OPINION

Paul Franklin and another v David Alexander Lawson

[1] Dr and Mrs Franklin, the applicants, sought discharge or variation of title conditions which would prevent the building of a two-storey extension to their house at 1 Swallow Craig, Dalgety Bay (“the subjects”). Mr Lawson, an immediate neighbour, objected to the proposed extension. He had no objection to a single storey extension or to an extension on the other side of the subjects but contended that the second storey was an unnecessary interference with his view. He also made the point that the extension would take some sunlight from his garden and would be of a dominant and oppressive nature.

[2] At a hearing in Dunfermline on 19 April 2013, the applicants were represented by Mr David Logan, advocate. Mr Lawson appeared on his own behalf. Evidence for the applicants was given by Mrs Franklin, a professional landscape architect, Mr Robert John Connon, a landscape architect of Connon Design Associates in Balloch, and Mr Kenneth Young, of Hardies, chartered surveyors, Dunfermline. Mr Lawson gave evidence. He relied on reports from Allan Corfield, architect and DM Hall Surveyors but did not lead any further evidence. We visited the site on 22 April 2013.

Statutory material

Abolition of Feudal Tenure etc. (Scotland) Act 2000.
Title Conditions (Scotland) Act 2003
Except where otherwise specified, all references below are to provisions of the 2003 Act

Authorities

Barker v Lewis 2008 SLT (Sh.Ct.) 17
Church of Scotland General Trustees v McLaren 2006 SLT (Land Tr) 27
Cocozza v Rutherford 2008 SLT (Land Tr) 6
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Land Tr) 59
Kevin Clarke and another v Sigrid-Kristin Grantham LTS/TC/2008/49
Watt v Garden 2011 Hous LR 79

Title Conditions

[3] The condition which the applicants sought to have varied was created in a feu disposition by Donibristle Investments Ltd to H Richmond (Dunfermline) Ltd recorded GRS (Fife) 3 December 1980 and duly incorporated into their title. It was in the following terms:

“(FIFTH) The feuars shall erect on the feu and complete outside and inside and ready and certified for occupation dwellinghouses with all necessary roads, drains, sewers and services within the feu, and of such materials on such sites and in accordance with such plans, elevations and specifications as shall be approved of in writing by the Superiors: This condition shall also apply to the erection of a garage or car port for the said dwellinghouses and whether a garage or car port is built or not plans must allow for leaving an area for a subsequent erection of a garage or car port: No alterations or additions to the said dwellinghouses shall be made without the feuars first submitting to the Superiors for approval plans of the proposed alterations or additions and obtaining their consent in writing: An approval fee for all plans will be chargeable by the Superiors and will be payable by the feuars. No building operations shall commence until plans have first been submitted to the Superiors and approved of and signed by the Superiors”.

[4] The application also made reference to clause 3 which, put shortly, gave the superiors uncontrolled discretion as to the detailed layout of the estate and the buildings to be erected on it. However, that does not appear to add anything of significance to clause FIFTH and is of no continuing effect. The applicants also sought to vary clause 8 to permit construction of a fowl shed but this was dropped and nothing turns on the provisions of that clause.

[5] In considering the effect of clause FIFTH, Mr Logan commented briefly on clauses 19 and 20. These were in the following terms:

“(NINETEENTH) The feuars and the Superiors’ shall be entitled but only with the written consent of the Superiors to enforce against each other the conditions and restrictions expressed in their respective feu grants for the protection of the amenity of the neighbourhood subject always to the provisions of the following clause; (TWENTIETH) The Superiors reserve a right to waive, alter or modify any feuing condition at any time and to vary the layout of the estate of Dalgety belonging to them and to deal with the development of the said estate free from the conditions, restrictions and others hereinbefore specified or any of them and shall not be bound to enforce them in any manner or on any occasion in respect of other parts of the said estate, but the Superiors oblige themselves not to operate this Clause in such a way as may be prejudicial to the amenities of the said estate”.

[6] He accepted that in light of the scheme of the 2003 Act, clause 19 had the effect of showing an intention that the conditions could be enforceable by neighbouring feuars. However, clause 20 showed that the superiors retained right to waive all or any conditions. Prior to the recent legislation the superiors plainly had control. We accept the contention that it is probable that they would have varied the restrictions in clause FIFTH on payment of a suitable sum rather than authorise Mr Lawson to seek to enforce the condition because they had no continuing interest in the estate other than to get money from it. However, the present position is not governed by what the superiors might or might not have done but by the provisions of the 2000 and 2003 Acts. It may be added that the possibility that they would have authorised Mr Lawson in terms of clause 19 cannot be excluded.

