James Anthony Macneil and Others v Bradonwood Limited

Introduction and Summary

[1] This is an application under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to renew similar real burdens created in three deeds between 1860 and 1876, affecting the building of additional dwellinghouses at the boundaries of the gardens of two substantial Victorian semi-detached villas owned by the respondents. The subjects currently have garages and outbuildings at the bottom of the gardens. The respondents have planning permission to demolish the outbuildings and build three mews houses as part of a larger redevelopment of the two houses. As burdened proprietors, they had intimated a proposal to terminate the burdens under the “Sunset “ rule (Section 20). The ten applicants own adjoining and nearby houses and oppose the respondents’ proposed development of mews houses. The respondents now, in response to this application, seek a variation of the building height restriction rather than outright discharge, so as to allow them to build the proposed mews house in accordance with the planning consent.

[2] The Tribunal has decided that the applicants have failed to satisfy us that it is reasonable to grant their application to renew the title conditions, and that the title conditions should be varied as proposed by the respondents.

The Title Conditions

[3] The subjects of this application, 5 and 7 Comely Park Dunfermline, are two semi-detached Victorian houses with garden ground and outbuildings at the bottom of these gardens. The title conditions are narrated in the burdens section of the Land Certificate FFE72994 and were created and worded as follows:-

(i) Instrument of Sasine, recorded G.R.S. (Fife) 4 Apr. 1860, on Disposition by Robert Stenhouse to William Matthewson and another, of 1 rood 10 poles of ground, contains [inter alia] the following burdens:

(a) Declaring that the said William Mathewson and Mary Spedding or Mathewson and his foresaids should be restricted and are by said Disposition prohibited from building Dwellinghouse at the bottom or South boundary of the ground before described unless within the wall and the said wall to be then raised to the height of ten feet, and all subsidiary buildings on the ground to be restricted to one storey in height ten feet high to wall heads. They should be at liberty to build office - Houses on said South boundary the front walls not to exceed ten feet in height and they should be bound to cover these erections and any other erections with Slate.

(b) Purchasers of ground on the south side of the Low Park in the Street then in course of formation in the event of their building thereon should be taken bound and restricted to erect cottages of one flat and attics of the value of at least one hundred and fifty pounds sterling and to cover same with slates, and not to exceed twenty feet in height to the ridge.

(ii) Disposition by Robert Stenhouse to Kenneth Mathieson and Jessie Mathewson or Mathieson in conjunct liferent and fee, and to his heirs and assignees, recorded Dunfermline B.R. 19 Jul. 1861, of 3 roods Scotch measure of ground and 41 and 1/2 falls Scotch measure of ground, contains [inter alia] the following burdens:-

(a) Declaring that the said Kenneth Mathieson Junior and Jessie Mathewson or Mathieson and his foresaids shall be restricted and are hereby prohibited from building dwellinghouses at the bottom or south boundary of the ground hereby first above disponed unless within the wall, and the said wall to be then raised to he height of ten feet and all subsidiary buildings on the ground to be restricted to one storey in height ten feet high to wall heads; They shall be at liberty to build office houses on said south boundary the front walls not to exceed ten feet in height and they shall be bound to cover these erections and any other erections with slate;

(b) And my said Disponees in the event of their building on the Plot or area of ground second above disponed shall be bound and restricted and other purchasers of ground on the south side of said Low Park in the street (in the street) in the course of formation as shewn on said Plan in the event of their building thereon shall also be taken bound and restricted to erect cottages of one flat and attics of the value of at least One hundred and fifty pounds Sterling and to cover same with slates and not to exceed twenty feet in height to the ridge.

