OPINION

Whitelaw v Acheson

[1.] This is an application under section 90 of the Title Conditions (Scotland) Act 2003 to vary title conditions restricting to residential the use of the applicant’s property at 201 Colinton Road, Edinburgh and restricting building works (“the conditions”). The applicant sought to be allowed to use the subjects as a therapy and wellbeing centre and to extend the original building to provide further accommodation for this purpose.

[2.] At the hearing on 9 and 10 January 2012 the applicant was represented by Ms Barbara Bolton, solicitor, and the respondents by Mr David Thomson, advocate. Ms Bolton led evidence from the applicant and from Mr David Blaikie, Dip. Arch, RIAS, ARB; Mr Derek Scott, BSc, Dip.PP., MRTPI, MPI; and Mr Grant Williams, BSc, FRICS. The respondents gave evidence and Mr Thomson also led Mr Peter Drennan BSc, MRICS and Mr Gordon Buchan, a local councillor. An affidavit from Mr Christopher Haviland, co-owner of 197 Colinton Road, was also lodged on behalf of the respondents.

[3.] The parties had sensibly co-operated to avoid duplication of authorities. We were provided with bundles which included references to over 30 decided cases. However, as parties were broadly agreed as to the proper approach to be taken by the Tribunal, no purpose is served in detailing these authorities. The case turned on the provisions of the 2003 Act full details of which can be found at [www.legislation.gov.uk/asp/2003/9/contents] .

[4.] Although we heard some discussion of the question of interest to enforce the existing conditions, we are satisfied that we should proceed on the basis that the respondents have undisputed title and, as proprietors of the adjacent residential subjects, have a proper interest to oppose any change to the existing conditions. We are not persuaded that their interest falls to be measured by reference to the degree of interest necessary to enforce a condition in respect of any alleged breach in terms of section 8(3). That would require assessment of the particular facts and circumstances bearing on the breach. The question of materiality cannot arise except in such a context. We consider that it begs the question to consider the interest of the respondents only in terms of the proposed change. They plainly have an interest to maintain the existing condition.

[5.] There was some discussion of the question of whether other residents might have good title to enforce the conditions but none appeared to assert such title and in light of the limited material presented to us on this matter, it was at best doubtful whether any other person had title. There was no dispute that under the 2003 Act, the interests of residents without title who might, nevertheless, think themselves affected were not relevant to our determination. Such interests are a matter for the planning process.

Inspection

[6.] The members had had the opportunity to familiarise themselves with the general location and traffic conditions when using Colinton Road. A full inspection was carried out on 13 January 2012 in the presence of the parties.

The conditions

[7.] The conditions were imposed by a Feu Charter by the Trustees of the Craiglockhart Estate Company in favour of George Thomas Beilby in 1883. It was accepted that the effect was to limit use of the subjects to a single dwelling and to prevent further building – other than for “offices” in connection with that building. It was not contended that this term covered what is now understood as office use. The proposed variation was to add a provision that the specified conditions should not prevent use of the subjects “as a therapy and wellbeing centre with ancillary office (providing interalia individual and group counselling, complimentary therapy sessions and small workshops)” or “the erection of a single storey extension on the area of ground to the north side of the existing dwellinghouse; the erection of a garden room within the rear garden and alterations to the rear of the dwelling house so as to create a disabled access.

Subjects and locality

Neighbourhood

[8.] The subjects are situated on Colinton Road. It is a long road with various twists and turns but for convenience of description we treat it as running north and south and the orientations set out below are based on that assumption. The parties’ properties are on the east side of the road and in this section of the road the houses are mainly large detached Victorian villas set well back from the highway. On the west side are bungalows probably dating from the 1930s. A major sports facility Craiglockhart Tennis and Sports Centre lies to the rear and east of Nos 193-199 Colinton Road, stretching to the north. It comprises a number of large buildings with associated parking. To the rear and south east of Nos 201-203 Colinton Road is a cluster of more modern houses accessed off Glenlockhart Valley. These houses and the sports centre lie in a valley to the east of the subjects.

[9.] Colinton Road is a busy arterial route. It is well served by public transport with four bus routes. However, there is widespread daytime parking, partly by commuters and partly by students attending the nearby Edinburgh Napier University.

Subjects

[10.] The applicant’s property, 201 Colinton Road, is a two storey, Victorian, detached villa, built in about 1885, in a traditional architectural style with stone walls and a pitched slate roof. The principal accommodation comprises, on the ground floor, entrance hall, drawing room with bay window to the front, dining room, kitchen and utility room and at first floor level there are 4 bedrooms, study and bathroom.

[11.] Like the other houses on the east side of Colinton Road at that point, it is set about 20m back from the pavement. A wide gravelled drive leads to the north side of the house where there is an extensive mono-blocked parking area and a double garage, roughcast externally and with a pitched slate roof. The gravelled drive also turns in front of the house and there is space to park there.

[12.] The front of the garage is approximately in line with the rear elevation of the house. Although built relatively recently, it is broadly in keeping with the domestic architectural style of the house. The north elevation of the garage is about 2m from the boundary with No199 and is partly screened from it by evergreen shrubs. The distance between the entrance vestibule of the subjects and the boundary fence with 199 is about 8m. The garden to the rear of 201 is secluded being surrounded by a high hedge.