[7] Both parties made full submissions written or oral about the various provisions dealing with enforceability of title conditions. Title conditions will be enforceable by a neighbour where there are explicit provisions identifying the land which is to be the benefited property and by virtue of registration in the titles of both burdened and benefited subjects: secs 4(2)(c) and (5). The present titles do not explicitly identify the neighbours as having rights of enforcement. The respondent appeared to rely on the burdens having been constituted as “community burdens” but he also made reference to the provisions of section 53. We consider that the latter is the relevant provision in the present context. The expression “community burdens” is defined in sec 25 but this section does not vary any of the provisions of the Act relating to the creation of a real burden or to rights of enforcement. The main significance of designating a burden as a “community burden” lies in the provisions of Part 2 of the Act allowing for changes to such burdens. However it is not thought – and certainly not asserted – that any of such provisions have any bearing on the merits of the present case. They deal with methods of discharge other than by application under sec 90. The latter relates only to discharge of the conditions as they apply to an applicant’s own unit. The present application is made under that section.

[8] Section 49 is intended to abolish the pre-Act law whereby land may be viewed as benefited by implication rather than express nomination. The status of Mr Lawson’s subjects as benefited property clearly does not arise in this case by express nomination. It is, accordingly, necessary to turn to the replacement provisions of secs 52 and 53. There can be no doubt, in the present case, that the superior emphatically reserved full rights to vary or waive the burdens. This would normally exclude any right of enforcement by other parties even where they were affected by the conditions of a common scheme. The only question which might arise is as to the intention set out in clause 19 to allow such enforcement if the superior approved. But, it can be seen that the effect of this provision was simply to reinforce the proposition that the ultimate right of enforcement rested with the superior not the co-feuars. The clause is not affected by any enabling provisions of the 2000 Act. It would give a positive power subject to express consent from the superior and, in absence of a superior, it is of no weight. It was not disputed that the effect of the 2000 Act and removal of the superiors was to leave clause FIFTH to operate a negative burden or prohibition.

[9] Mr Lawson’s rights to enforce the terms of clause FIFTH appear to rest on sec 53. We accept that the burdens in the clause can properly be described as being imposed under a common scheme. They were effectively equivalent to burdens imposed under a deed of conditions in that all the units in the estate were subject to the same set of conditions under the original feu disposition. The situation is, accordingly, broadly similar to the example in sec 53(2)(c). We were not addressed on the issue of whether his property and the applicants’ subjects fell to be regarded as part of a group of related properties. However, there are factors to support such a finding and as this was not an application under sec 90 (1)(a)(ii), we are satisfied that the respondent’s property can be taken to be a benefited property in relation to the subjects.

[10] It is convenient at this point to add that it was suggested that the burdens had fallen into desuetude. However, there was no evidence to support any such argument. The applicants pointed to various physical changes on the estate but we heard no evidence of the circumstances in which these changes were made. We do not know how many proposals for additions were abandoned or changed to take account of a neighbour’s rights. It was also suggested – under reference to the provisions of sec 8(3) – that the respondent did not have an interest to enforce the burden because the extension would not result in material detriment to the value or enjoyment of his ownership of the benefited property. It is enough to say that we are satisfied that he does have an interest to enforce. As will appear from the discussion below, we have no doubt that the extension would have a material adverse impact on the respondent’s enjoyment of his property within the meaning of sec 8. In that context we see no reason to exclude the special attraction the view has for the respondent himself as an aspect of enjoyment of the property but, in any event, where there is an identifiable element of detriment which cannot be disregarded as insignificant or of no consequence, it seems to us that the test of materiality can be met. We think this is in accord with the substantive views expressed by the Sheriff Principal in Barker v Lewis at [27]. We do note that at para [24] he described “material” as an adjective of degree. However, this may be misleading. It can properly be seen to have a primary meaning as simply the opposite of “immaterial”. Determination of what is “material” does involve assessment of matters of degree but what is required is a decision as to whether or not the subject matter is “material”. The term is not primarily an adjective expressing quantity. Where an adverse element of detriment can be identified as something more than fanciful or insignificant it can properly be described as material. We are not yet persuaded that Parliament intended a higher test. Section 8 must be construed in the context of the Act as a whole. The Act makes express provision for burdens to be varied when it is reasonable to do so. If a burdened proprietor considers that the interest of the benefited proprietor is of no great weight he can apply to the Tribunal under sec 90(1)(a)(i). The Tribunal will then require to balance the interests of one against the other in terms of sec 100, factors (b) and (c). When Parliament has provided for such a balancing exercise, there is no good reason to assume that it intended a preliminary test under which a real identifiable interest would have to be of some special weight before being allowed to be enforceable.

The background facts

[11] The decision in this case turned on an assessment of the probable impact of the extension on the view from Mr Lawson’s house. It is not easy to provide a verbal description which adequately conveys the quality and character of issues relating to views. However some description of the background is necessary to put matters in context.

[12] The parties’ houses were built by H Richmond (Dunfermline) Limited as part of an estate of about 100 houses in the 1980s. The site is on the north of the Firth of Forth about two miles to the east of the Forth Road Bridge. It lies on a gradual southfacing slope. Houses on the south side of Swallow Craig have open views across the Firth. The views of all other houses are limited to a significant extent by houses opposite or adjacent. Many of the houses have no view of the water and most will see little but adjacent properties. The houses on the estate are of some five different designs. There was a mixture of single and double storeyed buildings. There have been various conversions and extensions since the development was first completed.

