OPINION

Iain Rennie and Dr Jean Rennie v Cullen House Gardens Limited

Introduction and Summary

[1] A historic country house in a fine rural setting was renovated and converted into 14 separate residential properties, each with private garden grounds, in the 1980s. Some of the extensive grounds remained communal, in the ownership of a ‘garden company’ whose owners are the owners of the individual properties. This company was also given powers of consent in relation to certain real burdens. These community burdens are now contained in a Deed of Conditions and include, in particular, a prohibition of building, extending or making any exterior alterations except with the written approval of the company. The applicants own one of six houses formed in a wing of the house around a small courtyard. They propose to build an extension within a private patio area which is physically within the courtyard. They have planning consent. The company, however, following votes by the individual owners, have not given their approval. The applicants accordingly applied under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for a variation of this title condition. The company – but none of the other individual property owners – has lodged objections. The applicants raised a preliminary issue arising out of the failure of any of the individual owners to object formally, but parties were agreed that the hearing, in relation to the whole merits of the application, should proceed, with submissions on the preliminary issue considered along with submissions on the merits as a whole. The Tribunal made an accompanied site inspection.

[2] The Tribunal has not been satisfied that it is reasonable to grant this application and has therefore refused it. This decision has been reached as a matter of fact and degree in the particular circumstances of this case, for the reasons explained below.

The Title Condition

[3] Clause (Twenty One) of a Deed of Conditions by Cullen House Gardens Limited and Others dated 2 April, 12, 18 and 27 May, 3 June, 6 July, 2 and 18 August, and recorded in the Division of the General Register of Sasines for the County of Banff on 20 December, all 2005, provides:-

“The Proprietors are prohibited from erecting on any part of the Individual Properties any new building or any external extension of any existing building or any fences, walls, posts, gates or other structures whatsoever and (sic) for making any alterations to the exterior of any existing building including without prejudice to the foregoing generality, the roof, gutters, chimneys, walls, windows and doors thereof unless the plans, elevations and specifications of such new buildings, extensions, fences, walls, posts, gates or other structure or such alterations shall have been previously approved in writing by us the said Cullen House Gardens Limited;”

Procedure

[4] Iain Alexander Gauld Rennie and Dr Jean Ann Rennie, as proprietors of The Old Kitchen (formerly, 2 Cullen House), Cullen House, Cullen, applied under Section 90(1)(a)(i) of the Act for variation of the title condition to the extent of permitting them to erect an extension in accordance with plans for which they have planning and listed building consent and building warrant. Cullen House Gardens Limited, as proprietors of communal grounds at Cullen House, opposed the application. At an oral hearing, the applicants were represented by Iain Maclean, Advocate, instructed by Stewart & Watson, Solicitors, Peterhead, who called Mr Rennie and Michael McDonald MRICS, a valuation surveyor of D M Hall, Elgin, as oral witnesses. The respondents were represented by David Bartos, Advocate, instructed by Burnett & Reid, Solicitors, Aberdeen, who called Douglas Forrest, FRIAS, MRIBA, of Acanthus Architects, Huntly, who was an architect for the restoration project and also the first owner of the applicants’ property; Stanley Paine, proprietor of 5 Playfair Court, Cullen House; Peter Steele, proprietor of The Bellcot (formerly, 1 Cullen House); Kit Martin, MA, Arch Dip, Principal of Lucca Wines Limited, the company which acquired, renovated and converted Cullen House; and Andrew Wright, RIBA, Chartered Architect. Closing submissions were in written form. Both sides also lodged documentary productions. The Tribunal carried out an accompanied site inspection after the hearing.

Authorities referred to:-

Bolton v Aberdeen Corporation 1972 SLT 26
Miller Group Ltd v Gardner’s Exrs 1992 SLT 62
Ord v Mashford 2006 SLT (Lands Tr) 15
Smith v Prior & Ors LTS/TC/2006/12, 17.11.2006
Anderson & Anr v McKinnon LTS/TC/2006/04, 12.1.2007
Ritchie v Douglas & Ors LTS/TC/2007/26, 11.1.2008
Scott & Ors v Teasdale & Ors LTS/TC/2008/56, 22.12.2009
Corstorphine & Shand v Fleming & Ors LTS/TC/2010/06, 2.7.2010
Corry v McLachlan LTS/TC/2009/28, 7.10.2010
Trigstone Limited & Ors v Mackenzie & Ors LTS/TC/2011/08, 16.2.2012

The Facts

[5] Cullen House. Cullen House is a historic country house/castle in a fine rural setting on the edge of Cullen, Banffshire. It was formerly the seat of the Earls of Seafield but had been vacant and lain empty for some years before Kit Martin, who had a particular interest in saving historic houses and castles at risk, and Marcus Binney, President of SAVE Britain’s Heritage, became involved in saving it. Mr Martin developed a scheme for renovation and conversion into 14 residential properties of varying sizes, planned broadly on the basis of vertical division, i.e. houses not flats, each with private gardens. Mr Martin’s company, Lucca Wines Limited, acquired Cullen House. The extensive works, in which Mr Martin employed a local architect, Mr Forrest, involved very careful and successful renovation and restoration combined with the provision for example of new garages, fuel and bin stores designed to blend into the property, all to a high quality. The development has attracted owners from various countries.

[6] Title Conditions. The various houses were sold, under Feu Contracts, by Lucca Wines Limited to individual owners. The properties were subject to title conditions including a number of real burdens designed to regulate ownership and possession in order to preserve the setting and amenity created by the conversion. Some involved absolute obligations, e.g. to pay shares of maintenance, or prohibitions, e.g. from parking certain types of vehicles. Others were prohibitions from certain acts except with the approval of (originally) Lucca Wines Limited as the developer-superior or the incorporated “garden company”, Cullen House Gardens Limited, whose members are the proprietors of the individual houses. The title condition is in the latter category, other examples being prohibitions except with the company’s consent of use for trade or business purposes or other than as a private residence for the occupation of one family, and from lopping or cutting down trees, shrubs and hedges. Following the abolition of feudal tenure, these various conditions were re-promulgated in the Deed of Conditions of 2005. Requests for necessary consents under these conditions are considered at general meetings of the company, in effect duly convened meetings of the proprietors, at which voting is by simple majority, slightly more complex weighted voting conditions in the company’s Articles of Association having apparently been disregarded by agreement or practice. Some minor structural works, including the erection of a structure of approximately 4 by 2 metres built unobtrusively into a bank on the other side of the house in order to house an oil heating installation, have been permitted. No residential extension has been approved. A prospective purchaser enquired about a proposed business use of one of the more substantial properties, as a residence for members of a classical ballet school, but the proprietors as members of the respondents unanimously agreed to indicate that that would not be approved.

