OPINION

David Sinton and another v Philip Lloyd and another

[1] This is an application under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003. Mr and Mrs Sinton, the applicants, seek discharge or variation of a title condition which prevents the building or use of a mews house at the foot of their garden. Mr and Mrs Lloyd, the respondents, are immediate neighbours and oppose the application. The respondents have no objection to a mews house per se, but contend that the building proposed is too large in depth and will adversely affect the amenity of their property.

[2] At the hearing in Edinburgh on 15 April 2014 the applicants were represented by Mr Bruce McCombie, solicitor. Mr Lloyd represented himself and his wife. Evidence for the applicants was given by Mr Sinton himself, Mr Lorne Macneal, architect, and Mr Daryl Teague whose evidence was given by affidavit. Mr Lloyd gave evidence. We visited the site on 15 April. We were able to conclude the proceedings in a single day largely due to the fact the applicants had produced advance copy witness statements, parties had agreed an extensive joint minute and agreed a transcript of the handwritten title deed in issue. The proceedings were conducted in an amicable atmosphere.

Statutory material

[3] Title Conditions (Scotland) Act 2003: Except where otherwise specified, all references below are to provisions of the 2003 Act.

Authorities

1. Anderson v Dickie 1914 SC 706
2. Ewing v Campbell and another (1877) 5R 230
3. West Coast Property Developments Limited v Clarke & Others LTS/TC/2005/21, 28.6.2006
4. Gallacher v Wood LTS/TC/2007/02, 22.8.2007
5. Franklin v Lawson LTS/TC/2012/23, 23.5.2013

Title Condition

[4] The title condition in question was created in a feu charter between, amongst others, the Governors of Heriots Hospital and George Veitch, itself recorded by Instrument of Sasine recorded 24 August 1813. The deed refers to various building restrictions, including a restriction in height of the dwellinghouse and pertinents to 46 feet. The deed refers to a “ground plan” and states:-

“That the ground marked stable ground shall be applied to no other purpose than for stables and coaches or washing houses or other offices for the use of the occupiers of the front tenements,”

[5] The ground plan would not have been kept by the Register of Sasines at that time, and neither it nor any duplicate has been found. The deed later refers to the plan in the context of “other feuars of the ground delineated on the said plan belonging to said hospital” and others. It is therefore probable that the plan was referring to a wider area than simply the feu in question.

[6] It was assumed for the purposes of the application, that the respondents were benefited proprietors in terms of section 52 and/or section 53 of the 2003 Act.

Background facts

[7] The applicants and respondents own flats at 70 and 72 Great King Street, Edinburgh respectively. They are next door to each other. Number 70 is a main door flat. Each flat contains a ground and basement flat from the front and a further garden floor to the rear. The properties generally slope downwards to the rear to the north. Originally 70 and 72 Great King Street were town houses each consisting of a whole tenement. They have subsequently been converted so that there are flats above in separate ownership. South West Cumberland Street Lane is at the rear, to the north of the properties. Each flat has a back garden which connects to the lane.

[8] The garden ground including the “stable ground” between the main buildings and lane is about 28 metres in depth. The area at the foot of the applicants’ garden at number 70 consists of a car park. It is separated from the garden by a gate and a wall. It is in this area where the applicants propose to build a mews house, and, in general terms at least, can be said to be the area subject to the title condition.

[9] At the foot of the respondents’ garden at number 72 there is a large wooden shed. There is also a parking area. The gardens are separated by a high stone wall.

[10] Great King Street lies in the heart of Edinburgh’s New Town. The street itself is wide and the buildings are formal and imposing. They are category A listed, lying within the New Town Conservation Area and are part of a World Heritage Site. It would appear that 70 Great King Street was built at some point between 1814 and 1823. Cumberland Street was completed around or after 1817.

[11] Mr Macneal, the applicants’ architect, has significant experience in New Town developments and has a working knowledge of the area’s history. He explained that when the original feus were sold to builders, the intending purchasers would agree what would be built on the mews area in a bespoke fashion. Depending upon the wealth and requirements of the first owners, they would order the construction of stables, coach houses and other offices, or none at all. Thus, as can be seen, the frontage of streets like Great King Street are laid out with uniformity, whereas the back lanes are not.

The issue

[12] The proposal is in conjunction with a similar proposal for 68 Great King Street so in effect there would be adjoining twin mews houses at the foot of the gardens of both numbers 68 and 70. An equivalent title restriction for number 68 was discharged by the Lands Tribunal, unopposed, on 28th December 2012. The heart of the dispute is the depth of the new building, that is the dimension of the proposed mews house from the lane towards the main tenement. The proposed depth in each case is 10 metres. There is a proposed 8 metre ridge height and width of 8.5 meters. Planning permission for the two dwellings was granted on 12 November 2010 and listed building consent was granted on 8 March 2011. Each of the proposed houses has three floors including a ground floor for vehicles and other accommodation. There is a first floor and attic floor. Each also has a proposed garden which would extend into the existing gardens of the main tenements. The design of each includes separate garages in which one garage is accessed by the occupier of the mews house and the other is accessed by the main tenement via a pend.

