OPINION

William MacDonald and Christine Rachel MacDonald v George James Murdoch

Introduction and Summary

[1] The subjects of the application for discharge or variation of the title condition comprise an area of garden ground to the rear of Ashburn House, Auchintore Road, Fort William in respect of which planning consent has been granted for the erection of a detached dwelling. The site is burdened by a title condition prohibiting building, which is in favour of the respondent, a neighbouring proprietor whose house (Beechwood) overlooks the site of the proposed dwelling. He opposes the application and claims compensation under Section 90(7)(a)(i) of the Act, in the event of the application being successful.

[2] The Tribunal has reached the view that the proposal involves building a house which would be of a significant scale and in such close proximity to the respondent’s house as to have a substantial detrimental effect on its amenity. We have decided on a consideration of the factors set out in Section 100 of the Title conditions (Scotland ) Act 2003 (“the Act”) that it is not reasonable to grant the application for discharge or variation of the condition.

The Title Condition

[3] The burden is contained in a 1997 Disposition which is narrated in the Burdens Sections of the applicants’ two Land Certificates, INV7545 (Ashburn House itself) and INV12963 (essentially the burdened plot itself) in the following terms:

“Disposition by Allan George John Cumming Henderson and another to Norman Clark and another and their executors and assignees, recorded in the General Register of Sasines for the County of Inverness on 3 April 1997 contains the following burden [and undertaking]:

We bind ourselves and our successors in title to the plot or area of ground immediately aftermentioned not to erect any buildings of any kind whatsoever on the plot or area of ground outlined in yellow on the plan annexed and signed as relative hereto without the prior written consent of our disponees and their foresaids and we undertake to insert this prohibition as a real burden in any subsequent conveyance of all or any part of the said last mentioned plot or area of ground.”

Procedure

[4] The parties agreed, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, that the matter could be dealt with by way of written submissions and a site inspection at which both parties and the applicants’ solicitor were present. In their written submissions the applicants were represented by MacPhee and Partners, Fort William and the respondent by Miller Beckett and Jackson, Glasgow.

[5] The Tribunal allowed the respondent to lodge a sworn affidavit from Norman Clark the first purchaser of the original Beechwood plot. He narrated the circumstances surrounding his (and his wife’s) purchase of the plot and the negotiations with the sellers (Mr and Mrs Henderson) which resulted in the prohibition being agreed “as part of the deal”. Mr Clark stated that without the burden on the “Ashburn Plot“, he and his wife would not have proceeded with the purchase, such would have been the adverse impact on Beechwood.

Authorities referred to

Ord v Mashford. 2006 SLT (Lands Tr)15
Scott and another v Teasdale and others LTS/TC/2008/56, 22.12.2009

The facts

[6] On the basis of the written submissions and our site inspection we have found the following facts established.

Background

[7] In 1997, Mr and Mrs Henderson, the then owners of Ashburn House, marketed as a house plot, an area of land beyond and to the south east of the rear lawns of Ashburn House and in respect of which an outline planning consent had been granted. This plot (the Beechwood Plot) was acquired by Norman Clark (as above described) and he subsequently built Beechwood, now owned by the respondents who acquired it from Mr and Mrs Clark in August 2004. A condition of Mr and Mrs Clark’s purchase of the Beechwood Plot was that a title restriction would be placed on the ground to the rear of Ashburn House thus preventing any future building in front of Beechwood.

[8] In September 2003, Mr Henderson was granted an outline planning consent (ref: 03/00275/OUTLO) for the erection of a Manager’s House to the rear of Ashburn House (The Ashburn Plot). This was subject to certain conditions including occupation “solely by the owner or manager of Ashburn House and shall not be sold independently of Ashburn House”. In the usual way detailed design and layout matters required further approval. In March 2004 the applicants acquired Ashburn House, (excluding the Ashburn Plot) from Mr and Mrs Henderson and in September 2005 bought from them the adjoining lawn to the rear – the Ashburn Plot – at a price of £35,000. In July 2006 the applicants applied for a new outline planning consent to build a dwelling on the Ashburn Plot. This was granted in August 2006 (ref: 06/00336/OUTLO). The same condition as to occupation by the owner or manager of Ashburn House and not being sold independently of Ashburn House was specified – Condition (3.) therein. A detailed planning consent in respect of the Ashburn Plot was subsequently sought and granted by Highland Council on 13 July 2010 (ref: 10/01854/FUL) permitting the erection of a 11/2 storey house subject to certain conditions including inter alia no new road access to be created and existing trees to be protected. The applicants corresponded with the respondent, through their solicitors, with a view to obtaining a discharge of the title condition but the parties have been unable to reach agreement.