[13.] To the north of the drive is a grassed verge about 3 metres in width. A line of mature trees together with a simple timber post and netting fence forms the boundary between Nos 199 and 201. There are a few shrubs planted in the verge but the boundary between the two houses is very “open”. To the south the boundary with No. 203 is a substantial stone wall.

Benefited property

[14.] The respondents’ property, 199, and the applicant’s house at 201 were built at the same time for one extended family. They are far from identical but are very similar in style. An unusual feature of the relationship between the properties is that the vestibules of each face each other but there are no inter-facing ground floor windows. In architectural terms they may be described as “mother and daughter” houses. The relationship between them is enhanced by the fact that the boundary between the houses is very open although the proprietor of either could change that by fencing or by shrubbery planting. There is a double line of mature trees along the boundary. The relevant banks on the edges of the drives on each side rise to a crest at the boundary.

[15.] No.199 is a very substantial villa with a floor area considerably greater than 201. The principal public rooms face west on to Colinton Road. Occupants of these rooms would not normally be able to see traffic entering or leaving 201. However, the drawing room does have a shallow bay window from which it is possible for a standing observer to see the entrance drive to 201. A person seated in a typical chair or sofa facing out, would not easily see the drive because such seating would be set back from the window. However, it would be possible to position a chair in the bay window so as to afford a view of the front part of the drive.

[16.] The house itself is set back from Colinton Road marginally further than 201. There is a lawn to the front and a gravelled drive runs past the south side of the house and parallel to the drive serving 201. It leads up to an imposing entrance vestibule located on the south elevation. Beyond the vestibule, there is a substantial modern garage to the rear of which a garden or sun room is nearing completion. From the front the location and style of this garage largely mirrors the double garage at 201. Similar to 201 there is a grassed verge about 2m in width alongside the line of boundary trees. The distance to the boundary from the vestibule is about 7.5m. To the rear of 199 is a small terraced garden which overlooks the Sports Centre.

[17.] No.197 Colinton Road lies to the north of 199. It is a similarly large, detached house very well screened by high evergreen shrubs and separated from 199 by a substantial stone wall. Activities in Nos.199 and 201 would be very unlikely to have any perceptible impact of any sort on the residents of this house.

Planning History

[18.] A planning application was submitted by the applicant in June 2010 for a change of use of the existing house (with minor alterations to provide disabled access) to a Therapy Centre. Although recommended for refusal by the planning officers, it was granted consent in September 2010, subject to a restriction in the hours of operation. A subsequent planning application for the conversion of the garage to commercial function room and for the erection of two outbuildings was refused in November 2010. However, an amended application for the erection of an extension to the existing building and the erection of a garden counselling room to the rear was granted in October 2011. There were a number of conditions attached, the two most relevant being; that use is restricted to only a Therapy Centre within Use Class 10 and the hours of operation are to be restricted, from 10.00 -20.00 Monday to Friday and 10.00-16.00 Saturday and Sunday.

The approved scheme

[19.] The scheme is intended to provide on the ground floor of the existing building a large entrance hall, waiting room, meeting room, kitchen, counsellors’ office and toilets and on first floor 3 counselling rooms, a “reflexology” room, equipment store and toilets. The proposal is to build a single storey flat roofed extension which we accept as accurately described as “unashamedly modern and contemporary in appearance”. This will link the existing house to the garage and occupies space lying between the houses 199 and 201. The accommodation proposed in this extension includes an enclosed entrance and reception area, office and counselling room and will be conjoined with the garage, converted to a therapy activity room. The west elevation – facing Colinton Road – is to be glazed while the north elevation facing the respondents’ property will be “smooth faced vertical cedar cladding and untreated sawn larch cladding, fixed horizontally”. It will be situated about 2m from the boundary fence and at heights varying from 2m to 3.6m.

[20.] In the garden a stand-alone “pod” is proposed which would in practical terms not be visible from No.199. Such a construction would not be radically different from a large garden summer-house.

[21.] It is proposed that there will be parking for six vehicles within the grounds: two in front of the glazed west elevation of the new extension and four in front of, and close to, the house.

Submissions

[22.] Our power to vary title conditions depends on the provisions of the 2003 Act and, in particular, on sec 98 which allows us to vary conditions if we are satisfied that it is reasonable to do so having regard to the factors set out in sec 100. Both parties produced helpful written submissions on the main issues arising in the case. The submissions dealt with the proper approach to be taken to our assessment and covered issues of title and interest discussed briefly above. The parties were broadly agreed as to the approach to be taken. The submissions addressed each of the individual factors and dealt briefly with the main aspects of the evidence bearing on these. It was recognised on both sides that the evidence was fresh in the minds of the Tribunal members and, sensibly, neither party attempted to go over it in detail.

