OPINION

Scott Gibson v Andrew and Elizabeth Anderson

Introduction and Summary

Introduction

[1] This is an application under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act (“the Act”) by a benefited proprietor for renewal, following a Notice of Termination under the “Sunset Rule”, of a title condition in the form of a real burden containing a building restriction. The burden was created in 1898. The original benefited proprietor, a distinguished architect, had in about 1879 built a large house with a fine southerly view of a particular hill, for his own use. He had also owned development land between this house and the hill and sold it in two plots. In 1898 he granted to the purchasers of one of those plots a supplementary disposition of a strip of ground (“the subjects”), considered to be directly in the line of the fine view, as additional garden ground, subject to this burden, prohibiting building other than a greenhouse, stable or outhouse not exceeding one storey high. The burdened proprietors, the respondents, now wish to divide their ground and build a second house on a plot including the subjects. They have outline planning consent. They intimated a proposal to terminate the burden, and they now oppose this application for renewal. Parties are agreed that the purpose of the title condition was to protect the view of the hill from the applicant’s house. The applicant seeks to maintain the burden in so far as it restricts the height of any building on the subjects. The respondents seek discharge of the burden but alternatively submitted that it might be varied not only by removing the restriction on the type of building (which the applicant does not oppose) but by permitting building to a height not exceeding 8 metres above the ground level at the highest point on the subjects. As well as seeking to show that the subjects were not as a matter of fact located in the line of sight from the applicant’s house to the hill, the respondents produced sectional sight line drawings illustrating the effect of buildings either 8m high or 6.5 m high on the view of the hill. At a site inspection, parties helpfully co-operated in arranging and utilising a suitable pole which assisted the Tribunal in its consideration of the possible effect of building to either of these heights.

[2] In summary, the Tribunal accept that the burdened strip which forms the subjects is indeed located so as to protect the particular view. We are satisfied that it is reasonable for the applicant to retain the protection which the burden affords against a building of unrestricted height and width in the burdened strip and accordingly that the burden should not simply be discharged. However, we are also clear that any proposed house would be likely to occupy only part of the east side of the burdened strip; and, if limited in height, need not interfere to any marked degree with the lower horizon of the view presently enjoyed from the applicant’s house and garden. There has already been some intrusion, in the years since the condition was created, on the lower part of the view, both by the growth of trees and by some housebuilding. In view of the uncertainty of the respondents’ proposal, we have considered whether to allow the application and leave the existing height restriction in place, so that the respondents would be required, if they wish to proceed, to prepare detailed plans and seek a waiver or variation accordingly. We have, however, decided to vary the title condition by permitting building to a specified height, 6.5 metres above the ground level at the northern boundary, on the eastmost strip, 4.575 metres wide, i.e. approximately one quarter, of the subjects.

The Title Condition

[3] The title condition (“the burden”) was created in a Supplementary Disposition by Robert Rowand Anderson in favour of the Marriage Contract Trustees of George Brown and Anne Nelson or Brown dated 10 November 1897 and 4, 5 and 20 January 1898 and recorded in the General Register of Sasines for Edinburgh on 22 January 1898, in the following terms:-

“Always with and under the following real burden and restriction in favor of myself and my successors proprietors of subjects to the north or north west of the piece of ground hereby disponed known as Allermuir House, videlicet that my said Disponees and their foresaids shall not be at liberty to erect upon the piece of ground hereby disponed any buildings or other erections other than a greenhouse, stable or outhouse to be used in connection with the house erected on the ground formerly conveyed to my said disponees and that such greenhouse, stable or outhouse shall not exceed one storey in height, which restriction is hereby declared to be a real and preferable burden and servitude upon and affecting the subjects hereby disponed.”

Procedure

[4] Andrew McInnes Anderson and Mrs Elizabeth Marian Anderson, as owners of 6 Barnshot Road, Colinton, Edinburgh, including the subjects, intimated a proposed Notice of Termination under the “Sunset Rule” (Section 20 of the Act) in relation to the title condition. Scott Gibson is a co-owner of Allermuir House, Woodhall Road, Colinton. He applied for renewal of the title condition. At the hearing of this application, the applicant was represented by Mr Kermack, Solicitor, of Turcan Connell, Edinburgh, and the respondents by Mr Paterson, Solicitor-Advocate, of Tods Murray LLP, Solicitors, Edinburgh. Mr Kermack intimated that the applicant was not seeking to maintain the burden in so far as it related to the ancillary nature of any building within the subjects but did seek to maintain the height restriction. Mr Paterson maintained the respondents’ primary position of seeking discharge but also indicated a secondary position that the burden might be varied by imposing a restriction on building any higher than 8 metres above the ground level at the northmost boundary of the subjects. There is no claim for compensation in the event of refusal of the application. Mr Kermack led oral evidence from Professor Sam McKinstry, PhD, a Business School Professor and author of a doctoral thesis on the architect, Rowand Anderson; and the applicant, who is himself a chartered surveyor. He also lodged an affidavit of the evidence of David McFarlane, BSc, a Planning Officer with City of Edinburgh Council. Mr Paterson led oral evidence from Grant Williams, BSc, FRICS, of Murray and Muir, Chartered Surveyors, and George Young, MCIAT, MRICS, a building surveyor with Project Management Architectural Services Ltd. Both parties also lodged documentary evidence. The Tribunal carried out an accompanied site inspection which, in particular, allowed the opportunity to observe from Allermuir House markers helpfully placed on the northmost boundary of the subjects to assist in indicating the possible effect of the proposed house on the views from Allermuir House.