[13] Mr Lawson’s house, No. 10 Braefoot Grove, is a two storey building which is at a higher level than the subjects. It would appear to have been built to take advantage of the view with the bedrooms on the ground floor and living room, kitchen, and study facing south on the upper level. There is a double drive between nos.1 and 3 Swallow Craig with a garage on each drive. From the upper level of No.10 there is an open view over the garages across the water to Edinburgh and Arthur’s Seat. Views to the east are restricted by trees and views to the west are cut off by trees and by the roof of the subjects.

[14] In broad terms, the proposed extension will replace the existing flat roofed garage on the subjects and occupy the site of that garage and almost half of the length of the existing driveway. The part nearest the respondent’s property will be single storey. That part presents no problems. The double storey part would be about 9 metres from the house at No.10. It would have a pitched roof of about 30°. The living room at No.10 is to the east; the study to the west; and the kitchen in-between. From the study, a viewer would be almost in line with the ridge of the extension and the ridge would be about, or a little below, eye level.

[15] It is plain that the visual impact would vary from room to room. At our site visit we were conscious of the difficulty of forming an accurate impression of the impact. The height of the extension was to be the same as the existing roof line of the subjects but the peak of the north gable would seem higher to an occupant of no.10 being closer to that house. The apparent slope of the roof on its northeast side would vary from different perspectives. However, one point which could be identified was the proposed east corner of the building. As appears from the approved plans, the two storey extension would project 2,500 mm beyond the existing house on the line of the northeast wall and 5,500 mm perpendicular to the inner face of that wall. It was also shown to be 1,000 mm to the west of the boundary between nos.1 and 2 Swallow Craig. We did not attempt to identify the precise location of the east corner. The boundary line was not clear; the distance from the inner face of the northeast wall could not easily be measured and, in any event, the built position might vary to some minor extent. However, we were satisfied that a person standing at a point determined by the above measurements gave a sufficient indication of the expected position of this corner. This allowed us to assess the accuracy of the super-imposed outlines said to show the approximate position of the extension on the photographs by Mr Corfield. We are satisfied that the outlines purporting to show the impact on the view from the living room are shown too far to the east. From the centre of the window of Mr Lawson’s living room, the outline shows the view hidden from the west edge of the door of the house opposite. In fact we think that part of the garage on the other side of Swallow Craig would probably remain visible. This is not of dramatic significance but it is the position of the east end of the extension which is of importance in relation to the openness of the main view across the Firth. We think the outlines do provide some general guidance to impact but it will not be quite as restricted as shown.

[16] We cannot positively affirm the accuracy of the photo montage prepared by Mr Connon as it provides no direct reference point to identify the viewpoint. Broadly speaking, we accept it as giving a reasonable impression of the probable impact of the extension as viewed from the window although we understand that the photographer was, in fact, on the balcony.

[17] We are satisfied that it is appropriate to have regard to the impact from all three rooms – living room, kitchen and study – and Mr Connon did not attempt to do this. On the other hand, as we have said, our check of the position of Mr Corfield’s superimposed outline showed that it was misleading as viewed from the balcony. It cannot be affirmed that his other photographs gave a completely realistic representation. Superimposed outlines are likely to appear more intrusive than the reality would be as they do not allow for the receding impact of the three dimensional building.

[18] Mrs Franklin, a professional landscape gardener, did not purport to give evidence in her expert capacity. She gave typical details of the background history of the proposal and details of her investigation of the sale prices of comparable properties. She did describe her professional experience in explaining how a photo-image was created with the intention of giving an accurate impression of the impact of a former tree in front of No. 10. We can assume that she was exercising an element of professional judgment in giving Mr Connon what he described as a tight brief. He was to prepare a photo montage based on the view from the living room. We accept that this was a reasonable approach by her. Preparation of an accurate photo montage is clearly a time consuming business. The view from the living room can properly be regarded as the dominant consideration when attempting to view matters objectively. That is what would strike a potential buyer as important. An accurate image from that position is important although we think that the photomontage does provide some assistance in attempting to visualise matters from other viewpoints in the house.

[19] Mr Connon explained the care which went into the preparation of the photo-montage. He stressed his tight brief – to replicate the likely view from the living room. Using highly sophisticated photo-montage methodology and the skilled work of Valerie Gilliland, a final image was prepared giving an impression of an actual photograph of the extension as it would appear when built. This, he said, was a time consuming exercise using three different software packages: Autodesk’s Autocad 2006; 3D Studio Max; and Adobe Photo Shop. Mr Connon stressed the importance of accuracy at all stages. At one point he expressed the view that a difference of even a metre could affect the impression. We were, accordingly, somewhat surprised when Mr Lawson’s questions to him elicited the fact that, despite the tight brief, the image had been prepared using photographs taken from the balcony and not from the living room. He explained that there was a clearer view from there. It would seem to follow that such a viewpoint would not comply with the brief he was given. In fact, we have come to accept that the difference may not be great significance in relation to the issue before us. But we return to the matter in considering the question of expenses below.