(iii) Notarial Instrument of Agnes Mathewson or Dobie in liferent and William Gowan Dobie in fee, recorded Dunfermline B.R. 29 Feb. 1876 on Disposition by Robert Stenhouse to William Cowan Dobie and his heirs and assignees, of 1 rood 23 falls of ground, contains [inter alia] the following:-

(a) Declaring that the said William Cowan Dobie and Agnes Mathewson or Dobie and his foresaids should be restricted and were thereby prohibited from building dwellinghouses at the bottom or South boundary of the ground first above described unless within the wall and the said wall to be then raised to the height of ten feet, and all subsidiary buildings on the ground to be restricted to one storey in height, ten feet high to wall heads, they should be at liberty to build office houses on said South boundary the front walls not to exceed ten feet in height and they should be bound to cover these erections and any other erections with slate:

(b) And the said disponees in the event of their building on the plot or area of ground second above described should be bound and restricted and other purchasers of ground on the South side of said Low Park in the Street in the course of formation as shown on said Plan in the event of their building thereon should also be taken bound and restricted to erect Cottages of one Flat and Attics of the value of at least One hundred and fifty pounds Sterling and to cover with slates and not to exceed twenty feet in height to the ridge:


[4] The applicants are proprietors of respectively Nos 9, 8, 1, 1A, 3A, 6, 14, 11, 13 and 4 Comely Park, Dunfermline. The respondents are proprietors of Nos 5 and 7 Comely Park.

[5] At the hearing the applicants were represented by Mr I W Donaldson, Solicitor, of Messrs Gorrie and Davidson, Dunfermline, who called Mrs Macneil (No 9), Mrs Deas (No 3A) and Mrs Reid (No 11) to give evidence. The respondents were represented by Robert Sutherland, Advocate instructed by Lorna Miller, Solicitor of Messrs Andersons, Kinross. He called Campbell Watson, solicitor for the respondents, and Robin Watson, Architect. Both sides lodged documentary productions. Certain matters were agreed in a Joint Minute between the parties, particularly to the effect that the respondents were burdened with the title conditions and the applicants with odd-numbered properties, as proprietors on the same side of Comely Park, were benefited under the title conditions.

[6] At the hearing, the application as it related to the even-numbered properties, and also to conditions (i)(b), (ii)(b) and (iii)(b) was not pursued. The Tribunal has accordingly only considered the issues as related to the odd-numbered properties on the south side of Comely Park and only in relation to conditions (i)(a), (ii)(a) and (iii)(a). The respondents did not advance a particular argument in their written representations that the applicants did not have interest to enforce the conditions. There was no application for compensation.

[7] The Tribunal carried out an accompanied inspection of the subjects and of Nos 9, 3A and 11 Comely Park.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Barker v Lewis 2008 SLT (Sh Ct) 17
Verrico v Tomlinson 2008 SLT (Lands Tr)

The Facts and Circumstances

[8] On the basis of the evidence and submissions, the Joint Minute and our site inspection, we made the following findings of fact.

[9] Comely Park Dunfermline is an attractive, wide, tree lined street running roughly east to west with substantial Victorian stone and slate villas or semi-detached villas on both sides. The majority of the houses have large gardens sloping to the south. The houses on the south side are positioned about 6 metres from the pavement, with rear, south-facing gardens extending to around 50 metres. The majority of the houses are still in residential use but numbers 2 and 16 are offices and the subject property 5-7 was formerly council offices. Numbers 3 and 15 are dental surgeries. The street and surroundings form part of the Outstanding Dunfermline Town Centre Conservation Area. There is intense use of Comely Park and the immediately surrounding streets for day-time, on-street parking by office users and also commuters, as Dunfermline Station is nearby and readily accessible.

[10] The subjects,5 and 7 Comely Park, built about 1860, were originally two Victorian, semi-detached villas with accommodation on two principal storeys and with attic accommodation above. Each half was designed as a “mirror image” of the other and together they present an impressive period frontage. To the west of number 5 is an additional two storey wing which appears to have been built about the same time as the main houses and to the east of number 7 is a single storey, flat roofed extension built up to the party wall. The total site frontage is about 37 m and the overall depth about 70m. The depth of the rear garden from the rear elevation to the south boundary wall is about 50m. It is south facing and has a slope of about 1 in 10 with a stone wall separating the gardens of numbers 5 and 7. At the bottom of the garden of number 5 is a range of outbuildings, part previously used for storage and part used as garaging, all of which can be accessed from the back lane. The south wall is of stone and the roof of the outbuilding is part pitched and slated and part flat. It is in a relatively poor state of repair. At the bottom of the garden of number 7 is a small outbuilding previously used by the Council for storage. The height of the south wall of the outbuildings is about ten feet.

