill and on the plateau. In the main existing roads leading from the north into the site were further extended and houses constructed on either side. These became effectively long cul-de-sacs. Part of the land acquired by M & M fronted Pantonville Road, one of the streets in which houses had already been built in the area adjoining the land acquired, but M & M mostly incorporated this land into the rear gardens of houses built on the lower side of Ardneil Avenue, the roadway constructed at the level above Pantonville Road. A layout which obtained planning consent in about 1970 showed Ardneil Avenue utilising all of this land.

[11] In or around 1976 the local authority granted planning consent either by way of amendment or de novo, following a similar scheme of using this land for Ardneil Avenue but adding one more house. It showed house plots with reference numbers indicating the style of house proposed. Both Caldwell Road and Ardneil Avenue were shown as cul-de-sacs. There were 5 houses arranged around the end of Ardneil Avenue, all taking access either from it or from the hammerhead/turning point proposed for its end. Three of these were located on what subsequently became the two properties at 36 and 38 Pantonville Road. Although some of the gardens ran down to Pantonville Road all were proposed to take access from Ardneil Avenue. The 1970 plans had shown only 4 houses at the end of Ardneil Avenue

[12] Neither the 1970 nor the 1976 plans were implemented. Instead, this area of ground was developed by amending the arrangements for the cul-de-sac. The end house on the northern side of Ardneil Avenue, (No 12) was re-positioned further to the north within its site. The house on the south side of the avenue was constructed, although the purchasers of this plot developed it themselves. None of the other houses were developed by M & M. Instead two parcels of land with frontage to Pantonville Road were sold off. The applicants purchased the westmost of these plots and were required to take within their ownership the entire area between Pantonville Road and the rear/side boundary of 12 Ardneil Avenue. Likewise the eastmost plot at Pantonville Road was sold off for individual development with again a requirement to take an area of land, the rear boundary of which was the end of Ardneil Avenue at its hammerhead/turning point. Both of these plots sloped quite steeply upwards. A single house was built on each plot and in both cases the houses were positioned further up the slope than the established building line at Pantonville Road to take advantage of the views. The applicants’ plans were approved by M&M as required by the Deed of Conditions.

[13] The two plots at Pantonville Road are much larger than those elsewhere within the immediate vicinity. They are quite steeply sloping. The gardens are likely to be difficult and not inexpensive to maintain.

[14] In 2010 a Deed of Servitude and Constitution of Real Burdens was made between the applicants and their neighbours at 38 Pantonville Road to the east granting the applicants and their successors a right of access over the rear part of the garden at No 38 from Ardneil Avenue. The construction of a driveway there also gives No 38 the benefit of vehicular access from Ardneil Avenue. The volume of traffic in Ardneil Avenue would not be significantly increased if the proposed new home were built.

[15] After one refusal followed by a successful appeal, planning permission was obtained by the applicants from North Ayrshire Council on 27 November 2007 for the construction of a one storey and attic house on the rearmost part of their ground. Access would be taken from Ardneil Avenue over the area covered by the 2010 Deed of Servitude. The proposed house is of modest size and would contain 3 bedrooms and 2 public rooms as well as the normal offices and a garage. The house is designed as an L–shape with the larger part facing south-west and looking over the existing house at 36 Pantonville Road. The smaller part runs at right angles to the main section. The long side wall would lie parallel to the boundary to 41 Caldwell Road and some 2.5 metres from it, i.e. approximately 5m from the side wall of No 41 Caldwell Road. The rearmost wall would be 2 metres from the boundary with 12 Ardneil Avenue but because of the L shape this would constitute less than half of the width of the house. The balance of the back wall would be a further 4.5 metres away from that boundary. The roof is intended to be pitched and tiled. The apex of the roof would be no more than 5 metres above the ground level at the boundary junction of 41 Caldwell Road and 12 Ardneil Avenue. The section of the rear wall closest to 12 Ardneil Avenue would incorporate the full gable of the smaller section, including its triangularly shaped part up to the apex. The floor level on the ground floor would be set into the ground by about a metre but due to the sloping nature of the site the front of the house would be elevated. A balcony on stilts would be provided at the front. The house would be traditionally built to a standard appropriate for this development.

[16] The area of land which would be allocated to the proposed new house is bounded on the north-west by the mutual boundary with 41 Caldwell Road; on the north-east, by the garden of No 12 Ardneil Avenue; on the south east, by the rear garden of No 38 Pantonville Road, including the part subject to the Deed of Servitude. On the south-west the boundary would be to the revised boundary of the applicants’ house 36 Pantonville Road. On the north-west, north-east and on the proposed mutual boundary with No 36 there are established hedges.

[17] Both the new plot being created and the plot remaining are of a commensurate size with those predominating in the area. The style and size of the proposed new house accords with those in the locality.

[18] No 3 Carlung Place (No 3) is a single storey detached bungalow built at the edge of the plateau. It is approached from the north but the principal rooms and aspect faces south-west. The lounge and the main bedroom face generally southwards and are set approximately 6 feet up from the garden but a clear view of the sea is only available somewhat obliquely through the presently unbuilt on area which is the subject of this application. Astragals in the window design tend to be at eye level and obstruct the view. The direct view from these rooms is to the gardens with No 12 Ardneil Avenue and its garden behind. There is an area of decking with patio chairs and a table outside the lounge and this has good sea views through the gap between 41 Caldwell Road and 12 Ardneil Avenue. The range of side views from this house would be unaffected were the proposed new house to be built but the area of the Firth would be reduced due to the introduction of the roof of the proposed new house. The views of Arran would remain.

