Mark Cook and Mary Rodgers & Others v Mark Cadman

Introduction and Summary

[1] This is an application under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”). The respondent intimated a Notice of Termination, under the ‘Sunset’ rule, of title conditions in an 1876 Feu Charter. This feu grant required the feuars to erect and maintain one substantial villa and permitted them to erect not more than two other dwellinghouses, with certain other provisions about ancillary buildings. The respondent owns one of three substantial houses on the feu and wish to sell their property to a building company who would demolish the existing house and replace it with more than one new house, thus exceeding the permitted number of houses. Several proprietors in the vicinity, including the owners of the original large villa and the other substantial house built on the original feu, oppose termination and brought this application. They have indicated a willingness to accept some further residential development, with the burden varied so as to permit a limited number of additional houses on the respondent’s property, their final submission involving a limit of two houses replacing the respondents’ present house together with some restriction as to location of the houses on the site. The respondent accepted that the owners of the other houses on the feu (but not other surrounding owners) were benefited under the title condition. He also indicated a willingness to accept variation so as to permit up to 6 houses.

[2] In summary, the Tribunal has decided to vary the title condition to the extent of permitting the respondent or his successors to erect on their property, Dunmail, not more than a total of 4 detached, semi-detached or terraced dwellinghouses, together with garages and other ancillary buildings, subject also to a restriction on building within strips 10 metres wide at the boundary between his property and Glendarroch and 5 metres wide at the boundary between his property and Silverdale to building not exceeding one storey high.

The Title Condition

[3] A Feu Charter by George Gibb Shirra Gibb in favour of Edmund Geering, recorded in the Division of the General Register of Sasines for the County of Aberdeen on 31 May 1876 (“the Feu Charter”), set out a series of real burdens, including:-

“and my said disponees and their foresaids shall be bound to erect and ever after maintain upon the said piece of ground a Villa or Dwelling House of stone and lime covered with slates or lead worth £600 at least according to a plan and elevation and on the site and line which has been pointed out and approved of by my Agent, Declaring that my said Disponee and his foresaids shall at any time be entitled to erect other dwelling houses but not more than two upon the said area or piece of ground hereby feued But declaring also that my said Disponee and his foresaids shall not be entitled to erect any other buildings of any kind on the said feu without the express consent in writing of the Superior excepting stables and coach houses and other offices which shall be on the back part of the ground only the ridges of which stables coach houses or other offices are not to exceed fifteen feet in height and the position and plan with the elevation of such buildings shall be submitted to and approved of by me or my foresaids before the erections are made … ” (“the burden”)

The burden is noted on the Burdens Section of the respondent’s registered title to the property, Dunmail, 3 South Avenue, Cults, Aberdeen, and also on the registered titles of the applicants Mark Cook and Mary Rodgers, who own the original house on the feu, Glendarroch, 5 South Avenue, and Gavin Miller and Tracey Miller, who own the other substantial house, Silverdale, whose address also appears to be 3 South Avenue.


[4] Mark Cadman, as a proprietor of Dunmail, intimated a proposal under Section 20 of the Act to terminate burdens, in the Feu Charter, including these burdens. Nine proprietors or joint proprietors of properties in the vicinity of Dunmail, including Glendarroch and Silverdale, applied to the Tribunal under Section 90(1)(b)(i) of the Act to renew the title condition. All the applicants claimed to be benefited proprietors. Mr Cadman opposed the applications. The applications were conjoined. The applicants were then represented by Mary Rodgers. The respondent was represented by Pinsent Masons, Solicitors, Aberdeen. After the initial applications, Answers and a Response on the applicants’ behalf, parties agreed, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003 to disposal of the application without an oral hearing, on the basis of written submissions and a site inspection. Both sides lodged written submissions and some documentary productions. The respondent accepted that the proprietors of Glendarroch, 5 South Avenue and Silverdale, 3 South Avenue, but not the other applicants, were benefited under the title condition. The Tribunal inspected the site on 7 November 2013.

[5] The proceedings took a slightly unorthodox procedural course. The applicants of course challenge, in part, the proposed termination of burdens contained in the Feu Charter of 1876. At the ‘pleadings’ stage, there was no reference to any particular development proposal by the respondent. The applicants indicated their concern at the possibility, in the event of termination of the burden, of replacement of the existing house, Dunmail, with high density, multi storey dwelling units. The respondent merely indicated his intention to submit a planning application, of which he gave no detail. We mean no criticism of the respondent’s approach, which is a legitimate way of advancing a case for termination, in effect simply to clear the title leaving any restriction on development as a public planning matter.

