OPINION

McCulloch v Reid and Manning

Introduction and Summary

[1] This is an application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) by the proprietors of a farmhouse for variation of a title condition. They are owners of parts of a steading which was sold in stages to various purchasers. Their rear courtyard (“the subjects”) is subject to a real burden restricting vehicular access and prohibiting parking (“the burden”). They seek variation of this title condition to permit the parking of two vehicles in the courtyard. Their application is opposed by two neighbouring owners.

[2] In summary, applying the test of reasonableness set out in Sections 98 and 100 of the Act, the Tribunal is not satisfied that it is reasonable, in the circumstances of this case, to grant the variation sought and the application is refused.

The Title Condition

[3] The burden was contained in a Disposition by Henry Jardine Paterson and another to Nicola Luisa Gonzalez, registered on 1 November 2001 and now narrated in the Burdens Section of the applicants’ Land Certificate, Title No LAN187380. The Disposition was of the whole subjects Roundhill Farmhouse, Strathaven, of which the subjects form part. Clause (Eight) provided:-

“(Eight) save only for access by emergency vehicles and occasional use for delivery of goods or for access by maintenance vehicles our said disponee and her foresaids shall not use or permit to be used the courtyard tinted pink on the said [Title] Plan for the purpose of vehicle access, passage or parking”.

Procedure

[4] The applicants are William and Lesley Ann McCulloch, proprietors of Roundhill Farmhouse, Strathaven Lanarkshire. In their original application they sought variation of the title condition to permit (1) unrestricted vehicular access over, (2) parking of non-commercial motor vehicles only on, and (3) to allow a greater turning circle for school buses, delivery vans, post office vans, fuel trucks and refuse trucks, over the subjects. However, during the course of the proceedings, the applicants indicated that they only wished permission to park not more than two private motor vehicles on part of the subjects. The application was intimated to four benefited proprietors of other subjects at the steading. Objections were received from Alan and Christine Reid, proprietors of West Roundhill (“the first respondents”), and Richard and Karen Manning, proprietors of South Roundhill (“the second respondents”).

[5] In terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, the application was, with the consent of the parties, dealt with by way of written submissions and a site inspection, which was attended by the applicants and the first respondents. Parties were allowed to supplement their submissions orally. The applicants confirmed amendment of the application, as indicated above. They further indicated that in the event of the variation sought being granted they would accept an equitable share of responsibility for additional road maintenance and would be willing to landscape the courtyard and install electric gates to it.

The Facts

[6] Location and Description. Roundhill Steading lies about 5 mile south west of Strathaven and is accessed by a 200m drive which runs south off the A71 to the steading which was a traditional U-shaped farm steading.

[7] The stone built farm steading with house was sold by Henry Jardine Paterson who farmed the adjoining land, to various parties. The original farmhouse which had remained in residential use was sold in 2001, when the burden was created, and acquired by the applicants from a previous owner in March 2006. The first respondents acquired the west section of the steading, known as West Roundhill, in February 2003. The second respondents acquired South Roundhill in 2006. Two other parts of the steading were sold. Title conditions in the dispositions specified access rights, various restrictions as to use and arrangements for the maintenance of shared parts. Mr Paterson retained parts of the steading, and also the access road, which apparently continues through other farmland also retained by him. He continues to use a number of nearby large sheds for agricultural operations.

[8] The Properties. The applicants’ farmhouse known as Roundhill faces north west but for ease of reference we shall refer to its front elevation facing north. The Roundhill property comprises the farmhouse together with the subjects, some outbuildings and a paddock to the north extending to about 2.5 hectares (6.2 acres). Immediately in front of the farmhouse (to the north) is a fenced, grassed area about 14m in depth beyond which is a bottomed yard area with parking for about eight vehicles. This parking area is accessed from the private gated driveway which is exclusive to this property and which runs eastwards off the main shared drive. To the north of this driveway lie a riding arena, a poultry run and the paddock. The subjects comprise the courtyard to the rear of the main house, with the east and west steading buildings, on either side and now in separate ownership, completing an inverted U-shape. The main shared drive leads on to the other properties to the side and rear of the steading and to the subjects, vehicular use of the subjects being restricted by the burden.