[20] Our assessment of the impact of loss of view depends on the totality of our impressions gained at site inspection with the assistance of the photomontage in relation to living room views and Mr Corfield’s outlines as a broad guide to the impact from kitchen and study. Verbal description is inevitably inadequate and we discuss our attempts to assess the loss in the context of factor (b) below. However, in summary, the proposed extension would significantly reduce the impression of openness of the view from the kitchen although the main view across the water to Edinburgh and Arthur’s Seat would remain; as would the view across the roofs and through the trees to the Pentland Hills. Parts of the water through the trees would not be seen. The main impact would be on the study. The view of Arthur’s Seat would remain with views of the open Firth to the left of it but much of the impression of a wide seascape would be lost as the gable of the extension would fill the centre foreground. From the living-rom, the main open view across to Edinburgh and Arthur’s Seat would remain; as would the wider view of the coast to the east of Edinburgh. There would be a loss of view of water presently visible through trees to the south southwest and the south shoreline to the west of Cramond would be hidden. But the Pentlands would remain visible over the roof of the proposed extension. From the balcony the open views to Edinburgh and the east remain and attractive views of the bay on the Fife coast would be unaffected.

Submissions

[21] We heard submissions dealing with the issues of title and interest discussed above. The issues in dispute are clear enough and it is unnecessary to set out the actual submissions. There was no dispute as to the proper approach to sec 90 and the factors set out in sec 100. We heard full and helpful submissions from both sides as to the weight to be given to the respective factors and the matters we might take into account. These submissions are reflected in our discussion below.

Tribunal’s consideration: merits

[22] It was not in doubt that the decision on the merits required consideration and balancing of the weight to be given to each of the various factors set out in sec 100 and we deal with them in turn.

(a) Had we been considering the wider amenity we would have been satisfied that, because of the irregular pattern of the streets, the variety of styles used in the scheme, and the dominant role of garages in the visual design and layout of Swallow Craig and Lumsdaine Drive, the proposed extension would have no material adverse impact on the general amenity. There have been a number of extensions of different sorts in the scheme over the years – said to have involved some 27 of the properties. When driving and walking around the area we did not find these intrusive. They fit the mixed pattern of the original development. However, the immediate question relates to the outlook from No.10. There have been no relevant changes in the character of either the benefited or burdened subjects. There has been one change in the neighbourhood relevant to the view from that house. A substantial tree which originally grew in the driveway of the adjacent property at Swallow Craig when the properties were built, has been removed. This was apparently done in 2002, well before Mr Lawson acquired title. The applicants founded on this as showing that there could have been no intention to protect the view over the Forth but, though we return briefly to this subject below, we do not consider that, considered as a change, this is a factor in their favour. It is a change which had added to the value of the burden. We have attempted to summarise in factual terms the effect of the proposed extension. It would be very obvious in the immediate foreground viewed from Mr Lawson’s kitchen and study. It would restrict the view from his living room to a minor extent. It would also cut out some sunlight from the garden. The east elevation would be a blank wall and, unless its appearance was softened by vegetation, would not be particularly attractive. But it would be no more intrusive than the existing roofed areas.

[23] (b) The difficult question is to assess the extent of the benefit or, to put it another way, the adverse impact on the property which would arise if this development was to be allowed. We note that the provisions of sec 100(b) can be contrasted with those of sec 8 in that regard. It is plain that in weighing the factors in sec 100 we are not to have regard to the personal feelings of Mr Lawson. We have to try to assess matters from the viewpoint of a typical home owner. The main difference is that this takes the emphasis away from the impact of the change as such. We have no doubt that Mr Lawson quite properly focuses on what would be lost. We do not doubt his evidence that it was the view which attracted him to the house. Inevitably he has come to cherish the whole view as it is. However, an occupier coming new to the subjects would be attracted by the view which remained. For example, we are satisfied that a photograph very similar to that in the sales particulars which attracted Mr Lawson when he bought his house could quite properly appear in the sales particulars of any agent selling the house on his behalf. If any part of the extension was visible in such photograph it would hardly be noticeable. People do not expect to have views from every room. A reasonable view from the kitchen might be nice to have but it is the view from the main living room which would normally be regarded as the feature of the house. The open aspect from the living room across the water to Edinburgh and Arthur’s Seat is the dominant element in the view. We do not accept that it will be significantly affected. It is an attractive feature of the house. Mr Corfield’s outlines show that views to Arthur’s Seat from the kitchen and study would remain as would views over to the Pentlands. It can be said that the view from the balcony to the east might itself have been presented as a selling point had there been no view from the living room. That remains. In short, we are satisfied that, in objective terms, as matters might be assessed by any potential purchaser, the impact of the extension in reducing the overall outlook from the house having regard to the proportion and quality of the view lost would properly be perceived as minor.

