OPINION

Trigstone Limited & Others v Hugh Mackenzie & Others

Introduction and Summary

[1] This is a joint application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) by two neighbouring proprietors for variation of a title condition. They are owners of parts of the garden of a very large villa which was divided into 6 large flats in 1949, each flat being allocated a separately owned garden area subject to a real burden restricting building apart from summerhouses or glasshouses. In the late 1970s the Tribunal twice considered opposed applications and varied the burden, with the result of permitting two bungalows to be built at the extremities of the garden ground. The first applicants own one of these bungalows. The second applicants own one of the flats whose garden adjoins that bungalow, and have joined with the first applicant in a development proposal, for which planning consent has been obtained, involving demolition of the bungalow and erection of a 4½ storey building incorporating one house and 4 flats. The other 5 flat owners all oppose the application and, in the alternative, seek awards of compensation.

[2] In summary, the Tribunal has decided:-

(i) We are not satisfied that it is reasonable in the circumstances of this case to grant the variation sought, and the application is refused;

(ii) If we had granted the application, we would have awarded compensation as follows:-

Flat 1 - nil

Flat 2 - £22,500

Flat 3 - nil

Flat 4 - £9,375

Flat 6 - £9,375

The Title Condition

[3] This is contained in Clause (FIRST) of a Charter of Novodamus by Irene Cree in favour of the Trustees of the late James Cree dated 24 October and recorded in the General Register of Sasines for East Lothian on 28 October 1949 and is in the following terms:-

“IT IS HEREBY PROVIDED AND DECLARED (FIRST) that Tusculum as sub-divided shall be constantly maintained and upheld in conformity with the said plans and elevations, no deviation therefrom being to be made unless with the consent in writing of me or my foresaids and it shall not be in the power of the said disponees or their foresaids without the consent in writing of me or my foresaids and of the whole of the owners of the said buildings known as Tusculum, to erect any building on any part of the unbuilt-on ground except summerhouses or glasshouses, and further no trees on any part of the subjects hereby disponed of new shall be cut down or topped without the consent of me the said Irene Mabel Napier Cree;”

Procedure

[4] Trigstone Limited (“the first applicants”), and Walter and Anna-Mae Gowans (“the second applicants”), as proprietors of respectively 4 York Road, North Berwick and the garden ground of Flat 5, Tusculum, North Berwick (together, “the subjects”), applied for variation of the title condition so as to permit the first applicants to erect the building for which they have planning consent on the subjects. The respondents Hugh and Anne Mackenzie, Flat 2; Kathleen Fairweather, Flat 1; Gillian Beattie, Flat 3; Frank and Elizabeth Blanchard, Flat 4; and Alan Duckett, Flat 6, Tusculum, jointly maintained opposition to the application. At the oral hearing of the application, the applicants were represented by Mr Clubb, Solicitor-Advocate, of HBJ Gateley, Solicitors, Edinburgh, and the respondents by Mr Marney, Advocate, instructed by Paris Steele, Solicitors, North Berwick. Oral evidence was given on behalf of the applicants by James Barbour, a builder-developer and director of Trigstone Ltd and also a family-owned building company, Barbour Homes Ltd; by the applicant Mr Gowans; by Thomas Pyemont, architectural designer, of Pyemont Design, Hawick; and by Grant Williams BSc, FRICS, of Murray and Muir, Edinburgh, on valuation issues. Oral evidence was given on behalf of the respondents by the respondents Dr Hugh Mackenzie, Mr Duckett and Ms Fairweather; and by James Dallas FRICS, of Allied Surveyors Scotland, on valuation. Dr Mackenzie, who is professionally qualified in Physics, produced detailed “Technical Notes” on issues relating to the applicants’ proposals. Messrs Williams and Dallas had prepared reports on valuation. Submissions by Mr Clubb and Mr Marney following conclusion of the evidence were in written form. The Tribunal subsequently made an accompanied site inspection.

[5] The respondents had also indicated an alternative position on the merits, viz. that if the application were granted the variation should be restricted so as to permit only a two storey building. The applicants, however, indicated that they did not wish to pursue an application so restricted and the Tribunal has accordingly not considered that possibility.

Authorities referred to:-

Ness v Shannon 1978 SLT (Lands Tr) 13
West Coast Property Developments Limited v Clark, LTS/TC/2005/21
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Fyfe & Another v Benson, LTS/TC/2010/25

The Facts

[6] The primary facts were mainly agreed. On the basis of the oral and documentary evidence, submissions and our site inspection, we have found the following facts established.

[7] Location. York Road is located in a residential area near the centre of North Berwick, close to the railway station. The immediate neighbourhood comprises mainly substantial stone built houses, some converted into flats. Amongst the traditional houses there are, however, a significant number of more modern, mainly single storey, houses. There are also a number of modern flat developments, notably a large flatted development on the site of the former Royal Hotel. York Road runs approximately north-west/south-east (for ease of reference, we shall refer to “north-south”). There are fine views to the east, over the links, to the sea. Berwick Law is to the south but mostly obscured by other houses and flats.