[5] It should be noted that there is another pending application, by the proprietors of 4 Barnshot Road, for renewal of this title condition. 4 Barnshot Road is situated between 6 Barnshot Road and Allermuir House. The proprietors of 4 Barnshot Road wish the burden over the subjects to remain in place for their benefit. That application was, by agreement, not heard along with the present application, the issues in it being apparently somewhat different. Pending disposal of that application, the Tribunal is not in a position to pronounce the formal variation order in this application.

Validity of Notice

[6] The applicant queried the validity of the proposed Notice of Termination. The respondents had in fact twice, on the same day, intimated proposed notices to the applicant and his co-owner by sending a copy in accordance with Section 21(2)(a) of the Act (the second copy merely added the name of another neighbouring proprietor). The applicant submitted that each of these proposed notices erroneously failed to comply with Section 20(4)(a) of the Act because they referred to No 6 Barnshot Road as the burdened property, whereas, it was said, the “land which is the burdened property” was only part of No 6. The point was made in the originating application to the Tribunal which, however, merely sought renewal of the title condition. The respondents in their Answers accepted that the notice had been erroneous in this respect. The relevance of the issue in this application was not spelt out, but when Mr Kermack referred to the matter at the outset of the hearing, the Tribunal allowed the applicant, if so advised, to make a subsequent written submission about it. This opportunity was taken. It was submitted that the notice was invalid and suggested that there was no other way in which validity of the notice could be challenged. This written submission, however, again does not indicate what consequence should follow in this application (perhaps because, as the respondents submitted, the only step open to us would appear to be to dismiss the application).

[7] In the Tribunal’s view, however, this matter is technically both premature and irrelevant, and we in any event would not have jurisdiction to rule on the validity of a Notice under Section 20. It is premature because the intimation was only of a proposed notice. It is irrelevant because once an order is made under our jurisdiction there is no Notice which could have any present or future effect: the issue of termination is no longer determined by notice at the hands of the burdened proprietor but by the Tribunal, which exercises its jurisdiction under Section 90(1) and either renews, or varies, or discharges the burden. Once the Tribunal has determined such an application, the issue thus becomes academic. In effect, the notice procedure secures “Sunset Rule” termination where that is unopposed, but where the proposal, following intimation, is opposed, all that has happened is that the attempt to terminate has triggered Tribunal proceedings raising the same issue as in “ordinary” applications. (The position where an application is withdrawn, i.e. there is no longer opposition and the Tribunal will not be exercising its jurisdiction, is provided for in Section 23). The legislature might have conferred jurisdiction on the Tribunal to consider the prospective validity of the Notice (as it did in relation to some other notices under the Act and the Abolition of Feudal Tenure (Scotland) Act 2000), but has not done so. No doubt this does leave the benefited proprietor in such circumstances with a slight dilemma as to whether to apply to the Tribunal or risk success elsewhere with the validity argument. On the other hand, ex hypothesi, there is disagreement as to whether the burden should be brought to an end, and it may well seem far more appropriate that that matter be considered in the same way as in the case of burdens less than 100 years old than that the Tribunal (or a court) should adjudicate on a technical issue which could easily be cured by the burdened proprietor starting the process again.

[8] In these circumstances we do not consider it appropriate for us to rule on the validity of the proposed notices of termination, and have considered the application on its merits. If we had had to consider the issue of validity, we would have considered whether it was necessary to hold that reference in the intimation notice to the property owned by the burdened proprietor, which includes the actual burdened area of ground, rather than to the actual burdened area, was in the context such an error as to render the respondents’ attempt to comply with the statutory procedure invalid. The proposed notice did after all, in addition to identifying the respondents’ property, identify the 1898 Disposition and narrate the burden itself, which expressly refers to the “area of ground hereby disponed”. We do, however, recognise that Section 21(4)(a), as well as Section 20(4)(a), imposes a requirement to identify “the land which is the burdened property”.