[19] No 41 Caldwell Road (No 41) is a substantial two storey architect designed house. It is set on a steeply sloping site and is split level with approximately the rear half of the house being constructed half a floor above the front or seaward part all to take advantage of the views. Although entered from the rear its focus is very much to the front or sea. It faces south-west and there are unobstructed views in this direction. The lounge windows benefit from this aspect and a raised patio leading off the lounge with a sun lounge constructed on it also faces out to sea. No 41 is the end house in a long line of houses on this side of Caldwell Road. The houses are all built close to one another but in a line so that adjoining houses do not intrude in the views from the rear. This house immediately adjoins the presently vacant site for which this application has been made. The windows in the side gable overlook the site but these are quite limited in number. The principal views from the house are to the west and cover a range of 180 degrees. Of this range only about 10 degrees at the eastern extremity would be affected by the proposed new house. The presently open views from 2 windows in the gable wall would be affected most noticeably a window in the kitchen but also a window in an upstairs study. The principal window in the kitchen would be unaffected and it would be possible to see over the roof of the proposed new house from the study. The proposed new house would be close to the patio at ground level but would not affect the natural light or sunlight available to this patio. The new house would be no closer to No 41 than No 41 is to the house on the other side, No39.

[20] 12 Ardneil Avenue is the last house on the top side of this street. It faces almost due south and overlooks the turning point at the cul-de-sac. Its garden is irregularly shaped, effectively 5-sided but tapering to a narrow length at the rear. Because of this shape, the positioning of the house and the natural slope of the ground the de facto back boundary is the boundary to the proposed new house on the north-west. From this point there are currently unobstructed views to the Firth and Arran but framed by No 41 Caldwell Road and the back wall of 12 Ardneil Avenue. These views would be substantially lost if the new house were to be built. The proposed new house will be very close to the de facto rear boundary of the garden and would dominate it. The late afternoon sun would be obscured at certain times of the year. There are very limited views from the rooms at the rear of this house.

[21] Marketing material for residential property in the area emphasises sea views where these are available even if quite restricted. The range of different houses and of views enjoyed makes detailed comparison impossible, but properties with extensive views command higher price levels.

[22] There has to date been no “garden development” or sub-division of plots within the area subject to the Deed of Conditions. There have been some extensions of varying types and sizes. These have not altered the amenity of the development and do not appear to have had any significant impact on the amenity of individual neighbouring houses. The upper floor balcony of No 41 has been slightly extended. No 41, in its elevated position, overlooks the gardens of some surrounding properties, including some upper parts of the applicants’ garden.

Expert Valuation Evidence

[23] Mr Shanks’s opinion was that if the variation sought were granted, there would be no diminution in value of the respondents’ properties and no material detriment would be suffered by them. His opinion was primarily based on what he described as “a desk top exercise” analysing the pleadings and supporting evidence, mainly the Deed of Conditions. In his view, the latter set a particular tone whereby the superiors could alter aspects of any of the burdens and change any of the conditions without explanation or recourse. It was therefore unrealistic to assume that the other existing conditions would inevitably remain fixed over a long period of time. He had also carried out a site inspection, at the proposed house site and in the surrounding streets but not from within any of the respondents’ properties. He considered that the most affected property would be 41 Caldwell Road, which would suffer obscured views from the south side but that would not detract or prevent an estate agent describing the location as outstanding and with uninterrupted views to the front. The proposed house would have a limited impact on 12 Ardneil Avenue as there were no views from the affected gable elevation, although views from the garden would be obscured. There would be little impact on the views from 3 Carlung Place. He considered that Mr McHugh had incorrectly approached the matter from the point of view of the impact of the proposed development rather than the impact of the proposed variation. The existence of the title conditions had not prevented other houses being constructed and obscuring views from existing dwellings. The conditions had never been intended to protect earlier houses from those developed at a later stage, and their existence had failed to prevent alterations to a number of dwellings. The respondents’ reaction to the proposals was understandable, but the conditions did not offer the protection the respondents claimed because the superiors did not intend them to be inflexible. The argument for compensation due to diminution of value was therefore unfounded. He agreed in cross-examination that the inevitable logical result of his view of the conditions was that there could be no impact on value. He agreed that this was a desirable residential area, including the views, and that building the proposed house could have an impact on values, the levels arrived at by Mr McHugh not seeming unusual.

[24] Mr McHugh assessed the impact on values of the respondents’ properties if the proposed new house were built as follows (percentages added):-

Unaffected value Diminished value Loss of Value
41 Caldwell Place (240m2) £370,000 £335,000 £35,000 (9.46%)
3 Carlung Place (155m2) £220,000 £195,000 £25,000 (11.36%)
12 Ardneil Avenue (155m2) £205,000 £185,000 £20,000 (9.75%)

He had physically inspected the properties and analysed comparable sales evidence. He described, and valued, the houses as they stood, and then summarised the effects on each of the properties if the proposed house were built. In assessing the impact on values, he referred to a total of six sale prices of comparable houses, some with views, in one case over countryside rather than the sea, and some without. He also produced extracts from an estate agent’s website demonstrating, he said, agents’ references to the advantages of good views enjoyed by particular houses. He had arrived at his figures on the basis of the respondents’ original understanding of the height of the proposed house, but in cross-examination was not prepared to alter these, saying that the new house would have to be “an awful lot lower” to change his figures. He was cross-examined in some detail on his lists of particular affects on each of the houses. In his opinion, where a purchaser of one of the respondents’ houses could control development, that would protect the value of the asset and therefore added value. The existence of planning consent would be a factor. If any of the houses came on the market, the information about the proposed house would become available, so it was not really any different from ‘before and after’ valuation.