[24] We understand, too, Mr Lawson’s concern that the extension may seem “dominant and oppressive” but we are satisfied that it will not be out of keeping with its surroundings and it might more accurately be described as plain and uninteresting rather than oppressive. The significant impact will be the loss of view. It is not easy to put a more accurate figure on the assessment of this and, perhaps, no real purpose is to be served in trying to do so. However, having regard to the extent of the reduction of view in terms of the percentage to be blocked or hidden by the extension, the relative importance of area blocked compared with the areas which remain, views from the different rooms in the house, and the dominant importance of the wide view across the water to Arthur’s Seat, we are satisfied that in terms of quality of visual outlook the impact as it might be assessed by a typical householder would not be more than 15%.

[25] (c) We have no doubt that the restriction significantly impedes enjoyment of the burdened property. We are satisfied that the term “enjoyment” is used in a wide sense encompassing all the uses an unburdened owner might seek to make of his or her property. The applicants would add value to their property by the extension and gain a significant benefit in terms of increased accommodation. It is important to note that they would be making good use of ground which at present does no more than add to the length of their driveway. They propose to create a living room and balcony at second floor level to take advantage of at least some view across the Forth and the enjoyment a proprietor would expect to derive from this could hardly be disputed by the respondent. We did not hear evidence of probable construction costs but a broad awareness of such matters is within our knowledge as an expert tribunal. In terms of useable space, a two storey extension would be expected to provide much better value for money than a single storey extension.

[26] Factor (d) does not apply and we are satisfied that factor (e) adds nothing, one way or the other, in this case.

[27] (f) Identification of a clear purpose behind a title condition can be important. Put shortly, if the benefit which would be interfered with is precisely that which the burden was imposed to preserve, that fact will add significant weight to factor (b) discussed above. In the present case no such precise purpose can be identified. Considerations of purpose do not give any positive support to the respondent. We have little doubt that the main purpose was to give the superior a potential source of revenue. An intention to control development for the benefit of the amenity of individuals can be inferred from the terms of clause 19. However, we accept that protection of view was not part of the original purpose. Many of the properties have no view of the Firth. Although Mr Lawson’s property appears to have been built to take advantage of the gap between 1 and 3 Swallow Craig, and the living accommodation is on the upper floor, the original view must have been greatly restricted by a tree. But, whatever the arrangements for his specific property, the condition to be imposed on all the properties was not to protect views and we do not consider that the issue of purpose has any great bearing on the merits.

[28] (g) The grant of planning permission can be of significance where the general amenity of a scheme is in issue but, plainly, the present case turns on the private interest of a single proprietor. This factor, accordingly, has no material bearing in such a case.

[29] (h) It is not easy to determine what weight can be given to this factor. If the Tribunal decides that payment of compensation should be a condition of any variation, applicants have a choice. If they decline to pay the sum assessed, the condition will not be varied. Their unwillingness to pay could hardly be a factor bearing on the merits of the application itself. Where an applicant contends that there is no substantial loss but accepts that, if the Tribunal takes a different view, he or she will have to reconsider the position, this would simply be part of the evidence to be assessed under factor (b). This factor may be important in cases where the change may be likely to cause specific expense for the benefited proprietor as might follow, say a variation in rights of access. It might well be relevant for an applicant to contend that any loss of benefit can be fully matched by payment. There might, possibly, be circumstances where an applicant was contending that the nature of the title condition was such that a modest payment would easily cover any perceived loss. For example, an offer to pay such a sum to acknowledge that their development would have some impact on their neighbour might be a factor to weigh in favour of the reasonableness of variation. Where, as in the present case, an applicant simply says that they are not prepared to make such payment, we do not think that this can be given any weight, one way or another. As we have said, it would be up to an applicant to consider what to do in light of any sum by way of compensation we determined to be appropriate.

[30] Factor (i) has no bearing in the present case.

[31] (j) Mr Lawson’s written contentions included reference under this head to the proceedings for interdict which he had to raise in the Sheriff Court to stop the development going ahead without any formal approval from this Tribunal. On the view we take, it was certainly appropriate for him to do this. However it does not appear to us to be a factor with any possible bearing on the merits of the application under section 90.

[32] Under reference to this head the applicants appeared to contend that it was material that no other potentially benefited proprietor had objected. There is plainly no substance in such submission. No other proprietor would lose a view.

[33] Having due to all the relevant factors in sec 100 we are satisfied that it is reasonable to vary the conditions in the applicants’ title to the extent necessary to permit the proposed extension.