[6] However, when parties agreed to disposal of the case on the basis of written submissions there was, as is normal under such procedure, an opportunity for final written submissions. At this stage, the respondent for the first time revealed that he had concluded conditional missives with a building company and provided an indicative plan showing Dunmail demolished and replaced by 4 new houses. The applicants then indicated that they do not object in principle to some such development and submitted that the title conditions should be varied to allow the replacement of Dunmail by “2 or 3 appropriately located villas”, while also requesting the Tribunal to consider issues around the location of any new house or garage in order to retain the open outlook from and privacy of their houses. The Tribunal confirmed to parties that they were now considering variation as well as renewal or termination. The respondent then indicated that while their preference remained that the title condition should simply be discharged, he would be willing to accept a variation, to produce some consistency with planning guidelines, so as to limit use of his subjects for the erection of not more than 6 detached, semi-detached or terraced dwellinghouses, together with garages and other ancillary buildings, garden and amenity ground, roads and footpaths. The applicants responded addressing a number of points and suggesting a specific variation, noted below, going into some detail as to location of two plots for southerly facing villas, limitation of size and location of garages, etc. However, a subsequent communication on behalf of the applicants, Mr and Mrs Miller, intimated that they did not agree with the layout proposed by the applicants, Ms Rodgers and Mr Cook.

[7] In these circumstances, the Tribunal considered the three possibilities of renewal, termination and variation and the terms of any variation. There is no application for compensation under the Act.

Authorities referred to:-

George Wimpey East Scotland Limited v Fleming & Ors 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Donnelly & Regan v Mullen & Ors LTS/TC/2005/01, 17.2.2006
Smith v Prior & Ors LTS/TC/2006/06, 17.11.2006
Brown v Richardson LTS/TC/2006/41, 8.5.2007
Council for Music in Hospitals & Ors v Trustees for Richard Gerald Associates LTS/TC/2006/61, 5.2.2008
Hamilton & Anr v Robertson & Ors LTS/TC/2007/21, 10.1.2008
Melville v Crabbe & Anr LTS/TC/2007/42, 19.1.2009

The Facts

[8] On the basis of parties’ submissions and our site inspection, we have found the following facts proved or admitted.

[9] Cults lies about five miles west of Aberdeen city centre sitting in an elevated position overlooking the River Dee.

[10] In 1876 the area was little developed. The land was open field lying to the south east of Cults House and west of the hamlet of Cults. By 1901 there had been considerable development, the railway to upper Deeside was in operation and the process of urbanisation was under way. By 1925 the street pattern was established but there remained some sizeable undeveloped areas.

[11] The houses on the 1876 feu are contained within the block bounded by South Avenue, School Road, Deeview Road South and St Devenick’s Place. They are all entered from South Avenue which is one block south of North Deeside Road, the A93, which is the main road linking Aberdeen with Royal Deeside.

[12] Today, the area on the north side of South Avenue is fully developed with a mixture of detached, semi-detached, terraced and flatted developments and some commercial property. To the east of the subject site, running towards St Devenick’s Place, there is low density housing following sub-division of a larger plot bearing a Victorian villa known as Birchwood. To the south, Deeview Road South is developed only on its southern sloping side, the north side being taken up with the walkway and cycle-path on the former railway line. The houses are mainly a mixture of semi-detached and detached Victorian villas with large south facing gardens with views of the river valley. Below this level Loirsbank Road runs roughly parallel and is developed with more modern houses on smaller but still sizeable plots. To the west there is a substantial sheltered flat development known as Rorie Court built on the adjacent plot which was previously the site of a school erected in the middle of the 19th century. Then, beyond School Road, the area closest to North Deeside Road is most heavily developed, the areas at the same level as Dunmail and Glendarroch are generously spaced and the downslope to the river is largely developed with villas sitting in their own grounds.

[13] The first substantial villa built on the site is currently known as Glendarroch. It is a large stone and slated Victorian villa originally sitting in grounds extending to about 2.75 acres. Following sub-division, the grounds are now reduced to around 1.2 acres and the house sits a little south and east of the centre of the reduced grounds; the line of the building is a little north of east to south of west. The boundary to the north, entering from South Avenue, is an eight foot high stone wall. The grounds include extensive, mainly lawn areas on the south, front side. At the foot of these lawns on sloping ground is a wall with a drop onto the land that was formerly used as the Deeside railway but is now a walkway and cycle-path. Deeview Road South lies immediately beyond the former railway line. Within the site at this point are a number of mature trees that block part of the outlook across the river valley but also frame fine views of the river and farmland beyond. To the west there is heavy tree cover that largely, but not completely, obscures the view of the sheltered flat development. To the East lies Dunmail the property owned by the respondent. The boundary between the properties is a five foot high beech hedge. On Dunmail ground around 3 metres from the boundary lies a row of mature trees running from south to north for about a third of the length of the boundary.

[14] Within the Glendarroch site in the areas lying to the north of the house are located a lawn and a small football pitch on the west side, and a tennis court on the east. There are a number of mature trees that largely shield the house itself from the properties to the north where it would otherwise be visible beyond the wall. On the east side the tennis court is provided with greater privacy than the beech boundary hedge alone offers by the presence of a lofty coniferous hedge on Dunmail ground.