Discussion

[23.] Although we have not found consideration of the purpose behind the title conditions to be of any special significance in this case, it is appropriate to follow our usual practice of looking first at this factor, section 100(f). We heard a careful analysis by Ms Bolton of the detail of the whole conditions affecting the subjects. The Feu Charter of 1883 disponed two adjacent areas corresponding with the subjects at 199 and 201 and set out a lengthy list of conditions typical of burdens of that period. These included an itemised list of prohibited activities as well as the positive obligation limiting use to a single residence. We accept that the main purpose of the conditions was to protect the interests of the superior. Ms Bolton contended that the other main purpose was to protect the general amenity of the area as a residential area. We accept that general proposition but are satisfied that protection of the immediate neighbours falls within the scope of the purpose. We have no doubt that we must approach this case on the basis that one purpose of the title conditions was to protect the interests of the proprietors of 199 in being able to enjoy their own home as a family dwelling without risk of undue disturbance or intrusion from inappropriate activities on the neighbouring land. We accept that this purpose remains perfectly valid. However, this is not a case where the conditions can be seen to protect any specific type of amenity and identification of this purpose takes us little further than the fundamental position that, as matters stand, the respondents have a right to prevent use other than as a dwelling and to prevent additional building. They can enforce these rights subject to the terms of sec 8. We have to decide whether it is reasonable that their rights should be restricted by allowing variation of the burdens. We turn to consider the circumstances bearing on the other factors set out in section 100.

[24.] (a) An OS map of 1895 shows 201 as one of a group of six large villas situated on the east of Colinton Road. At that time the nearest houses on the east side of the road were another substantial villa situated about one quarter of a mile to the north and a similar villa situated on the corner of Colinton Road and Glenlockhart Road to the south. There were no houses on the west of Colinton Road from Craiglockhart Avenue to a single dwelling some 250m to the north. When the burdens were imposed the road itself would have had no motor traffic. In short, the six villas were rather grand family homes situated in what was then virtually open countryside.

[25.] There have been radical changes to the neighbourhood. Colinton Road is now a main arterial road with a constant flow of heavy traffic throughout the working day. The housing development to the southeast is not now thought to be of any great significance in relation to the subjects, but the roofs are visible and its presence would have been regarded as a significant visual intrusion had it been the only change since 1883. To the east of the benefited subjects lies the Sports Centre. There is large sports hall and an adjacent inflated hall, both in full view and visually unattractive. There is a large car park immediately adjacent to the benefited subjects. The west of Colinton Road, opposite the subjects, is now lined by bungalows. About 200 metres to the northwest is a line of shops and business premises known as Happy Valley.

[26.] Colinton Road itself is some miles long and runs from Holy Corner to Colinton. The character of the road has several changes. We are satisfied that in considering the present case it is unnecessary and unhelpful to consider the character of the road to the north of Happy Valley on the west and the entrance to the sports complex on the east. The section of road from Happy Valley to the junction with Craiglockhart Avenue is entirely residential.

[27.] Although the whole character of the neighbourhood has changed dramatically, there may have been little change to the burdened and benefited subjects. They are no longer occupied by members of the same family. Modern garages have been built which, no doubt, represent a change from original stable buildings.

[28.] Although it is hard to exaggerate the scale of apparent change, we are satisfied that the original purpose of the conditions remains valid. The importance of change lies, not in the scale of change, but on the impact of the changes on the amenity protected by the conditions. The very obvious change from a setting in open countryside to a setting in a fully developed housing area might actually add weight to the need for protection of the immediate domestic surroundings. We are satisfied that the most obvious changes are broadly neutral in the sense that they do not necessarily detract from the benefit of the conditions. The changes which do have a bearing appear to us to be the visual intrusion of developments to the east and the constant dynamic of traffic on Colinton Road. In the present case we find that these matters are better dealt with in the context of consideration of the potential impact of the proposed variations.

[29.] (b) Under this head, we are concerned with the extent to which the conditions confer benefit on the respondents as proprietors of 199. This is the most anxious matter to assess. Before looking at the detail, it may be said that we found Mr and Mrs Acheson to be impressive witnesses, doing their best honestly to articulate their concerns. We recognise the feelings of frustration and irritation engendered by the prolonged planning process. It will be little comfort to them to recognise that the applicant appears to have bought the property relying on professional advice that no great difficulty was to be expected in relation to planning or variation of title conditions. She will have experienced similar emotions although with a quite different focus. The respondents recognise the difficulty they had in deciding whether their objections were reasonable. It is right to say that we have no doubt that they acted reasonably in stating their objections. However, we have to make our own assessment of the weight to be given to the issues they raise. It is not disputed that when considering title conditions we cannot rely on the personal views or wishes of current proprietors – even proprietors of such longstanding as the present respondents. Our task is to make an objective assessment having regard to the likely views of typical proprietors.

[30.] As Mr Thomson recognised, inspection is usually of critical importance in relation to the making of an independent assessment of potential impact on benefited property. On the evidence we had had little difficulty in accepting that the respondents were scarcely troubled by either the traffic at the front or the sports complex and car park at the back. But, on our visit, we were immediately struck by the obvious impact of both these factors. We have no doubt that both would have a significant adverse effect on the value of the property compared with a similar villa in a quieter, purely residential neighbourhood. However, in the present case the importance of these matters lies, not so much in the existing impact on the subjects, but in making an assessment of the comparative additional impact of any variation of conditions affecting 201.