[8] Tusculum. Tusculum was built about 1857 and apparently some time thereafter substantially extended so as to make a very large 4 storey mansion of around 40 rooms, occupying a site on an L-shaped plot on the east side of York Road, with garden ground, mainly to the east and south of the house, extending to approximately 0.59 hectares. The house has entrances from both York Road and Links Road. The plot also bordered Links Road to the north and West Bay Road to the east. The ground slopes quite sharply away to the east and also, slightly, to the north. There is one other substantial Victorian mansion, ‘Bradbury’, on the east side of this section of York Road. Many windows on the east side of Tusculum enjoyed the fine views to the east. It was converted into 6 large flats, with varying aspects, in 1949. Each flat was allocated a separate section of garden ground and the title condition was created. The outcome of opposed applications to the Tribunal in 1977 (reported as Ness v Shannon) and 1979, by former owners of three of the flats, under Section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970, was to vary the title condition so as to permit two bungalows at the extremities of the garden ground, on each occasion subject to awards of compensation. The first, now 5 West Bay Road, was erected on an approximately square garden area at one end of the “L” shape, on the lower level at the corner of Links Road and West Bay. The second, now 4 York Road, owned by the first applicants, occupied, with its garden, around two-thirds of the width of the garden ground at the other end of the ‘L’, adjoining Bradbury. Thus the extent of Tusculum’s garden area was reduced, but the two parts which had been removed remained subject to the title condition as so varied.

[9] The individual flats. Flat 1, owned by Ms Fairweather, is situated on the ground floor (north) and has an aspect primarily to the east, with very attractive views to the sea over the bungalow at 5 West Bay Road. This flat has no views over the subjects.

Flat 2, owned by Drs H and A Mackenzie, is also on the ground floor (south). Its primary aspect is to the south, but it also has bedrooms facing east and west. The living room with bay window faces south over the garden ground towards the subjects, with Bradbury beyond. The kitchenette and diningroom have windows with similar views and the dining room has a second window facing east.

Flat 3, owned by Mrs Beattie, is on the first floor, with its primary aspect to the east and no significant view of the subjects.

Flat 4, owned by Rev and Mrs Blanchard but used as a holiday letting flat, is also on the first floor. The diningroom of this flat has windows to the south and west and the kitchenette also has a southerly aspect towards the subjects.

Flat 5, owned by the second applicants, is on the second and third floors, including a tower room with all-round views.

Flat 6, owned by Mr Duckett, is at basement level on the south side. The diningroom and kitchenette windows face south but the views are heavily restricted by the nearby banking and retaining walls.

The northern part of the basement comprises stores and garages, which are accessible through the Links Road entrance.

[10] Gardens. Apart from flat 3, each of the respondents’ flats, and particularly flats 1 and 2, retain substantial gardens. Flats 2, 6 and 4 each have rectangular gardens stretching southwards away from the house, those of flats 2 and 6 having originally been longer and having been shortened so as to provide the plot of 4 York Road. These three gardens each abut the subjects.

The garden of flat 2, which also includes a portion on the west side of the house, remains substantial and is an attractive well maintained garden enclosed by the stone wall alongside York Road, an approximately 2 metres high fence at the boundary with 4 York Road and a high hedge bounding the garden of flat 6. There is some further screening from 4 York Road and the houses on the other side of that street by trees and tall shrubs although these have been to an extent pollarded and trimmed to preserve, particularly, the afternoon sunlight. This garden has a west-facing timber summerhouse and patio area erected by the present owners towards the far end of the garden, approximately 3 metres from the boundary with the subjects.

Flat 6 is the basement “garden” flat with a French door leading onto a small paved courtyard area from which steps lead up, by way of a terraced section, to its main garden area, which is surrounded by substantial hedges and by the boundary fence between it and 4 York Road.

The garden of flat 4 lies to the south of the house, adjoining the gardens of flat 1 to the north, 5 to the south and 6 to the west.

The garden of flat 1 lies immediately to the east of the main shared courtyard which provides access to the basement garages, rear parking spaces and rear pedestrian entrance on the east side of the house. The aspect of this garden is largely to the east, with fine views, again over 5 West Bay Road, to the golf course and the sea beyond. It also has a relatively open view to the south, i.e. towards the subjects and Bradbury and beyond.

Flat 3 retains only a small area of garden ground on the west side of the house, at the corner of York Road and Links Road, its main garden having been sold (by a former owner) to provide the plot of 5 West Bay Road.

The garden of flat 5, part of the subjects, is at the south-east corner of the original garden grounds, adjoining 4 York Road and accessible by a footpath through other gardens.

[11] The Development Proposal. The first applicants acquired 4 York Road in 2008. The development proposed and for which planning consent has been granted (against opposition from the respondents and other nearby owners), subject to conditions, involves the demolition of the existing bungalow and the construction on the subjects of 4 double level apartments within a substantial 4 storey plus attic floor block of flats, together with an attached 1½ storey house to the east. The walls to the main block are to be of natural stone but the house section will have rendered finishes. The roofs will be pitched and slated. The main north elevation facing Tusculum is of plain design, approximately 14m high (to the gable peak) and 10.1m wide in respect of the main block which will be sited 2m from the mutual boundary with the remaining gardens of Tusculum. On this elevation two upper floor bathroom windows will have obscured glass. The proposed development will be sited about 13m from York Road, with parking spaces on that west side for 11 vehicles and a garden area for the house on the east side. The maximum roof height proposed will be marginally higher than the maximum height of Bradbury and marginally lower than the maximum height of Tusculum.