[15] The size of the Glendarroch grounds and the wall, hedge and tree cover, together with the slope of the site provide considerable privacy, a sense of space and an agreeable outlook particularly to the south.

[16] The second house on the land in question is Glendarroch Cottage which was formerly a gardener’s house associated with Glendarroch. It is broadly contemporaneous with Glendarroch but it is not clear which was built first. The house was sold off in 1977. It is a small one and a half storey dwelling set into the wall at the extreme north-west corner at the “back” of the site, with adjacent garaging. The original house has been substantially altered over the years particularly by the development of the attic areas. A small garden area has been separated from the main Glendarroch site using panel fencing.

[17] The second substantial villa to be built on the site is Dunmail. Dunmail is of inter-war design with adjacent garage located around a third of the depth of the site from the southern boundary and a little to the west of the centre line of the plot which today extends to about 1.1 acres. To the north, the west-most third of the boundary is a substantial stone wall through which access to the site is provided via automatic gates. The remainder of the boundary, which is shared with the Silverdale site which was carved out from the original Dunmail grounds, is in part slatted fencing and in part a combination of solid panel fencing topped by a substantial coniferous hedge.

[18] To the east is a dwarf stone wall together with a mixture of deciduous and coniferous trees close by which create a screen from adjacent properties in the grounds of Birchwood. To the south, beyond a large lawn area with a modest slope, a rather steeper bank with a mixture of shrubs, conifers and deciduous trees creates a barrier between the Dunmail garden and the path and cycleway beyond, which is not readily visible. On the western side the boundary with Glendarroch is a beech hedge. As mentioned earlier, within the Dunmail site along the southern third of that boundary and around three metres from the hedge are mature deciduous trees. Parallel with the northernmost third of the beech hedge is a lofty coniferous hedge that screens both Dunmail and Silverdale from the Glendarroch tennis court and from being overlooked by some of the properties on the north side of South Avenue. Further trees within the site north of the house serve to provide an element of compartmentalisation.

[19] Dunmail, even without the area given over to Silverdale, retains sizeable grounds, which together with the tree, shrub and hedge cover gives a sense of space and privacy.

[20] Silverdale, a fairly typical villa of its time, is built on a site extending to a fifth of an acre that was sold off by the owners of Dunmail in 1981. The house lacks the spaciousness on its plot that is provided by the grounds of Glendarroch and Dunmail. The entrance to the house faces north and the boundary is an eight foot high stone wall. The view to the south at ground level is of a solid panel fence and a large coniferous hedge at close quarters and at first floor level the outlook is also restricted to hedge and trees. To the west a low slatted fence allows an open outlook over the entrance drive to Dunmail and the coniferous hedge beyond. On the east side the boundary is a garage building that is in part owned by the proprietors of Dunmail. From the first floor windows of Silverdale looking north the view is of the flats, houses and other buildings on South Avenue.

[21] The house at 41 Deeview Road South is a substantial detached Victorian villa and those at 43 and 45 are large semi-detached houses forming part of a street that is largely contemporaneous with Glendarroch. The north side of the road is wholly taken up by the former railway line and the combination of the slope of the hillside, scrub trees in the bank, the trees within the Glendarroch and Dunmail grounds effectively screen the properties from each other. The Deeview Road South properties sit at the rear of their sloping gardens and benefit from a view over the Dee.

[22] Development proposals for the Dunmail site have included a planning application in 1985 when the inquiry Reporter did not support a development of fourteen or sixteen flats. More recently the respondent has indicated that he has entered into conditional missives with the builders Cala for the sale of the site. A Cala indicative plan suggests the demolition of Dunmail and the construction of four two storey 4/5 bedroom villas, with garages, two of which are on two storeys.

[23] Such development would be barely visible from the properties in Deeview Road South.

[24] So far as Silverdale is concerned, this indicative plan would remove the heavy screening that exists at present and replace it with the gable end of a large villa at a distance of no more than eight metres or thereabouts from the lounge windows. In addition, there would be some increase in the volume of traffic entering and leaving the redeveloped Dunmail site and general activity within the site would also likely increase.

[25] So far as Glendarroch is concerned, the plan would place a substantial, largely ‘dead’ gable close to the boundary which would be readily visible from the kitchen and east lounge areas of the house as well as from the eastern half of the garden.