[31.] We accept Ms Bolton’s submission that there are two distinct elements to be considered: the change of use and the proposed additional building. Although little was made in the pleadings of the impact of the buildings as a separate issue the respondents spoke to this in their evidence and we must consider both elements. The impact of these elements can, in turn, be assessed in two distinct ways: the viewpoint of a prospective purchaser and the viewpoint of an established occupier. The former might be considering the issue in terms of value and the latter in terms of enjoyment of property.

[32.] Although Mrs Acheson expressed her concern in terms of the need to provide a “safe home” for a family and spoke of the security provided by an adjacent dwelling, we heard no further evidence bearing on this issue. We are not persuaded that is a matter of significance in the present context. The houses do not provide any mutual surveillance. We are not persuaded that the security of 201 as a building unoccupied overnight is of any real significance in relation to the protection of 199. There was no evidence that any special vulnerability of 201 would add materially to the vulnerability of 199.

[33.] The most obvious impact of change of use would be in increased movements of cars and pedestrians on the drive of 201. Like the impact of the traffic, the main effects would be in relation to the front of the house and the front garden. The front windows face directly towards the road. The passing traffic is in full view although parts of vehicles may be hidden by hedges and tree foliage. However the windows do not present a ready view of the subjects at 201. The bay window is shallow and even a person sitting close to the window would not have the subjects at the forefront of his or her vision. We are satisfied that the thoughts of a prospective purchaser, assessing the desirability or otherwise of the house, would be dominated by consideration of the impact of the passing traffic. If that was acceptable the purchaser would not be put off by the prospect of a lot of movement of cars or pedestrians within the grounds of 201. Adjustment of price to allow for traffic would entirely overshadow any consideration of allowance for such movement in the next door property.

[34.] From the perspective of an established occupier, it can be accepted that the constant movement and noise of traffic would soon cease to be noticeable. We are satisfied that insofar as they could actually see or hear movements next door the same would come to be the position.

[35.] Mrs Acheson drew attention to the impact on use of their front garden and it is also clear that when using their own drive movement on the adjacent drive would be in clear view. We accept that clients using 201 would be regarded as strangers in a way which a family, or guests of a family, living there would not. However, at present the grounds at the front of both houses are open to scrutiny by pedestrians on the street. If more privacy is required proprietors need to make their own arrangements for screening. The examples of other houses on Colinton Road show that privacy can be achieved. There is potential for screening between the properties at the hands of the occupiers of 199 which would either remove or diminish the risk of prying eyes.

[36.] There are potential uses of the subjects which would fall within the wide umbrella of “therapy” which might give rise to different issues. Any form of therapy which involved groups might well give rise to a risk of such groups entering or leaving the subjects and, particularly when leaving, standing laughing or talking in the garden before dispersing. That could, potentially have quite a different impact on the benefited subjects compared with the simple movement of individuals, however frequent. Plainly treatment involving any kind of drug therapy might attract clients who could be seen as undesirable visitors. Other types of therapy might also be aimed at, or attract, similarly undesirable visitors. The applicant contemplated massage as an appropriate form of therapy. As we discuss further below it is not easy, in terms of title conditions, to distinguish between proper massage and massage facilities which are simply a cover for other forms of sexual therapy.

[37.] It was broadly accepted by the applicant that there should be some limitation on the types of therapy. In particular she accepted that there was no intention to provide drug therapy. We discuss the implications of this further under heading (j) below.

[38.] When considering impact of change of use it is appropriate to look also at the potential advantages of the change. Families and their friends are much more likely to make prolonged noisy use of a garden than would be likely in relation to any prospective use in terms of therapy. The applicant also accepted that a restriction on hours of use would be appropriate. Occupiers of 199 would, accordingly, have the benefit of absence of noise and intrusive movement in the evenings and overnight. Mrs Acheson did say that she would not see this as an advantage. She welcomed the companionship of another family. Families vary but it is not fanciful to suggest that occupation of a large house, such as 201, as a family home would be quite likely to give rise to disturbance in the evenings and late at night. Cars and motor bikes might come and go; music and parties might be common. These things might be readily tolerated in most domestic situations but it cannot be denied that many people would find it an advantage to be assured of peace instead.

[39.] The proposed erection of a modern extension to the north of 201 and linking into the existing double garage raises different issues. The problem is not one of noise or disturbance but of a radical change in the immediate outlook from 199 involving not only visual intrusion but also a distinct change in character.

[40.] We have no doubt that 199 is already adversely affected by the dominant impact of the unsightly sports complex which is the main outlook to the rear and that a potential purchaser would be influenced by this. It might be thought that if occupiers of 199 could become accustomed to an ugly outlook to the back, they would not be unduly affected by a carefully designed modern structure to the side. However, we are satisfied that there are significant differences between the wide view to the rear and the intimate view across to 201. The sports complex can, both physically and metaphorically, be overlooked. We accept that the respondents as occupiers of 199 can quite easily treat it as a thing apart. It is something quite different from their domestic surroundings. It lies in a valley and they do have a view of the hill above it. The glass and timber extension would have a much more immediate and intimate impact. Instead of looking across to a house of similar style to their own, they will be faced with a very obvious modern non-domestic structure, close to their boundary. What might be described as the charm of the related properties and the spacious domestic outlook will be completely lost. The immediate view will change to a blank wooden wall.