[7] Amenity. The historical, distinctive and attractive external amenity and setting of Cullen House has been successfully preserved.

[8] The Courtyard. The development included substantial restoration of buildings around three sides of a courtyard known as Playfair Court (the fourth side being an original high stone wall separating what was apparently a service wing from the back lawns of the older main building). This included an element of demolition and alteration of parts of these buildings which were not thought to be original, along with construction of garages (accessible from the other side of the wall) and covered fuel and bin stores. The six two storey houses each have private gardens on the other side from the courtyard, although three of the houses have their main entrance within the courtyard, the other three entering from their gardens. The applicants’ house, The Old Kitchen, is on the north-west side of the courtyard. It has a private patio area which is physically part of the courtyard. The rest of the open courtyard is owned in common by the 6 proprietors of the houses around it, each having a one sixth pro indiviso share. Mr Forrest, the architect involved in the restoration, was in fact the first purchaser of the Old Kitchen, in which he lived himself for a number of years before selling it to the applicants in 1992. The courtyard is entered by an open passage on the north-west side, beside the applicants’ property. The high wall runs along the south-east side, along which two garages and three stores with slated pitched roofs and plain wooden doors were built. The courtyard is partly stone sett, partly tarmacced and partly covered by shrub planting. The courtyard measures very approximately 250m2, but is irregularly shaped. On the north-west side, the applicants’ patio area is rectangular, spans most of the back of their house, and measures approximately 15 metres by 4.5 metres. A low wall, approximately 0.87m high, marks the north-east and south-east boundaries of this area. To the south-west, there is a small one storey intrusion in the corner of the courtyard, also with a slated pitched roof.

[9] The Applicants’ Proposal. The proposed extension was designed by Mr Rennie, who is himself a retired architect, in order to meet the needs of Dr Rennie, who has unfortunately become disabled following the onset of spinal problems and uses a wheelchair, for downstairs living accommodation. It would follow the line of that intrusion, partly extending the pitched roof and measuring approximately 8.8m by 4.5m, i.e. occupying slightly more than half the present patio area, with an eaves height of approximately 1.71m. Prior to the 1980s conversion, a non-original scullery extension with a pitched roof extending beyond and covering an upstairs window had occupied the present patio area. The extension, however, would avoid that by including a partial flat roof. The pitched roof would include 4 velux windows, similar in appearance to, although larger than, some used on the main roofs of the courtyard buildings. The extension would incorporate a ground floor bedroom, ensuite bathroom and separate wardrobe area. The extension would require the removal of one of two small trees in the patio area.

[10] Listed Building Consent. Cullen House is a Category A Listed Building. Historic Scotland were consulted in connection with the applicants’ application for planning and listed building consent. They made observations regarding the number of rooflights and roof pitch but did not object to the proposals and indicated to Moray Council that the application could proceed without further reference to them. Full planning consent was granted in June 2010. A building warrant, incorporating some minor changes in detail, has also been issued.

[11] Refusal of Approval under the Title Condition. The applicants’ proposal was considered, amongst other items, at the Annual General Meeting of Cullen House Gardens Limited on 19 March 2010, after the application for planning consent had been lodged. The meeting was attended by 10 proprietors, two of whom held proxies from two other proprietors. A long discussion of the proposal took place. A motion, that in the event of Moray Council granting the application, the company’s approval should be refused, was carried by 6 votes to 2, with 3 abstentions. At an Extraordinary Meeting on 3 May 2011, a motion that the company should oppose the present application was carried by 9 votes to 2.

[12] A Degree of Support for the Proposal. However, the owners of the North Tower, one of the properties in the main building, had indicated that they had no objection, and the owner of No 3 Playfair Court, beside the entrance to the courtyard and whose lounge window looks over the courtyard towards the gable end of the proposed extension, also indicated he did not oppose, especially given the fact that it would benefit Dr Rennie considerably.

Expert Evidence

[13] Messrs Rennie, Forrest, Martin and Wright all have architectural expertise. Mr McDonald has valuation expertise.

[14] Mr Rennie is a retired Fellow of RIAS and a retired Associate of RIBA who, until his retirement in 1997 practised as an architect who had experience of conservation projects and whose conservation work was recognised. Latterly he has fulfilled a role examining local applications for listed building consents. He said that he had discussed the proposal with Moray Council and Historic Scotland, and drew up the plans. He had designed the extension to be sympathetic to the current buildings, with Historic Scotland guidance in mind. The proposal followed the building line and roof line of the adjacent tank stores. He considered that it did not create a precedent, this being the only possibility in the development of an extension which would neither extend beyond existing building lines nor impinge on the integrity of the historic facades of Cullen House. The building materials would be of similar or better quality than those of the other new outbuildings constructed in the 1980s. The proposal did not affect the views of others and did not cut off sunlight or reduce daylight. Domed skylights in the original plans had been removed. Although he accepted that it would “eat into” the courtyard, he considered that it would not materially reduce the sense of space. He considered the proposal subordinate to the existing buildings and rejected criticism levelled against “non-traditional construction”. In cross-examination, he said that he was aiming to carry out work to a high (not highest) standard of design and construction, constrained by materials and to some extent budget. He accepted that the part flat, part slated roof was “hybrid”. He envisaged using second hand Scots slates. He accepted that the velux windows were a major element in the roof’s appearance, and that the eaves height was relatively low. The window would blend in and the door and doorway were, he said, identical to the existing. He rejected the notion of a “pinch point” in the courtyard, but accepted that the extent of reflected light would be diminished. He had not discussed the fine details of his proposal with the other owners, but was still prepared to do so. He did not consider that his proposals would have a deleterious effect on others’ enjoyment, although it would have some impact on the nature and spaciousness of the courtyard. It was largely in keeping with the surrounding architecture.