Location

[9] Ashburn House, Fort William is a substantial stone built villa dating from about 1890, part two and a half and part three stories in height and with single storey extensions to the side and rear. It operates as a five star bed and breakfast establishment with 7 letting bedrooms and is situated in an attractive elevated position overlooking Loch Linnhe. It is located at the junction of Achintore Road and Ashburn Lane. Ashburn Lane is a relatively narrow road which rises steeply to a junction with Grange Terrace and Grange Road. The north east boundaries of Ashburn House and Beechwood are defined by the Allt nan Dathadairean burn which runs in a steep sided, tree lined ravine.

The garden ground and parking area

[10] To the rear of Ashburn house and accessed from Ashburn Lane is a Tarmacadam parking area with spaces for about 10 vehicles and beyond that there is an area of lawn (the Ashburn Plot) rising about 0.8m above the car park level and gradually sloping up to a shrubbery close to the applicants’ south eastern boundary. The distance from the rear elevation of Ashburn House to the rear (south eastern) boundary of the plot is about 37 metres.

The Respondent’s Property

[11] The respondent’s house, Beechwood, lies some 5 metres beyond Ashburn’s south-eastern boundary and is an L-shaped two storey house built about 1998 with a principal ground floor lounge and first floor bedroom facing north west over the lawn of Ashburn House but with attractive sea views to the northwest and southwest on either side of Ashburn House. In front of Beechwood there is a gravelled parking space together with a small grassed area with a low shrubs/hedge along the boundary. There are large mature trees to the north east side and back of Beechwood and with the ground rising steeply to the rear there is an appearance of being somewhat “hemmed in”.

The Applicants’ proposal

[12] The applicants have obtained detailed planning permission and the approved drawings M101.1, 2 and 3 (amended) were lodged as productions. There had been minor changes to the design as it passed through the planning process and the amended drawings illustrate the design, on the basis of which this application is made to the Tribunal. The proposal is for a 11/2 storey detached dwelling with accommodation comprising four bedrooms, three bathrooms/shower-rooms, cloakroom, two studies, living room, kitchen/dining area and utility room. The ridge height is approximately 7.9m (26ft) and the main south east gable which is 7.2m (23ft. 6ins.) wide, faces the respondent’s property. No cross-section drawing showing the relationship between Beechwood and the proposed dwelling was provided but we were advised that the floor level of the proposed house would be 375 mm (1ft.) above the level of the east corner of the car park. The frontage of Beechwood is roughly parallel to the side elevation of the proposed dwelling and at their nearest point the houses would be approximately 13m (42ft. 7ins.) apart. It is envisaged that the proposed house site would be cut into the lawn and a new retaining wall is proposed close to the mutual boundary. On the elevation facing Beechwood there would be two ground floor kitchen windows and one widow serving a first floor study. The front of the house would be set back from Ashburn Lane about 12.5m (41ft.) and the distance from the rear elevation of Ashburn House to the closest elevation of the proposed house would be approximately 19m (62ft.). The attractive views to the west of Ashburn House from the ground floor living room and first floor bedroom of Beechwood would not be significantly affected, as the position of the proposed house would be to the north of the line of sight from these rooms. The views to the north of Ashburn House would, however, be lost or materially affected by the applicants’ proposal. Notwithstanding the fact that the proposed house would be cut into the lawn, it would, particularly given its proximity to Beechwood, dramatically change the nature of that house’s outlook.

Applicants’ Submissions

[13] The applicants submit under the test set out in section 98 of the Act, that it is reasonable, on balance, to grant the application. They addressed the various factors set out in section 100 of the Act, as follows:

Factor (a) Change in circumstances. They consider that the only change since the title condition was imposed has been the construction of Beechwood.

Factor (b) The extent to which the condition confers benefit on the benefited property. The applicants consider that issues such as the preservation of amenity are matters primarily for the planning authority to determine and therefore the title condition in this respect has no purpose since it duplicated the statutory protection in the planning system. The applicants were not one of the original parties to the deed and thus had no option other than to accept it at the point of purchase.