[12] Impact of the proposed development on respondents’ properties. The visual impact on the respondents’ properties will vary. The southerly aspect presently includes 4 York Road, which is, however, a well screened bungalow, and, at slightly further distance, Bradbury which (together with other, further distant, housing) currently restricts views to the south including the nearby Berwick Law, of which a very small part can be seen from some rooms. The mass of the proposed building, substantially closer than Bradbury, will have a considerable impact on the southerly aspect from some flats, particularly flat 2 and rather less so flats 4 and 6, and from the gardens of, particularly, flats 2 and 6, and less so, but still visible, to the gardens of flats 1 and 4. Views from flats 2 and 4 and the gardens of flats 1, 2, 4 and 6, although presently restricted by Bradbury and other housing, will be correspondingly affected.

During the months from October to February inclusive, overshadowing of the gardens, particularly of flats 2 and 6, up until mid-morning, will be markedly increased and there will be a very slight reduction of sunlight into flats 6 and, less so, flat 2.

The development will increase the building and residential density within the original grounds of Tusculum, but will not affect vehicular or pedestrian traffic within the remaining grounds of the Tusculum flats.

There is currently a degree of traffic and parking congestion in York Road, particularly during weekday working hours, apparently as a result of proximity to the railway station. The proposed development will add minimally to that pressure.

The arrangements for waste disposal, and emergency access, at the proposed development will have no measurable impact in the amenity of the Tusculum flats.

[13] Concern about further development. The respondents, particularly Ms Fairweather, are concerned about the prospects for further development within the original grounds of Tusculum, particularly the possibility of similar development involving demolition of 5 West Bay Road. Having regard to the heights of the existing houses on West Bay Road, such development on that street appears unlikely to extend to the same height as the proposed development.

Valuation Evidence

[14] Mr Dallas had inspected flats 2, 4 and 6 and considered the applicants’ proposals and Dr Mackenzie’s detailed notes. In his written reports, he identified values for the respondents’ flats, ranging from £375,000 to £620,000 (the latter being an actual valuation of flat 3 by other surveyors in 2009 and which Mr Dallas thought was unlikely to have changed much, and the figure of £400,000 for flat 1 being the actual purchase price in 2010). He gave his opinion that the diminutions in value, if the proposed development were to proceed, would be:-

Flat 2 - 10%

Flat 4 - 8%

Flat 6 - 8%

Flat 1 - 2.5%

Flat 3 - 2.5%.

He gave no reason for the figure of 10%, but briefly explained the reduced effects on the other flats.

[15] In oral evidence, Mr Dallas said that there was a premium on outlook and amenity, which would be affected by the development. He referred to the view of Berwick Law and the amenity of the garden. The present single storey house was relatively unobtrusive and would be replaced by a very bland wall. The attempt to identify the effect from market sales was extremely difficult, so he had instead referred to the Tribunal’s awards in the previous cases as a starting point. He had looked at values in 1979 and applied a multiplier of 10 to bring the previous awards up to date, and also added for the effect of 4½ storeys compared to single storey. He also mentioned the case law (Stokes v Cambridge) on ransom strips, describing this as effectively similar. Pressed on the make-up of his figures, he said that the award of £800 for Flat 5, which he said was around 3%, was up-dated to £8,000 and adjusted to 10%. He said that at the end of the day, it came down to opinion. He accepted that there had been major changes in attitudes, and perceived benefits and detracting features, since the late 1970s.

[16] In his written report, Mr Williams considered some market evidence, viz. the sale of Flat 1 at Tusculum in 2010, after the planning application had been submitted, some ‘before and after’ sales of properties near new flatted developments in Edinburgh and one such example in North Berwick, where Mr Williams identified a diminution in value from an earlier sale at the peak of the market as being due to market conditions and not the nearby development. In his opinion, the proposed development would enhance this section of York Road, replacing a poor quality bungalow and achieving a far better balance. There would be no loss of amenity to the gardens between the boundary of 4 York Road and the gable of Tusculum. Properties in York Road and the surrounding streets were close to one another, but there would be a substantial gap between Tusculum and this development. There would be no diminution in the value of the respondents’ properties. Mr Williams had walked round the area and been in Flat 5 and produced photographs taken from the tower room of that flat and also at 4 York Road. Mr Williams did not challenge Mr Dallas’s capital valuations but saw no rationale for his 10% figure.

[17] Elaborating in oral evidence, Mr Williams pointed out that the respondents would continue to have the same use of their gardens. In cross-examination, he said that in his analysis of Edinburgh sales, he had not been able to find a case where values went back. He thought such developments could enhance values. He had considered the evidence of shadowing, which, as his photographs showed, was already present. He agreed there was potentially some loss of amenity in relation to the outlook from the flats, but found it difficult to relate that to value. He said that he had been unable to park in the street: there was already a parking problem. He agreed that North Berwick values had held up better than Edinburgh.