[15] Mr McDonald is a chartered surveyor with residential valuation experience in the Moray area, including at Cullen House and other properties in conservation areas. Following external inspection and with the benefit of the approved plans and photographs indicating the extent to which the proposed extension would be visible from elsewhere at Cullen House, Mr McDonald noted his opinion that future development could compromise the character of the entire development resulting in lower values but considered that the construction of the proposed extension would not have a detrimental effect on values. It would be built within the footprint of the original building and replacing a structure similar in size and style to that removed in the 1980s. It was designed to blend into the original building and 1980s additions, i.e. the garages and oil stores. It would not compromise the character of the development to the extent of having a detrimental effect on values. It met all the criteria set out by Historic Scotland, who were therefore satisfied that it would not impact on the overall amenity of the courtyard or surrounding properties. It would not be visible externally. The property most likely to be impacted would be No 5, whose front door would overlook the extension but which had a garden and entrance on the other side. Mr McDonald did not feel that the value of No 5 would be affected.

[16] There was no competing valuation evidence, but in cross-examination about the basis of his opinion, Mr McDonald accepted that the previous structure had not had a part pitched, part flat roof and was of a different style. He said, however, that it would be similar in size and style. He agreed in answer to the Tribunal that an unspecified extension could have an effect but that would have to be considered on its merits. In relation to possible improvements in the design he said that a prospective purchaser would not have anything with which to compare.

[17] Mr Forrest, now in architectural practice in Huntly, has extensive experience and a national reputation for conservation work. He explained the background to the removal of the former scullery. He considered the applicants’ proposal to be intrusive, ill-considered and inappropriate in form and shape. He demonstrated that the courtyard could be seen from a number of rooms in other parts of the main building: there would be significant detriment to a number of neighbouring properties. The proposal devalued the environment and was exactly what prospective purchasers would not expect and would think they were protected from in a development of this quality. The detailing was of poor and inappropriate quality. In cross-examination, Mr Forrest did not accept that his commitment to the Kit Martin project affected his objectivity. He did not consider that Mr Rennie had experience of working on Grade A listed buildings. He conceded that the courtyard was a blend of old and new, but did not consider that the new garages devalued the environment of Cullen House. The detailing of the proposal was “fussy”. He accepted that the garage construction (with rendered block-work walls) could be criticised by today’s standards, and compromises had been made in 1983 to meet budgets.He also accepted that the deed envisaged approval of some extensions. He considered that the proposal would reduce the light, open space and reflected light.

[18] Mr Martin is a trained but not certificated architect and an honorary Fellow of RIBA. Not having been recently involved with Cullen House, he did not comment on the particular proposal, but explained the thinking behind the development scheme. Institutional use of such a building would have brought continual pressure for alteration and new development. Residential, on the other hand, involved an expectation of residents that the setting and immediate environment of their homes would be secure and if individual owners’ circumstances changed, they could sell and move. This was the principle behind the covenant protecting the building from additions or major alteration: such covenants had played a key part in securing the future of historic buildings and their settings and were highly valued by residents who benefited as a community. This was a better way than, for example, relying on Historic Scotland. He accepted that there was no absolute prohibition on alterations but rather a reliance on the need to secure the acceptance of others. Mr Martin considered that the buildings round the courtyard were principal buildings.

[19] Mr Wright is a conservation architect and architectural historian, whose CV includes work at a very high level in the conservation field. His first report approached the question of the appropriateness of the applicants’ proposal through a highly critical analysis of the consideration by Moray Council and Historic Scotland, in the light of current historical environment legislation and policy. The respondents, however, did not pursue this approach (and a competing witness for the applicants, a Mr Geoghegan, who had written a report expressing opposing views on that issue, was accordingly not called or relied on). Mr Wright had also prepared detailed specific criticism in a second report prepared after seeing the more detailed building warrant plans. This set out his views on shortcomings of design, particularly in relation to the velux windows, leadwork, lime harl, wall construction, skews, structural framing, foundation design, soil pipe, wall ventilator slots, window and associated ventilator slots and gable extractor fan. In his opinion, work of any description at Cullen House demanded the highest standards that might be expected of an experienced conservation architect and the proposal had the potential to damage the character and appearance of the property and setting within the courtyard. Given the work done by Mr Martin and Mr Forrest, the principle of reinstatement of the scullery should not be accepted, but even if it was, the proposal was not to provide a replica, nor was it detailed to reflect the predominantly traditional construction of the buildings surrounding the courtyard. The proposed hybrid form of roof appeared non-traditional and uncomfortable, introducing a horizontal length to the profile of the gable. A “pinch point” with a reduced diagonal would be created, changing the spatial dynamics and introducing the potential to view the spaces as two courtyards.

[20] In cross-examination, it was put to Mr Wright that much of his consideration came down to subjective views. He answered that his views were based on aspects which would damage the character and appearance of the courtyard. The modern form of construction was unsuitable. He gave equal weight to his various criticisms, seeing them as collectively pointing to an adverse impact on the special interest of the building. The form of wall construction using modern timber frames led to the use of modern ventilator slots. He accepted that the 1980s buildings also to some extent detracted, and might not pass current scrutiny, but the way in which they had been carried out, without clutter, minimised the damage, the lines had been simple and the roofs straightforward. Asked whether the proposal would be acceptable if his technical objections were dealt with, Mr Wright questioned whether there was any need, in the interests of the building, for additional accommodation and whether the special character of the courtyard would be affected. He would not be satisfied by the principle of introducing buildings back into this courtyard, when they did not match, for example because of the flat roof but also because of all the matters raised. The building would not blend in, and that would still be the case even if problems could be solved by Mr Rennie in discussion with Mr Forrest. The appearance would be modern. Traditional building could cope with inaccuracy; modern, pre-fabricated building could do that less successfully.