Parties’ Submissions: Merits

[25] The written submissions of the applicants and the respondents referred in similar terms to the general principles to be applied under Sections 90, 98 and 100 of the Act to the merits of the application. The Tribunal has to consider whether the proposed variation was reasonable in all the circumstances, having regard to the factors listed in section 100, and required to weigh the entire circumstances as a whole, with significant weight being given to factor (f), the purpose of the conditions. Precedent is not normally considered helpful in the application of the test of reasonableness, because each case depends on its own circumstances and often turns on the Tribunals’ impression when viewing the particular site. (Ord v Mashford, Church of Scotland General Trustees v McLaren, George Wimpey East Scotland Ltd v Fleming). The applicants added that factor (b), the extent of benefit from the condition, was the second most important factor.

[26] The applicants accepted that the respondents, as well as having title, would have an interest to enforce conditions in the Deed of Conditions, but submitted that the position in relation to any particular condition depended on its underlying purpose and the benefit conferred by it.

[27] In relation to factor (a), the applicants submitted that the relevance of any identified changes would likely depend on the purpose or intention behind the obligation when it was imposed. Shortly, the purpose of these conditions was to protect the superior’s interest and regulate the management and development of the area as it was built. Changes had come about as the development progressed, in particular when the superiors obtained planning permission for three houses on what subsequently became two plots, Nos 36 and 38 Pantonville Road: they had intended to build a house more or less in the position of the house now proposed. If there were an original intention to protect views over this plot, the subsequent plans demonstrated a contrary intention, amounting to a relevant change of circumstances. The plots were subsequently configured differently only because of the superior’s decision not to develop the subjects themselves and the applicants’ and their neighbours’ personal preferences. Further, there had been a number of alterations and extensions over the years, some affecting the views of others to properties in the development, including Mr McGlone’s enlarged balcony area, so the applicants’ proposal was not a first innovation. The development had matured and been developed over the years. Other new houses, affecting views from higher houses, had been built.

[28] In relation to factor (b), while the Deed of Conditions was intended to protect general amenity including the respondents’ amenity, the specific provisions did not protect views: the building condition was not absolute: not only were the conditions not binding on the superiors when they were building (and they had for a period planned to build on this plot), but also as purchasers of their plot the applicants had been allowed to build. The transmission of superior’s rights to benefited proprietors did not therefore give them an absolute right of veto. The respondents would still, as regards the ground surrounding the new building, have the benefit of the restriction to garden ground. Easing the restriction on boundary hedges would have no significant consequences for the respondents. In summary, there was no protection of the physical amenity of the respondents’ specific properties.

[29] The applicants’ wish to use an area of land, which was bigger than they required, to build a new house was not unusual or unreasonable, although this was not a factor on which considerable reliance could be placed (factor (c)). The applicants did not rely on factor (d). was not relevant at all. Some 45 years had elapsed since the conditions were created (factor (e)), but that of itself was neither here nor there, more reliance being placed on the purpose of the title conditions, the limited benefit conferred by them and what had happened in the interim as the development had taken place and matured.

[30] In relation to the extremely important consideration of the purpose of the conditions (factor (f)), this was a fairly ordinary set of estate conditions drawn up by developers before they built any houses or feued any plots, in order to retain control over how the development matured and to preserve a general amenity in terms of neatness of the development and a sense of open space, and not to protect views specifically. No element of the title conditions protected proprietors against the partial obstruction of views, which could have occurred if the superiors or the applicants built in a different position or if, as happened at Ardneil Avenue, the developers built further houses on the ‘low’ side after building and selling houses on the ‘high’ side. If the applicants had sought and obtained consent from the superiors before 2003 the respondents would have had no redress. The conditions were designed for the benefit of the developers, before the imposition of a public planning regime, there being no other public means of development control. Such restrictions as were contained in the Deed of Conditions, in relation to trees, etc., were honoured as much in the breach as by observance. The spacing between the proposed house and 41 Caldwell Road was not unusual. Reference was made to Smith v Prior & Others, where the Tribunal had found no indication of any purpose of protecting the physical amenity of immediate neighbours and there were, as in this case, no provisions relating to uniformity of design, size of footprint or control over location on plots; Faeley v Clark & Others, where by contrast the deed was between proprietors of two neighbouring plots and conferred protection of the physical amenity of one of them; Scott & Ors v Teasdale & Ors; and Corstorphine & Shand v Fleming & Ors.

[31] The applicants accepted that little weight was to be given to the grant of planning consent, but certain suggestions as to flaws in the planning decision should receive no weight whatsoever (factor (g)). Factor (h) was not a significant factor in the circumstances. Factor (i) was not relevant. Under factor (j), the applicants resisted any argument based on establishment of precedent, referring to Esplin & Baird v Higgitt & Ors and West Coast Property Developments Limited v Clarke & Ors.

[32] The respondents made certain observations on the evidence. The Tribunal should find that the proposed building would be of significant scale and mass and would be detrimental to the amenity of the respondents, and in particular would detrimentally affect the views they currently enjoyed, light and general amenity, on the south side, patio and garden of 41 Caldwell Road and the back garden of 12 Ardneil Avenue. Mr Fyfe had not visited these properties in order to be able to address this. These impacts on the respondents’ houses would still take place even with the height restriction now agreed. The architects’ report accurately showed the position, and Mr Cogswell’s evidence should be preferred to that of Mr Fyfe. The applicants’ evidence that his application was not founded upon any ‘loss of fruits’ should be accepted. Mr McHugh’s valuation evidence should be accepted. The test of interest to enforce in Section 8(3) of the Act had plainly been met.