[13] The planning process was controversial in that there was a significant number of objections. According to the documents produced to us it would appear that the planning application required to be determined by committee. The respondents had objected. They made the point that the proposal contravened the planning authority’s own guidelines on mews properties in conservation areas. The guidelines are to the effect that new mews properties should have a maximum depth of 6 metres, and only in certain circumstances not applicable here may they be extended to 8 metres. It was argued their amenity would be adversely affected by a building in excess of 6 or 8 metres in depth. It would affect their privacy, outlook and light.

[14] The respondents had no objection to a more modestly sized mews house or to the occupation of such a house separate from the main tenement. We think this concession was inevitable given the balance of factors under section 100, which we address below. However they sought to uphold the restriction inasmuch as it prevented a larger building as was being proposed. The respondents argued that on balance of probability the stable ground marked on the missing plan would have permitted a building of not more than 6 metres in depth. This was said to be implied from (1) other plans of the New Town dated 1804 and 1830 showing a uniformity of blocks of mews property, (2) the fact earlier examples of mews buildings in the lane were of a depth of 6 metres or so and (3) this depth was recognised as the starting point in the guidelines of the planning authority for the construction of mews houses. The type of building envisaged by the title condition would have been of modest size.

Tribunal’s consideration

[15] We think the absence of the plan marking the “stable ground” creates significant difficulties in this case, and that these difficulties tend to impact more upon the respondents’ position. In the first place, we do not think it follows that “stable ground” would necessarily be restricted to, for example, stable buildings themselves. The respondents accepted it would not be unreasonable to expect an adjacent stable yard existing in the same area, and not otherwise built upon. So “stable ground” was not necessarily intended to reflect the size of a particular building or buildings.

[16] More fundamentally, in West Coast Properties v Clarke at page 18 the Tribunal said:-

“…we should stress that what is under consideration is such burden as these title conditions provide, not any more general obligation not to develop one’s property so as to disturb the amenity of neighbours. No such burden exists, a fundamental point…”

[17] This is consistent with well-established authority to the effect that the law requires a burden to be ascertained without travelling beyond the four corners of the titles, and that a burden is not to be lightly inferred: Anderson v Dickie Lord Guthrie at 717 and Ewing v Campbells Lord Shand at 236.

[18] Therefore, one should not be left in a position of seeking to imply that the plan provided for a specific restricted area regarding depth of building. One of the four corners of the deed is missing, so in practice it would be impractical to seek to enforce the purported restriction. All that can be said is there is a restricted area, which would affect part or all of the development, but we cannot say how large the area is. But the difficulty does not end there. If the plan did restrict an area of only approximately 6 metres in depth, it does not follow that the additional 4 metres would be built on a burdened area. It is no doubt correct to say that the Instrument of Sasine did not envisage buildings on the feu between the main tenement and stable ground. Be that as it may, we can find no words in the deed which actually restrict building on the garden between the house and stable ground. In the light of the above authorities, we do not think we can readily imply such words. Unlike the provisions regarding the main building, there are no words limiting the size of the building on the stable ground or beyond.

[19] For these reasons we think it doubtful it can be maintained that the title condition succeeds in restricting a building depth to any particular size, as opposed to restricting particular types of building or uses. This is a factor which influences our consideration of the factors under section 100. We should point out that in reaching this conclusion we did not resort to the application of the presumption in favour of freedom in interpreting the deed. We did not hear arguments as to whether section 14 impacts upon this presumption, and no authority was cited on the matter. We therefore reserve our opinion on this point.

[20] We now turn to the factors mentioned in section 100.

[21] (a) We think the neighbourhood can be regarded as the New Town in general and South-West Cumberland Street Lane, which proceeds from two points along Cumberland Street in particular. Suffice to say there are no stables, coach houses or washing houses still in use. Numbers 70 and 72 Great King Street are no longer whole tenements but are flatted. The same is the case for a number of other properties along Great King Street and indeed elsewhere in the New Town. There are mews houses in the lane of different construction. Most if not all appear to be in separate occupation from the tenements. Most, but not all include garages. In all there are six mews houses and two separate lock-up garages. The other Great King Street properties without mews houses to the rear consist of garden and/or private parking areas. Of the mews houses two are “traditional” built behind 74 and 78 Great King Street respectively. They have a depth of about 6 metres. There are two recently built mews houses apparently of a depth of 9.95 metres behind numbers 56/58. Of the other two, one behind number 52 appears to have a traditional gable of about 6 metres. Next to it, behind number 54, is a mews house which is said to have been historical but recently refurbished. Its gable appears larger than 6 metres but we are unable to say whether that is a traditional feature. The pattern of building on the lane is irregular.