[11] A back lane runs parallel with Comely Park and can be accessed from the bottom of the gardens of 3, 5, 7, 9 and 11. Originally, it returned up to Comely Park between numbers 11 and 13, but in the early 1980s there were major changes to the road layout and a dual carriageway, St Margaret’s Drive, was formed cutting off the eastern end of the lane and severing the link with Comely Park. As part of these road changes, New Row to the west was stopped at its south end and a new road with a somewhat steep gradient (about 1 in 10) was created connecting the lane to New Row. At the west end of the lane is a block of three lock up garages which appear to have been built about 20 years ago.

[12] St Margaret’s Drive is a busy dual carriageway and although it lies at a lower level there is noticeable traffic noise which can be heard in the gardens of the applicants’ and respondents’ properties. Dunfermline Railway Station lies immediately to the south of St Margaret’s Drive and there is a pedestrian footbridge access from New Row and an underpass towards the east end of Comely Park. New Row like many of the nearby streets is also used extensively for on-street parking.

[13] Low Park, referred to in the (b) conditions, appears to have been the land to the south of the subjects, now substantially taken up by the back lane, railway station access and dual carriageway.

[14] All the applicants’ properties enjoy attractive views south from an elevated position overlooking the southern townscape of Dunfermline. Beyond the gardens, in the near to middle distance, the noticeable features are the railway line and the associated pedestrian footbridge over St Margaret’s Drive, an attractive stone built church tower and the modern buildings of Dunfermline High School. A bright white four storey modern flatted development, immediately on the other side of New Row, is a feature of the views towards the south west. In the distance the Forth Road Bridge is visible, as are a large modern windmill, the cranes of Rosyth Dockyard and the Pentland Hills, which form the distant skyline.

[15] 9 Comely Park (Mr and Mrs Macneil) is a substantial, semi-detached property with “Granny Flat”. It is separated from the subjects by a stone wall about 3 metres in height. It has an attractive, terraced, south facing garden with garaging for three vehicles at the bottom accessed, like the other properties, from Comely Park Lane. From the ground floor rooms and from the conservatory it is not possible at present to see readily into the garden of the subjects. However, from the ground floor rooms and from parts of the garden, upper parts of the proposed mews development would be visible, and from the first floor bedrooms significant parts of the proposed mews development would be clearly visible. Other parts towards the west would be partially obscured by trees particularly in summer. From the upper floor windows it is also possible to see into the garden of No 11.

[16] 11 Comely Park ( Mrs Patricia Reid) is the ‘other half’ of Mr and Mrs Macneil’s house and it has broadly similar views but the station is more noticeable to the east. The proposed mews development would be visible from the upper floor rooms but would be more distant. Upper parts would be visible from the ground floor rooms and from the garden but the impact would be limited. There is a disused garage at the bottom of the garden. From the upper floor rooms it is possible to see into the gardens of the neighbouring houses.

[17] 3A Comely Park (Mr and Mrs Deas) is a first floor and attic flat created by sub-division in 1947. It is entered separately from the ground floor accommodation of No 3 which is used as a dental practice. Mr and Mrs Deas bought the flat from Mr and Mrs Macneil about 2005. The garden is divided between the dental practice and 3A, with Mr and Mrs Deas owning a relatively restricted part of the garden, approximately rectangular in shape and about 7 m by 30m, beside the boundary wall of No 5 but not extending to its southern boundary. It would be possible to see the proposed development from the upper floor rooms but the view would be restricted by trees in summer and views from the garden of the proposed mews houses would also be limited particularly in summer with leaves on trees and shrubs.