Factor (c) The extent to which the condition impedes enjoyment of the burdened property. The applicants note that the plot has benefited from a succession of planning permissions the implementation of which has been frustrated by the terms of the title condition. They submit the proposed use is not unreasonable as evidenced by the grant of the planning permissions. The area is residential and the proposed use is as a dwelling consistent with that setting.

Factor (e) Length of time since the condition was created. A period of 14 years has elapsed since the title condition was created. Neither of the original parties to the condition are now owners of either the benefited or burdened properties.

Factor (f) Purpose of the title condition. The applicants understand the purpose to be to preserve the amenity of Beechwood and note the nature and extent of the views currently enjoyed by Beechwood are essentially from south west through west to north west and include the rear of Ashburn House and its car park. They submit that the proposed house would not cause a substantially prejudicial impact on the outlook, replacing the view of a car park and the rear of a large house with the view of the side of a modern house set as far into the site as is reasonably practicable. In addition, they submit that visible vehicle movements would be substantially reduced.

Factor (g) Whether in relation to the burdened property there is Planning Consent. This has been granted and it is submitted that it has been the view of the planning authority for many years that the plot is suitable for the erection of a house. The current planning consent restricts permitted development rights in relation to alterations, additional opening or extensions, specifically to avoid over development and adverse impact on Beechwood

Factor (h) Whether the applicant is willing to pay compensation. The applicants are willing to pay compensation if the Tribunal determines that there would be substantial loss or disadvantage to the benefited proprietor and the figure of £10,000 plus reasonable legal fees has been previously offered but rejected by the respondent.

Factor (j) Any other material factor. The applicants are willing to accept variation of the title condition to allow the construction of the proposed house and accept any reasonable condition in respect of landscaping or screening.

[14] The applicants note the decisions in Ord v Mashford and Scott v Teasdale and that it is for the Tribunal to assess the relative weight of the statutory factors in each case and that each case requires to be assessed on its own merits. They submit that their application should be granted.

Respondent’s Submissions

[15] The respondent’s solicitors lodged submissions and also addressed the factors set out in Section 100 of the Act.

Factor (a) Change in circumstances. The main change, it is submitted, is that Beechwood has been built which makes it all the more important that the title condition prohibiting building between Ashburn House and Beechwood should continue in force. They accept that the grant of detailed planning may be regarded as a change in circumstance but if there was a planning consent already in existence in 2003 this change may not be significant.

Factor (b) The extent to which the condition confers benefit on the benefited property. The respondent submits that there is considerable benefit since the title condition affords the property an open aspect as well as a considerable degree of privacy. The ground floor lounge and first floor bedroom enjoy sea views to the west of and north of Ashburn House. The sea view to the north would be lost and the aspect of the mature trees would be impeded. He submits that it is not just the loss of the views that is relevant but also the impression of being “hemmed in” partly because of the high trees and steeply rising ground to the rear. The present open outlook which provides a sense of spaciousness would be lost. The respondent was aware of the existence of the burden when he purchased Beechwood and he viewed it as a considerable asset to have control over any building on the burdened subjects and to be able to preserve the only open aspect. He also submitted that activity of persons and vehicles coming to and from the proposed house would be much closer and more immediate than any activity at present taking place in and around Ashburn House.

Factor (c) The extent to which the condition impedes enjoyment of the burdened property.

It is accepted by the respondent that the condition impedes the applicants from using the land for either residential or commercial purposes but it is argued that the plot can continue to be used for garden ground. He submits the applicants must have been aware of the condition when they purchased the subjects and their awareness is relevant to the question of whether it is reasonable that the condition should be discharged or varied It is submitted that the applicants bought the Ashburn Plot with the clear intention of building despite the prohibition. The respondent considers that the price of £35,000 paid by the applicants for the Ashburn plot was less than the value of a similar unencumbered plot which he considers would have commanded a value in the range of £80,000 – £90,000. The respondent further submits that it does not make it reasonable that the title condition should be discharged or varied to allow building, simply because the applicants chose to acquire the burdened subjects and are now impeded from proceeding in terms of the planning permission granted.

Factor (e) Length of time since the condition was created. The respondent considers that the 15 years that have elapsed since the title condition was created is a relatively short time. He notes that the owners of the benefited and burdened properties acquired their subjects in 2004 and 2005 directly from one of the original contracting parties, when the condition had only existed for some seven years.