Parties’ Submissions

[26] The applicants’ position, summarised, is that the original purpose of the title condition was to limit housing density, so as to safeguard the tranquil residential character of any development and preserve a standard of residential amenity in a rural setting without noise or light intrusion and protect the open outlook and views from the properties. The character of the housing contributed significantly to the substantial benefit enjoyed by the benefited proprietors. It was accepted that there had been some change in the surrounding area, but the “immediate circumstances” remained substantially the same. Glendarroch had been maintained and enhanced to blend in with its environment. Under reference to the development between South Avenue and Deeview Road South and on the south side of Deeview Road South, it was submitted that a community of dwellinghouses had developed in accordance with a consistent scheme of development. The applicants benefitted from the open outlook and views; the lack of over-bearing gables; mature trees; an absence of noise and light pollution; and inclusion in the property community enjoying these advantages. As to the extent of the impediment from the burden, it was suggested that the respondents were not necessarily impeded because they might be able to sell their property for a substantial sum for demolition of Dunmail and its replacement by one house. The passage of time since creation of the burden favoured variation retaining the spirit of the original purpose. It was suggested that the original title to Birchwood was similar. Reference was also made to a similar burden in the 1879 feu grant of the plot of 43 Deeview House. Although the respondent had now indicated his development intentions, the applicants still feared over-development: this made variation, rather than discharge, appropriate. The value of Glendarroch would be affected by the respondent’s proposed development, although the possibility of a favourable effect on its site value was acknowledged. The value of Silverdale would be reduced. The respondent’s indicative plan involved removing mature trees. It also did not show the extension of Silverdale. It showed new houses without blank gables overlooking principal rooms.

[27] In response to the respondent’s final position accepting variation so as to permit up to 6 houses, the applicants indicated that the access area and the mature trees limited the area available for development; there would be difficulty in accommodating garages; two pairs of semi-detached houses represented over-development; and a terraced development would not leave room for garages and would be out of keeping. The site was therefore only suitable for development of two villas. The applicants’ final submission was for a variation as follows:-

“The Site of Dunmail may be sub-divided into two N-S aligned plots with a shared access to South Avenue. One southerly facing villa may be built on each plot, such that gables face each other and are in line with the gables of Glendarroch and Birchwood. Only one single height or integral garage may be constructed on each site, and these should be located to minimize visual impact on Glendarroch, Silverdale and Birchwood. If Dunmail is replaced by a single Villa then this should be no greater than 2-storey located on the footprint of Dunmail, or in line with Glendarroch and Birchwood with provision for a single storey garage.”

[28] The respondent’s position, in summary, was that his proposed development would not have any great adverse impact on the applicants, and, in balancing benefit against burden, the applicants would have the benefit of the planning position to control development. The onus was on the applicants to satisfy the Tribunal that it was reasonable to grant their application and in all the circumstances it was reasonable to refuse. After referring to his intentions in relation to development of the site, and to the approach to be taken by the Tribunal, the respondent addressed the factors listed in Section 100 of the Act, in summary as follows. On (f), while agreeing that the purpose was to restrict the number of houses and limit occupation to residential, the purpose was not to protect the individual proprietors on whom no right to enforce was conferred. Nor was there any particular restriction. This was the type of early planning control commonly exercised in the past by superiors, in order to protect their interests, and no longer of any effect. The permitted number of dwellings had been exceeded. The standard imposed was out of date. On (a), there were a number of changes at and in the area surrounding the properties. The number of permitted houses had been exceeded. Proprietors who had never been envisaged had become benefited. Works at Glendarroch and Silverdale had demonstrated use of planning, rather than superior’s, control. Control by superiors had been superseded. There was no suggestion that neighbouring proprietors had been entitled to enforce the burden before 2004. On (b) the benefit of the burden had been superseded by development control. There was no restriction of location, size, etc of building. The burden did not protect against light or noise pollution. It did not maintain the “tranquil domestic character”, etc. On (c), the burden restricted the respondent’s ability to re-develop and further sub-divide, in accordance with their intentions, which were consistent with preserving the general amenity: weight should be given to that. On (e), the age of the burden, significantly above the threshold for the ‘Sunset Rule’, was all the more significant because of the changes in the area. Many of the prohibitions, e.g. of manufacturing, etc., were no longer of any relevance. Factor (g), it was submitted, was neutral. On (h), compensation was not appropriate, having regard to the nature of the burden. A number of points were made under (j), any other material factor. Current development controls meant that the benefits listed by the applicants would be taken into account. The applicants’ fears about multi-storey development were unfounded and, again, would be relevant in the planning process. There was no specific protection of privacy or imposition of uniformity of design. Any development by the builders, Cala, would be in keeping with the area. There was no evidence of any impact on marketability or market value.

[29] Finally, the respondent indicated that he would be willing to accept a variation, producing some consistency with government guidelines on development, as administered by the planning authority and in accordance with the Aberdeen Local Development Plan, as follows:-

“The burdened property [Dunmail] may only be used for the erection of not more than 6 detached, semi-detached or terraced dwellinghouses, together with garages and other ancillary buildings, garden and amenity ground, roads and footpaths and for no other purposes whatsoever”.