[41.] We think it rare that the amenity of a residential property could be said to be significantly adversely affected by the nature of a building or extension in adjacent subjects except where such a building would have an adverse impact on light or view. Personal opinions of style or design are irrelevant and structures which have planning permission can be taken to be acceptable from the viewpoint of the general public. However, the significance of the extension in the present case is not simply the visual impact but the fact that it appears to us to signal a very obvious change from a domestic to a commercial environment. This will detract from the domestic ambience of the respondents’ home. The extension goes beyond what might have been expected by way of extension to 201 as a dwelling. The visual impact is important in the present case because of the particular style of the two houses. Part of the ambiance of 199 is intimately connected with open space between it and the architecturally related building at 201. We are satisfied that the respondents have a proper interest in maintaining the residential characteristics of their home. The extension would detract from these.

[42.] It may be added that although we have explained our view that a change to use for counselling would not be expected to create such additional movement as would have any significant adverse impact on 199, we accept that there is a line to be drawn. The extension and conversion of the garage will provide more accommodation and increase the use made of the subjects. That is a relevant consideration although we consider that the main issue is the impact of the physical structure.

[43.] The proprietor of 197, in a written submission, made the point that it was a structure of such scale that it made it unlikely that the house would ever be attractive to a potential domestic purchaser. We accept this as a point to consider but do not give it much weight. Our concern is with the impact of the proposed new use rather than the possibility of the domestic use continuing.

[44.] (c) Although we heard submission from Ms Bolton to the effect that the restriction to use as a single dwelling was itself unduly onerous in modern conditions, there was no evidence to suggest that the condition created any particular hardship in relation to enjoyment of the burdened property. The evidence of Mr Williams was that there was a demand for such subjects for residential purposes. This is not a case where changing social conditions have made title conditions unduly onerous. However, the normal enjoyment of ownership is a right to do what you will subject to such restrictions as the legal system provides. We have no doubt that use to provide therapy is an enjoyment of the property which should not be restricted without justification. We accept the applicant’s evidence of the genuine benefit of counselling and similar person-centred psychotherapy. Such treatment has an important role to play in maintaining mental health. We accept that there is a need for suitable facilities for such therapy and that subjects such as 201 are well suited to the purpose and well positioned for clients in terms of access by public transport. We have no doubt that other forms of treatment contemplated by Ms Whitelaw, such as reiki, reflexology, dance and massage may also be beneficial. Many activities are beneficial to health in a general sense but we did not hear persuasive evidence that these treatments would be of any major benefit to the public in the way psychotherapy has proved to be.

[45.] Any restriction on building inevitably limits the potential enjoyment of the proprietor. However, some restriction is normally accepted in relation to villa subjects where a balance of house and garden ground is expected to be maintained. A purchaser of a house such as 201 would not expect to be totally free to build in the grounds. Although the present building restriction is a restriction on the applicant’s enjoyment of the property as it would prevent her from developing to the full extent allowed by her planning permission, we do not regard it as unduly burdensome.

[46.] (d) There is no relevant positive obligation.

[47.] (e) Over a century has elapsed since the condition was imposed. We think that length of time is seldom, of itself, of significance but it sometimes forces thought to be given to social changes which might otherwise have been considered under head (a). Without evidence of Victorian habits it is inappropriate to do more than refer to certain aspects of modern living which are unlikely to have been prevalent in 1883. Any family occupying this house might well be expected to have several motor vehicles. Teenagers now expect to have friends visiting freely and music is available on tap. Family members probably lead more independent lives and there is probably greater movement back and forth than there would have been in Victorian times. We think it can fairly be said that the impact of residential use on adjacent properties is likely to be greater than it was in Victorian times. People have to be more tolerant and, in practice, readily accept levels of intrusion which might not have been accepted in times past.

[48.] A similar social change is the development of services such as counselling which can readily be carried out in residential subjects. We have little doubt that such counselling has, for many years, been provided by some professional people using consulting rooms forming part of their home. Psychotherapy is not a modern creation. But the applicant’s proposal is on a much wider scale. Another social change is the use of property, initially built for residential purposes and now converted to business use of one sort or another. Such changes are widespread and we can no longer proceed on the basis of an assumption that such change necessarily has an adverse effect on adjacent residential property. We think it essential to consider the nature of the change rather than the label.

[49.] These changes must be kept in mind but we do not consider that in this case the length of time since the conditions were imposed is, itself, of great weight, one way or another.

[50.] (g) There is planning consent to a change of use and to the new building work. We can take this as showing that there is no positive public interest in preventing the variation but this has no direct bearing on the circumstances of the present case where the benefit must be treated as protecting the private interests of the respondents. In short, this is not a factor of much importance in this case.