[9] The first respondents’ property, West Roundhill, was originally agricultural buildings forming the west section of the steading, but it has been extended and converted to create an attractive home. Its principal aspect is to the west over their paddock but it also has four ground floor windows and two skylights facing east over the subjects. In addition to the paddock in front of the house this property includes a second paddock to the south of the access drive. The house is accessed from the shared drive which then leads eastwards to the rear courtyard, South Roundhill, East Roundhill, Roundhill Workshops and the retained agricultural buildings and farmland beyond.

[10] East Roundhill was originally the east section of the steading and was acquired by Ruth Murray. Alteration work, which had started, to convert this section of the steading to a dwellinghouse has ceased and no work is underway at present. This property is apparently being repossessed by the mortgagor. At present no ground floor windows face on to the courtyard but seven skylights do face west over it.

[11] The second respondents’ property, South Roundhill, forms part of the steading complex of buildings and comprises an agricultural building together with adjoining land. The building appears unoccupied and is apparently also awaiting residential development. It is detached from the main steading and lies to the south of the access road and south of East Roundhill. The property’s total site area, including an area of future garden ground, is about 0.22 hectares (0.55 acres).

[12] Roundhill Workshops, also detached from the main steading, lie to the east of East Roundhill.

[13] The Subjects. The back door of Roundhill gives access to the subjects, a rear courtyard which is about 16m wide and 20m in depth. Part of the courtyard is grassed and part gravelled. A large green oil tank serving Roundhill is sited in the north east corner. The first floor balcony of Roundhill extends southwards a short distance into the courtyard. There are at present four propane gas bottles and a stack of unused bricks close to the rear elevation of Roundhill. A 1.9m high timber slatted fence defines the south boundary of the subjects and the applicants’ property. A somewhat rickety padlocked gate gives access from the road at the rear of the steading to the subjects, for oil and other periodic deliveries.

[14] Beyond the fence at the boundary of the subjects a presently untidy bottomed area with rough grass patches forms part of the ill defined access to the subjects and to East Roundhill, South Roundhill and Roundhill Workshops. This is part of the land retained by Mr Paterson. The access road runs through this area, which is apparently not subject to any maintenance obligation on him or any of the proprietors at the steading. He undertook an obligation to tarmac the road up to but not beyond a point immediately before it reaches this area. Although this area, as part of the access to a residential development, is in need of improvement, it includes adequate turning space for large vehicles.

Parties’ Submissions

[15] In relation to the factors listed in Section 100 of the Act, the applicants submitted that their property was now a working stable; the restriction on their use of the courtyard was of little benefit to the respondents; and the burden impeded their enjoyment of their property since it restricted their use of the courtyard. Mr McCulloch, who is partially disabled, has to take access to the farmhouse through the front garden, whereas if parking was allowed a car could be parked at the back door. They considered that allowing the parking of vehicles in the courtyard would allow them to “tidy up” the area. Their amended application identified a parking area comprising a central strip of the subjects with a small spur in the area of the back door and oil tank. The remainder of the courtyard would be tidily grassed over and thus visually enhanced. At present it was unlit and if the variation sought was granted, it was their intention to have the area properly lit to assist security. Use of the rear courtyard would help segregate stables traffic from household traffic. Reference was made to an insurance recommendation to keep the main gate at the front locked. The applicants acknowledged that the burden was created nine and a half years ago and the purpose was to protect the amenity of West Roundhill.

[16] At the site inspection, the applicants said that the reason why they could not do these things at the front was that they wanted to shut the gates and make the property more secure. They just wanted to tidy up the courtyard and make it their back garden. Access to the house would be far easier there. Also, it would be better if there was an improved collective area with turning space at the rear of the steading for the school bus and for rubbish lorries. They appreciated the suggestion that this might be “the thin end of the wedge”, but any further changes in their use of the property would require planning consents.