[33] The respondents submitted that the purpose of the conditions (factor (f)) was, as the applicants stated in their application, to protect the amenity and density of the development. As part of that, there was a purpose of restricting any plot sold off to occupation by only one house, a position which had been adhered to throughout the development area. There had been no material change in circumstances (factor (a)). The conditions provided other proprietors with a veto over development by way of additional houses, i.e. to prevent over-development and preserve amenity: the burdens protected the amenity and material enjoyment by the respondents of their homes (factor (b)). Mr Fyfe had rejected in evidence the one respect in which it was claimed the burden impeded enjoyment of his property, viz. enjoying the ‘fruits of additional development’ (factor (c)). Factor (d) was of no relevance. Factor (e) could not be regarded as supporting the application. The grant of planning consent dealt with issues in the public domain, not determinative of the private law issues faced by the Tribunal (factor (g)). No compensation had been offered by the applicants (factor (h)). Factor (i) had no application. There were no other factors of relevance (factor (j)). Weighing the factors together, it would be unreasonable to vary the burden as suggested.

[34] The applicants, whose submissions had perhaps been rather deeper than those on the respondents’ behalf, did not take the opportunity of lodging any answering submissions. The respondents, while not departing from their previous submission, did. They maintained that the applications were not consistent with the principles which they had outlined, in particular in respect that they had provided lengthy analysis of various other decisions. In relation to factor (a), the planning permission referred to by the applicants retained the overall scheme of substantial detached houses erected on single building plots with gardens. The applicants’ intention to build a property in a similar location was not related to the burdens arising from the Deed of Conditions, and they had in fact not permitted any property to be built at that location. Further, there having been no ‘back garden development’, there had been no comparable additional development.

[35] It was further submitted that the applicants had misconstrued the present effect of the burden: those who now had the right to enforce it had a right of veto. The respondents’ position was not simply an attempt to enforce a purported right to protect views, but rather to preserve burdens which generally served to protect their amenity and, as a matter of fact, to protect existing views. Matters fell to be determined by the Tribunal as they were, not in terms of some hypothetical situation in which the developer had built different houses in different locations. The reference to the absence of a public planning regime at the time when the burdens were created was erroneous. The fact that 41 Caldwell Road was already situated close to another property on its other side did not negate the impact which the proposed house would have, and the gable wall on that other side did not have any areas or windows which suffered similarly. The respondents also met some of the points made in relation to other Tribunal decisions.

[36] In her written submissions, Ms Benson agreed that this development would not affect her property directly, and noted that the Tribunal was not the place to debate planning consent, but pointed out that there were many properties with large enough gardens for backland development and suggested that the impact of success of this application would not be negligible. All the owners had bought their properties in the belief that they were protected by burdens, and the transfer of the superior’s role to the community did not affect the burdens’ validity. The original plots had been carefully designed and properties positioned in such a way as to create overall benefit which the conditions existed to protect. The conditions protected collective rights against any individual right to enjoy the fruits of additional development. The age of the conditions was irrelevant. The road to be affected by additional traffic was not the road the applicant lived in.

[37] Mr Roos’s single submission, in answer to the original application, made similar points. In his submission, the purpose of the conditions was to protect the amenity of the area and prevent development that would have a detrimental effect on the benefited properties.

Parties’ Submissions: Compensation

[38] The respondents submitted that there was no dispute that the variation of the burdens as sought would lead to the building of the proposed house, and the evidence established that that would result in substantial loss and disadvantage to each of the respondents, with adverse effects on value. Mr McHugh’s evidence had not really been challenged in its terms by Mr Shanks. Equating the loss from the variation with the diminution in value resulting from building the new property was consistent with the statutory provisions and with the Tribunal’s approach in, e.g. Scott & Ors v Teasdale & Ors. The applicants’ approach, apparently to attribute inherent value to the burden as the proper measure of compensation, was incorrect and failed to acknowledge the real world impact and effect of the waiver or discharge of these burdens.

[39] The applicants submitted that Mr Shanks had followed the correct approach, as illustrated in J & L Leisure v Shaw, where the Tribunal had considered whether in a hypothetical sale a seller who could indicate that any development would be in compliance with the height restriction in the title condition would obtain a higher price than a seller who had to indicate that there was permission for the particular proposed development. A substantial adverse impact did not necessarily mean that there was any substantial effect on value. Mr Shanks had not offered a view on ‘interest to enforce’ but had been talking about material detriment in valuation terms. He had looked at the position of the hypothetical purchaser. He had interpreted the conditions, sought to attribute a meaning to them and considered that they did not protect against loss of views and that their variation would therefore not lead to any substantial loss or disadvantage, and in any event that even if it were correct to value the impact of the proposed development the hypothetical purchaser would not pay less. Mr McHugh’s valuations of the properties as they stood were not disputed, but Mr McHugh had approached matters the wrong way. The proposed development did not offend the conditions which the applicants sought to vary. His opinions on diminution of value lacked credibility, particularly as he would not accept any change resulting from the reduced height, and also because he had inconsistently maintained that the value of 12 Ardneil Avenue would not have been affected by the construction of houses across the road.

Tribunal’s Consideration: Merits

[40] Parties made similar submissions, as outlined above, on the basic general principles in the application of the statutory test which governs cases of this kind. These principles are well established.