Factor (f) Purpose of the title condition. It is a matter of agreement between the parties that the purpose of the title condition is to preserve the amenity of Beechwood. The respondent submits the title condition does not duplicate the statutory protection in the planning system. It confers a private right on the benefited proprietor to control the nature and extent of any building on the land in front of the respondent’s house. The respondent argues that here the purpose can still be identified and its original purpose of preserving Beechwood’s amenity can still be achieved.

Factor (g) Whether in relation to the burdened property there is Planning Consent. It is accepted by the respondent that full planning permission has been granted on the burdened land. However, it is submitted that that is not of particular significance when considering whether the title condition should be discharged or varied.

Factor (h) Whether the applicant is willing to pay compensation. The respondent submits that the loss to the enjoyment of his property if the condition was discharged or varied could not be adequately compensated by a monetary sum. However, he notes that the applicants have offered compensation at a figure of £10,000 plus reasonable legal costs and if the applicants were successful the respondent would wish to make further separate representations in relation to compensation.

Factor (j) Any other material factor. The respondent considers that the precise height of the proposed house and the ground levels in relation to Beechwood cannot be accurately assessed and submits that it would not be reasonable to allow discharge or variation when this key detail is absent.

[16] The respondent submits that there has been no change in circumstances favouring the reasonableness of the application other than the grant of full planning consent which suggests that the proposed house is reasonable from the point of view of those statutory provisions protecting the public interest. If the application is refused the applicants will not be able to realise the development value which these subjects would have but for the condition. They submit the application should be refused. They submit that if variation is granted to the extent of permitting the erection of the dwelling as shown on the drawings lodged, any permitted variation should be limited to the proposed scheme so that the respondent has some control over any future alterations or extensions.

Tribunal’s Consideration

[17] As with other cases under this jurisdiction and involving proposals to build in garden ground, contrary to an existing title condition, this case comes down largely to our assessment of the plans and elevation drawings lodged as productions and most importantly our impression at the site inspection of the effect of the proposed dwelling on the benefited proprietor’s property. We spent some time at the site inspection viewing the proposal from the Ashburn House car park and garden and from the front of Beechwood and internally from the ground floor living room and first floor bedroom. The applicants had attempted to plot the outline of the proposed house on the ground using pegs but we had some difficulty in reconciling the position of the pegs with our assessment of the position of the proposed house in relation to the site plan lodged as a production. We have relied on the site plan provided rather than the position of the pegs set out on the lawn. No section drawing was provided showing the precise relationship, in terms of the relative levels and heights, between the Ashburn house car park and Beechwood, but we noted the height of the ridge line from the drawings provided and were able to estimate the extent to which the proposed house would have been cut into the slope of the lawn.

[18] In terms of section 98 of the Act, the applicants require to satisfy us, having regard to the factors set out in section 100 of the Act, that it is, on balance, reasonable to grant the application. The entire circumstances require to be weighed as a whole, on the basis of the evidence, submissions and our site inspection. It is not a question of looking at each factor individually and deciding who wins or loses on any particular factor. In cases of this nature three factors are particularly relevant: factor (f) the purpose of the title condition; factor (b) the extent of the benefit conferred by it (on Beechwood); and factor (c) the extent to which the burden impedes the enjoyment of the burdened property, in this case Ashburn House and is associated garden grounds. We require to consider these matters objectively.

[19] Firstly there is no dispute that the purpose of the title condition is to protect the amenity of Beechwood. Its amenity was to be protected by this clear prohibition of any building to the rear of Ashburn House. It was created when the then owner of Ashburn and seller of the Beechwood plot agreed to the burden being imposed on his retained land, in response to the wishes of the Beechwood plot purchaser. He clearly and quite understandably wanted to ensure through the imposition of a land obligation, that the attractive setting for the house he was about to build, was protected and maintained.

[20] The nature of the benefit was to secure the aspect in front of the proposed house and doubtless the views of Loch Linnhe to the west and northwest. The rear elevation of Ashburn house is a significant part of this aspect but it is some distance away and the overall impression from Beechwood is of an attractive open outlook including views to the sea with the hills beyond.

[21] The changes in circumstances (factor (a)) since the burden was created in 1997 were the building of Beechwood in 1998 and the grant of detailed planning consent in respect of the house proposed on the Ashburn Plot which is the subject of this application. There have been no other changes in circumstances.

[22] Factor (d) has no application in this case.