The Tribunal’s consideration: compensation

[34] We think it appropriate to make a general comment on the quality of evidence we heard bearing on the valuation. It may be that where the main aim of parties is to lead evidence on the merits of a discharge, broad assertions as to whether there will, or will not, be a loss of value may suffice. But where there is a disputed issue of compensation a surveyor should recognise the need to support his figures with evidence which can be tested. In a case about value of subjects forming part of a development of over 100 houses in place since the late 1980s, evidence of comparable sales ought not to have been difficult to obtain. Even if it was impossible to provide evidence of a comparison of prices between houses bearing direct comparison with the before and after views under discussion in this case, it would have been helpful to have evidence of sales of houses of the same type as No. 10 with no open view at all. This would have been expected to provide a solid start point for comparison. Where there is a dispute over the level of potential loss, solicitors should see to it that their experts are in a position to explain the basis of their figures.

[35] In the present case, it was Mrs Franklin, herself, who provided the only explicit evidence of comparable sales figures. She referred to two properties said to be similar in type to No.10. One showed that a broadly comparable house with no view, at 9 Downing Point, had sold for over £300,000 in June 2006. Mr Lawson had bought his property in 2006 for £285,000. Her other example was a sale of the house next door to No. 10, namely 9 Braefoot Grove, at £312,500 in Sept 2010. We place no direct reliance on the figures as we did not have direct evidence of physical comparison and it cannot simply be assumed that there were no relevant differences except the differences in view. However, the evidence was not challenged and it is clear that, to put it no higher, it provides no positive support for any contention that the view from No. 10 would command a much higher price than similar property with little or no view. It may be added that we were satisfied that the property at 9 Downing Point does not have had any significant view to the south. The view from 9 Braefoot Grove is clearly impeded by properties in Swallow Craig. It is unlikely that it has any view of the water. It may have some distant views.

[36] For the respondent, DM Hall Surveyors were instructed to advise as to their opinion of current value and “the likely diminution of market value” as a result of the proposed extension. We accept that the surveyors might have been expected to exercise their professional judgment in determining, as a first step, whether there would be any such diminution but the terms of such instruction would give little doubt as to the conclusion they were expected to reach. Mr Lawson relied on the written report dated 1 February 2010. He did not lead evidence from Mr Seaton who provided the report.

[37] The report narrates that the surveyors had seen plans and elevations for the proposed extension. It narrates that they were shown some fairly detailed work carried out “by our client, Mr Lawson where he has fairly accurately identified on various photographs the extent of the proposed extension”. We understood from Mr Lawson that this reference had to be taken to be a reference to the photo-montage prepared by Mr Corfield and not to any detailed work carried out by him. In any event, it is not clear upon what basis the surveyor was able to conclude that such work was “fairly accurate”. He would only be able to make such an observation if he had carried out similar work himself. He does not say he did.

[38] Mr Seaton narrated that his firm had carried out an analysis of sales of houses of comparable size and type. This was said to show that “houses with uninterrupted views of the river do sell for prices significantly in excess of those which do not have such views.” It would clearly have been very useful to have evidence of the typical level of excess. We are satisfied that the view from No.10 could not properly be described as “uninterrupted” but having a figure applicable to typical uninterrupted views compared with houses with no view would have given a sound start point for comparison. We noted, however, that Mr Seaton immediately followed this assertion by a reference to figures in the late 1990s. Selling levels were then £50,000 higher he said. He gave no indication of what percentage of a relevant house price in the 1990s was represented by £50,000. The addition of this vague piece of evidence in support of the wholly unquantified reference to market analysis, does tend to cast doubt as to what precisely that analysis showed.

[39] Both surveyors agreed the current market value at about £300,000 – Mr Young was slightly lower at £295,000. Mr Seaton gave his opinion that, with the extension built, the value would drop by £30,000 to £40,000. We have to assume that Mr Seaton was, in fact, attempting to address the situation at No.10 and not a comparison between an uninterrupted view and no view at all. He could not have failed to realise that the present view was not an uninterrupted one and that the new extension would not cut off the main views across the Forth. However, his report gives no indication of this. It gives the impression of a comparison between a house with an uninterrupted view over the Forth and one where the extension would be a significant intrusion. We have little doubt that, comparison of sales of houses with uninterrupted views across the Forth and those with no such views would reveal a significant difference in price. But there is a difficulty in the present case, not so much because the existing views are somewhat restricted, but because the main view will remain. The exercise is to identify the impact, if any, of greater restriction. The report gives no indication that the writer recognised that problem and no indication of how he addressed it.

[40] Mr Seaton was dealing with an assumption that the restriction was accurately represented by the photo montages produced by Mr Corfield. We do not accept them as accurate for the reasons given above. Making the best assessment we can, we accept it as possible that a reasonable surveyor could have formed the view that there would be a reduction in the overall quality of the outlook from the house of the order of, say, 20%. That would not be our view but it is one which could fall within the band of reasonableness. If a 20% reduction in view could be said to justify a shortfall in value of over 10% it might seem to follow that a complete loss of view would come close to cutting the value of the subjects in half. That would be a surprising conclusion in relation to subjects at Dalgety Bay.