[18] The respondent company is a property investment vehicle for a family trust which has effectively owned the subjects since the early 1980s. The subjects were leased by the respondents to Fife Council until 2006, since when the building has lain unoccupied. In the intervening period the grounds have been neglected and the garden is overgrown. There are a number of large yew trees in the garden of No 7. Some lead work to the roof has been removed and the property is apparently in a poor state of repair internally with parts unsafe. It is boarded up and no internal inspection was carried out.

[19] The proposed development for which planning consent was granted in 2009 envisaged a change of use of the former Council offices at 5-7 Comely Park to residential and subdivision to create 5 dwellings. An amended development proposal incorporating the 2009 consented scheme was granted approval in March 2012. This revised proposal envisages the demolition of the single storey wing to the east of number 7 and the construction in its place of a two storey wing. The existing extension extends to the boundary wall with No 9 but the revised scheme envisages the new gable being set back from the boundary wall by about 2m creating a narrow pend which would give pedestrian access to the side of the subjects.

[20] Additionally, the development which now has consent involves the demolition of the garages and outbuildings at the bottom of the gardens and the construction of three one and a half storey stone and slated mews style houses, two with integral double garages. The external depth of the proposed mews houses from front to back is approximately 6.4m (20 feet 10 inches) and the wall head or eaves height of the proposed mews houses varies slightly to a maximum of 4.7m (15 feet 5 inches) as the ground slopes gently from west to east. The ridge height which is level across the development is to be a maximum of 7.47m. (24 feet 7 inches) at the east end and marginally less at the west end. On the north elevation facing the applicants’ properties the mews houses at ground level each have one bedroom window and at first floor level each has one living room dormer window. The height of the south wall of the existing garages is about 10 feet but this varies slightly with changing ground levels. The part pitched roof of the existing outbuildings adds some 5 feet additional height. The increase in the wall head height over the existing wall is about 5 feet 5 inches 9 (1.66 metres).

[21] A covered pend in place of a garage at one of the three houses will lead to a short driveway within the subjects and a landscaped parking area for 7 cars. The area beside the driveway will be used for three small individual gardens for the mews houses, with the rest of the garden area of the subjects not being further divided. One large tree towards the south west corner of the garden will require to be felled.

Applicants’ Submissions

[22] The applicants referred to several of the factors set out in section 100 of the Act. It was submitted that the purpose of the burdens (factor (f)) was to maintain the style and amenity of Comely Park for the residents. The burden was relevant in the 1800s and the purpose then, as now, was to preserve the amenity of the applicants’ properties, in particular the peace, tranquillity, privacy and the absence of being overlooked. Mr Davidson accepted that the burdens would also have protected the amenity of houses to be built to the south in Low Park, but considered that that was a subservient purpose.

[23] In terms of factor (a), the applicants argued that the only recent change was the formation of St Margaret’s Drive about 20 years ago and the consequential changes to the back lane. Comely Park remained in its original form, although there was extensive use of the street for parking. The burdens were of considerable benefit to the applicants (factor (b)), as they restricted development so that any new buildings conformed with the character of the houses and outbuildings constructed in the area and that no erections in the gardens at the rear could be built in a way that overlooked neighbouring properties or imposed themselves on neighbouring gardens. Bearing in mind the respondents’ position that the development as a whole could not proceed without the mews development, the applicants’ concern about the effect of the overall development, including issues such as car parking, pressure on the back lane, enjoyment of the garden area, was relevant. The burden protected the applicants from a development which was going to change everything. There was no impediment to the burdened property (factor (c)) other than an acceptance that if the burden is maintained the profit for the applicant would be reduced. It was unrealistic for the developers to argue that the mews houses were required to make the refurbishment of 5 and 7 economic. That argument should be rejected by the Tribunal. With regard to the length of time since the burden was created (factor (e)), it was recognised that this was considerable, but the character of the street and the surrounding area remained unchanged. Despite the extensive parking the character had remained exactly the same as when the burden was created.