[18] Mr Williams made no reference to the Tribunal’s compensation awards in 1977 and 1979.

Submissions: Merits

[19] On the applicants’ behalf, Mr Clubb referred first to the general legal framework in terms which were uncontroversial and are reflected in our consideration.

[20] In relation to the factors listed in section 100 of the Act, Mr Clubb identified the purpose of the title condition as “to try and preserve the general amenity of Tusculum” and submitted that the purpose could not be taken much further than that. Next, he addressed the extent of benefit conferred, on the basis, since the particular proposal was identified, of considering the benefit of the chance to stop the project, under 6 categories of suggested impact on amenity raised by the respondents, viz. overshadowing; loss of privacy; loss of outlook; increase in residential density; traffic congestion and road safety; and the likelihood of additional garden ground development at Tusculum. Reviewing the evidence, he submitted that Dr Mackenzie’s technical notes were not prepared by either an independent or an expert witness and contained some inaccuracy. There was no comparison with current overshadowing, and the extent of any overshadowing was limited. There was no evidence of the effect on Flat 4. It was not accepted that the development would result in any loss of privacy. There would be some effect, to varying degrees, on outlook, but this would neither be substantial nor affect the respondents’ amenity: the visual impact would not affect the amenity or at least affect it only minimally. The figures produced in relation to density were meaningless: there was no evidence that waste disposal and emergency access at the development would have any effect on the amenity of Tusculum, and the applicants’ position was that the development would not result in traffic congestion or road safety issues. Any future application, in relation to additional development at Tusculum, would require to be assessed on its own merits and facts and circumstances. No weight should be placed on arguments about past reliance by Mr Gowans on the title condition.

[21] Turning to the extent to which the condition impedes enjoyment of the applicants’ properties, Mr Clubb submitted that impeding the normal right and entitlement to develop their property was a substantial impediment for a property development company. On changes of circumstances, Mr Clubb referred mainly to the two previous Tribunal decisions leading to the building of properties on Tusculum garden ground. The 1979 decision included acceptance that the upkeep of these gardens could become onerous, particularly in the case of elderly persons, a particular factor here where Mr Gowans was 76. There was also evidence of a change away from having big gardens. There was planning consent and although this was in general a factor to which comparatively little weight is given, the planning authority had reached conclusions on some of the amenity matters referred to by the respondents. Although the applicants considered that there would be no diminution in the value of the respondents’ properties, it was accepted that any award of compensation would have to be paid. In relation to ‘any other factor’, Mr Clubb submitted that no weight should be given to the applicants’ failure to consult with the respondents prior to the planning application or the present applications, it having been accepted by Dr Mackenzie that he would in any event not have consented.

[22] Mr Marney’s written submission included a helpful appendix, reviewing and highlighting the evidence relied on by the respondents. We have taken account of this in making our findings and reaching our decision.

[23] In relation to the purpose of the condition, Mr Marney referred to the scheme established in 1949, and submitted that the purpose was: to preserve amenity; to preserve the setting of the house; and to protect from development, and to protect from over-development. The Tribunal in 1979 had found that the obligation was still reasonable and appropriate. The Tribunal in 1979, while permitting the construction of a house, had added the proviso that it should be a single storey bungalow, in order to preserve the high amenity of the area, and the compensation orders recognised that the amenity of the neighbouring properties had been compromised. Since then, the area had become a Conservation Area, enhancing the importance of maintaining the title conditions as they are. There was no change of circumstances which would advance the proposition that the title condition had become obsolete, and there was no change of circumstances in relation to the burdened subjects.

[24] The condition conferred the benefit of maintaining open space in the vicinity of Tusculum, and the limited building which had previously been permitted had only reduced the amenity to a limited extent. Replacing the bungalow with a 4½ storey apartment block would be much more detrimental. Mr Marney reviewed the evidence as to that detrimental effect, under the headings of overshadowing, loss of privacy, loss of open outlook, increase in residential density and parking arrangements. He also referred to another obligation in the Charter of Novodamus, viz to keep the unbuilt-on ground clean and free of rubbish, etc., as negativing any suggestion that under the conditions the garden ground might be untended or neglected. In relation to the extent of the burden, it was submitted that any proprietor of the first applicant’s property could enjoy good use of it in its present condition for the foreseeable future The condition enhanced rather than impeded, enjoyment of flat 5, because entire disposal of that garden ground would impede the enjoyment of that property. On previous occasions, the possibility of development had been resolved on the basis of community decisions, i.e. the second applicants had benefited from the condition in preventing development. The remaining proprietors did not consider the conditions to impede their enjoyment of their property. The condition had been created in 1949, relatively recently, at the time of the conversion into flats, and it was intended that Tusculum should remain such a development. It was accepted that planning permission had been granted. There had been no proposal or willingness to pay compensation. In relation to “any other factor”, Mr Marney referred to the precedent which would be set by the granting of this application, there being further areas of garden ground surrounding the Tusculum site, and particularly the site at 5 West Bay Road, which might be seen as development opportunities.