Authorities referred to:-

Braid Hills Hotel Co Ltd v Manuel 1909 SC 120
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd 1997 AC 749
Ord v Mashford 2006 SLT (Lands Tr) 15
Brown v Richardson, 8.5.2007, LTS/TC/2006/41
Gallacher v Wood, 22.8.2007, LTS/TC/2007/02
Ben Cleuch Estates Ltd v Scottish Enterprise 2008 SC 252
Hamilton v Robertson, 10.1.2008, LTS/TC/2007/21
Council for Music in Hospitals v Trs for Richard Gerard Associates, 5.2.2008, LTS/TC/2006/61
Scott v Teasdale, 22.12.2009, LTS/TC/2008/56
Batt Cables plc v Spencer Business Parks Ltd 2010 SLT 860
Corstorphine & Shand v Fleming, 2.7.2010, LTS/TC/2010/6
Corry v MacLachlan, 9.7.2010, LTS/TC/2009/28
Scott v Muir & Bain, 7.12.2011, 2011 WL 6329035 (Sh Pr. Stephen)

The Facts

[9] Allermuir House is a large 2 storey and part attic detached house with substantial garden ground on the south side of Woodhall Road in Colinton, a mainly residential suburb of Edinburgh. Constructed in 1879, it was designed by a well known architect, Sir Robert Rowand Anderson, for his own occupation. It is listed, Category “A”, as being of architectural or historical importance. Rowand Anderson is credited with being instrumental in the development of Colinton. The house is positioned close to the north boundary of its plot and designed with its principal rooms facing south. All of the rear rooms face Allermuir Hill, one of the hills in the Pentlands Range. The hill can also be seen from much of the rear garden, which extends back a distance of approximately 50 metres from the rear of the house.

[10] Rowand Anderson also owned the land immediately to the west and south, including land between Allermuir House and Allermuir Hill. He sold 3 house plots on which Nos 2, 4 and 6 Barnshot Road, which runs south from Woodhall Road, were built. No 2 is adjacent to Allermuir House with its garden extending back a similar distance. Nos 4 and 6 lie to the rear of these two gardens and occupy sites extending across the full width of these gardens. These houses lie close to Barnshot Road giving them also deep back gardens. However, when originally feued off the plot for No 6 was more restricted in depth because Rowand Anderson retained a strip of land, extending to approximately 18.3m by 38.7m, on the west side. In 1898 he disponed this land, without consideration, to the owner of No 6 on a preamble that “my disponees are desirous of acquiring an additional piece of ground for the purpose of extending the subjects belonging to them and securing the amenity thereof … ” and subject to the burden. A similar building restriction had been placed on a corresponding part of the rear garden of No 4. These two burdened areas of ground lie exactly in a line from the back of Allermuir House to Allermuir Hill. The purpose of the burdens was to protect the view from Allermuir House towards and of Allermuir Hill for the benefit of the owner of Allermuir House. No 6 occupies a corner plot with Grant Avenue, a street not constructed at the time of the original feuing but shown on the feuing plan as contemplated for future development.

[11] The rear garden of Allermuir House rises a little more than one metre to its southern boundary where it adjoins the side boundary of No 4 Barnshot Road, at which point the ground levels off. Then, within No 6, it falls back down to Grant Avenue. At the boundary between Allermuir and No 4, a laurel hedge has been planted, within Allermuir’s garden, along a stone boundary wall. This has been trimmed to about 2.8 metres high. Substantial trees run along the eastern and western boundaries of Allermuir, with the effect of framing the view of the hill. There are no substantial trees in the garden of No 6 and none of the trees in No 4 obscures the view.

[12] Within Allermuir, the principal public rooms, a drawing room (at one time a library) and its adjacent room (probably a study) are on the first floor to take advantage of the southerly aspect and the views of the hill, which can be clearly seen from the four windows, including an oriel window, in these rooms. There is a similar aspect from the original ground floor apartments. The window in the attic room is small and positioned below eye level. From the garden the hill can be seen up until approximately half way back from the house. A modern extension has been erected to the side of the house but from there the hill is obscured by the trees along the eastern boundary.

[13] At the time when the burden was created there was no other development to the south. Since then substantial building has taken place, principally the development of the area known as Bonaly. The aspect from the south facing rooms of Allermuir is principally of a rural character with an interspersing of some roof lines or parts of gables. These are mainly at a distance and they merge into the overall landscape appearance. The predominant appearance is of a tree dominated landscape with occasional signs of development, with the hill and a small part of the Pentlands rising in the background. At the western fringe of the view to the hill the gable and chimneyhead of 2 Grant Avenue can be seen through the branches of trees, as can the topmost part of the roof ridge of 3 Grant Avenue, on the other side of that street and beyond the garden of 6 Barnshot Road. Although these properties are rather closer than those in Bonaly, Allermuir House retains views that can reasonably be described as quite rural. No development intrudes to any meaningful degree on the views of the hill, although the lower slopes are obscured by foreground tree foliage.

[14] Substantial trees have grown up along the boundaries on either side. These are protected by tree preservation orders. The width of the view of the hill is thus slightly less than when the burden was imposed. Branches also cut across the view and impede it to a limited degree. The trees on the western edge are mainly deciduous while those on the eastern side are substantially evergreen. Permission would be required for any lopping or trimming of the large trees. Such permission has been granted in the past and carried out. No consent is required for trimming shrubbery.

[15] Development of the burdened land, at or close to its northern boundary and to a height of 6.5 metres or 8 metres would, depending on the exact location, be clearly seen from the rear rooms and part of the garden of Allermuir. Development to the higher level would obscure part of the view of the hill and both would obscure much of the foreground and lower slopes of the hill. Any such development running along the whole or a substantial part of that boundary would be significantly closer, and much more prominent, than any existing development. The eastern end of any such development within the burdened strip would, however, begin to merge with the existing shrubbery within Allermuir.