[17] The first respondents argued that when they were acquiring the property they had sought from Mr Paterson what they regarded as an essential safeguard – that was, a condition imposed by the seller on the owner of the courtyard preventing just the sort of change proposed by the applicants. They considered that a reason for the proposal is to shift vehicles from parking at the front of Roundhill to parking at the rear, which would be significantly to their detriment: any parking of vehicles would adversely affect their aspect which included views from their living room and dining room. Any change, even if limited, would lead to increased disturbance and traffic on what is already a poorly maintained road and for which, at present, the applicants had no repairing responsibility. They considered there was no issue for mail vehicles, bin lorries, fuel trucks etc which they felt could manoeuvre perfectly adequately at present. Furthermore, they noted that there is an existing right of access for emergency vehicles, fuel deliveries etc. They did not consider that there is a security issue that is affected by the title condition. They noted that the applicants were willing to landscape the courtyard but pointed out that such work was not inhibited by the burden.

[18] At the site inspection, the first respondents emphasised the fundamental issue for them of car parking. When purchasing their property, they had wanted to ensure that there would be no parking in this area. This would set a precedent for the future, making it easier to argue for more than two vehicles, or for commercial vehicles. If the gate at the front were locked, there was a question whether more traffic would come round.

[19] The second respondents considered the proposed change unnecessary and detrimental to their property. The applicants had land in front of their house for additional parking that may be required and there was available space in front of the house to improve access. The proposal (as amended) would increase traffic to their and their family’s detriment. When built, their house would have windows facing the courtyard and they fear increased parking beyond the two spaces sought would be inevitable.

Tribunal’s Consideration

[20] In terms of Section 98 of the Act the applicants require to satisfy us, having regard to the factors listed in Section 100 that it is, on balance, reasonable to grant the application. Each case has to be considered on its own circumstances, and in this as in most cases our site inspection has played an important part. The particular circumstances surrounding the application require to be considered objectively, which is important as parties may understandably address issues from their own viewpoint. Whilst appreciating the health issues raised by the applicant we must address matters having regard to the factors set out in the Act.

[21] Although the application was not formally amended and it was therefore not surprising that the respondents pointed out that it went beyond what the applicants subsequently stated they wished, the applicants did at the site inspection confirm their limitation of the application and we have therefore only considered whether it is reasonable to vary this burden to the extent of permitting parking of no more than two private cars in a central portion of the courtyard in question. That is certainly a limitation which meets some of the apprehension expressed by the respondents in their written objections. It might on the face of it look like a modest request to allow a small amount of private parking for the applicants’ family at the back entrance of their house.

[22] However, this is a very specific and clearly expressed title condition, one of a number of detailed conditions inserted in the titles in the course of splitting up the buildings in this farmhouse steading for the purpose of residential development of, apparently, three of the buildings in addition to the farmhouse itself. The condition is clearly based on the understanding that although there are, physically, two vehicular accesses to the farmhouse property, there is a substantial private parking area, and indeed a lot of space, in front of the house, whereas the other properties have no access from the front and relatively little space for vehicles. The evident intention of the specific provision made was to restrict use of this courtyard to use by emergency and occasional delivery vehicles and expressly to prohibit any use of it for parking – in other words, to prevent everyday use of this area by private cars, whether those of the farmhouse proprietors and their families or those of visitors. That seems to us, in the circumstances as we found them at this particular location, clearly to benefit the other owners, perhaps particularly the first respondents. The condition addresses the situation in which houses directly abut the courtyard. Allowing parking at the subjects would significantly change the agreed parking arrangements which were incorporated into the applicants’ title. In our view, the change proposed would in practice expose the courtyard to regular vehicle use associated with the applicants’ property, to the detriment of the other properties. Although neither the first respondents nor any other benefited property is entitled to any particular visual amenity (at least under this condition – there is a separate building restriction in the courtyard), protection against everyday car use at this location is a significant amenity benefit. We do not accept that the respondents derive little benefit from this title condition.