Submissions: Compensation

[25] Mr Marney submitted that if the application was granted an award of compensation should be made to each respondent. The Tribunal should find that there would be an effect on the amenity of their properties, particularly by overshadowing, loss of outlook and loss of privacy. Mr Williams had not inspected the respondents’ properties nor visited their gardens, and had given no detailed consideration to the amenity issues. On his analysis of sales, it was not readily apparent whether the whole circumstances were comparable. The data had not been produced. He had not considered the previous tribunal decisions awarding compensation in relation to bungalows which had a lesser impact but had been deemed to have a significant effect on local amenity. He had not vouched his opinion that the reduction in value in the North Berwick case reflected general market considerations. By contrast, Mr Dallas’s professional opinion was based on the proposition that there would be a loss of amenity.

[26] Mr Marney’s submission went on to look at Mr Dallas’s figures. There was no challenge to his valuations of the properties. His scheme broadly reflected the comparative degree to which each flat was liable to be affected. The 1977 and 1979 Tribunal awards could be updated on an inflation table relative to personal injury awards, increased on account of greater house price inflation, and adjusted upwards to reflect the materially different effect of this proposed development, giving compensation as follows:-

Flat 2 (10%) - £45,000

Flat 1 (2.5%) - £10,000

Flat 3 (2.5%) - £15,500

Flat 4 (8%) - £30,000

Flat 6 (8%) - £30,000.

Mr Marney submitted that on completion of the development there would be permanent loss of amenity for the occupants of Tusculum as a result of the factors referred to and the increased level of occupation of the subject site. Each award should reflect these factors and could be located in a range defined by the adjusted historic awards, at one end and Mr Dallas’s at the other.

[27] Mr Clubb, opposing any award of compensation, submitted that the respondents’ flats would not suffer any diminution in value. Mr Williams had inspected the site, walked round, attempted to measure the length of the garden areas and considered shading. He had analysed sales evidence in similar situations. He had also said that there might be a degree of enhancement in value from the replacement of the bungalow by the proposed development, an opinion supported by Mr Gowans in his evidence. This evidence should be preferred to that of Mr Dallas, whose written report had not set out any reasoning behind his percentage figures and whose oral explanations were muddled, unclear and at times contradictory. He had also appeared unsure whether or not he had taken the Stokes v Cambridge principle into account. Additionally, it was not disputed that Miss Fairweather had purchased flat 1 in 2010, at a figure above the asking price, in the knowledge that the planning application had been submitted: although she had the comfort of the title condition, this pointed to no diminution in value arising from the proposed development.

Tribunal’s Consideration: Merits

[28] We accept Mr Clubb’s helpful summary of the well-established legal framework in cases under this jurisdiction. In terms of section 98 of the Act, the applicants require to satisfy us, having regard to the factors listed in section 100, that it is, on balance, reasonable to grant the application. The entire circumstances require to be weighed as a whole, on the basis of the evidence, submissions and our site inspection, and it is not a question of looking at each factor individually and deciding who wins or loses on any particular factor. The order in which the factors are listed in section 100 does not imply any order of ranking, and in cases such as this three factors normally receive particular weight, viz. the purpose of the title condition, the extent of benefit conferred by it (in this case, where there is a particular proposal, the benefit involved in being able to prevent the proposal from proceeding); and the extent to which the burden impedes enjoyment of the burdened property. The use of precedent is not normally helpful in determining the issue of reasonableness, because each case depends on its own facts, and much can turn on the Tribunal’s impressions on the evidence and at the site inspection.

[29] We would add two points. Firstly, we require to consider the issue objectively, which is important because parties in such cases, quite understandably, usually approach them from their own personal points of view. We are looking at the issue primarily from the point of view of ownership of the properties rather than the personal feelings and motivations of the owners for the time being. Secondly, in a case where an application is opposed by several benefited proprietors and a proposed development would affect the respondents’ properties to varying degrees the applicants require to satisfy us as to the reasonableness of the application as against each benefited proprietor who is opposed. In such a case it may be reasonable to grant the application as against some, but not all, of the respondents, in which case the application fails.

[30] We start with some general observations. Firstly, it seems to us that this case is tantamount in its practical effect to an application for complete discharge of the burden. We say that because, although the variation sought would leave the respondents as owners of flats in Tusculum with some degree of control, in that the owners of the subjects would not be able to depart to any material extent from their present proposal, what the applicants are seeking seems to be as much as they could reasonably expect to obtain planning approval for. Put another way, the effect would to all intents and purposes be to remove this part of the original Tusculum garden ground from the scheme of protection from development. The development of the two bungalows following previous Tribunal decisions was significant, and obviously encroached on that scheme, but their impact on the amenity of Tusculum was much more limited and the condition continued to provide some real protection.

[31] Secondly, while it is not for us to comment on the rightness or wrongness of the planning decision, or on the particular architectural design, we are not at all surprised by a view from a wider planning perspective that the existing bungalow does not fit very well in its setting and so, from that point of view, the amenity of the locality might not be threatened, and might even be enhanced, by a development which corresponds more in scale with Tusculum and Bradbury. This, however, serves to emphasise that although the planning consent is a relevant factor the issue under our jurisdiction takes as its starting point not the public planning perspective but the private title condition.