[41] The comparative figures provided by Mrs Franklin give no hint of support for any reduction. The figure for apparently similar subjects at 9 Downing Point was in fact higher. That too might seem somewhat surprising but Mr Young fairly explained the difficulty of making direct comparison without full information. We readily accept that the differences between the figures might have been attributable to a more level site, a better garden area, a better kitchen or some other feature not disclosed by the evidence. Mr Seaton’s analysis of sales would have been expected to include the sales details of 9 Downing Point. It would have been interesting to have had his comments on that. But, whatever the detail, it is plain that even a superficial examination of the figures casts serious doubt on Mr Seaton’s report. We see no basis upon which we can adjust his figures to reflect our view of the actual extent of the impact. We can take no more from the report than that houses with a wide view over the Firth of Forth might be expected to command higher prices than those without. It gives no secure guide to quantification of degrees of loss.

[42] Mr Young had valued the subjects in their existing state at £295,000 in October 2012 – essentially the same level as Mr Seaton’s valuation. There was no suggestion that prices had moved in any clearly demonstrable way over the 2 year gap between these two valuations. In his report Mr Young expressed the view that the dwelling enjoyed a view over the Forth towards Edinburgh. He described this as restricted but accepted that the extension would impact further on this. In his written report he expressed the view that a short term impact on the view might reduce the value to closer to £285,000 to £290,000. In the course of his evidence it seemed fairly clear that this was misleading. He did not mean to say that the impact on the view itself would be affected by its short term nature. It ultimately appeared that his reduced figure was thought to be because of the possible impact of the building works on a potential buyer. He had some difficulty in accepting that it would ever be possible to find two sufficiently closely similar properties to allow a value of one property with a view and the other without to be derived with any accuracy. He was slow to accept that if two such properties could be found the one with the better view would tend to command a higher price but we understood him eventually to agree that this would be so. However, he was adamant that, unless the view was open and dramatic the effect would be slight. He agreed that, in theory, in the present case a figure of somewhere between nil and £40,000 might be appropriate but emphasised his clear opinion that any difference in price in the present case would be insignificant.

[43] We have no doubt that, all else being equal, a purchaser with the choice of the view as it is and the view as it would be if the extension was in place, would consider the present view to justify a higher price. We have a wide discretion to award compensation but the difficulty for Mr Lawson is that, in terms of sec 90(6) and (7) the starting point is for us to identify any “substantial loss or disadvantage” suffered by Mr Lawson as owner of the benefited property. It is plain that Parliament did not intend that a benefited proprietor would always be entitled to compensation for any loss following variation of his rights under a title condition. In particular it is not for any loss that compensation can be made but only for “substantial loss” and it is to be noted that even where there is a substantial loss there is no entitlement to direct compensation as such. The Tribunal is given a discretion to award such sum as it thinks just.

[44] As always, statutory language has to be construed in context. There are contexts in which a loss of less than £1,000 would clearly be substantial. Anyone losing a wallet with that amount would be expected to describe the loss as loss of a substantial sum, no matter how wealthy he was. However, the immediate context in the present case is loss of value of the property. We are satisfied that loss of one or two percent in overall value would not normally be described as a substantial loss.

[45] There will, inevitably, be cases where a difficult decision arises as to precisely where the line falls to be drawn. However, the fact that we have to consider whether compensation is appropriate as well as the question of whether there is a substantial loss, means that no purpose is to be served by attempting to specify either an absolute figure or a percentage. There have been circumstances in which loss of value of 5% has been considered to justify compensation. There have also been cases where a specific change, such as a change of access, which has involved a benefited proprietor in specific expenditure, has been seen to justify an award even where the amount would have been a small percentage of total value. The context there is of a specific outlay. We have given serious consideration to the question of whether there was sufficient evidence to allow an award to be made in the present case. It will be little comfort to Mr Lawson to be told that we did recognise a degree of loss but could not find sufficient material to us to justify us in making any award.

Certification of counsel

[46] Mr Logan moved for certificationof the case as suitable for the employment of junior counsel but we are not persuaded that this is appropriate. We agree that the law as to the scope of the benefit and its enforceability is not entirely straightforward and if the application had directly addressed that issue, we could have accepted this as an important factor in relation to certification. However, the application did not attempt to deal explicitly with this issue.

[47] We do not accept that the evidence as to visual impact or valuation was of any great legal complexity. It presented difficulties for the witnesses. Plainly creation of images capable of being accurately assessed by reference to photographs is a complex process. But it is not suggested that the lawyers played any part in that process. Assessment of this evidence did give rise to some difficulty but that is a different issue.

[48] We recognise the importance of the matter to the applicants. However, it is something of an exaggeration to suggest that the application was necessary to allow them to remain in accommodation suitable for their family. The double storey development went well beyond the addition of an extra bedroom. It plainly represented an upgrade which was not essential.

[49] We do not consider that the proceedings in the Sheriff Court were of any relevance. They were apparently necessary simply because the applicants had indicated an intention to proceed with their development without addressing the issues presented by their title conditions.