[21] Answering the Tribunal’s questions, Mr Wright indicated that a preferable method would involve extending the existing dwarf wall upwards in stone. He accepted that Historic Scotland did normally have rigorous standards, but in this case they had failed to follow what was in effect an audit trail in the Scottish Historic Environment Policy document. He agreed that under current standards the surface of the courtyard would not have been left part tarmacced and part stone setts. He accepted that Mr Martin may have been under some cost pressure, but standards had generally risen since then.He said that to the best of his knowledge there were no other flat roofs at Cullen House.

Closing Submissions

[22] The parties each lodged full and careful written closing submissions, to which reference may be made and which are here briefly summarised.

[23] In relation to their preliminary argument, the applicants referred to the statutory provisions on the meaning of ‘title conditions’ and ‘real burdens’, ‘burdened property’ and ‘benefited property’ and ‘community burdens’; on appointment and powers of ‘managers’ of a property community; on the requirement to give notice of applications under this jurisdiction, and the entitlement to make representations; and on title and interest to enforce real burdens (Sections 122(a), 1, 25, 28, 93, 95 and 8 of the Act.) Reference was also made to definitions and provisions within the Deed of Conditions, the title conditions including this condition being declared to be community burdens. It was accepted that the respondents were entitled to make representations and their representations were competent. They had title to enforce this title condition, derived from their ownership of benefited property. ‘The benefited property’ in Section 100(b), however, was only the communal gardens, not any of the individual properties. Reliance on Section 28(2)(b) as giving power to enforce was, however, misconceived, as representations as respects an application such as this were not a matter of enforcement. The individual owners could not assign or delegate their right to make representations and in any event had not purported to do so. The Tribunal had referred in Trigstone v Mackenzie to the requirement on applicants to satisfy the Tribunal as to the reasonableness of an application as against each opposing benefited proprietor. Put shortly, the question was, which was the benefited property in this case. The applicants had been unable to discover any case in which representations had been made only by a non-natural legal person in the position of the present respondents, notwithstanding that there had been cases concerning large sub-divided houses or similar.

[24] In response, the respondents submitted that it could not be the case that in all circumstances factor (b) must be construed as referring to benefited property owned by a respondent who has lodged answers. Sections 98 and 100(j) obliged the Tribunal to have regard to any factor which it considered material. Here, it was clearly material that the condition conferred power on the respondents as representing the benefited proprietors as a whole to refuse consent on the basis that one or more of the benefited properties would suffer prejudice. It would be strange if when considering the reasonableness of the variation in relation to a body such as the respondents the Tribunal was prevented from considering the benefit conferred on any property other than that owned by the respondents, such a consideration plainly being material to the refusal, which the application sought to overcome, of consent. To equate the respondents with any individual owner was unreal given the terms of the condition and the nature and background of the respondents as a community company which, in addition to owning the particular property, had been given powers in terms of the title condition which were clearly material to the issue in the application. Even if benefit to individual properties was excluded under factor (b), it required to be considered as a material factor under (j). Further, if (as was not submitted) the issue of title to enforce arose at this stage, it was arguable that in terms of Section 28(2) of the Act read with the title conditions and the repsondents’ memorandum of association and articles the respondents were managers with power and title to enforce.

[25] On the merits, the applicants submitted that the legal framework was well established, and referred only to Trigstone v Mackenzie at Paras [28] and [29]. In relation to the purpose of the title condition, this (unlike some of the other conditions in the Deed of Conditions), was not a simple prohibition and expressly contemplated that new buildings or extensions might be erected. Mr Martin, while accepting the flexibility in the condition, apparently considered, contrary to the terms of the condition, that if an owner required to change his accommodation, he would just have to move. There was nothing in the condition to prevent proposals to increase accommodation. The provisions of the respondents’ Articles of Association involved a requirement to have an interest to vote on a proposal. There was no requirement of unanimity and no individual veto. Nor did the condition prescribe the considerations to be taken into account or the end to be secured. This was a condition in “standard general terms” (c.f. Anderson v McKinnon, at page 11) and there was nothing to distinguish it from similar conditions in deeds of conditions applicable to modern private housing estates or to indicate any more particular purpose. There was no warrant for imputing a purpose of witholding approval of plans the reasonableness and acceptability of which, from the wider public perspective, were vouched by the facts of planning permission and listed buildings consent.

[26] On the evidence, any impact on individual properties would be negligible and would not result in material detriment to the value or enjoyment of ownership of them. The right to vote against approval had accordingly not been shown to be of any practical benefit. Neither the courtyard nor Cullen House would be rendered a less impressive or attractive place in which to live. The title condition significantly impeded the applicants’ ability to enjoy the burdened property. Although the existence of planning consent was not determinative, it weighed heavily in the applicants’ favour in the circumstances of this case where the purpose of the condition was to protect general amenity without further specification indicative of a purpose to protect specific interests of neighbours. Having regard to the listed status of Cullen House and consequent involvement of Historic Scotland, and the lack of specific protection in the title condition, it was only the public planning control, and not the private title condition, which could ultimately be relied upon to protect the character and external appearance of Cullen House. The respondents could not on the one hand rely on the building’s Grade A listed status and on the other downplay or dismiss the fact of Listed Building Consent. Since the Planning Officer had identified the key point as being that the existing building would not be diminished by the introduction of an extension at this location, it could be inferred that consent would not have been granted if the proposed extension had been considered detrimental to the overall character and external appearance of part of an important listed building.

[27] In relation to factor (j), the applicants did not accept that there would be detriment to the character, appearance and amenity of the courtyard and the view from surrounding properties. The courtyard was a blend of old and new and differed from the detailing of the original buildings, the added buildings having no architectural merit nor meeting the exacting standard to which the respondents wished to hold the applicants’ plans. The proposed extension had been carefully designed to fit in with its surrounding environment, and the criticisms of it were both highly subjective and lacking in proportion. It was not disputed that if the applicants’ proposal reasonably could be seen as threatening the overall character and external appearance of Cullen House, that would be an important factor, but that was not the case. The proposed extension would, like the 1980s redevelopment, within a short time come to be accepted as an integral part of Playfair Court. Nor should the evidence of Mr Paine about the impact on the amenity of his property be accepted. Mr McDonald’s valuation evidence had not been seriously challenged in cross-examination.