[51.] In relation to planning, mention can be made of the traffic issues raised by the respondents and others which played an important part in the planning process. Put shortly, we are satisfied that they have no bearing on the issues before us. We are satisfied that the purpose of the condition did not extend to control of parking of motor cars in Colinton Road. It is clear from our observations that parking space in the immediate area does become quite restricted in the course of a working day. There is frequently parking close to the drives of both properties. The proposed new use will not add significantly to that problem. But, in any event, this will not have any direct impact on the amenity of 199.

[52.] (h) It appears that the applicant is not willing to pay any compensation although it may be noted that she offered to consider the provision of screening alongside her drive. This would involve her in expenditure designed to alleviate the impact on the neighbours. We would think it sensible for the parties to have some further discussion of this subject. Suitable shrubbery would minimise the adverse impact of change of use as perceived by the respondents. It could prevent their garden ground being overlooked by pedestrians on the drive of 201.

[53.] We recognise that it would be impractical to erect a stone wall on the boundary because of the topography and the existing trees. This might, otherwise, have been expected to provide a complete shield for 199 from any perception of increased use of 201. However, the respondents themselves have room to increase their planting along the south boundary if they consider a further barrier appropriate. In all the circumstances we do not consider it necessary to make it a condition that the applicant herself carries out planting. We heard no evidence of the likely cost of additional shrubbery but it would not be a substantial sum and we do not consider it appropriate to deal with the matter by way of compensation.

[54.] Turning to the wider issue of compensation, it may be noted that, although the 2003 Act expresses the factor in terms of willingness to pay, the Tribunal has always taken the view that the underlying consideration is whether compensation really meets the needs of the situation. Where the issue is one of protection of amenity, it is normally appropriate for us to give weight to that protection rather than to allow it to be bought off from an unwilling seller. In the present case we agree with the views of the respondents that the amenity itself is the important thing. In weighing reasonableness evidence of any loss to the benefited property would expect to be part of the assessment under (b). It would be necessary to take a broad view of such loss rather than attempt to quantify it precisely. In the present case we are not persuaded that there would be any significant loss.

[55.] There was a clear conflict of evidence on this matter. Mr Williams was of the view that the proposed change of use would have no impact on the value of 199. He tried to support this evidence by reference to various comparables. Mr Drennan told us that he was unable to find any relevant comparable. He had no experience of any comparable situation and approached the matter as one for application of his judgment and his long experience in the Edinburgh housing market. He said that the change of use would have a direct impact on value of 199. Indeed, even without reference to any potentially comparable experience he was able to express the view that the change might lead to a loss of £450,000 in the value of 199.

[56.] We prefer the evidence of Mr Williams. We accept his broad approach. He had attempted to find examples of domestic property near subjects used for treatment purposes. The detail was criticised. Some examples were from busy city areas where people would expect a variety of uses. His examples from Colinton Road were in areas where it was not possible to see clearly whether some properties were affected and others were not. It is fair to say that we did not find his examples of particular assistance. But he was not faced with any examples of comparators which positively contradicted the thrust of his evidence. He was criticised as being dogmatic in his failure to acknowledge any reason to consider that there would be any possibility of loss to 199 from the proposed change of use at 210. It is fair to say that, on the basis of the evidence at the hearing prior to our inspection, we were inclined to see some force in that criticism. The tenor of the respondents’ evidence was that the traffic was not noticeable and that increased activity within 201 would have an obvious impact. Mr Williams stood alone against that as the applicants other witnesses were not in a position to address the matter directly. However, having considered matters in light of our inspection, we clearly prefer his evidence. As we have discussed above, a prospective purchaser of 199 would be faced with an opportunity to buy a lovely family home but one with the significant adverse features of being on a busy main road on one side and looking out to a rather ugly sports centre and car park on the other. In relation to these features, the prospect of a greater degree of coming and going in the house next door would not, in our view, be a significant factor. In short, we are satisfied that this is not a case in which there is a risk of significant loss of value from change of use and the possibility of compensation is not a relevant factor. We did not hear any separate analysis of change in value attributable to the additional building works but as we are satisfied that in this respect the respondents’ amenity is to be protected, no question of compensation arises.

[57.] We recognise that our view, in relation to change of use, conflicts with the clear views expressed by Mr Drennan who was also an experienced surveyor. On some matters there is no escaping that conflict. We are satisfied that his evidence of the adverse impact of extra activity within 201 was not consistent with his view that the impact of the traffic and the activities related to the sports centre was barely noticeable and insignificant. It may be that he had become so accustomed to traffic in other contexts that he did not regard the Colinton Road traffic as obtrusive. There is no doubt that the houses are set well back from the road and there will be many domestic properties which have to put up with greater traffic disturbance but, we would have expected that any experience that traffic movement could readily be tolerated would have led to a similar view on the potential impact of extra movement next door. We did find it surprising that although he professed no experience of any similar situation, he was prepared to exercise his judgment in a detailed calculation of the potential impact on value of different opening hours leading to the view that evening opening could lead to a drop of almost half a million pounds in the value of 199. He did not accept that extra activity by day might be offset to any extent by extra peace and tranquillity at night if hours of use limited,