[16] The respondents propose building – or selling for building – on an identified rectangular site on the west side of their existing garden. They have planted a hedge running north-south and indicating the portion of their garden which could be disposed of without causing any significant impact on the remaining property. The existing house would have a more than adequate garden for the scale and type of house. The development site is approximately 30.5 metres wide and includes (on its west side) the burdened subjects. It is currently cultivated as part of the garden of No 6.

[17] The respondents obtained an outline planning consent dated 6 July 2009 for one house on this development site. This outline consent continued (although with some interruptions) an outline consent first granted in 1998 and renewed in 2001 and 2006. Conditions imposed with the latest consent included the provision of full scale plans detailing elevations, sections and plans of the building as well as a detailed layout of the site including landscaping and car parking. Currently, any application for planning consent within a conservation area and adjacent to a listed building would require to be in detail rather than outline (No 6 is also listed). Various policies apply to any new development in the Colinton Conservation Area. These reflect the high quality architecture of the existing housing, the predominant use of traditional building materials and the “strong sense of place derived from the containment within a rural setting, and the prominent views to the Pentland Hills”. A formula exists to calculate the maximum size, under the policy, of any development within an existing garden, based on a 50% increase in the footprint of the existing house. On that basis, the maximum footprint of the proposed house would be 93m2. 2 Grant Avenue is a more modern house on a quite narrow site immediately to the west of Nos 4 and 6 Barnshot Road. It may have been a garden development, like many in the Colinton area. It sits back in its plot so that the proposed new house would apparently need to be constructed close to the northern boundary in order to maintain a semblance of a building line. The eastern boundary of the burdened land more or less approximates to the mid-point between the houses at 6 Barnshot Road and 2 Grant Avenue.

[18] There is an extensive range of type and style of houses in this neighbourhood, with a preponderance of older, large, mainly stone built houses intermingled with younger buildings including a few of quite modest dimensions. No overall pattern prevails. The original houses generally have, by current standards, large plots.

Opinion Evidence: Mr Young

[19] Mr Young first spoke to his sight line report, prepared in October 2011. He had obtained access to Allermuir House and photographed what he believed to be the best view of Allermuir Hill, from the westmost window of the oriel window in the first floor former library room. He had then surveyed the area, measuring distances and heights and plotting ground levels from contour lines and used various maps to prepare a cross-section drawing purporting to show that a person standing at that window looking towards Allermuir Hill would not be able to see the top of an 8 metre high building in the centre of the garden of No 6. This was based on a minimum shrub height within one metre of the boundary between Allermuir House and No 4 of 5.5 metres. Mr Young said that he had measured the height of 3 Grant Avenue, the house on the other side of Grant Avenue and in the line of sight to the hill, at 8 metres. The respondents’ property, he said, was much higher and he was not able to indicate its height. At the hearing he spoke to similar cross-sections showing houses of 8 metres and 6.5 metres located at the northern boundary of No 6. He said that the house would be visible if the shrubs were cut down to 2 metres.

[20] At the hearing, Mr Young spoke to a further exercise purporting to show the lateral lines of sight to Allermuir Hill on each side of the gap between the tall trees. Plotting of the garden of No 6 purported to show that the westmost line of sight was some 20 feet or so east of the eastmost boundary of the subjects, i.e. the line of sight did not cross the subjects, so that the burden did not, as a matter of fact, protect the view of the hill.

[21] In cross-examination, Mr Young accepted that he had only considered Allermuir Hill. He said that Allermuir House was not at right angles to the hill. He had used 3 Grant Avenue as an example of the height of a two-storey house. He had not looked at the height of 2 Grant Avenue. He criticised the applicant’s methodology in drawing lines across from a photograph showing 2 Grant Avenue. He preferred to use his own measurement. He thought that 2 Grant Avenue was higher than the proposed house. In answer to a question by the Tribunal, he said that there was only one shrub affecting the view and this was between 5 and 5.5 metres high, the latter being its height in the direct line of sight with the hill.

[22] The applicant had not carried out any survey or measurements, other than plotting on a photograph a line across from the chimney level of 2 Grant Avenue. However, he gave evidence challenging, from his own experience of living at the house, Mr Young’s conclusions.

Opinion Evidence: Mr Williams

[23] Mr Williams, an experienced residential valuation surveyor, had prepared a written report on the respondents’ instructions, setting out, with reasons, his opinion that, subject to any new build on the garden ground at 6 Barnshot Road not being higher than two storeys, a total discharge of the title condition would not have any effect on the value of Allermuir House. This was on the basis, as he confirmed in his oral evidence, of accepting that the view from the library window would not be obstructed by the proposed two storey building. He had not obtained access to Allermuir House or its garden. In oral evidence, he said that if there was some visibility, for example in winter, it would still have no material effect, it being too far away to have such an effect. Asked about the position if there were evidence of visibility from all windows on the first and ground floors, he said he would have to see what the photos showed: he would have to look to see what variance there was. He said that it was not impossible to remove trees if there were a requirement to take them down although in a conservation area it would be necessary to ask for permission from the council.