[30] The parties had competing accounts of communications which had taken place between Mr Cook (co-proprietor of Glendarroch) and the respondent in connection with the latter’s intentions.

Tribunal’s Consideration

[31] No particular issue has been raised in submissions about the general approach to the exercise of our jurisdiction. An application such as this is, as it were, the other way round, i.e. it is the benefited proprietor who requires to apply to the Tribunal to prevent a termination from taking effect, rather than the burdened proprietor applying for discharge or variation as in the more normal case. The principles are, however, the same, except that in this case the onus of satisfying us on the issue of reasonableness is on the benefited proprietors. The issue is not simply the general reasonableness of development by the respondent but reasonableness in the context of this burden: whether, and if so, to what extent, it is reasonable, on a consideration of the list of factors set out in Section 100, to retain it for the applicants’ benefit. We have to consider the various matters referred to in relation to those factors. We do not, as it were, consider who wins and who loses under each factor, but rather weigh matters up on an overall balance of reasonableness. Our consideration has to be objective, from the standpoint of reasonable proprietors, so that particular personal factors have no application if they do not reflect the approach of a hypothetical reasonable owner. Other decisions can help to illustrate the approach to some situations, but each case depends very much on its own circumstances. Site inspection plays a large part in our consideration.

[32] We should first note the position about the status of these burdens. All the relevant titles have not been produced and neither side has put forward any deep analysis of the validity and enforceability of the burdens. It is a fair point that the onus is on the applicants to set up title and they have not really addressed the legal analysis, but the respondent’s position does make clear his acceptance that at least the owners of Glendarroch and Silverdale have title to enforce. The respondent appears to suggest (at Para 3.20 of his written submissions) that these proprietors might not have had any right before November 2004, when the 2003 Act took effect, to enforce the burdens. He expressly submits that the owners of Birchwood House do not have such title, but makes no mention of the applicants whose properties are situated in Deeview Road South.

[33] Whether or not he had such title before 2004, the respondent’s concession in effect involves acceptance at least that the Parliament has, in the course of its reform of this area of law, provided for the owners of Glendarroch and Silverdale to have title to enforce. That is of course subject to the Tribunal’s jurisdiction, and the issue of reasonableness raises issues about the appropriateness in the particular circumstances of retaining these old burdens which were originally expressed simply as feudal burdens.

[34] In the absence of fuller submissions, and without sight of the subsequent titles, it appears to us that under the previous law there was no contrary indication, such as reservation of a power to waive, in the Feu Charter, so that the subsequent sub-divisions probably did produce, apparently by implication, mutually enforceable community burdens. Presumably the respondent’s concession of continuing effect is based on Section 52 of the 2003 Act.

[35] As far as the applicants who are owners of flats at Birchwood House are concerned (and the applicant who owns Birchlea would appear to be in a similar position), the applicants’ implicit suggestion is that there were similar feuing conditions, essentially limiting the number of houses on that adjoining plot also to 3, implying a ius quaesitum tertio in their favour also, again remaining enforceable under section 52. However, in the face of the respondent’s denial of this position, the applicants have not vouched this and we do not consider that this position, which by no means follows automatically, has been established. Without establishing that they are legally benefited proprietors under this burden, they have no title to oppose its termination.

[36] As far as the applicants who are owners of three houses in Deeview Road South are concerned, we do not regard their position as of any material significance. The applicants have referred to the expression of a similar but not identical Feu Charter, said to be typical of the original feu grants of these plots. We have reservations as to whether there could be said to be an enforceable common scheme involving both these properties and the properties built on the 1876 feu, and again do not consider that to have been established. In any event, however, it seems to us that the case in favour of these owners keeping any benefit of the 1876 burdens over the plot, substantially screened by trees, on the other side of the road, banks and former railway line does not in our view begin to get off the ground on a test of reasonableness. The natural aspect of their houses is in the opposite, southerly, direction, and the impact on them of likely development at the subjects of this application appeared to us minimal or less.

[37] So we are considering the interests of the applicants who are owners of Glendarroch and Silverdale under real burdens which, as matters stand, they are entitled to enforce.

[38] There is also a question as to whether, and to what extent, the burden may have been breached. There are two suggested types of breach. Firstly, it is the case that there are 4 separate houses on the original plot. The applicants first conceded that this was a breach, but then moved to a suggestion that as Glendarroch Cottage is known to have been occupied by 1881 and may have been built on the back part of the ground, the number of houses specified may not have been exceeded. We make two points on this. Firstly, although it may, at least now, exceed the original permitted height of ancillary buildings, Glendarroch Cottage does seem to us probably to have complied with the stipulation in relation to ancillary buildings in the back ground. If that is right, the building of Silverdale, the last of the four houses, would not be a breach. There is no prohibition of sub-division. Secondly, even if the number of houses does exceed the permitted level, we do not think that there has, as a matter of reasonableness, been any significant breach, because Glendarroch Cottage clearly has the character of a small lodge/stables/gardener’s cottage type of building which has had no significant impact on density. Generally, it seems to us that this large feu has been developed, and remained, in line with the burden, i.e. with three substantial dwellinghouses plus ancillary buildings.