[41] However, that agreement on the basic approach masks a significant divergence of approach in this case to the issue of benefit from the conditions (factor (b)), when their purpose (factor (f)) is accepted as an important factor which is often considered first. The question arises in cases, of which this is one, where conditions were created by a party other than, and having a different interest from, the current benefited proprietor. Typically, the condition was created before 2004 by a superior, either simply a person selling land for development or, as in this case, a developer who has acquired land for development and, in the course of pursuing that aim, has set out title conditions including real burdens, typically in a Deed of Conditions. We think it may be accepted also in this case, although this was not specifically explored in the submissions, that no ius quaesitum tertio, i.e. right of individual house proprietors to enforce, was either expressed or implied. In this case, the applicants come close to asserting that the facts that the condition was created in the interests of the superior and that there was no specific protection of views (which by no means all the houses in the development enjoy), the conditions were in fact of no benefit, and no value, to the respondents as benefited proprietors opposing the application primarily in order to protect the views from their houses. The respondents, on the other hand, argue that, provided the test of interest to enforce is met (and they say it is clearly met in this case), the benefit to them is a valuable right of veto over this proposed development.

[42] This divergence appears to have been carried through into the competing valuation opinions which, although directed at compensation, also have a bearing on the merits. Mr Shanks’ central position, on the question whether the proposed variation had an impact on value, was that because it was not the superiors’ intention to create an inflexible rule and, further, it was not the intention to give specific protection to any benefited proprietor, the conditions did not offer the protection claimed and the argument for compensation due to diminution in value was therefore unfounded. Mr McHugh’s approach to the issue was to look at values before and after the erection of the proposed house, the underlying proposition, as submitted on the respondents’ behalf, being that where it is clear that the result of the variation being granted would be the erection of the particular proposed house, the impact on value could be assessed in that way. On Mr Shanks’ approach, the benefit conferred by the condition is nil or minimal. On Mr McHugh’s approach, it can be substantial.

[43] We are required by the legislation to consider the purpose of the condition, which is agreed to be an important starting point in the issue of reasonableness. At one extreme, a condition is purely historical, created before the days of general planning control and without any indication of protection of any particular amenity or even benefit to neighbouring proprietors. At the other extreme comes a specific condition aimed at protecting a particular amenity enjoyed by a particular neighbouring owner. In general, an application to discharge or vary the first of these is more likely to be reasonable than an application in relation to the second. For example, if this plot had originally been included within the property sold with 12 Ardneil Avenue but subsequently conveyed by that proprietor with an express prohibition on building, an application to discharge that condition would be likely to be very difficult. In this particular case, the condition is somewhere in the middle, being fairly typical of conditions in modern residential developments. Although the conditions were conceived and expressed in the interests of the developers and there was no express purpose of protecting views enjoyed by some individual owners, there is a clear continuing purpose in each of the conditions before us of preserving the amenity of the development.

[44] This lack of a particular intention to protect views enjoyed by individual owners does not, however, mean, when factor (b) is being considered, that the condition confers no benefit on individual owners who have title to enforce. If they could satisfy the test of interest to enforce, they do indeed have a right of veto, whatever the original purpose and intention was. As Lord McGhie put it in Ord v Mashford, at 2006 SLT (Lands Tr) 24L:-

“Now, factor (b)(i) will have a major role as being likely to be the main, if not the sole factor pointing against the grant of an application. But for this factor, it would normally be reasonable to discharge the condition. As discussed above, factor (f) may have an important supporting role in this part of the assessment but identification of the present benefit is fundamental.”

[45] The nature and scheme of these title conditions, in their context in the Deed of Conditions, appears clear. The developers retained freedom to develop plots, before sale, as they chose (subject of course to planning control). In some cases, they themselves built the houses and sold them; in others, they sold plots for the purchasers to build to their own choice and design, including location on the plot, but subject to the developers’ approval of plans. In either situation, under the scheme of conditions, once the houses were built, further building was still possible, subject to consent and approval of plans, but subject to the important qualification that sub-division was prohibited. It is the operation of the conditions after the houses have been built, as has happened in this particular locality, which is in issue in this application. The fact that the developers retained the ability to go on during the development phase building houses which, as in Ardneil Avenue, could affect the views enjoyed by houses previously built and sold, whatever might be thought about such a practice, was consistent with the scheme of conditions but has little bearing on the issue which we have to consider.

[46] Similarly, the applicants’ reliance on an outline plan which the developers admittedly took to the length of obtaining planning consent, but which was not in fact ultimately pursued, appears to us misplaced.

[47] There seem to us to be further reasons why the 1976 planning position does not assist the applicants. Firstly, this plan including a house approximately in the location of the now proposed house only lasted for a short part, perhaps even a very short part, of the period between 1966 and the present day: an earlier plan in 1970 did not show that proposal and the proposal was departed from not long after 1976. It would seem to be at least as important, possibly more important, that it did not happen than that the developers included it in their plans for a period. One might ask why it was departed from by developers who, as Mr Fyfe said in evidence, were good at using ground, although in fairness we should not speculate too much about that. Secondly, looking at the 1976 layout, we agree with the point made by the respondents in the pleadings that it appears to show that house in a very slightly, but we think significantly, different position. It is shown set further away from the boundary with what is now 12 Ardneil Avenue. Bearing in mind the topography, that would also appear to set it slightly lower down the sloping ground, thus making less of an impact on its neighbour. It appears therefore to have differed in two respects from the present proposal. As will be seen from our subsequent consideration of the issues, we found the particular position of the proposed house in relation to 12 Ardneil Avenue to be of some importance. Even if this evidence offered some support for the proposal to build one more house in this area, it does not help the applicants’ position in relation to assessing the impact of their particular proposal.