[24] In his oral evidence, Mr Williams spoke to his opinion that the burden reduced the value of 6 Barnshot Road by approximately £100,000. He understood that there had been an offer of £1.5 million for that property, and in his view that would include a site value of approximately £0.33 million for the development site, because on the basis of building on the subjects, such a house would be worth approximately £1 million. Such garden ground development was common in this area, where there had originally been very large gardens. With the continuing restriction, however, there would be quite a narrow building strip on the development site and the value of the house would be nearer £750,000, reducing the site value to around £250,000. These very approximate figures depended on the style of house. If the new house were built closer to the existing house, there would be similar problems.

[25] In cross-examination, Mr Williams said that he had not valued the respondents’ property. He was asked, and answered, some questions on planning matters, although he indicated that he was not a planning expert. He confirmed that the non-statutory Villas Policy which would apply limited the footprint of such a garden development to half that of the existing house, in this case up to 93m2. He agreed that a house of 93m2 and two storeys would be modest in the Colinton area. He said that 2 Grant Avenue and 6 Barnshot Road were of similar height, he thought about 7m. He confirmed that it was no longer possible to apply for only outline planning consent in this conservation area. He agreed that the house would likely be built towards the rear (north) of the site. He did not know whether a narrower house envisaged on the unburdened part of the development site would be allowed. He himself would not advise an unconditional offer on the basis of only outline consent. He did not think that the existence of the cluster of listed buildings would be likely to stand in the way of detailed planning consent.

[26] The applicant led no valuation evidence in relation to either property.

Applicant’s Submissions

[27] Mr Kermack started by considering the nature of this burden, which he compared to the provision considered in Braid Hills Hotel Co Ltd v Manuel. This burden and that imposed on No 4 each covered the westmost part of the gardens of these houses, confirming the purpose of protection of the particular view. Mr Kermack briefly reviewed the application of Sections 98 and 100 of the Act, indicating that the Tribunal’s function was not altered in applications under the “Sunset Rule” (Brown v Richardson; Council for Music in Hospitals v Gerard Associates) and the age of the burden was not treated any differently. Turning to the factors in Section 100, it was important, in looking at the purpose of the burden (factor (f)), to consider whether it was still achieving its purpose (Corstorphine & Shand v Fleming). Here, leaving aside Mr Young’s claim that the subjects were not in fact in the line of view, there was no dispute about the purpose of protecting the views towards Allermuir Hill and the Pentlands, i.e. slightly more than the hill itself. This was for the particular protection of Allermuir House and was still achieving that purpose.

[28] Turning to factor (a), Mr Kermack submitted that it was unnecessary to determine the exact area of the “neighbourhood” (Ord v Mashford, at 24E). The fact that particular areas had been developed subsequently was not relevant if this was not visible from the property. The development in Grant Avenue was only relevant in so far as it came into the view. The granter would have envisaged some degree of development. There was no material or relevant change in the burdened, or in the benefited, property. The hill remained attractive. In relation to factor (b), it was fairly clear that planning policy would require the proposed house to be built in towards the back of the plot along the building line taken by 6 Barnshot Road and 6 Grant Avenue. 6 Barnshot Road and 2 Grant Avenue were indicative of the likely height; 8 metres was not a useful yardstick; and restriction of the footprint suggested that the size would be reflected in the height of the house. The purpose of the burden was thus still being achieved by the limitation in height. In relation to factor (c), the extent of the impediment was not of much weight where it must have been accepted, particularly where the original grant of the land was by way of gift subject to this condition and to the land being held together with the house. The respondents’ case was predicated on outline planning consent first applied for some 20 years ago, without any detailed drawings. It was not known whether their ground could be divided in another way, and the evidence did not rule out building a house on the remainder of the development site. The listing of Allermuir House might preclude detailed planning consent. Mr Williams’ evidence was disputed because of the number of uncertainties. Reference was made to Hamilton v Robertson. Factor (d) had no application. On factor (e), Mr Kermack submitted that where the burden still served its original purpose and there had been no relevant or material change in circumstances, the age was of very little weight. Reference was made to Ord v Mashford, Brown v Richardson, Scott v Teasdale and Corry v MacLachlan. On factor (g), it could not be said with certainty that detailed planning consent would be obtained. Factors (h) and (i) had no bearing.

[29] Under factor (j), Mr Kermack referred to the history of the applicant’s property, which was of national and international importance. The whole raison d’être of the design of the property was to enjoy the view. The title condition only affected about one third of the respondents’ garden. There was some public interest in retaining the view.