[23] The applicants linked their application with a willingness to tidy up the courtyard area and to contribute to maintenance of the access road. We can accept that this was a genuine attempt to make their application reasonable. Firstly, however, there is at present nothing to stop them upgrading the courtyard. Secondly, while it may well seem desirable for owners to collaborate to improve the access road and rear access area, that is really a separate matter and not something which could be achieved in this application. The applicants could, as a condition of an order granting their application, and with their agreement, have a new maintenance burden imposed on them, but we are in no position in this application to impose any such obligation on anyone else.

[24] Our consideration of the factors listed in Section 100 of the Act is as follows:-

(a) We do not consider that there has been any material change in circumstances. We do not consider that the development of a working stable at the property is a change of any significance. With the paddock area at the front of their property, this might well have been anticipated when the title arrangements, including this condition, were made. The applicants apparently wish to improve security of the stable area by being able to lock the gate at the front of their property, but as we see it they have plenty of room at the front to organise security for the horses. This is really not a change which supports the reasonableness of the application.

(b) For the reasons given above, we do consider that this condition confers a substantial benefit on the benefited proprietors. We also accept the respondents’ comments that even if the applicants only permit their two vehicles to park in practice it would be very difficult to stop visitors, on seeing a convenient rear access, from using that facility.

(c) Viewed objectively, and of course considering the extent of vehicle access on the other side of their house, we do not consider that this condition impedes enjoyment of the applicants’ property to any significant degree. We appreciate there may be greater convenience for the applicants, particularly with Mr McCulloch’s disability, if they were permitted to park two vehicles in the courtyard but we noted during our inspection that there is at present extensive parking to the north of Roundhill and with landscaping works it would be possible to alter the surface of the front lawn so that parking spaces close to the front door were created. Inability to lock the main gate at the front, as opposed to securing this courtyard at the rear, does not appear to us to be a disadvantage, where there is so much space in which security arrangements could be made at the front. The burden does not prevent them developing the courtyard as an attractive back garden area. Another matter referred to by the applicants was perceived problems with the school bus, which apparently comes down from the main road to the properties and comes into the applicants’ front area. The respondents did not accept that there was any problem, but in any event we do not see any relevance of this to the issue of vehicle use of the subjects (as opposed to the open area beside the subjects, with which this application is not directly concerned).

(d) This factor has no application.

(e) This is a burden recently created in the context of the residential development proceeding, albeit rather slowly, at this location.

(f) As considered above, this condition has the clear purpose of keeping everyday traffic associated with the applicants’ property away from the rear area. That purpose remains good.

(g) There is no consent, such as planning consent, for a use which this condition prevents.

(h) Willingness to pay compensation is not a factor referred to, or of any significance either way, in this case; and

(i) This factor has no application.

(j) Although in their written application, the applicants put some of their points under the heading, “any other material factor”, we have not identified any such factor, not already considered, which points either towards or against the reasonableness of this application. The respondents suggested that this application might create a precedent, but we do not consider that this is a case in which that can fairly be said: this is a very specific application and if it succeeds, any other similar application by the applicants or anyone else, would still have to be considered on its own merits.

[25] Drawing these considerations together, we can find little, beyond personal preference and convenience, which supports this application as against the reasonable interests of the benefited proprietors in maintaining this burden as it is. The condition has a clear and continuing purpose, and to our mind does provide a substantial benefit to the respondents as owners of other properties at the steading. Objectively, it does not, to our mind, impede the enjoyment of owners of the applicants’ property to any significant degree. It was imposed recently and in the context of the residential development of buildings at the rear of the steading. There has been no material change of circumstances. On balance, we are not satisfied that it is reasonable to grant this application.

[26] We accordingly refuse the application. If any issue arises as to expenses, that can be considered on the basis of written submissions in accordance with our normal practice.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 3 April 2012

Neil M Tainsh – Clerk to the Tribunal