[48] We would also mention that the applicants’ reliance on the superior’s purpose and intentions seems to us to be weakened by the absence of any indication of Mactaggart and Mickel’s position in relation to their proposed house. The idea that there was little benefit to the neighbouring owners appears to require an assumption that the superiors would have granted a waiver. We do not think that this can be assumed in the situation where they themselves decided not to build a house there and instead to convey a single plot to the applicants. Mr McGlone told us about an indication, although admittedly not legally binding, that another house would not be built in that position. This would be the first ‘garden ground’ development on the estate and it is by no means clear that the developers would, as superiors agree to it when neighbouring owners were opposed.

[49] Turning to our assessment, on the evidence and following our own inspection, of the particular proposal, we are firstly clear that, looked at on its own, the proposed house on the site proposed would be an entirely reasonable proposal. It of course has planning consent and, to our mind, it in itself fits the actual site. Further, given the size of the applicants’ garden, it would not in our view represent over-development of their property. The site is not unduly small in comparison with other houses in the estate. To the extent that the conditions were intended to protect the density of the development, we do not think that this proposal would, in itself, have an unreasonable impact on that.

[50] However, looking to the amenity of the neighbouring houses, we think that the proposal starts to become problematic. To our mind, the amenity of this particular locality clearly includes the outlook and views towards the Firth of Clyde and Arran. Mr Fyfe fairly accepted in answer to a question from the Tribunal that the proposed house was taking something from other houses’ views in order to give it a view. Consideration of the amenity cannot simply ignore that, although it is a matter of degree which we consider, in more detail, in relation to each of the other houses, below, along with the other relevant factors.

[51] Amenity, however, is not simply a question of views. It includes the degree of impact of other houses. Developers achieve a degree of amenity partly by their layout of the individual plots and houses. Whether that amenity is reasonably preserved when another house is built may depend on the particular siting of the house in relation to the houses which are already there. This particular site is located at a point where four streets almost converge and the four layouts, as it were, coincide. To our mind, this makes it, regardless of the issue as to views, a sensitive site and a difficult one because there is a group of houses with different aspects. In this case, we think that 3 Carlung Place is far enough away not to be significantly adversely affected. Also, in our view, the proposed house would in fact sit reasonably comfortably beside 41 Caldwell Road, following the pattern of development on that side of that street, although there would be some effect on the south side of the house, which was not designed against the prospect of another house so sited. However, it seems to us that 12 Ardneil Avenue would be quite seriously adversely affected by the mass of the proposed house so close to its garden. We think that the proposed house does not fit, indeed conflicts with, the layout at that end of Ardneil Avenue. Unfortunately, a site which would fit that layout, following the houses round the end of that street, could not be fitted within the applicants’ property. Because of the convergence of the streets, the garden of 12 Ardneil Avenue has, to our mind, already been slightly ‘squeezed in’, leaving its main aspect to the west, with the result that the mass of another substantial house so close to its boundary on that side would have a serious overshadowing effect which, in the context of the amenity established at this location, appears to us serious. There would not be actual overlooking, but the entire extent of the roof, and parts of the top of the back walls of the proposed house, would be not just visible but very close. There would be a significant loss of sunlight.

[52] We were considerably assisted in our assessment of the effect of the proposed house by Mr Cogswell’s mock-up photographs. It can be very difficult to visualise the exact position of a proposed building, but this mock-up was accepted to be an accurate representation of that, subject to lowering the ridge lines to reflect the more recently agreed position about the height of the house. This production, with that adjustment, enabled us to visualise the appearance of the proposed house from various positions in the respondents’ properties with a reasonable degree of accuracy. We were acutely aware that the appearance of a blank shape, as in these photographs, can affect the perception, and therefore visualised a house designed, as shown on the plans produced, to an appropriate architectural style and standard. The respondents’ comment that the applicants’ evidence, by contrast, did not include any evidence by anyone who had been in any of the respondents’ property, is fair. It may be worth pointing out to applicants in similar situations that there is no reason at all why they should not have appropriate access to respondents’ property if such issues arise: this could be secured by order of the Tribunal under its rules, although that should not be necessary.

[53] Our assessment of the effect of the proposed house on the views enjoyed by the respondents, again with the assistance of the mock-up photographs, was as follows. Generally, the views enjoyed by quite a few, but by no means all, the houses in the locality, are over a built environment, more specifically an attractive, relatively low density, residential environment. The views are basically over ground sloping down towards the firth, and are generally over the roofs of houses and also over trees and bushes. The extent of the views varies widely. They may be views limited, to a greater or lesser extent, by the roofs of houses, or they may be views in effect framed by nearby houses, or they may be more or less panoramic and uninterrupted unless the viewer looks down to the houses, etc. below. The primary attractions in the views are the sea and the islands, particularly Arran.

[54] It follows that the effect of proposed building on the views enjoyed by particular houses will vary widely. To our mind, the effect on 41 Caldwell Road would not be substantial. The main aspect of that house is almost due west and with its elevated height gives it uninterrupted panoramic views, properly described as spectacular, to the sea and Arran. The proposed house would only be seen from the front of the house by turning to look to the south east which would not be a natural or usual direction of sight. Certainly, the smaller of two windows in a modestly sized breakfasting kitchen would completely lose the sea view, but the larger window over the sink would retain it; one other small window, in an upstairs study to the rear of the house, would lose some of its view; and the rear entrance, side path and a patio beside the boundary and within a few feet of the new house, would be overshadowed to an extent and their privacy reduced, but there is already a high hedge at that point. If the property were to be marketed, we would imagine advertising particulars justifiably highlighting the spectacular views without requiring any alteration if the proposed house were about to be or had been built. We can accept Mr McHugh’s evidence that there would be an effect on value but are slightly surprised by the level which he put on it.