[24] In terms of factor (j), the applicants had expressed concerns on a number of issues. They considered the design of the scheme, with an open pend off the lane and an opened access to the side of No 7, would encourage members of the public to take a short cut through to Comely Park from the pedestrian footbridge. Such access would adversely impact on the amenity of the applicants’ properties and their enjoyment of their gardens. The applicants had also expressed concerns that additional houses, each with provision for 2 spaces, would add to the existing parking problems evident in Comely Park and in the nearby streets. The applicants also raised concerns that the Council may be unable to collect refuse bins from the lane owing to its steepness and that if that was the case bins would have to be taken up to Comely Park to the prejudice of the applicants’ amenity. Another concern was that if this proposal was approved other similar developments could follow which would have an adverse effect on the immediate surroundings.

Respondents’ Submissions

[25] The respondents submitted that the question of reasonableness should be viewed as a whole with matters weighed in the round and with cases considered on their own merits. Matters had to be viewed objectively with the personal motivation of the parties on both sides being disregarded. The subjects were previously in office use and the respondents intended to return them to residential which would be beneficial to the neighbourhood. The only part of the development affected by the relevant burden was the intention to create three mews style dwelling houses at the bottom of the gardens. The burdens would prevent this due to a restriction in use to outbuildings erected on the south boundary wall and secondly any dwelling house or outbuilding was to have a maximum wall height of ten feet.

[26] The respondents submitted that the purpose of the burden was to preserve the general physical appearance of the neighbourhood with a uniformity of appearance sought, particularly in relation to walls, railings and frontage depth, but not to preserve the amenity of neighbouring properties. Mr Sutherland submitted that if the intention was to protect owners from changes in neighbouring properties he would have expected this to be clearly spelled out. He noted that although the houses on the south side of Comely Park were on higher ground nevertheless each was already overlooked by adjacent buildings. The only restriction in the title was in the height of the main wall, with an obligation to slate any roof. There was vagueness in the terms of the burdens and that vagueness was an indication that the burdens were not to help neighbours but to give uniformity to the visual character of the neighbourhood. There was no restriction on the number of windows that may be formed in any building.

[27] In terms of factor (a), the respondents pointed to the fact that there were two dental surgeries; offices at 16 Comely Park; and also a Council office previously used as an Old Folks Home. There were recently built flats in New Row and New City House office building is about 800m to the west. The respondents submit the area was no longer exclusively residential and there was now extensive pedestrian and vehicular traffic using Comely Park and adjoining streets. There had clearly been changes to the surroundings. The proposed developments would not materially alter the surroundings or affect the character of the neighbourhood. The respondents submitted that there was little benefit to the applicants (factor (b)) since the burden did not prohibit development at the bottom of the gardens, only that the wallhead should not exceed ten feet in height. There was limited privacy already since, from upper floors, neighbours could see into each other’s gardens. Distant views were not affected. With regard to factor (c), it was argued that substantial funds were required to return the subjects to residential use and in order to fund any refurbishment programme additional housing units were required: the burden impeded the otherwise reasonable residential use. The burden had been created approximately 150 years ago and it was submitted that since then, there had been changes to Comely Park and to the surroundings. The variation sought would remove restrictions on building houses at the bottom of the gardens consistent with present circumstances. The proposed development had planning consent, and in granting consent the Council had considered that the mews houses would make a positive contribution to this part of the Conservation Area; would safeguard residential amenity; and would be compatible with surrounding land use and respect the built environment. The applicants’ other concerns (factor (j)) were also addressed.

Tribunal’s Consideration

[28] We start by identifying the issues which we have to decide.