[58.] In fairness to Mr Drennan it must be said that we were left with an impression that he was under some misapprehension as to the precise nature of the valuation exercise he was to carry out. The nature of any misunderstanding was never identified but we did express our surprise when he said, at an early stage in his evidence, that the explanation for the absence of any suitable comparator was that, “if a property had been affected it would tend not to be sold”. When we asked for further explanation his response was to the effect that a seller would wait until the position was clearer. He made repeated reference to uncertainty as an important element in the valuation. He said people liked certainty and the greater the change the greater the impact. He said that some purchasers would simply walk away when such a change was brought to their attention. These observations tended to indicate that he was, in some way, seeing his task as being to assess the diminution in value caused by the current proceedings affecting the subjects. We can readily understand that a prospective seller might wish to wait until matters were resolved one way or another before putting the property on the market. However, it is not the fact of potential change which is relevant for the purposes of assessment of compensation but the probable impact of the new use. Assessment of compensation in the context of our jurisdiction may not be straightforward for surveyors. It is not a situation where they are able to acquire practical experience. We have had to consider the proper approach in previous cases and do not seek to add further comment in the present case where we are satisfied that there is no proper foundation for any award. But we think it can fairly be said that an obvious starting point in this case would have been to try to demonstrate circumstances in which a difference in value could be established in relation to some residential property situated adjacent to commercial property compared with other similar dwellings not so affected. Properties can be found in predominantly residential areas where some houses are adjacent to commercial subjects – ranging from veterinary surgeries to hotels. Examples of cases where adjacent houses demonstrated a clear difference in value compared with houses further away would have been a reasonably sound starting point. It would then have been possible to consider the comparative impact of different types of commercial activities and either adjust the figures appropriately or explain why no sensible adjustment was possible. We have no reason to think that examples of commercial use involving movements by strangers would have been hard to find although, of course, finding comparable subjects in a setting like 199 and 201 Colinton Road might have been impossible.

[59.] We have no doubt that both surveyors were well aware that a comparative approach was preferable even if it might require exercise of a good deal of professional judgment to identify and assess distinguishing features as well as the comparable elements. As we have said, we did not find Mr Williams’ examples particularly helpful. But we did find it surprising that Mr Drennan could find no start point for such a comparative exercise. However difficult it might have been to find similar styles of property, any evidence of typical differences in value attributable to proximity to commercial property would have given some support to his assessment. The failure to find anything like this tends to support our impression that he had not properly understood what he was expected to do.

[60.] (i) This factor has no bearing in the present case.

[61.] (j) We accept that consideration must be given to the difficulty in defining precisely what change of use might be permitted. The risk of a variation which might inadvertently permit a serious adverse use is clearly a factor to consider. The applicant had not faced up to this issue. She made much of her own intentions and asserted that she would be careful not to sell to anyone who would be likely to use the subjects inappropriately. However, when we are dealing with real burdens, title conditions which run with the land, personal intentions or undertakings are irrelevant.

[62.] Ms Whitelaw did accept that she was not seeking to be able to use the premises for physical treatment by way of drugs nor any form of surgical intervention. However she made it plain that she saw no real limit to the scope of the therapeutic treatment she might provide. Her immediate plans included provision of reflexology, yoga classes, Tai Chi and dance therapy. She also foresaw treatment by way of aromatherapy, massage, Reiki and bi-aura. The latter are said to be types of “energy work”.

[63.] There are two problems arising from the vagueness of the variation sought. It has a bearing on the potential adverse impact on the subjects and it risks challenge as leading to the creation of an obligation which might be wholly unenforceable. Mr Thomson contended that, as the problem of specification of the necessary change had been drawn to the attention of the applicant in good time in the respondents’ pleadings, the Tribunal should not seek to find an alternative formulation itself. The proceedings were adversarial and it was up to the applicant to define what she wanted.

We accept that we must seek to avoid any prejudice from any change in wording of the variation but we are satisfied that the wording is not at the heart of the dispute. The applicant has made it clear what type of use she seeks to have permitted. We do not accept that it is necessary for us to take a limited view of the language we might use to deal with it.

Conclusion

[64.] Having examined the various factors set out in sec 100 we have concluded that it is reasonable to vary the condition to allow a change of use. However, we have not been persuaded that it is reasonable to vary the restriction on building so as to permit the proposed construction between the houses.

[65.] Although, broadly speaking we are not persuaded that the uses proposed would have any significant effect on the amenity of 199, we do recognise that different considerations arise in relation to use for wider group purposes such as dance which might lead to obtrusive noise from groups congregating in the garden and would, in any event, lead to greater numbers. We have also considered the problem of specification of use and the agreed need to avoid certain types of therapy such as that involving use of drugs. Our conclusion is that it is appropriate to restrict use to direct counselling or psychotherapy services. We do not doubt the value of massage, dance, aromatherapy and similar types of therapy designed to enhance “well-being” but we see real difficulty in adequately defining such wider use. We recognise that the effect of sec 8(3) is that if the proprietor feels confident that any such use will not have any significant impact on the neighbours such occupier would be able to take the risk of extending the services provided and relying on an argument that the neighbour has no material interest to object. That is an aspect of the policy of the 2003 Act.