[28] On the ‘precedent’ argument, concern about “opening of the floodgates” implied, contrary to the respondents’ evidence about the ethos of the development, some pent-up demand for further changes. This was not like the example of a suburban street of identical detached villas. There was no suggestion that there was any other individual property which would lend itself to comparable extension. In relation to the opposition of other proprietors, to the extent that it was potentially relevant, it was relevant to consider the merits of the stated grounds of opposition and also the extent to which proprietors outside the courtyard could qualify an interest. Whatever the extent of the opposition, the Tribunal must still look at the reasonableness of the particular application. It was difficult to see why granting the application would undermine the confidence of the proprietors to “self-regulate”.

[29] In their submission on the merits, the respondents agreed that the legal framework was well established, and pointed out only that the range of relevant factors did not include parties’ personal interests. To ascertain the purpose of the title condition (factor (f)), one had to look at the background and the other conditions. The purpose was to preserve the setting, appearance and immediate environment of Cullen House, and to empower the respondents (of whom the owners were required to be members) as representatives of the community to decide. This told purchasers that given the need for consent from the majority it was unlikely that anything major or substantial would receive consent. It gave the members of the community with a valued continuing interest the power to maintain the setting and the amenity. Flexibility was maintained for changes which might have to be made in the future, e.g. for services. Although the majority might possibly authorise an extension of residential accommodation, that was unlikely. The condition had thus far fulfilled its purpose. It was a community burden of considerable benefit to the appearance, setting and amenity of Cullen House as a whole and in particular to the properties whose front entrances had access over the courtyard and whose facades looked onto it.

[30] In relation to the extent of the burden, it was submitted that there was no evidence that the applicants’ property could not be reasonably or as much enjoyed without the extension. All title conditions restricting development of property impeded its enjoyment. The owners had voluntarily agreed to restriction of the right to enjoy, regardless of any planning situation. There was no evidence of any change of circumstances since 2005 or, apart from the growth of trees and bushes, since the condition was originally created. In considering what weight was to be given to the planning consent, it had to be noted that views might legitimately differ and that there was, it was submitted, considerable doubt, at the very least, on the basis on which the planning authority reached its decision. The submission proceeded to summarise criticism of the planning decision.

[31] The respondents indicated other factors (factor (j)) under three headings: detriment to the character, appearance and amenity of Playfair Court; the nature of the decision of the respondents on the application for consent; and the future effect of a decision to grant the application.

Tribunal’s Consideration

[32] We consider first the preliminary argument advanced on the applicants’ behalf. This is technical in nature, because it could be met by allowing one or more of the individual opposing proprietors to enter the process as objectors (although questions as to whether they should be permitted to take this step at this late stage, and as to expenses, would no doubt have to be considered). However, there is a substantial legal point here. Under the current legislation (as opposed to the previous position, when superiors who often had no immediate neighbouring proprietorial interest were benefited and could and sometimes did oppose applications to discharge or vary real burdens such as this), the emphasis under the Tribunal’s general jurisdiction is on the property interests of the objecting benefited proprietor as well as those of the applicant burdened proprietor. Here, the proposed extension would not be visible from the property of the benefited proprietor, who has no ownership interest in the courtyard. The applicants correctly point out that opposition by an owners’ association or company with no direct proprietorial benefit does not accord with normal practice and there seems to be much to be said for the view that “the benefited property” in Section 100(b), in the context, is a reference to the property of the objecting benefited proprietor.

[33] References in the submissions to enforcement of the title condition do not appear to us to assist with this issue. Objection to an application to discharge or vary is not the same as enforcement in the event of breach. We express no view as to whether the respondents would have title to enforce.

[34] The applicants accept that the respondents’ representations are competent, and do not apparently move us to, in court terms, repel them as irrelevant. They apparently in effect contend that they need to be approached rather as the Tribunal would approach objections by, say, an owner of property three blocks away in a housing development in which he technically had title under, but clearly derived no benefit in relation to the proposal which is the subject of the application, from, a community burden, so that there could be no benefit which carried any weight under factor (b). That, however, does not adequately recognise the particular circumstances of this case, in which all the individual owners (and only the individual owners, have the real interest in the property of the company. Further, in their capacity as the only members of the company which owns this property, the individual owners have power to take part in the community decision whether to consent or withold consent for this proposal. We conclude that while there is a real doubt as to whether “the benefited property” under Section 100(b) can include the property of any individual proprietors, given the particular status of the community of owners as members of the company which owns the respondents’ property, it is open to us to consider, at least under Section 100(j), as material to the reasonableness test, the position of the community of owners.

[35] Accordingly, we consider in the particular circumstances of this case that it is open to us in considering this application on its merits to have regard to the opposition by the community of owners. We should make clear that this does not imply that there is any general entitlement of managers or owners’ associations to oppose applications such as this. Further, if ownership of some benefited property gives such bodies title, the strength and materiality of their interest will depend on the particular circumstances.

[36] The general approach to applications of this sort under the Tribunal’s jurisdiction is well settled. We have to have regard to the factors, so far as they arise in the case, listed in Section 100 of the Act and to decide whether we are satisfied that the application is reasonable. It is not a case of considering, for example, who wins and who loses on each factor, but rather of weighing up our consideration of the various factors and deciding reasonableness on an overall basis. We do so very much on the particular facts and circumstances, and with the benefit of our own inspection at the property after we heard the evidence and submissions.

[37] We start with some general observations on the situation at Cullen House and in particular in this courtyard; on this particular title condition; on the evidence of the witnesses; and on the applicants’ proposal.

[38] We think it beyond dispute firstly that Cullen House, in its setting, is both historic and spectacular; secondly, that the 1980s restoration project, carried through with a great deal of care and regard for the building, successfully restored the building and established at it a property community of a type and structure designed to preserve it and protect it against deterioration of its fabric and its character; and, thirdly, that, so far at least, this aim has been achieved.