[29] The applicants’ agreement in the Joint Minute that the relevant burden does not apply in respect of the four even-numbered proprietors, who joined in bringing this application but whose properties on the other side of Comely Park appear unaffected by this title condition, means that we do not have to consider their position further. The application was advanced at the hearing on behalf of the owners of six properties on the south side of Comely Park, viz. Nos 1, 1A, 3A, 9, 11 and 13. We heard evidence from three of these owners and also at our site inspection looked inside and in the gardens of their properties, the houses at Nos 9 and 11 and the upper flat at 3A. We do not ignore the interests of the other three but none of these could be said to have any stronger interest.

[30] The witness with the strongest interest was probably Mrs Macneil at No 9, whose garden abuts the subjects, is kept in good order and is understandably highly valued as an amenity. The applicants’ wish to prevent the respondents’ proposed development of 5 houses in the main building plus a further three mews houses is understandable. However, this application is not a re-run of planning objections, despite the repetition of these in the applicants’ pleadings (although not in Mr Donaldson’s presentation to us at the hearing). Rather, we have to consider the reasonableness of this application, which is in effect to keep in place, without any relaxation, one particular burden imposed in similar terms in three deeds dated 1860, 1861 and 1876. The effect of the ‘sunset rule’ provisions and the provisions regarding our jurisdiction, in particular in Sections 98(a) and 100 of the Act, is that we can only grant the application, i.e. renew the burden in its original terms, if we are satisfied, having regard to the factors listed in Section 100, that it is reasonable to do so.

[31] Although it is not very clearly expressed, the meaning and effect of this burden seems to us tolerably clear, at least in relation to the matter with which this application is concerned, which is building on the southern boundary of Nos 5 and 7. The building of “dwellinghouses”, “subsidiary buildings” or “office houses” is not prohibited but, at least in the case of dwellinghouses, the south wall is to be raised to 10 feet high and the roof is to be covered in slates. There is no suggestion that the roof is to be flat, i.e. not to exceed the 10 feet: the opposite is clearly implied. Slated pitched roofs, which might be expected to be at 35% to 45% angles, would be permitted, as would slated pitched roofs with flat top sections or slated lean-to roofs, both of which are in fact present. There is no overall height restriction, nor is the width of buildings on the boundary limited. It would theoretically be permitted to build bigger buildings with higher roof ridges than those presently proposed. In practice, however, it seems reasonable to regard the burden as limiting any house building to single storey, cottage style buildings.

[32] The burden does not prohibit divided occupation or ownership of the subjects. Nor does it restrict use of the subjects. As far as the burden goes, sub-division of the subjects, with buildings on the southern boundary perhaps used for some commercial purpose, is not prohibited. The burden does not have any impact, either as a use restriction or as a building restriction, on the proposed redevelopment of the main building, Nos 5 and 7. Nor does it prohibit use of the garden area for parking.

[33] It is significant that the respondents no longer seek termination of the burden: their position in response to this application is to ask us to vary it.

[34] In short, this application has to do with the reasonableness of a proposal to increase the eaves height of building on the southern boundary by some six feet, an increase which would obviously be likely to increase the overall height of permitted building, but the proposed variation would also restrict the maximum overall building height to some 25 feet. We have to consider reasonableness on an objective basis. The respondents introduced into their answers the suggestion that the burden was particularly burdensome because the whole development would be uneconomic for them without the mews houses. Objectively, however, it seems to us that there is nothing unrealistic in looking at the mews house development in breach of the burden in question on its own, as there is nothing to indicate that other owners of the subjects would be in the same position. So this possibility (which actually we could not in any event hold to have been established on the evidence before us) does not assist the respondents’ position. Conversely, again looking at matters objectively, in our view ability to stop the development as a whole cannot reasonably be viewed as a benefit of this burden, as we see no reason to assume in the applicants’ favour that the mews house development is inextricably linked with the rest of the proposal. (Again, such an approach would require us to be persuaded that there was something unreasonable in the proposal to divide the existing two houses, which were for many years used as a large office, into five residential dwellinghouses with some parking provision in the garden area.).