[39] The other type of breach or non-observance suggested by the respondent is a variety of works involving extension, erection of a conservatory, etc., at various dates between 1995 and 2009. The suggestion is that these may have involved failure to submit plans for the superior’s approval. We can, however, see nothing in the burdens which required the superior’s approval for extensions. Nor, again, would we attach any significance to that in the issue of reasonableness.

[40] On a proper reading of this burden, the building of the second and third houses, by contrast with the building of the first house, Glendarroch, did not in our view require any submission of plans for approval. We say that because the declaration of entitlement to build not more than two other dwellinghouses appears to be separate from the declaration in relation to “any other buildings”, so that the requirement to submit plans and elevations in relation to “such buildings” does not apply to the two further dwellinghouses. In other words, the owner of the original Glendarroch site had carte blanche to build no more than two more houses on the feu or sell the plots for such building. When sub-dividing, he might have imposed further burdens for the benefit of the retained plot, but there is no reference to any such burdens in this case. We regard this as significant: even when there was a superior, this burden which is accepted to be a mutual burden did not in any way control the location, size or design of the additional two houses. They had to be dwellinghouses, thus, as the applicants say, imposing a residential character; and they were limited to two in number. That is as far as it went. There was and is nothing in the burden to prevent the demolition of Dunmail or Silverdale and replacement by one dwellinghouse of whatever size in whatever location on the site. Assessment of the extent of benefit to the owners of Glendarroch and Silverdale from this burden must keep that in mind. We agree with the respondent’s submission at Para 3.41 in this respect. However, the choice of location for Glendarroch ensured the possibility of a division of the site that would retain substantial grounds for Glendarroch while providing a large site for an additional house or houses.

[41] There is a general issue as to whether this density provision in the private title should be retained. The respondent still primarily seeks discharge, and although they would now, alternatively, accept a variation allowing further houses on their property, this submission is expressed on the basis of bringing the position into line with planning guidelines. Effectively, therefore, he is still saying that the private title condition should no longer have any effect so as to prevent development for which he might obtain planning consent.

[42] We accept that the entirely different context of nineteenth-century planning control in the course of feuing out land is a relevant factor. However, insofar as the respondent argues that this title condition has simply been “superseded” by modern development control, we reject that submission. It is not the law that, as the respondent submitted, “planning control is now a matter for the planning authority rather than private contract”: real burdens, in effect private planning control, may be more restrictive than public planning control and remain valid. It may, or it may not, be reasonable to retain them.

[43] The age of the burden is of course another relevant factor, although the mere fact that it is more than the 100 years’ threshold for the ‘Sunset Rule’ to apply does not necessarily have any effect beyond transferring the onus onto the benefited proprietor when, as in this case, the burdened proprietor has served a notice of termination.

[44] It is often appropriate to start specific consideration of the factors set out in Section 100 at factor (f), the purpose of the title condition. In general, the purpose of this burden was to control the type and density of development on the site. It secured the building and subsequent maintenance of one substantial villa in accordance with plans approved on the superior’s behalf; restricted further development of the site to residential, limited to two more houses; and permitted limited ancillary buildings, in the language of the day “stables and coach houses and other offices”, subject in that case to approval of plans. It might perhaps seem surprising that the superior did not retain control of the location, design, etc., of the further two houses, but such a purpose cannot in our view be implied on the wording of this burden. Nor can we find any purpose of preserving views or any other specific amenity. However, the burden does imply the provision on this substantial site of spacious general residential amenity. This would clearly be primarily at least in the interests of the superior. There is no indication of any particular purpose of benefiting either the owner of the original villa or the owners of the other two houses which might be built. Insofar as a purpose of preserving the amenity of surrounding land may be inferred (as opposed, perhaps, to a purpose of securing a financial stake in any additional development), it is correct to categorise this as an early form of planning control which is now generally achieved by statutory public planning control.

[45] In relation to factor (a), there has obviously been a lot of change in this locality since 1876. The 1868 map shows some building to the west, including, in the adjoining plot, an endowed school, a railway line to the south (apparently closed in 1966, since when it has been a footpath), but otherwise mainly open fields. The position now is clearly very different. The area is part of the extensively developed village of Cults, now a residential suburb of Aberdeen. The applicants suggest that the development round about has followed a consistent scheme under which the same landowner feued out a number of plots, securing the spacious residential amenity. That appears to be the position on the adjoining site to the east and on what became the south side of Deeview Road South, but it is far from the position to the north or on the adjoining property to the west, where the school building has recently given way to a large sheltered housing scheme. So the position in relation to that suggestion is mixed. More generally, of course, there is no longer a superior, and planning control now takes a very different form, but these changes are not specifically relevant to these burdens.