[39] As far as the houses around the courtyard (which may or may not, apparently probably not, have any connection with Playfair) are concerned, there was discussion whether these were to be seen as “principal buildings” at Cullen House. We think not: they are of a later era and altogether different, really subservient, character to the main house with its impressive towers and garden setting. That said, the courtyard buildings are attached, in effect as an extension, to the house, and the courtyard can in our view properly be described as an integral part of the whole property. It has been very carefully restored to something like its original appearance, and appears to us also to have retained (indeed regained) a special quaintness and character of its own. The fact that oil stores and garages have been added there (as indeed has happened at other carefully chosen locations around Cullen House) may give a misleading impression. These additions were made possible by the removal of some later structures, and were clearly carefully designed to achieve a balance and complement the original character and feel of this courtyard. This character has been preserved unchanged in the nearly 30 years since the restoration project. Appreciating that the courtyard cannot be seen from the outside (except, somewhat obliquely, from some windows), it does seem to us that it makes a significant contribution to the amenity of Cullen House as a whole. We do not find it at all surprising that owners of the other properties should consider it, along with the older and even more historic parts, to be a sensitive location in relation to any building proposal.

[40] That brings us to consider this title condition. A broadly similarly worded condition might have been – indeed sometimes is – created at any new housing development, although not necessarily in such prescriptive detail. It is concerned with matters of external appearance and amenity. It gives control over development to the body of owners, acting by majority. It is worded not as an absolute prohibition of alteration or new building, so that it allows for that possibility. Further, that possibility is not limited, so it does in its terms cover the possibility of consent to extensions of this or indeed a larger scale. In any event, even if it were couched as an absolute prohibition our jurisdiction would allow us to discharge or vary it so as to permit this development if that were objectively reasonable having regard to the statutory factors. We did discern, to differing degrees, in the evidence of some of the respondents’ witnesses an approach of blanket prohibition of any residential extension. Our jurisdiction requires a different approach.

[41] However, the purpose of such a condition is close protection, by the owners’ participation in the decision of the company, of the amenity of the development. In this particular case, the amenity which is being protected can, in our view, properly be considered as special and highly sensitive to any development proposal. It is an amenity created and preserved by the siting, building and restoration of Cullen House. We accept that the particular amenity, including that of the courtyard, could be at risk from any development and that the purpose of the condition or covenant is to eliminate that risk in a particular way, viz. by giving control to the owners, not in the form of individual veto, but through a vote in the community company. A degree of flexibility, of discretion to consider requests for consent to any degree of development, is provided, but it is anticipated that the majority of owners will act so as to preserve the exterior of Cullen House and its setting essentially as it is. We can accept that this may not be an infallible scheme. As Mr Maclean put it to one witness, the majority might be excessively purist, or conversely might approve a carbuncle, but that does not detract from the purpose of the condition. (It also does not take our jurisdiction on the one hand, and the planning and listed building regime on the other, into account.) Our jurisdiction allows the scheme to be overriden but requires us to consider, amongst other factors, the purpose and whether that purpose remains capable of achievement.

[42] We heard evidence from three individual owners, Messrs Rennie, Paine and Steele, and one past owner, Mr Forrest. Mr Rennie obviously has a particular interest and commitment to this proposal. That notwithstanding, we felt that he gave his evidence in a sound and straightforward manner. He has to our mind evidently done his best, with a fair degree of expertise and success, to design the extension so as to blend with its surroundings. We had no doubt at all that that was his intention and also that, if he is allowed to proceed, he would continue to try to accommodate other views and suggestions on matters of detail, within any reasonable cost constraints. Criticism of his design seemed to us at times somewhat unfair. However, we were not so sure that he appreciated the degree of impact which his proposal, however well designed and executed, has on the courtyard.

[43] We appreciate and fully accept Mr Forrest’s expertise, but we felt that from his particular point of view he struggled to be objective. His damning criticism of Mr Rennie’s design seemed to us misplaced. At all events, we did not feel that he gave us much assistance in the task which we face in judging applications of this nature, where the standard is one of objective reasonableness.

[44] We also had considerable reservations about the evidence of Mr Paine, the virulence of whose views on this proposal seemed to us inappropriate and unhelpful. He made clear that he would oppose any building at all, even if built entirely in an eighteenth-century style. However, he did make some particular points the force of which we appreciate. He has a non-professional interest in matters of design and architecture. He stressed the importance of the covenant, contrasting the position, for example, in an attractive village where the demand for extensions was difficult to resist. He spoke about the extent of buildings already added to the courtyard, accepting these as necessities which had to be there. It was not so much a question of blending in as of adding excessive building. He had “signed up to something now being completely disregarded” by his neighbour.

[45] We found Mr Steele’s approach careful and balanced. He said that he felt somewhere in the middle, acknowledging the applicants’ feeling that they required this extension but also others’ views that the extension would be seriously detrimental to the amenity of the courtyard. He opposed the proposal. He felt that the flat roof was out of character and also referred to the size, considering that the extension would dominate the courtyard. We did feel that he was concerned by the scale of the proposal and not simply the principle of adding accommodation. He said that he had welcomed the title conditions when explained to him, there being an attraction in the overall appearance which the covenants were obviously designed to preserve. He was clearly also influenced by the precedent argument.

[46] There was further, less direct evidence of other individual owners’ views on the proposal. Mr Paine’s evidence that Mr Alonso, at No 6, was equally opposed was not contradicted. Mr Alonso is a practising architect in Madrid. On the other hand, an affidavit from Mr Cox, at No 3, beside the entrance to the courtyard and with a view towards the gable end of the proposed extension, evidenced his willingness to consent, or at least not oppose. He considered the design to be sympathetic to the courtyard and to blend in with the existing garages and outbuildings. The one other owner within the courtyard is apparently neutral. Dr and Mrs Fleming, of the North Tower, the nearest point of the main building, one or two of whose windows overlook the courtyard and would have a view of the extension, had written indicating that they had no objection to the proposals which had obtained the approval of the Council and Historic Scotland.