[23] In terms of factor (e) the length of time which has elapsed since the condition was created, the length is some 15 years which we consider is not particularly long, especially against a background of no obvious change in circumstances other than those referred to above. The burden was very clearly expressed and intended to be permanent. The applicants point out that none of the original parties to the 1997 Disposition currently own either of the properties but it is noted that the present owner of Beechwood was a business partner of Mr Clark, the purchaser of the Beechwood plot and the party who built Beechwood House. In any event, it is long established that validly created title conditions of this nature are praedial and not personal, burdening and benefiting properties and not simply the contracting parties.

[24] Factor (g). The fact that detailed planning consent has been granted favours the applicants. It is, in general, reasonable in the context of planning policies, to build a house on the proposed site. However, we are asking a different question from that addressed by the planning authority. As the Tribunal has frequently pointed out title conditions create private rights which are not considered in the planning process. There are general requirements within planning policies relating to neighbouring houses and in this case, through the planning process there have been minor changes to the design in an attempt to limit the nature and extent of any overlooking. Nevertheless, it is plain that the planning authority has not sought, perhaps understandably, to address the significant impact that the proposal will have on the respondent’s amenity, especially given the relatively close proximity of the proposed dwelling to Beechwood and the impact it will have on its setting and outlook.

[25] Factor (h). The applicants have indicated their willingness to pay compensation and in negotiations the sum of £10,000 has been offered but rejected by the respondent. If we were to find in favour of the applicants on the merits of the case, the respondent’s solicitor has requested an opportunity to make further representation in connection with a claim for compensation. This is a reasonable and not unusual approach in this jurisdiction. In the event that the application was granted and compensation directed to be paid, the applicants would then require to confirm their agreement to paying the amount so directed (section 90(9)) before an Order granting the application could be made.

[26] Factor (i) has no application in this case.

[27] Factor (j) any other material factor. In the event of the application being granted by the Tribunal, the respondent seeks a variation of the title condition to permit the erection of the proposed house for which planning permission has been granted, rather than complete discharge. The respondent also considers that the lack of clear guidance as to the precise height of the proposed building particularly in relation to the respondent’s house is of such a material nature that without such essential information, it is not reasonable to grant the application. We were, however, provided with scale drawings of the proposed building and at the site inspection we considered it was possible to form a reasonably accurate view of the relative height of the applicants’ proposal in relation to Beechwood. That task would, however, have been considerably more straightforward if a cross-section drawing with ground levels and showing the heights of each building had been provided.

[28] Having considered these factors we must weigh up the issue of reasonableness, considering the relative importance of each factor in the circumstances of this case. We think the very clear purpose of the condition to be an important factor. The purpose of preserving the amenity of Beechwood plainly remains valid. The condition clearly impedes the right which the applicants would otherwise have to build the house as proposed. That restriction, however, was or should have been a significant and known feature of purchasing the Ashburn plot. The applicants’ proposal in planning terms is reasonable. However, the adverse impact of the proposed house, though at a slightly lower level, so close to Beechwood is very real. We consider that although the attractive views to the west would be largely unaffected the overall impact of the applicants’ proposal on the respondent’s property would be very considerable. We consider that the general amenity of Beechwood, if the proposal proceeded, would be transformed from a general feeling of openness to the west and north, albeit with the more distant rear of Ashburn House in clear view, to one of being as the respondent argues “hemmed in”. It was that very threat that the condition was designed to safeguard.

[29] In our view, having regard to all the relevant factors and the applicants’ proposal in this case, the respondent is quite reasonably entitled to continue to rely on the protection the condition provides. Accordingly, we are not satisfied that the application is reasonable and have determined that it should be refused.

[30] We have also considered whether, although we accept that the discharge or variation sought would result in substantial loss or disadvantage, it would be reasonable to meet that loss with an award of compensation. Sometimes compensation is appropriate in situations such as this where a new house is proposed contrary to a title restriction, even where the benefited proprietor has made clear his opposition. In this case we have considered that the impact of the proposal on the amenity of Beechwood would have such an impact on its amenity that it would not be reasonable simply to compensate the respondent with a monetary award. In accordance with this view, it is clearly not appropriate to continue the application to consider parties’ detailed submissions on compensation.

[31] Finally, we would mention that any issue in relation to expenses can be dealt with following 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 7 August 2012

Neil M Tainsh – Clerk to the Tribunal