Respondents’ Submissions

[30] Mr Paterson spoke to and elaborated upon a written submission. He said that the principles applicable were well known. This title condition was relatively conventional, although the burdened property formed only part of the respondents’ property. It was accepted that the purpose of the title condition was to preserve the views of Allermuir Hill for the benefit of the owners of Allermuir House, but the context at the time had to be considered. The view at the time was over open pasture towards Allermuir and other parts of the Pentlands, without any obstruction, and the purpose was to preserve that. There had been enormous change in the generality of the area since the condition was created, when it was semi-rural. The development of mature gardens, masking the benefited proprietors’ view of the Pentlands and also of the housing developments in Grant Avenue and beyond, was also significant. The view of Allermuir was good but not unique.

[31] Mr Paterson said that the issue of benefit (factor (b)) was central. The applicant had failed to show that the burden protected the view towards Allermuir Hill. His oral evidence was contradicted by Mr Young’s evidence that the line of sight to the hill between the trees (which would not be allowed to be removed) in fact passed over the unburdened property. Further and in any event, the applicant had failed to show the effect of building a one and a half or two storey property in the burdened area, his photographic attempt at that being flawed. Again, Mr Young had demonstrated that a building to the height of 8 metres would not materially impact on the view. The applicant had failed to discharge the onus of showing any benefit in relation to any house that planning permission could realistically be expected for. It had not been suggested that there would be any effect on the value of the benefited property. By contrast (factor (c)), the existence of the burden had, on Mr Williams’ evidence, a material bearing on the value of the development site. The burden prevented the respondents from developing their property in terms of the precedent for the area.

[32] Mr Paterson submitted that while the significance of the age of the burden (factor (e)) varied from case to case, in this case the passage of time was particularly significant because of the change in the nature of the area, where a completely open and uninterrupted outlook over the whole of the Pentlands had become an area of mature hedges and trees, obscuring significant residential development points. The burden had been left behind by the passage of time. Old burdens should not be preserved unnecessarily. In relation to planning consent (factor (g)), it was acknowledged that the lack of certainty of a possible development was in certain cases relevant. However, it was unlikely that the planning authorities would allow any development beyond two storeys. Further, there was nothing to prevent the respondents allowing their Leylandii hedge to grow to a height which would mask any development on the subjects, i.e. any uncertainty in the planning permission could be negated. On factor (h), the evidence was that there would be no effect on the value of the benefited property. Two other factors should be taken into account (factor (j)): first, the benefited proprietors had no control over the respondents allowing hedges or trees to grow; secondly, the respondents had indicated a willingness to amend the burden so as to place a maximum height restriction on any development, and remained willing to accept such restriction. Development to a maximum height of 8 metres would have no material effect on the view enjoyed by the benefited property. In conclusion, said Mr Paterson, any benefit from the burden was minimal and, in the balancing exercise between this and the detriment suffered by the respondents, the scales tilted clearly towards refusing the application. Alternatively, the Tribunal could vary the burden so as to allow development to a new height restriction of 8 metres or such other height as considered reasonable. Finally, the Tribunal should not lose sight of the fact that it would be open to the respondents to allow the current hedge or any new trees to grow so as to obscure the development.

Tribunal’s Consideration

[33] The substantial dispute is whether this building height restriction should be maintained as it is, varied or discharged. The effect of the operation of the ‘Sunset Rule’ provisions is that by seeking to rely on these, rather than simply making their own application under the Tribunal’s “ordinary” jurisdiction to discharge or vary title conditions, the respondents have transferred the onus onto the applicant, who can only succeed if the Tribunal is satisfied that his application to renew is reasonable. Otherwise, however, the issue is the same as in ordinary cases. In particular, it appears to be accepted that factor (e) in Section 100, the age of the title condition, should not be considered in any different way in this type of application. As parties’ submissions acknowledged, the approach to the tests under Sections 98 and 100 of the Act is well established and not in dispute. The established approach recognises the central part which our site inspection often plays in cases such as this.

[34] We should start by indicating that in our view, in the circumstances of this case, the architectural importance of Allermuir House and any public interest in the work of its architect are not factors of any weight in this application. If there were anything in the nature of some form of public obligation, or even regular practice, of showing the house to the public and the view of the hill played a part in that, these things might have some relevance, but the evidence in our view fell short of that. The house is no doubt of considerable interest to architectural historians, but in the issue of the reasonableness of exercising the Tribunal’s jurisdiction in relation to this title condition, we think that it has the character of a private property.

[35] However, we have no difficulty – as indeed the respondents had no difficulty – in accepting that this title condition had the very specific purpose of protecting a particular view, although that was not expressly narrated. We are satisfied that the burden was imposed on this particular strip of ground, with a similar burden on a corresponding strip within the garden ground of No 4 Barnshot Road, in order to protect the view from Allermuir House towards and of Allermuir Hill. Professor McKinstry’s evidence underlined the picture of an architect who carefully designed this fine house in an alignment to take advantage of this view and used his ownership of ground between the house and the hill to protect the view in this way. The view was then over open farmland towards a low ridge and on to the hill. We do not think it right to refer to the purpose as to protect a view over any wider area of the Pentlands: it did not extend any further west, because Rowand Anderson did not have such control over land any further west; and it did not extend further east (to the extent that the Pentlands extend in that direction) because houses were being developed on that side of the plots. It was to protect one particular view.