[46] However, development on the site (and apparently also on the adjoining site to the east) has been entirely or at least substantially as envisaged in the burden. We do not attach any significance, in the reasonableness of maintaining the density provision, to the building works and extensions at Glendarroch and Silverdale. The building restriction has substantially held. The residential amenity at the subjects themselves remains high and in line with the burden. Glendarroch, in particular, with extensive garden space and trees limiting the visual intrusion on the west and north sides, retains a very fine setting.

[47] In relation to (b), the extent of benefit, we do not accept the respondent’s contention that the applicants enjoy the benefit of modern planning control in place of this burden. The question is the extent of benefit which the title condition, not public planning, confers. On the basis that it remains valid and mutually enforceable, this burden gives the applicants control over density of development of the Dunmail site. Even if, as here, there is no evidence of any effect on the values of the benefited properties, this is a significant benefit. On a reasonable view (as opposed to theoretical possibilities), prohibition of more than one house on the Dunmail site may be expected to prevent substantial intrusion on the general amenity of the very fine setting of Glendarroch and, although in a slightly different way, the setting of Silverdale. To this extent, this benefits these two properties. This of course overlaps the right to object to planning applications and would be of no significant benefit if it only prevented development for which planning consent could not be imagined (as, for example, the prohibition of manufacturing, etc., also expressed in the Feu Charter and clearly ripe for termination under the notice). The respondent may be right in suggesting that substantial flatted development might not at present get planning consent, but in our view neither that, nor the extent of housing which the planners might allow, can be taken as certain, now or in the future. Screening on this side of Glendarroch is, presently at least, fairly limited. Owners of Glendarroch and Silverdale can (at least if they satisfy the test, in the particular case, of interest to enforce) block any extensive residential development by enforcing the burden rather than having to take their chances in any planning dispute. Any prospective purchasers would also take comfort from it. Without this burden, there would be an unwelcome uncertainty.

[48] The applicants have, however, overstated the benefit. As already noted, if the Dunmail owners choose to demolish and replace with one dwellinghouse, that could, as far as the burden goes, be located and designed as they choose. The burden gives no right to light, view, or any other specific amenity. It does not prohibit a single house which might be closer and less sightly than Dunmail. Intrusion by development on the Dunmail side would in any event only affect one part of the setting of Glendarroch. A “mock-up” photograph produced by the applicants, super-imposing the gable of a new house on the boundary, gave a helpful indication of their fears, but it did only show the position from the nearest window, in the kitchen, from which a (side) view of this would be gained. It also assumed (which seems highly unlikely) that the planners would allow several mature trees to be felled. The further back the viewer, and/or the new house, the more the intrusion diminishes. There are no substantial views on that side from upstairs in Glendarroch. The effect on the main part of Glendarroch’s large and attractive front garden would be limited. The predominant southerly aspect would really not be affected. The burden does not protect Silverdale from the extensive planting of evergreen trees which currently shade their site, although a two storey house built right to their boundary, as shown on the indicative plan, would have a significant effect. Silverdale does not share a driveway with Dunmail, so traffic intrusion would be limited, but the more the houses, the greater the intrusion in Silverdale’s general amenity.

[49] In relation to (c), we accept the respondent’s submission that the burden impedes enjoyment of their property to a significant degree, by restricting their ability to re-develop and further sub-divide, where they have a site which can clearly accommodate more houses and there appears to be little doubt that at least some further residential development would get planning consent. The existence of their conditional missives with a prominent developer of quality housing, the indicative plan and the reference to the Development Plan, make that clear. Indeed, the applicants do not suggest otherwise. We attach no weight to the applicants’ reference to the possibility of sale of the Dunmail site with a view to demolition of the existing house and its replacement by another, for two reasons. Firstly, the suggestion that as much money might be realised this way was completely unvouched. Secondly, in any event, unburdened owners are free to develop in any reasonable way they choose: the burden prevents that.

[50] Factor (d) has no application. Factor (e), the age of the burden, mirrors (a) to an extent, but can introduce wider, more general, considerations. This burden was clearly created in a very different era, under a system of planning which has gone and, for example, when views in the more expensive part of the housing market about the size of gardens was quite different. This does, however, have to be placed in the balance alongside the fact that this burden has substantially held and is of some continuing benefit.

[51] In relation to (g), as there is no planning consent, this does not add to the reasonableness of the respondents’ position. However, that is not a consideration of much weight in this case because, as we have noted, it is anyway not really in doubt that planning consent for some further residential development is likely.

[52] Factor (g) is, in this case, neutral. No issue has been raised about compensation.