[47] The position about other owners’ views, and the basis for them, is therefore mixed, but the majority of those, both within and outwith the courtyard, expressing views are opposed to the applicants’ proposal. We can add, in relation to the operation, through the company, of the procedure in relation to applications for consent, that the minutes of the meeting attended by most of the majority (there appears to have been about one proxy vote against), culminating in the vote against, reveal a lengthy discussion, with various points, not all adverse to the proposal, considered. That minute also reveals the extent of discussion of a variety of communal property issues: this property community does seem to gather to further their genuine interest in looking after the external parts of this building and grounds in detail and at some length. The applicants did not attack the manner in which the majority decision was reached. Although no one or more reason for refusal of consent was recorded, the issue does appear to have been considered from a slightly wider perspective than simple application of a prohibition. In relation to this proposal, the view of the majority is only one factor, but in our view it is a factor of some significance in this case, just as it might be relevant if we were considering a proposal acceptable to a majority but opposed by one or only a small minority of a property community.

[48] Mr Martin, while naturally retaining a degree of personal attachment to this project, was a cogent and clear advocate for the integrity of the covenant scheme in relation to a property such as Cullen House restored as a residential development. We accept, in the context of this case, the important part which this building restriction continues to play in preserving the external appearance of the house and grounds. Mr Martin clearly had a feeling against an extension proposal such as this, but did not address the particular proposal. Our views, noted above, on the question whether the courtyard buildings are “principal buildings” do not coincide entirely with his.

[49] With Mr Wright, as with Mr Forrest, we were not persuaded that he was objectively exploring the reasonableness of the applicants’ proposal. Although he had detailed, and clearly very expert, criticism from the standpoint of the very best current conservation practice, he appeared to us to be rather dead set against any such proposal. He admitted that he would still oppose even if all his criticisms were met. We are bound to say that we found much of his criticism “nit-picking”: similar points, based on very best practice, might, we felt, have been made about the 1980s additions to the courtyard. We did not feel that he was attempting to explore, in the round as it were, what if anything might be reasonable. However, his argument about the creation of a “pinch point” was a way of expressing the spatial issue as to whether the extension would impose too much on the space of the courtyard.

[50] Our feeling, on all the evidence that we have heard and as a matter of impression on viewing the courtyard itself, and also partly with the aid of photographs produced by both sides and including some photomontage, is that this proposed extension, although well designed to fit in acceptably in most respects with the appearance of the existing buildings, is of such a scale as to have a significant adverse impact on the appearance and ambience of the courtyard. It would indeed “eat into” the courtyard to a significant degree. The site of the proposed extension does, in our view, form an important element, with a footprint very approximately one sixth of the size of the whole courtyard. This is quite a small courtyard which prior to the 1980s renovation was cluttered with additional buildings on both sides. That renovation achieved a balance which we think is threatened by this proposal. The extension would also, as the applicants accepted, adversely affect the light in the courtyard by reducing the reflection of sunlight from the wall of the applicants’ house into the courtyard, something which was shown to be one of the features which gives the courtyard its character, at least when the sun shines.

[51] On the particular criticisms which appeared to us to bear most on the general issue of reasonableness, we did not feel that the flat roof would really impact, as it seemed to us that it and its features would not be very visible from the level of the courtyard. Elevational profiles on plan can be misleading in this respect, the flat roof itself being above eye level. Views from above from further away in the main building of the house would be at a sufficient distance to reduce considerably any impact from this admittedly hybrid architectural feature which does not occur elsewhere at the building. We would be slightly more concerned about the four quite large velux windows on the pitch roof, relatively low for people standing in the courtyard, but again do not consider that these would be seriously out of place, considering that there are other similar windows on the main pitched roofs.

[52] Other features of the design highlighted by Mr Wright on the basis of best current conservation practice would, to our mind, be quickly accepted by all but out and out conservation purists.

[53] Our assessment of the factors listed in Section 100 of the Act is as follows.

[54] There is no change of circumstances of any significance or materiality (factor (a)). The applicants’ submissions do not refer to this factor, and the respondents refer only to the growth of trees and bushes in the Old Kitchen Garden.

[55] We have referred above to the difficulty in relation to identifying the benefited property (factor (b)). Considering the benefited property as the communal gardens owned by the respondent company whose only members are the various individual proprietors in that capacity, the condition in our view confers the substantial and important benefit of the power to refuse consent to extensions and external alterations. We can accept the evidence of both Mr Steele and Mr Paine to the effect that they saw this as an important benefit when purchasing their properties, and we would expect purchasers at properties such as these to take an interest in this and the other community burdens, as Mr Martin affirmed. In the case of an application to vary to the extent of permitting a specific proposal to proceed, it is appropriate to focus, as the applicants did in their submission, on the benefit of the power to refuse consent to that proposal. The applicants argue that neither the courtyard nor Cullen House in general would be rendered less impressive or attractive in the event of the proposed extension being built, and the basis of Mr McDonald’s opinion was similar. As we have noted, however, the proposed extension would in our view have a significant adverse impact on the amenity of the courtyard. So the condition, by preventing this particular extension from being built, benefits the proprietors by preserving the amenity of the courtyard. There was, however, no evidence that the extension would affect the values of any of the properties.

[56] The condition impedes the applicants’ enjoyment of their property by preventing them from building this extension for which they have planning permission (factor (c)). This is a substantial impediment, because of course an owner of property would normally be free to develop the property upon obtaining any necessary planning consent. As the applicants recognised, Dr Rennie’s personal mobility problem, being a personal factor, does not add weight to this factor. Nor does the fact that, objectively, the applicants’ property can continue to be occupied as a substantial serviceable dwellinghouse detract from it.

[57] Factor (d) can have no application in this case. Neither side referred to the age of the condition (factor (e)).

[58] We have already made some comment on the purpose of the title condition (factor (f)). We agree with the applicants’ submission that the purpose is not to prohibit all building, or to prohibit any extensions. We also agree that, while individual neighbours may from their neighbouring position derive particular benefit in relation to particular proposals, the purpose is more related to general external amenity, or, as the respondents put it, “the setting, appearance and immediate environment of Cullen House”. On the other hand, the condition covers a detailed list of possible works and appears amongst a number of real burdens (in Clauses Twenty to Twenty-Nine), containing detailed prescriptive rules. The clear purpose of this condition is to retain close control, through a right of veto by majority vote of proprietors, over any proposed external alteration, building or extension of any kind which could affect that amenity. We see that as an entirely reasonable aim at this location. Futhermore, the purpose remains capable of fulfilment at this location, where the general very high amenity has been retained and there has been no alteration, building or extension of any significance at all.