[36] We think we can infer two further things about the original purpose and intention. Firstly, the concept does appear to have included trees down the two sides of the garden so as to, in effect, frame the view. Secondly, we think it highly likely that Anderson, an architect himself involved in the residential development of Colinton and other areas in and around Edinburgh, envisaged a degree of further development.

[37] We reject Mr Young’s attempt to show that the burdened strip is in fact behind some of the trees and therefore did not protect the view at all. This seemed somewhat unlikely to us at the time we heard his evidence, and is clearly disproved by the practical opportunity which we, but not Mr Young, had to test the matter: the markers on the pole held in three positions along the boundary of the burdened strip were clearly visible from several positions at Allermuir House. We would not be unduly critical of Mr Young because it looks as if he may have been misled by the alignment of Allermuir House depicted on a map, but the position on this is clear.

[38] Although some change was, we think, anticipated from the outset, we do accept as a material factor that there has been a degree of change since the condition was created. The lower part of the view towards the hill now consists mainly of trees and parts of subsequently built houses. The latter, however, are either to the side, like 2 Grant Avenue, or further away from Allermuir House than the burdened subjects. It became evident at the site inspection (and our photographs confirm what the applicants’ did not!) that as well as Nos 2 and 3 Grant Avenue three or four houses in the Bonaly Estate are, at least in winter, to be seen very much in the same line as the view of the hill. A house on the subjects would not by any means be the first intrusion into the view. This makes it particularly relevant to consider the extent to which the proposed new house would intrude – would it be just another minor intrusion, to be anticipated in what may be said to have become an urban situation, or would it have a dominating effect?

[39] Mr Young’s main evidence, the subject of his written report, was to the effect that a person standing in the main room on the upper floor of Allermuir House and looking towards the hill would not see the ridge of a new house, not exceeding 8 metres high, built at the north boundary of the subjects. Here again, we have had the opportunity of testing this evidence. We do not find it to be incorrect so far as it goes, but we do find it to be incomplete, because it relates to one particular sectional view over bushes, towards the left of the gap between the trees, which Mr Young recorded as 5.5 metres high. We measured the main stretch of laurel hedge over which much of the view over the burdened strip is enjoyed at around 2.8 metres and, as we have indicated the markers on the pole were visible.

[40] It should be borne in mind that each view from each window position at each level – whether first floor, ground floor or garden – is a bit different, but our inspection showed clearly that a house 8 metres high centred in the centre of the burdened strip would indeed occupy a prominent position in the foreground of the best views from the first floor of Allermuir House.

[41] That leads to consideration, on the basis of the evidence led, of where on the site the house would be built. Uncertainty about this, there being no detailed plans and no specific evidence as to the exact site, is a factor in itself. Firstly, we have to take into account that it would almost certainly not be built right on the boundary, so even if it were allowed to be higher than 8 metres because that limit was set at the boundary, which is the highest point, being further away it would, other things being equal, make less of an impression. Secondly, however, we have to consider where on the site, which extends further eastwards than the burdened strip, it would be likely to be built. The view towards the hill is more restricted by the height of shrubbery, and there is correspondingly, therefore, more screening already in place, up to the height evidently measured by Mr Young, on the east side. We calculated that if the house were built midway between 6 Barnshot Road and 2 Grant Avenue, and angled slightly to fit a building line formed by these two houses, it might protrude approximately 5.2 metres into the burdened strip.

[42] We have accordingly taken the view, as a matter of fact on the evidence and our inspection, that a house not exceeding 6.5 metres high – more accurately, a part not exceeding 6.5 metres high - and extending only, say, one quarter of the distance across the burdened strip, would intrude to a very much lesser degree and in a way which would to a large extent blend in with the other features of the lower part of the protected view as it is at present. Such a house could also be extended further into the burdened strip at a height not exceeding one storey.

[43] We should acknowledge that our findings and the view just expressed are on the basis of the existing height of the shrubbery. It is clear, as the applicant submitted, that the shrubbery is not in any way protected and so could be reduced in height, or, for that matter, increased in height. So we need to include in our consideration whether, in the test of reasonableness, the shrubbery should be assumed to be a similar, or a lower, or a higher, height than at present. On that, we should indicate that we do not think that the applicant can reasonably refer to a lower height, which even at present would simply bring 3 Grant Avenue more into view. Nor do we think that it would be reasonable to assume a higher height, i.e. in effect require the owner of Allermuir House to provide increased screening. So far as we could see, the present varying height of the shrubbery was broadly as it has normally been, and on a reasonable view should be anticipated, broadly, to remain.

[44] Our consideration of the factors listed in Section 100 of the Act, for the purpose of assessing the reasonableness of the application, is as follows. It is often helpful to start with the purpose of the condition (factor (f)). This was to protect the amenity of Allermuir House by preserving the particular view towards and of Allermuir Hill. In relation to change of circumstances (factor (a)), we accept the applicant’s submission that there has been no material change in the character of the benefited property or of the burdened property; there has been a degree of development which is visible, to differing degrees at different times of year, in the line of sight to the hill and which has had some impact on the foreground, or lower part, of the protected view; but that impact is very much less than the impact of building above one storey height within the burdened strip; and the protected view remains largely as it was. The benefit to the proprietor of Allermuir House of protection of the view remains substantial (factor (b)). Mr Williams’ evidence being predicated on Mr Young’s conclusions, there is no evidence, one way or the other, on the basis of our findings, of any impact on the value of Allermuir if the burden were removed or relaxed.