[35] So the issue is whether it would be reasonable to permit an increase of about six feet in the eaves height, in effect so as to permit one and a half storey mews houses, rather than cottage style houses, there.

[36] The reasonableness of maintaining the existing specific burden, rather than permitting building of the height now sought by the respondents, requires consideration, in terms of the statute, of a number of factors. It is often helpful to start by considering the purpose of the title condition (factor (f)). We initially wondered whether in fact the purpose was simply to benefit the land to the south. However, whether or not such a purpose played any part, we are persuaded that there was a substantial purpose of preserving the general amenity of the garden areas of the houses Nos 1, 3, 5, 7, 9, 11 and 13 by limiting the height of building at the mews. We can accept that what would have been envisaged was the possibility of ‘subservient’ building, i.e. servants’/stabling/storage accommodation, and in the interests of other owners, no owner was to be permitted to build anything other than a mews cottage type building based on an eaves height of 10 feet. That would preserve the general appearance and amenity of the houses and protect views.

[37] By contrast with the position maintained by the applicants, particularly Mrs Macneil in her evidence, there have in our view been a number of significant changes of circumstances (factor (a)), affecting the general amenity of the gardens area, since this title condition was created. Most of the original garden area has been retained and maintained as first developed (apart from the respondents’ somewhat shameful neglect of the garden areas of the subjects, of which they rightly do not ask us to take any account). There have, however, been some very substantial changes in the immediate vicinity. We were not told whether the railway line with its viaduct was there when the burden was created, but the busy major dual carriageway, a principal road traffic route through Dunfermline, certainly was not. This is right beside the gardens, and indeed cut a large chunk out of one of them, albeit it is at a lower level. It is clearly a source of considerable noise. There has also over the years been substantial building development affecting the views, amongst others the bright new school building and the large modern block of flats on the other side of New Row. The proposed building will slightly restrict near views including these. It will not in our opinion have any effect on the attractive more distant views from the applicants’ houses and gardens. Obviously, the closer one is in a neighbouring garden, the more the impact of the new building, but it seems to us that the further down a garden one goes, the more the amenity has been affected by subsequent development, most particularly the dual carriageway. The reasonableness of a proposal to build slightly higher mews houses than originally permitted, to the standard which has clearly been required in planning, has to be seen in the context of that degree of change. Having regard to the degree of change since the 1860s, we must ask ourselves whether the variation sought would lead to any material alteration of the amenity of the garden areas?

[38] We do not consider that the benefit to the benefited proprietors of the ability to prevent this higher building (factor (b)) is as much as suggested. We fully appreciate that these are most attractive houses and gardens, and we accept that higher building in this position will be visible from some positions and will have some impact on the amenity, but in our view this is very limited. Mrs Macneil referred to the impact of 8 families and their cars, but the burden basically does not protect against either of these. Looking from the various vantage points in the houses and gardens, in the context of the general outlook as it now appears, we simply did not see building to this height at the boundary as imposing to any substantial degree on the amenity presently enjoyed by any of the neighbouring owners. There are screening trees, and it is reasonable to have in mind the possibility of some further screening in, for example, the garden of No 9. If, as Mrs Macneil suggested in evidence, a 60 feet high tree would be required, that would of course be a substantial and unreasonable imposition, but we found that evidence to be wildly exaggerated. The houses are far enough away to be largely unaffected by this development at a lower level not in their direct line of sight. The variation proposed would not in our view add significantly to overlooking or loss of privacy, these not being completely private gardens.

[39] In our view, the impediment to the owners of Nos 5 and 7 of not being able to develop in this way at the mews (factor (c)) is substantial, even putting out of mind, as we do, any problem it causes them in proceeding with the residential conversion of the existing houses. As the planning consent demonstrates, there is an area of ground within their subjects which could, but for the burden, be developed. The possibility (if any – none was demonstrated) of building to the presently stipulated height does not alter the consideration that, but for the burden, the respondents would be free to develop in the way they have chosen. The fact that this impediment may have a financial impact, as opposed to preventing development for the owner’s own personal use, also has no bearing on the matter.