[55] The view from 3 Carlung Place may be said to be more affected, but only because it is at present quite limited. It is a view, primarily from a balcony but also from parts of the garden and, though quite restricted, from two rooms in the house, through the gap between 41 Caldwell Road and 12 Ardneil Avenue. The proposed house would sit in much of that gap, but slightly lower. At least from the balcony and within the house, there would still be a view over the roof of the proposed house, of Arran and a small strip of sea. We can accept, however, that the present view is an attraction which will be substantially reduced and, again, that there would be some effect on value.

[56] 12 Ardneil Avenue has not been built to take full advantage of the views. The front of the house, including the main lounge, enjoys quite attractive views to the south, over other houses. These views would be unaffected. Other rooms in the house have more or less oblique views the effect on which could not be described as material. A different position arises in the rear garden, to which we have referred above. It presently has wide views to the sea and Arran albeit 41 Caldwell Road effectively frames the view on one side. In addition to the substantial impact in itself of the mass of the new house, virtually all of that view would be lost, with only a very limited angle remaining.

[57] Our specific consideration of the factors listed in section 100 is as follows. We do not consider that there has been any change of circumstances pointing in favour of the reasonableness of the application (factor (a)). One might say, strictly speaking, that there has been this substantial change since the conditions were created, that the development has taken place and has created a high amenity, medium density, residential estate. This of course meets the evident purposes of the conditions and we consider that these purposes, in so far as continuing, can clearly still be achieved. There has to date been no ‘back garden’ development of additional houses. There have been a number of extensions and alterations but not such as, to our mind, to alter the character of the locality or threaten the purpose of the conditions. For a period in the past, before the houses were built, the developers had a plan which included building a house approximately, but not exactly, on the site of the proposed site, but that plan was not followed through. As we have explained, we do not consider it to be a change of circumstances of any significance, and in any event it was followed by the subsequent further change of plan. It confirms, rather than alters, the position created by the deed of conditions, viz that the developers were free to develop as they chose.

[58] Although this was apparently not the case when two of them purchased (Mr Gillespie has purchased since the 2003 Act took effect), the respondents are entitled to the benefit of a prohibition on sub-division, effectively preventing the building of an additional house which in any event would require their consent. We are not directly asked to rule on the enforceability of the conditions but have little difficulty in regarding at least Mr Montgomery, and probably also the other two respondents, as being able to establish that building this proposed house, in breach of the conditions, would result in material detriment to the value or enjoyment of their ownership of their properties. Mr Shanks’ evidence does not in fact suggest any disagreement on that question, although he indicated, without elaboration, that he did not accept the full extent of reductions in value spoken to by Mr McHugh. The question, then, under factor (b), is the extent of this benefit of being able to prevent the applicants from proceeding. We have really covered this in our consideration above of the effect of the proposal on the respondents’ properties. We consider that Mr Montgomery benefits under the conditions from being able to prevent a development close to the boundary of his house which would have a significant and serious effect on the amenity of his house. The benefit to the two other respondents is rather less serious, being mainly confined to some effect on views, but we do think that they derive some benefit from protection against this proposed development. The effect on 3 Carlung Place appears slightly worse than the effect on 41 Caldwell Road: Carlung Place had very much less of a view to lose but would lose most of it, whereas Caldwell Place had a great deal to lose but would, to our mind, lose very little.

[59] The position about factor (c) can be stated more shortly. It is clear that the inability to proceed with this proposal, for which they have planning permission, would be a very substantial impediment to the applicants, as but for this condition this would be a normal and appropriate development of their property. That said, the applicants were well aware of these conditions when they purchased. Mr MacColl’s submission, founding on Mr Fyfe’s answers to questions about ‘the fruits of development’, appeared to us over-technical.

[60] Factor (d) has no real bearing on the matter. We regard factor (e) as neutral in this case, 45 years not being so long as to make this potentially an obsolete condition but not so short as to count against the reasonableness of the application. Particularly as development has been continuing over the period, the houses involved here being rather more recently built, we do not think that this condition could be said to have outlived its usefulness.

[61] The purpose of these conditions (factor (f)) was to preserve the amenity of the development by limiting further building and prohibiting sub-division. This was no doubt primarily in the interests of the developer superiors, but it was also, in our view, in the interests of the house proprietors, albeit they would, as matters stood when the conditions were created, have to rely on the developers to uphold their position. It served to indicate the developers’ intention that once the houses were built and sold, there were to be no more. We are in no doubt that the amenity at this location, includes the outlook and views towards the sea, but accept that the conditions were not directed at particular views or amenity enjoyed by any individual proprietor.

[62] The applicants do have planning consent (factor (f)), and there was rightly no suggestion that the difficult history of the attempts to obtain that consent alters the strength of this factor. This means that the proposal is reasonable in the public interest, but, as Mr Geddes acknowledged, that is of limited significance when there is an issue as to private title conditions and when the statute requires consideration of several other factors. It might be added that although some questions as to neighbours’ amenity are within planning considerations, views, as such, are apparently not.

[63] We also regard factor (h) as neutral in this case. Factor (i) has no application. The only other matter perhaps requiring consideration under factor (j) is the so-called ‘precedent’ argument which Mr MacColl did not press but the other objectors who did not attend the hearing sought to make more of. There may be cases, Esplin & Baird v Higgitt & Ors being one, where there is such a clear likelihood of further similar development if a first application is granted as to require the consideration of reasonableness to take account of that. In this particular case, however, we think that we are dealing with the reasonableness of building on a very particular site and we do not think that granting the application would alter the position that any other application would require to be considered in its particular circumstances. We therefore do not consider this to be a material consideration in this case.