[45] We accept that the building height restriction is a considerable impediment to the respondents’ enjoyment of their property (factor (c)). Although there is uncertainty as to the exact proposal and it may not be impossible to build only on the unburdened subjects, we basically accept Mr Williams’ evidence of a diminution, which is not negligible, in the development site value. His figures could only be very approximate but are sufficient for this purpose. On the evidence, it does seem to us probable that full planning consent would be obtained. There is also, although this was not pressed on us and the respondents did not rely on factor (d), an element of burden in the present responsibility for upkeep of the burdened ground as part of a garden which is large by modern standards.

[46] Factor (e), the age of the burden, clearly favours the respondents to a degree, but is in practice linked with (a) and (f). We agree that old burdens should not be preserved unnecessarily and the applicant has to satisfy us that it should be preserved, but this refers back to these other factors. We are satisfied that this burden has not simply become obsolete by the passage of time.

[47] There is consent, albeit only in outline, for a use effectively prevented by the condition (factor (g)), on the basis, which appeared clear, that the proposed house would exceed one storey in height. As we have indicated, while it is obviously not absolutely certain that full consent would be granted, the applicant’s submissions do not suggest to us any real reason to doubt that. Nothing in the planning officer’s affidavit seems to us really to point that way. On the specific factor of Allermuir’s listing (and we accept that the applicant, not being a neighbouring proprietor, did not receive notification and thus has not yet had the opportunity of making anything of that in the planning process), the evidence does not suggest to us that this would stand in the way of detailed consent. Factor (h) is of no relevance in this case, and factor (i) could not have any application.

[48] We do not ignore points made under factor (j), although these might perhaps be relevant to other specific factors. The respondents referred to their freedom to grow hedges or trees which would not contravene the burden. Considering the location, these would have to be very high. There are none at present and we do not consider it reasonable to anticipate such. The respondents also referred to their alternative position of variation to a specified height and we accept that limitations as to the height and location of building in the burdened strip affect, in particular, the assessment of factor (b).

[49] Drawing all this together, we are satisfied that it is reasonable not to terminate this burden. Its clear purpose is still capable of fulfilment and it continues to provide substantial benefit. However, the possibility of limited variation has been raised. As we have indicated, we felt that building to a limited height on the east side of the burdened strip would amount to the sort of very limited further intrusion on the lower part of the view which would be reasonable, when account is taken of the extent of existing screening (which we think is reasonably to be anticipated) and also the degree of intrusion caused by development in Grant Avenue and in the Bonaly area. This tilts the balance in favour of the reasonableness of such variation, as opposed to retention of the burden as it is. The purpose of the condition would still in our view be generally fulfilled. The ability to prevent such development would be of much more limited benefit to the applicant, with the same substantial impediment on enjoyment of the burdened property. In these circumstances, we are not satisfied that it is reasonable simply to renew the burden, but we are satisfied that variation, as opposed to discharge, is reasonable.

[50] Even on a limited strip one quarter of the subjects on the east side, building as high as 8 metres would in our view amount to quite a substantial intrusion. 6.5 metres may not appear very high for a two storey house with a pitched roof at this location, but taking the northern boundary as the reference point enables the actual house to be erected at a slightly lower level (and perhaps to an extent set into the ground at the rear of the house), and therefore higher. It need not, in our view, be out of line with the heights of 6 Barnshot Road and 2 Grant Avenue. Within the remaining part of the subjects, building not exceeding one storey high would be permitted, and the height limitation would of course not apply to any part of the building outwith the subjects. We have accordingly concluded, weighing up the various factors on that basis, that variation to this extent is reasonable.

[51] For these reasons, our decision is to refuse the application to renew, and, subject to any submission by the parties on the precise wording, to order variation as follows:-

(i) as agreed, by deleting the prohibition of building other than a greenhouse, stable or outhouse to be used in connection with 6 Barnshot Road; and

(ii) to the extent of permitting the erection of a dwellinghouse or part thereof with a maximum height of 6.5 metres above the highest point of land at the northmost boundary of the subjects, but only within an area of land with a width of 4.575 metres measured from the eastmost boundary of the subjects and extending their full length.

[52] As earlier indicated, the existence of the application by the owners of 4 Barnshot Road prevents us from issuing the Tribunal’s final order in this application before disposal of that application, which it is to be hoped can be concluded in the near future. Meantime, our Clerk will correspond appropriately with parties about the precise wording of the Tribunal’s order.

[53] Finally, we would mention that in the event of any dispute in relation to expenses, this can be disposed of, in accordance with the Tribunal’s normal practice, 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 3 May 2012

Neil M Tainsh – Clerk to the Tribunal