[40] Factor (d) has no relevance to this case.

[41] The burden was created at least 135 years ago (factor (e)). In itself, this factor may be of little relevance without any changes of circumstances identified under (a). In this case, however, we think that it does itself count slightly against this application. We say that because we agree with the respondents that development of the mews to this limited extent is more consistent with current day circumstances.

[42] The existence of the planning consent (factor (g)) is not a factor of large importance in the context of private title conditions, but, again, in our view adds slightly to the reasonableness in this case of now building higher than the limit imposed by this burden.

[43] We do not consider factor (h) to be of any relevance in this case.

[44] Factor (i) has no relevance in this case.

[45] Some other factors were referred to (factor (j)). Firstly, there was concern about the new possibility of pedestrians taking a shortcut to the station, since a path through the subjects, where there was none before, is in the plans. Apart from having little to do with this title condition, that seemed to us to be a concern easily met by appropriate security such as a gate. Secondly, the applicants refer to parking problems, perhaps not so much the general increase in parking problems in the area but more the proposal to use the back lane area more for cars and have parking within the garden of the subjects. As well as garages underneath two of the mews house, there is to be a small parking area, accessed through a new pend, for the proposed flats. However, as we have said, this burden does not prohibit such use of the garden – if there is any prohibition of opening through the rear wall to facilitate this use, it is not in this burden. In any event, the particular concern was, we think, noise, but that ignores the already considerable volume of noise from the dual carriageway. Thirdly, the applicants were concerned about refuse collection from the rear lane, in view of the very steep road access from New Row. Again, it is difficult to see this as a matter protected by this burden, but in any event we do not consider that it is a concern in which the applicants have any reasonable interest: the respondents will no doubt need to ensure that refuse from the mews properties is properly collected, and even if that involved bringing bins up the garden of the subjects, we fail to understand why this would be an issue for any neighbouring owner. Fourthly, there was a concern that this variation would create a precedent. While generally it must be said that each application is considered on its own merits, we do accept that in this mews situation it might be difficult to object to similar variation, i.e. an increase in the height of permitted building, but when the limits of this particular title condition are appreciated we do not think that such concerns add to the reasonableness of this application.

[46] Drawing these considerations together, and remembering the extent of this burden and of the variation sought, we think that this application turns mainly on the extent of benefit of this particular burden to the applicants. If we thought that building to the height proposed would have any serious effect on the amenity of the applicants’ subjects, that would be a powerful argument, despite most of the other factors pointing, to varying degrees, against the reasonableness of the application. However, viewing matters objectively, and when the degree of change in the vicinity is taken into account, we do not think that the applicants have shown any substantial benefit in protection against this particular development. We note that there was no suggestion in evidence of any effect on the values of the applicants’ properties, although we appreciate that that was not their motivation. We have also considered the extent of change of circumstances in the neighbourhood, the extent of the burden on the respondents, the age of the burdens and the planning consent, all as discussed above. We do not think that in current circumstances the purpose of this burden is compromised to any material degree by the respondents’ proposed variation. Having listened to the evidence and submissions, and especially in the light of our own site inspection, and taking proper account of the purpose and ambit of this burden, we are not satisfied that it would be reasonable to renew the burden in its original form.

[47] We therefore refuse this application, but in the exercise of our power under Section 90(1)(b) of the Act, we shall make an order varying the title condition in the manner proposed by the respondents, adding a particular datum point from which the heights now to be inserted in the burden are to be taken. That was not specified. We would have thought that it might appropriately be the ground level on the south side at the mid-point of the southern boundary, but we will allow the respondents an opportunity to provide that detail (with the applicants having an opportunity to comment), before we finalise the variation order.

[48] In the event of any application for expenses, the Tribunal can consider that matter 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 25 April 2013

Neil M Tainsh – Clerk to the Tribunal