[32] Thirdly, it did seem to us, looking at the matter objectively, that the respondents to a large extent ‘failed to see the wood for the trees’. We did not consider some additional loss of morning sunlight during the winter months to be a significant issue; the impact on privacy, when the existing gardens are already overlooked by the flats and there would be no public rooms or even bedrooms facing Tusculum, appears to us really quite limited; and the issues in relation to parking, rubbish and emergency access seemed to us, in the particular circumstances at that location, to be bordering on the trivial. As a matter of general impression, the overriding question in this case seems to us to be whether it is reasonable, in the context of this title condition and in the whole circumstances, to permit the owners of the subjects to put up this 4½ storey building, with a very significant mass, within the protected garden space. There would clearly be some impact on that side of Tusculum, with varying effects on some of the flats and gardens. We have to carry out a balancing exercise, having regard to all the factors, in relation to that proposal.

[33] Our consideration of the factors listed in Section 100 is as follows. Firstly, there is no dispute that the purpose of the title condition is to protect the amenity of the Tusculum flats and gardens. The purpose relates to the scheme of conversion of the house into flats and separation of garden areas into separate ownership. The amenity of the house and its garden was to be protected by this clear prohibition of building development, apart from summerhouses and glasshouses, in the garden area, unless all owners agreed. This seems to us to be a significant incident of ownership of a flat at Tusculum.

[34] Changes in circumstances since the condition was created may affect the reasonableness of continuing reliance on the condition. In this case, clearly, there has been substantial change, following the two variations granted – each time, against the opposition of all or most of the other owners – permitting the erection of bungalows at each end of the garden, including one on part of the subjects. This has clearly affected the integrity of the protected garden area to an extent. However, the limitation of these variations to single storey houses is significant. The view taken in these cases was that the purpose of protecting Tusculum’s amenity remained valid. The applicants can also point to some other development in the locality, and also a degree of change over the years in attitudes to owning large gardens. We accept these as relevant general factors, but they are not indicators of any change in the scheme of ownership, of which the condition is an important part, at Tusculum. This is not in our view a case in which there have been such changes as to suggest that the purpose of the condition no longer holds good.

[35] The respondents rely on the Conservation Area status awarded since the condition was created as a change of circumstance, but we do not see that see that public planning consideration as adding anything: we are in effect considering a more particular, and stronger, private conservation provision.

[36] Turning to the extent to which the condition confers benefit on the benefited properties, we agree with Mr Clubb that in this case, this means the benefit of the chance of stopping the applicants’ development project which has planning consent. We have already indicated our general view that, looked at objectively, the respondents’ concerns in some areas were rather over-stated. As regards loss of sunlight, we had the benefit of some highly technical analysis by Dr Mackenzie and also a more straightforward diagram which had been prepared during the planning process and which he told us would represent the position in October or in March. It was also very useful, in the situation where Dr Mackenzie apparently gave little or no consideration to the existing loss of sunlight during the winter months, to have photographs of the existing position taken by Mr Williams around midday on a sunny October day. Being to the south-east of Tusculum and of a similar height but rather closer than Bradbury, the proposed building would clearly lengthen the shadow which already falls over parts of the gardens on the south side of Tusculum on autumn and winter mornings. However, subject of course to the varying effect of hedges and trees, the gardens on that side are predominantly attractive sunny gardens and our impression was that they will retain much of that character. The degree of sunlight enjoyed by the flats on that side also of course varies, according mainly to their respective heights, but will not in our view be significantly altered.

[37] However, the mass of the proposed building, considerably closer than Bradbury, will in our view very significantly affect the outlook and, as part of that, the general light, of the flats and gardens, to varying degrees as set out in our findings of fact. ‘Mock-up’ photographs of such effects can be helpful although sometimes potentially misleading. In this case, Dr Mackenzie’s ‘mock-ups’ were accepted as at least generally accurate and, we think, did usefully illustrate the effect, in different rooms of Flat 2, of the proposed building. These outlooks already include, quite prominently, the side of Bradbury, and Berwick Law forms only a very small part of the view from some rooms, but the proposed building will considerably affect the outlook, in particular in Flat 2. Further, the main part of the building, 4½ storeys high, is to be only 2 metres from the boundary with the remaining gardens. There is a varying level of development and upkeep of the gardens. The garden of flat 6, although closest to the main part of the proposed building, has hedges which reduce its openness and therefore the impact on it. However, these are substantial attractive garden areas. Within the garden of flat 2, towards the south end, an attractive small summerhouse and patio area presently enjoys the main sunny aspect to the west, with the existing bungalow completely unobtrusive. Although the proposed building is set back further from the road than the bungalow, it would be high enough and close enough to dominate this end of that and the other two gardens. It should not be forgotten that the proposed building will be within the garden, part of the Tusculum grounds, which the condition seeks to protect, a situation which is not quite the same as a proposed development which is simply within a neighbouring garden. Whether or not the benefit of the right of veto of this development has a pecuniary value – and, as will be seen, we think it does in the case of some of the flats – it is to our mind a very real and substantial occupational benefit, particularly to flat 2 with its garden but also to flat 6, which is essentially a garden flat, and to flat 4..