[53] We think that such matters as have been raised under reference to (j), any other factor considered material, have really already been noted under the other headings. The one additional matter which might be mentioned in this case is the applicants’ state of uncertainty as to the respondent’s intention. Not having heard oral evidence, we are not in a position to form a view as to exactly what has been said in communications between the parties. However, it is clear that in addition to the general uncertainty which an owner or prospective purchaser of either Glendarroch or Silverdale might feel about such a substantial site (the same of course might be said by an owner of Dunmail, in relation to Glendarroch), that there is here an actual indication of an intention to develop coupled with a (no doubt understandable) unwillingness to be tied down by any particular proposal. Discharging the burden, or even varying it to the extent of permitting any substantial number of houses, would leave more uncertainty than renewing it or varying to permit a smaller number of houses.

[54] Drawing all these considerations together, we are firstly of the clear view that this burden should not simply be discharged. Despite its age and the extent of change which has taken place in the vicinity, it is not in our view by any means obsolete. The density of development permitted on this feu in 1876 has not, or certainly not significantly, been exceeded. The applicants’ concern at the possibility of large-scale development, such as flatted development, is reasonable even if that might not be an immediate prospect. If varied rather than renewed, the burden can still offer a useful, and reasonable, measure of protection. It is capable of being varied so as to permit some limited further residential development.

[55] We think that the applicants may be taken as having departed from their original wish for simple renewal, and in any event, considering all the statutory factors, we would not hold that reasonable as we agree with the view, on both sides, that at least some further development is reasonable.

[56] This brings us to the terms of variation. The principal issue is the number of houses permitted on the Dunmail site, although we are also asked to consider some further restriction, i.e. to increase the number of permitted houses only on the basis of some further limitation, particularly in relation to their location. We have kept all the factors in mind, but particularly the purpose of the burden, its age, the extent of change which has taken place (albeit only, to any significant degree, outside the subjects), and our assessment of the extent of benefit to the applicants and impediment on the respondent, arising from the burden, all as discussed.

[57] All that leads us to two overall views. Firstly, despite the fact that the burden does not have any specific provision about location of the permitted houses, if we are allowing an increase, we can properly consider imposing minimum distances from the boundaries with Glendarroch and Silverdale, because the likelihood of building close to the boundary increases with the number of houses and the intrusive effect of building increases with such proximity. We do think that at least two storey buildings at or beside the boundaries with Glendarroch and Silverdale would be likely to affect the neighbouring properties in a significant way and it would be reasonable on a consideration of all the relevant factors to provide some protection from that.

[58] Secondly, however, as we have already indicated in our consideration of factor (c), generally it is not for the applicants who have the benefit of this title condition to go further and dictate to the respondent who owns the subjects the type and layout of any development. This is particularly so in this case because the burdens did not confer any such right of control. It is reasonable to limit further development, but not to stipulate its form.

[59] We have reached the view, having regard to the extent of change which has occurred and to the particular situations which we saw at the two boundaries at this location, that a limitation to 4 detached, semi-detached or terraced dwellinghouses, together with the imposition of strips, 10 metres wide at the boundary with Glendarroch and 5 metres wide at the boundary with Silverdale, within which areas building should be restricted to single storey, provides reasonable protection to the two owners benefited under the burden. This is a large site, on which a degree of protection by planners in relation to existing trees may be anticipated. We think that, with the protected strips, more than two houses could be built consistently with the general amenity which the burdens sought to secure. We would be inclined to think that three houses, a density broadly similar to that of the Silverdale site if the entrance area is excluded, might be an appropriate number. However, as a matter of reasonableness in relation to the burden, we feel that the respondent should have the opportunity of deciding to build up to four. The indicative plan showing four houses would require some modification to take the houses (but not single storey garages) outside the protected strips, but that may be thought feasible. As regards more than four houses, we consider that that would be likely to impose an unreasonable degree of physical intrusion as well as having an unreasonable impact on the scale and character of the housing. Further, the increased traffic and movement would, in our view, again having regard to the burden, amount to an unreasonable intrusion, particularly in relation to Silverdale which, essentially, shares the same site if not the same driveway.

[60] We have considered the limitation to two storeys, and on the footprint, proposed by the applicants in the event of replacement of Dunmail with only one house. That would be an increase in the existing burden and appears to us out of the question.

[61] The respondent will now be required, in order to enable the Tribunal’s formal variation Order to be prepared, to provide a plan of the Dunmail subjects, suitable for registration, showing the 10 metre strip on their western boundary and the 5 metre strip following the lines of their boundary with Silverdale.

[62] Any issue in relation to the expenses of this application can be disposed of on the basis of written submissions. Parties might feel that there has, in this case, been fairly evenly divided success making an award of expenses in favour of either inappropriate, but any submissions will be considered by the Tribunal. Reference may be made to section 103(1) of the Act in this regard.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 20 December 2013

Neil M Tainsh – Clerk to the Tribunal