Expenses

[50] Mr Logan asked that we continue the question of expenses to allow further submissions in light of our decision and this was not opposed. However he also said, for the avoidance of doubt, that the applicant wished to move for expenses based on the provisions of sec 103. It appears likely that the arguments about expenses in this case will follow a familiar pattern and we have decided that in the particular circumstances it is appropriate for us to express our current thinking on the matter. There would be no point in parties incurring the additional expense of further submissions unless there are some factors not disclosed to us at the hearing which would have a bearing on the end result. Normally such factors might be expected to include reference to “without prejudice” offers to settle. However, in the present case, Mrs Franklin stated emphatically that she was not prepared to pay any compensation and we heard evidence of Mr Lawson’s proposals for settlement by his expression of willingness to accept a different type of development. In other words, it seems fairly clear that the dispute over expenses in the present case would turn on the stated argument for the applicants that, having regard to the provisions of section 103, expenses should follow success and a submission by the respondent that he would be adversely affected by the development and that as he has, at all times, acted reasonably in opposing it, we should exercise our discretion in his favour.

[51] Prior to the 2003 Act it was our practice to give weight to the reasonableness of an unsuccessful respondent’s approach to the whole proceedings. A finding of no expenses due to or by either party would be made where the unsuccessful opposition to change had been reasonably maintained. However, the policy of the 2003 Act was to change this approach and give primacy to the principle, applicable in most courts, that expenses should follow success. Although we have a discretion, we must have regard in particular to that principle. It is quite clear that the reasonableness of a respondent’s opposition will not, normally, prevail over the new statutory requirement. Success in this context normally relates to the outcome of the case, not to any specific arguments or issues raised in course of proceedings. However, we do have a discretion. We must have regard to the normal rule but need not apply it blindly.

[52] In the present case, we have no doubt that the development will have an adverse impact on the respondent’s enjoyment of his property. He himself will be acutely aware of the change. Unfortunately, the evidence bearing on loss was, as we have said, of poor quality and we have not been persuaded that there would be a substantial loss entitling us to make an award. Nevertheless, we accept that there will be a loss. In considering success, we recognise that a respondent ought to be aware that compensation can only be awarded for substantial loss. If that is not established, it can be said that he has not been successful. However, unlike a decision on reasonableness which requires a determination by the Tribunal, a decision on compensation is essentially a matter for the discretion of the Tribunal. We are satisfied that where success or failure is dependent on exercise of a discretion as opposed to a finding declaratory of right, this is a factor which can be weighed against the broad principle of expenses following success.

[53] In some cases, it may be appropriate to attempt to make a broad distinction between expenses occasioned in respect of the merits and those bearing purely on compensation. The process is often dealt with in two parts. In the present case the two issues were dealt with together and, because the respondent relied on written material, the hearing was concluded in a day. In the whole circumstances we do not consider it appropriate to try to split the decision on expenses.

[54] We have had in mind two other matters. The first is the failure of the applicants’ surveyor to address properly the fact that assessment of loss of view required an assumption that all else was equal. He reported that there would be no loss due to the interference with the view although his report appeared to accept that there would be a short term loss. His evidence on this matter was confused. Had he indicated that there would be an identifiable but modest loss it is possible that the applicants would have recognised that some attempt at monetary negotiation with the respondent might have saved the expense of litigation. There is nothing to suggest that such negotiation would have been successful but Mr Lawson plainly put his faith in surveyors. He was not made aware of the terms of Mr Young’s report until just before the hearing. If there had been some sensible dialogue about figures expense might possibly have been saved. In any event, he might have raised the matter with his own surveyor and might possibly have found some better basis for a finding of substantial loss justifying an award.

[55] The second matter is the nature of the report by Mr Connon. We should make it clear that we do not suggest that he had any deliberate intention to mislead. Indeed he appeared to regard our concern with some surprise. His professional assessment may well have been that a photograph taken from the balcony would show essentially the same view as one taken from within the living room. No doubt one taken hard against the window would be much the same as one taken from outside by a photographer with his back to the glass. However, he did not attempt to justify the matter on that precise basis. As we have narrated above, he was at pains to stress the importance of detail and the importance of the time, effort and sophisticated computer technology deployed to produce a realistic impression of what the extension would look like “from inside the living room”. Cross-examination disclosed that what in fact was relied on was from an unspecified point on the balcony. The weight to be given to issues of detail is a matter for the Tribunal. There seems to us little point in stressing the importance of detail at the stage of creation of the image and failing to explain the change in viewpoint. Both his report and the report of Mr Young relied on the image. We are satisfied that in all the circumstances it would not be fair to impose any liability on Mr Lawson to pay for these witnesses.

[56] It seems to us that, in exercise of our broad discretion in matters of expenses, a just outcome of the present case would be that there should be no award of expenses to or by either party. We hope that intimation of this view may allow parties to avoid further expense. However, we have not pronounced a formal order to that effect in case there are matters not yet disclosed to us which might have a bearing on the issue.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 23 May 2013

Neil M Tainsh – Clerk to the Tribunal