[38] The loss of privacy, which in this case could only possibly apply to the garden areas, seemed to us very much less significant when it is considered that there is already a degree of overlooking of the gardens from other owners’ flats. As regards traffic, there was criticism of the design arrangements for the parking at the proposed flat development, the suggestion being that some owners or their visitors might have to resort to parking in the street. That may be so, but the entrance to the development is some way distant from the entrances to Tusculum and it seemed to us that this would hardly be likely to have any significantly worse effect for Tusculum owners than the present situation. The suggestions about emergency access, and rubbish disposal, carried, to our mind, even less weight. Again, given the distance from Tusculum itself and the clear separation of the two sites, we did not consider the increase in overall residential density to be, in itself, a matter of much significance at all.

[39] Turning to the extent to which the condition impedes the enjoyment of the burdened properties, we are clear, this being well established under this legislation, that ‘enjoyment’ in this context includes development, for profit, to the extent permitted by public planning. Given the actual planning consent here, this is a substantial impediment. Neither the personal situations nor motivations of either the applicants or the respondents alters the extent. In the case of Mr Gowan’s garden, the proposal would have the effect of removing the garden from flat 5, but that could be said of any proposal to build an additional house. Indeed, in this particular case, by contrast perhaps with at least some of the other flats at Tusculum, the garden, some walking distance away from the flat, would seem to be a relatively minor part of the property, which is principally a very large flat with some outstanding views. Without giving any particular weight to Mr Gowans’ desire at his age to give up the garden, it is not difficult to understand the attraction, for any owner of flat 5, of this proposal. Similarly with the existing bungalow, whoever its owner, even although the motivation there seems more purely financial.

[40] Factor (d), in relation to positive obligations, is not technically relevant, and the applicants’ submission also makes no reference to (e), the age of the title condition. The respondents, however, argue that it is “relatively recent”. We do not consider the age of the condition, in itself, of any significance in either direction in this case.

[41] The applicants can rely on the existence of the planning consent. This, despite the opposition of the respondents and apparently others in the locality to the application, demonstrates the accepted reasonableness, from a public point of view, of the applicants’ proposal. The applicants additionally rely on the consideration given by the planners to some of the same amenity issues as those relied on by the respondents. We attach only limited significance to the planners’ conclusions on overshadowing and privacy, not because we disagree but because we are coming at these issues from a different direction. We also note that outlook as such is not a planning consideration: if the planners’ rules relating to overshadowing and privacy are satisfied, they may not look further, but in the context of this title condition we plainly can and should do so.

[42] Although the applicants’ position is that there is no diminution in value, so that there should not be any awards of compensation, they accept, as all applicants have to do, that they would be required, as a condition of any order, to pay any compensation awarded. There is no special situation in relation to this factor in this case, and we regard it as neutral.

[43] We think that three other matters might be referred to as possibly material under the heading, “some other factor”. Firstly, in this particular case we do consider the respondent’s concerns about the effect of granting this application on possible future development reasonable and of some weight. The answer to ‘precedent’ arguments is often simply that no precedent would be set and any future applications would simply be considered on their own merits, but sometimes one particular proposal can be seen as something of a test for others. We should certainly not pre-judge any future applications, but in this case, in addition to the history, in which permission for one bungalow was quickly followed by permission for another, there is actual evidence which, we think, particularly justifies a concern that there might be an attempt to do something similar at 5 West Bay Road. The lower height of the houses in that street suggests that development of a similar height might be unlikely to be countenanced, but there is otherwise such a similarity in the two situations to suggest that the owner of at least flat 1 might reasonably be concerned, and we accept Ms Fairweather’s evidence to that effect.

[44] Secondly, the respondents sought to place some reliance on the previous operation, as they saw it, of this condition and to argue that, Mr Gowans having on one occasion benefited from its operation to stop a proposal, he ought not now to be allowed relief from it. In our view, there is nothing unreasonable in asking under this jurisdiction to be relieved from the burden.

[45] Thirdly, although it was disappointing, to say the least, to learn that neither applicant considered it necessary to approach the other flat owners before either the planning or this application, Mr Barbour apparently indicating an attitude of disregard for such title conditions, we accept that this has no bearing on the merits of the application, particularly as Dr Mackenzie acknowledged that he would not have consented. We do point out that, quite apart from considerations of basic neighbourliness, there may be cases in which initial outright opposition might be overcome with results acceptable to both sides; and also that such failure to consult might possibly, in some cases, have a bearing on the expenses of a successful application.