[66.] The residential characteristics of a neighbourhood need not be significantly affected by what goes on inside a building. The use made will have an impact on the numbers going to and fro but, unless people are typically moving in groups, we do not think that numbers of the scale here in question make much difference to the impact on neighbours. We recognise that there might come a point when the impact of numbers could not be ignored but we do not consider that change of use to allow a counselling service would make any difference to the character of the neighbourhood as residential. As discussed above we are satisfied that this would not have any significant impact on the respondents as next door neighbours.

[67.] We recognise some force in Mr Thomson’s submissions in relation to the difficulty of definition and, although we do not consider the practical risk to be very great, we have come to the view that the approach we must adopt, in the circumstances of this case, is to use restrictive language which will allow the main uses which the appellant requires but which may have the effect of not permitting all the uses which would, perhaps, be quite reasonable in themselves. The most obvious example is massage: some techniques may well be beneficial to health but others have seedy connotations. There may be cases where it would be possible to permit a broad class of activity but make this subject to detailed exceptions but we did not find this approach capable of providing an adequate solution in the present case.

[68.] We are satisfied that the conditions should be varied at least to permit therapy by way of one-to-one counselling. We are also satisfied that there should be a restriction on the opening hours for treating clients. That should be as proposed by the applicant from 10am to 8pm during the week and from 10am to 4pm on Saturdays and Sundays. We do not attempt to restrict the hours when the building can be used by the occupiers for administrative or other purposes not requiring the attendance of clients.

[69.] We have had greater difficulty with the various other types of “well-being” activities proposed by the applicant. It is obvious that in terms of impact on adjacent subjects some are similar to one-to-one counselling. We do not wish to limit the scope of the applicant’s activities unnecessarily. If counselling is to be allowed there is little point in preventing activities such as reflexology, Reiki and aromatherapy. However, although we accept that there is a value in use of groups as part of counselling work, we are not persuaded that it is reasonable to allow the condition to be relaxed to permit group activities such as dance, Tai Chi and the like. These would significantly increase numbers moving around the property at any one time and might be difficult to distinguish from ordinary dance classes. classes. We are also anxious to ensure that use as a sauna or massage parlour remains prevented by the conditions so that the respondents continue to have the protection of their title conditions in relation to such activities as well as any protection which might be afforded by planning control.

[70.] Faced with the difficulty of definition, one possible solution would be to limit the permitted use to one-to-one counselling. In practice it is unlikely that the respondents would be able to demonstrate a material interest to stop use for related “well-being” forms of treatment. However, we think it preferable to try to spell out the conditions rather than rely on degree of interest to enforce.

[71.] We have accordingly determined that the conditions should be varied to allow use for psychotherapy by way of counselling and also one-to-one forms of therapeutic treatment including head, hand and face massage and the technique known as Reiki but otherwise excluding body massage. We recognise that the respondents might find it had to establish an interest to enforce such distinctions if the subjects also continue to be used for other forms of therapeutic treatments but they would have a basis for objection to a business such as a massage parlour. Use for “counselling” would include counselling work with groups but the limitation to one-to-one treatment would, for example, preclude the setting up of a dance or yoga school.

[72.] We are satisfied that the respondents do have an interest in maintaining the residential characteristics of their home. For reasons discussed above, we consider that the proposed extension to the north side of 201 would have a significant adverse impact on such characteristics. We do not consider it reasonable to vary the condition so as to allow that extension. Put shortly, we are not prepared to grant this application insofar as it relates to building between the houses. However, we are not satisfied that there is any reason to restrict all building to the rear. There may be good reason to have some extension to the rear, perhaps in connection with disabled access and we see not reason to prevent the proposed pod. Although even a modest extension might lead to some increase in the numbers of users we do not think that would have a significant impact on 199. We have given consideration to the formulation of a variation which would permit some extension but have ultimately come to the view that if the applicant wishes to have such variation it would be appropriate to allow an opportunity for her to specify this in light of our rejection of the proposed building to north of the house.

[73.] We have come to realise that in a way similar to the probable impact of the proposed extension, the ambience of the respondents’ home would be affected by commercial signage, particularly advertising material near their own gate. This may be controlled by planning legislation and also to some extent by the existing prohibition on building. But the scope of a title condition relating to building is not entirely clear. We consider that the variation permitting a change of use should be subject to acceptance by the applicant of an express condition preventing the display of any form of advertisement for the services provided. We would not envisage prevention of signs necessary to identify the building including the name of any business carried on within but this should be limited in size.

[74.] As we heard no evidence or submissions on the matter of signage and have been unable to identify a satisfactory form of words to cover building to the rear we have decided to issue this opinion without a formal order for variation at this stage. We have continued the cause for further written submissions on these matters. As we have indicated our view on the substantive issues, we think it appropriate now to deal also with any motions for expenses. We hope that there will be scope for agreement in relation to the substantive matters or that they will be capable of being dealt with by written submissions. However, we recognise that they may raise issues of detail and we have allowed time for discussion. If either party considers it necessary to proceed by way of hearing, including hearing of evidence – in relation to the specified matters only – they should lodge a motion to that effect.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 February 2012

Neil M Tainsh – Clerk to the Tribunal