[64] Drawing all these considerations together and asking ourselves whether this application is reasonable, we appreciate that the conditions were not created specifically to protect any individual property but do consider that they were created in order to protect amenity from further development proposals, particularly to build additional houses and sub-divide plots. We do not consider that there has been any material change of circumstances which diminishes the strength of these conditions and weighs in favour of the reasonableness of the application. The age of the conditions does not particularly favour either position. We bear in mind the extent of the impediment to the applicants if they cannot do what property owners can normally do, viz. develop their property in accordance with public planning consent, but also that this restriction is what they accepted in their title. We give considerable weight to our assessment of the benefit to the respondents of protection from this proposal. Cases like this, where it is accepted that relaxing the conditions so as to allow a particular proposal to proceed will cause loss which may be substantial, can come down to a question whether it would be reasonable, despite the detrimental effect of the proposal on the neighbouring owner, to meet the situation with an award of compensation rather than refusing the application. The provisions about compensation in Section 90(6) and (7) of the Act show that an application may be accepted as reasonable despite its causing substantial loss or disadvantage to the benefited proprietor.

[65] In this case, we have reached the view, on a consideration of all the factors, that in the case of 12 Ardneil Avenue, the detrimental impact on the amenity is too great to make it reasonable to deal with the application on the basis of compensation. We are not satisfied that the application, as it relates to that property, is reasonable. We must therefore refuse the application.

[66] As regards each of 3 Carlung Place and 41 Caldwell Road, we would have taken the other view, that it would be reasonable to allow the application subject to awarding monetary compensation. We felt that the impact on those properties would not be such as to make the application by proprietors who have planning permission for an otherwise appropriate development unreasonable, when all the relevant factors in relation to this application to very these title conditions, are considered. We would also have granted the application as against Ms Benson and Mr Roos, without compensation.

Tribunal’s Consideration: Compensation

[67] Had we been allowing this application, we would have made the following awards of compensation:-

Mr McGlone, 41 Caldwell Road - £17,500
Mr Gillespie, 3 Carlung Place - £12,500
Mr Montgomery, 12 Ardneil Avenue - £20,000

[68] The applicants were in our view correct to assert that the issue in relation to compensation is not simply one of ‘before and after’ valuation. The correct question is whether the benefited proprietor, as owner of the benefited property, has suffered any substantial loss or disadvantage in consequence of the (in this case) variation of the conditions. However, where it is very clear that the consequence will be a particular development, it may be appropriate to measure the loss by, in effect, a ‘before and after’ valuation. Mr Shanks’ approach was apparently based on his view that because the superiors did not intend any particular benefit to individual proprietors and changes were to be expected at this development seems to us to ignore two things: firstly, the scheme of the conditions did not involve changes after the plots were sold to individual owners, and secondly, the Act did admittedly put the respondents in the position of benefited proprietors. Provided they could establish interest to enforce – discussed above – the respondents have under the conditions a right of veto and the exercise of our jurisdiction effectively to remove their right to veto this particular proposal could cause them loss and open up the Tribunal’s further jurisdiction to award such sum as we may think it just to award.

[69] We would accept Mr McHugh’s evidence with some qualification of his views on the extent of impact on 41 Caldwell Road and 3 Carlung Place which, again, we have discussed above. It does not appear to us that he was doing anything essentially different from the approach followed in the very different circumstances of J & L Leisure v Shaw. A feature of that case, quite unlike this case, was the already quite unattractive aspect of the benefited proprietors’ amenity, because he looked over an area of neglected, dilapidated property amounting to an eyesore which was to be removed, so that a substantial impact from the proposed development did not necessarily translate into any substantial effect on value.

[70] It is notoriously difficult to put a value on such matters, particularly where the amenity of houses, and the effect of surrounding development on that amenity, can be so much a matter of individual circumstances. We have become used to valuation surveyors assessing such a reduction in value in percentage terms, but Mr McHugh did not follow that approach and instead attempted some specific comparisons. Opinions on percentages are or at least should be based in some way on some analysis of actual sales evidence somewhere, so Mr McHugh was in effect trying to get at the best evidence. His evidence on the comparables was not detailed, and there is always a question as to what other factors might be operating. However, his general approach to value levels was not criticised, it was based on sales evidence, and, having viewed the other properties externally, we are prepared to accept it. That said, Mr McHugh was cross-examined to some effect in relation to details of his views about the impact of the proposed house.

[71] In relation to 41 Caldwell Road and 3 Carlung Place, we found Mr McHugh’s assessments of the effect of the proposed house over-stated, for reasons which we do not think that we need to re-state. Although the two situations are actually quite different, on a broad approach we think that the effects on these houses would be similar and would reduce Mr McHugh’s figures in each case by 50%. We found his comments on the effects on 12 Ardneil Avenue by and large fair. We do think that to deprive its owner of the right to prevent this house from being built would cause a considerable reduction in the value of his property. A reduction of near enough 10% in that case is substantial but, we think, appropriate and just if it had been considered reasonable (as it was not) to deal with the effect on that property by compensation rather than refusal of the application.

[72] Finally, we confirm that any application in relation to expenses can be considered by the Tribunal on the basis of written submissions in accordance with our normal practice.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 26 July 2011

Neil M Tainsh – Clerk to the Tribunal