[46] Drawing all these considerations together, we consider the very clear purpose of this condition to be an important factor. Changes since 1949 have not in our view rendered the condition obsolete, the purpose of preserving the amenity of the Tusculum flats and gardens remaining valid. Unlike the proposals to build bungalows, this proposal would not only effectively remove this part of the grounds of Tusculum altogether from the ambit of the condition but also have a very significant effect, predominantly simply from the mass of the building, on the outlook and amenity of at least some of the flats and gardens. Against that, the condition clearly impedes to a substantial degree the right which owners would otherwise have to develop. That, however, was, or should have been, a known feature of ownership both of the flats and of the two subsequently separated properties to which the condition, albeit varied, continued to apply. The applicants’ proposal is, in planning terms, reasonable. In some cases, the benefit to the benefited proprietors might not be judged substantial; or might not be thought very closely related to the purpose of the condition; or changes in circumstances might make it reasonable to override the condition. Also, as the legislative scheme shows, it may sometimes be clear that substantial loss would be caused but it would be reasonable to meet that with compensation rather than refusing the application. In our view, none of these things can be said here, at least in relation to the flats most closely affected. The applicants not only do not have the consent of any other flat owner in terms of the condition: they are opposed by all. In all these circumstances, we do not consider that it would be reasonable to grant this application.

Tribunal’s Consideration: Compensation

[47] It is appropriate to express our views on the competing submissions in relation to awards of compensation if the application were granted. The issue, in terms of Section 90(6) and (7) of the Act, is whether it would be just to award any sums to compensate for “any substantial loss or disadvantage” suffered by any of the respondents as owners of the benefited properties in consequence of the discharge or variation. So compensation is for the loss of the protection against the proposed development, rather than simply for the effect of the development on values. The subjects are of course already partly developed.

[48] Amenity factors are frequently difficult to assess and value. Comparative evidence, particularly of the value of protection as compared with the effect of the development, is almost invariably either not available or when available impossible to analyse with any accuracy or confidence. However, difficulty in identifying the extent, amongst other factors in a valuation, of the effect of one factor does not necessarily mean that there is not some effect on value. In this case, we find the applicants’ position seriously flawed. To suggest that loss of the ability to prevent a 4 storey flatted development, for which planning application has been granted, sited some two metres from the some of the respondents’ gardens, has no measurable impact on the value of any of their properties appears to us unrealistic, and the suggestion of a possible enhancement of their amenity highly improbable. We can understand the suggestion that replacement of the bungalow might represent an improvement of the locality in planning terms, but that is a different matter. There was no suggestion that this might add a development value to any of the respondents’ properties. Mr Williams referred to properties built very close to each other, for example on the other side of West Bay Road, but these are dual aspect properties built beside each other with narrow lanes between two blank walls, a situation which we do not find comparable. Further, while we accept that the issue has to be looked at in present conditions, his opinion gave no consideration to the fact that on each of the two previous occasions, when the proposal was limited to the erection of a bungalow, awards of compensation were made to three of the other flat owners, the Tribunal holding that there was:-

“substantial harm to the objectors’ proprietory interests” (1978 SLT (Lands Tr) at page 16). There was no evidence to suggest any material change in purchasers’ approach to amenity issues since that time.

[49] We do not find it difficult to accept that at least some of the respondents’ flats would be so affected by this proposal that the variation of the condition so as to permit it to proceed would result in reductions in the values of their properties. However, we would also not accept Mr Dallas’s figures. We think that his assessments of the impacts were seriously overstated. We appreciate that he assessed the valuation impact by applying a percentage reduction (on values which were not disputed) to each flat using his judgment – a reasonable approach - and also having some regard to the past awards. However, in building up his figures, we note that he started from the highest of the previous awards, that to the owner of flat 5 in relation to the development at 4 York Road, without any consideration of that particular situation as compared with the present. He also referred in evidence to the Stokes v Cambridge ‘ransom’ approach, which has no place in the Tribunal’s consideration under this jurisdiction, as forming part of his thinking. It is necessary to consider the impact on the individual flats and their gardens, and we were not convinced that Mr Dallas had really carried out that exercise. We do not consider that there would be any real impact on flat 1: its outlook is essentially in a different direction and although the development would be visible from her garden, this would be at some distance and there is already a building background. Flat 2 is undoubtedly affected, since its lounge, dining room and kitchen have views to the south and its garden would be materially affected. Flat 3 would not be significantly affected nor would its small retained garden. Flat 4 would be slightly affected as a dining room window and a kitchen window face south and its garden, though not quite adjacent to the new building, would suffer some loss of amenity. Flat 6, as a basement flat, does not have views to the south, but on the other hand is a garden flat whose garden would be materially affected. We conclude that flat 2 is the worst affected, and that it and flats 4 and 6 would suffer diminutions in value which meet the test of “substantial loss or disadvantage”. We do not consider that the effect, if any, on either of flats 1 and 3 would satisfy that test.

[50] Having regard to all the circumstances we would have assessed diminutions in value, “substantial” in terms of the legislation, and made awards, as follows:-

Flat 1 - nil

Flat 2 - 5%, applied to £450,000, i.e. £22,500

Flat 3 - nil

Flat 4 - 2.5%, applied to £375,000, i.e. £9,375

Flat 6 - 2.5%, applied to £375,000, i.e. £9,375

Decision

[51] In the result, we have refused this application for the reasons given.

[52] In the event of any application for expenses and failure to agree, we would propose to follow our normal practice of dealing with expenses on the basis of written submissions.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 16 February 2012

Neil M Tainsh – Clerk to the Tribunal