[59] There is evidence on the one hand from Mr Wright and others to the effect that the proposed extension plans fall short of best current conservation architectural practice; and, on the other, that Historic Scotland was content for the application to proceed. However, there is nothing in the expression of the title condition to suggest a purpose of imposing a test of best current conservation practice. Nor is there any purpose of leaving the issue to Historic Scotland or any other outside body. The clear purpose is to give control to the majority of proprietors.

[60] The applicants of course have planning permission, and indeed a building warrant, for the use which this condition prevents (factor (g)). They argue that this factor has particular weight in this case, both because the title condition is directed at general amenity rather than the specific interests of neighbours and because, in this case, the application has had particular scrutiny from Historic Scotland as well as the planning authority. This leads them to assert that it is only the public controls and not the operation of this private title condition which ultimately can be relied on to safeguard the overall character of Cullen House. No doubt the public controls provide a further protection, but the logic of this argument is to deprive the private title condition, to which all the owners have signed up and which is the primary focus of our jurisdiction, of any importance at a location such as this if planning consent has been obtained. There would be little or no point in having the private title condition if it were only public controls which were relevant to safeguarding the character of Cullen House. We accept that the planning consent, also involving in this case Historic Scotland’s decision not to oppose, are factors in support of the applicants’ position, but we also remind ourselves that we are here dealing with the issue of reasonableness of overriding a private title condition.

[61] We reject the respondents’ reliance in their closing submission on what they describe as “considerable doubt” on the basis on which the planning authority reached its decision. This seems to be an attempt to reintroduce a line which the respondents, in our view wisely, did not pursue at the hearing. There was no suggestion of any doubt about the validity of the planning consent.

[62] Neither side placed any reliance on factor (h). Factor (i) does not apply in this kind of case.

[63] In relation to factor (j), “any other factor which the Lands Tribunal consider to be material”, we first note that if we are wrong in considering, in relation to factor (b), the extent of benefit to the benefited property as, in this case, including the benefit to the proprietors at Cullen House as a whole, we nevertheless consider the interests of the proprietors as a body in the amenity of this courtyard and their opposition to this proposal to be relevant and significant in the issue of the reasonableness of this application. On the view which we take of the effect on the courtyard of this proposal, the established view of the members of the respondent company who make up this property community is a factor of some weight. It was acknowledged in oral evidence that, as matters had developed, the company had really only considered the proposal as a whole and not the detail of it. However, as may already be evident, when the matter is properly viewed in the light of the title condition, the detailed objections developed by Mr Wright do not in our view carry the same weight as a more general view of the effect of the proposed extension on the amenity of the courtyard. Accordingly, the company’s view still carries weight.

[64] The applicants refer, in relation to this factor, to the absence of any contradiction of Mr McDonald’s evidence on the effect, or absence of effect, on values. Similarly, the respondents referred to the detriment (as they claim) to the character, appearance and amenity of the courtyard. Each of these matters is relevant to the extent of benefit and, again, we accept their relevance, on either side of the argument, even if not properly admissible under factor (b).

[65] The final argument under factor (j) is the precedent argument. Generally, as each application under our jurisdiction is considered on its own circumstances, the fact of a previous decision to discharge or vary should not carry any weight. We have, however, accepted in some cases that in some situations an application can be seen as the first of a kind which may be repeated if it is granted. In this particular case, there do not really appear to be other locations to which a decision on reasonableness of this proposal would have much relevance. If we granted this application, we would not be giving a view on extensions of dwellinghouses in general but on this proposed extension in particular. The respondents referred by way of example to the possibility of a further application by proprietors of The Old Kitchen, to extend the extension over the rest of this patio area. In our view, however, such a proposal would be different in degree and consideration of its reasonableness would depend on the view taken of the extent of effect it would have on the amenity of the courtyard: our view as a matter of fact and degree on this application should not reduce the need to consider any other application on its own merits.

[66] Drawing all these considerations together, we do consider that this title condition can continue to fulfil its intended purpose of protecting the very high level of amenity at Cullen House, and the majority view of the proprietors is a factor of considerable weight. Against that, the title condition impedes an otherwise normal development of the applicants’ property, particularly where they have obtained planning consent to which Historic Scotland were not opposed. They did, however, purchase their property in the knowledge of this condition and indeed agreed to its renewal in the Deed of Conditions. We are not considering the generality of extending, but whether this proposed extension is reasonable in the light of the title condition. It is a matter of fact and degree in the circumstances. The extension is to be 8.8 metres long. We could envisage at one extreme an extension, say, a quarter of that length; and at the other, an extension for the whole length, approximately 14 metres long. We would go so far as to express the view that an extension of around two metres, to similar design and standard, obtruding obviously considerably less into the courtyard, might be reasonable (and indeed might reasonably be expected to gain approval in terms of the title condition). The question is whether this particular extension is reasonable notwithstanding the operation of this title condition entered into by these owners to enable them to exercise very close control at this location. On the view which we have taken of its effect on the amenity of the courtyard, and on a consideration of all the relevant factors, we have concluded that it is not reasonable to override the refusal, under the title condition, of approval of this proposal. We cannot affirm that this title condition should be deprived of its effect in relation to this proposal, despite the obvious hardship to the applicants who have expended so much time and effort on a proposal which has achieved the public support evidenced by the planning consent.

Decision

[67] For these reasons, we refuse this application.

[68] The closing submissions note competing submissions as to the exact form of the order if the application is granted. We have not formed a view on that.

[69] Parties each made some points in relation to expenses but suggested reservation of that issue meantime. We would express the hope that any such question could be resolved on an amicable basis, but will if necessary consider this issue on the basis of written submissions in accordance with the Tribunal’s normal practice.


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

Neil M Tainsh – Clerk to the Tribunal