[21] In addition, planning permission and listed building consent exist for the development of mews houses to the rear of numbers 60 and 62, whose depths, we understand, will also be 10 metres. As stated above planning permission similarly exists for numbers 68 and 70; and the equivalent title restriction for number 68 has been discharged. The new owner of number 68 Mr Teague indicates that he intends to commence development shortly. In 1986 the superiors for number 70 discharged the condition in question, but without prejudice to the interests of other parties.

[22] We therefore conclude that the lane has significantly changed in character since the title condition was created. A significant number of independent mews dwellings have come into existence and more are planned. As we discuss below, the lane was originally envisaged to contain only ancillary uses and buildings to the main houses. Now a significant proportion of the lane is fronted by dwellinghouses in separate occupation. A significant number of the main tenements are now flatted thus further increasing the separate number of occupations on the street. The proposal creating a further separate residence is broadly consistent with the changes which have taken place.

[23] (b) As matters stand, the title condition largely prevents any form of practical development on the “stable ground,” wherever that may extend. This benefits number 72 in that no practical building adjacent to its garden is permitted. Thus, in relation to the “stable ground” at least, there can be no serious question of overlooking or loss of privacy, outlook or light. Despite the garden of number 72 being overlooked more or less from four sides of tenement buildings, and a mews house at number 74, the garden ground perhaps surprisingly had a secluded feel about it. We felt this was in no small measure due to the relatively high stone walls, and the amount of surrounding vegetation and trees including two large conifers in the garden of number 70. These conifers are to be removed as part of the development.

[24] As mentioned above we regard the concession in principle that a mews house of some type ought to be permitted as inevitable. In the light of the other arguments presented to us it is necessary to consider the benefit to be obtained from preventing a mews house of 10 metres in depth as opposed to a lesser amount such as 6 metres which it was contended ought to be the restriction.

[25] With this in mind the title condition does not, of course, protect the trees at number 70. We were given no reason to think that the same trees could not also be removed as part of a 6 metre development. Therefore we cannot accept the sense of seclusion offered by those trees to be dependent upon the title condition. The respondents’ garden is north facing and the applicants’ development is to the immediate east. The respondents’ garden is not exposed to direct sunlight in the winter. At the time of the hearing (April) it will receive a little sun at the foot of the garden in the early morning, prior to sunlight catching on the conifers. It was pointed out that the size of the development would have little effect on direct sunlight and, would only increase sunlight with the removal of the trees. The sense of overlooking from rear windows, obliquely, from the mews house will increase by up to 4 metres. Subjectively, from the point of view of the respondents, the foregoing adds up to considerable adverse impact, not least as they have lived at the property for 30 years with its present outlook. However we are required to take an objective view and we have to conclude that the increased impact upon amenity is decidedly limited. Given the high amenity area of the New Town we do not say the impact would be negligible. But the weight which we give to this factor also requires to be seen in the light of our comments at (f).

[26] (c) The condition as it stands prevents any form of likely development on the stable ground at number 70. Mr Macneal who also has experience as a developer himself in the New Town, indicated that a new development site might be worth of the order of £200,000. The inability to develop the valuable space is therefore a substantial burden.

[27] The difference between a depth of 6 and 10 metres is also significant. In Mr Macneal’s unchallenged opinion, the depth of mews houses in the New Town varies and examples could be found up to 11 metres. The difference represented the ability to construct a compacted studio house as opposed to one more suitable for an older couple. A smaller footprint would require a spiral staircase. A depth restricted to 7 metres would prevent the opportunity to create attic bedroom accommodation. The applicants wished to live in the mews house themselves as they grew older, thus maintaining their life in the same part of Edinburgh. Although we accept there is no guarantee this would be the case, we accept that a smaller footprint substantially reduces the development options.

[28] (d) Not applicable.

[29] (e) The title condition dates from 1813. It is very old. Given the status of the New Town as a World Heritage Site we would nevertheless be cautious before dismissing a condition on the basis of age alone, absent other relevant factors. However we think either under this factor or (j) it is fair to give weight to the fact the plan forming the basis of the restriction has disappeared. Given the passage of time it is not suggested this is anyone’s fault. The result is one is left in the unsatisfactory situation of having to interpret a condition whose true effect depends upon the missing plan. As we have discussed at [18] this uncertainty is significant. The uncertainty is a factor supporting removal of the condition.

[30] (f) It seems to us that only indirectly could the condition have been intended to have the effect of limiting the size of buildings. Essentially the condition permits buildings only for certain uses, all for the use of occupiers of the front tenements. These are said to be ancillary or subservient uses. At best for the respondents, buildings for those ancillary uses would normally have been inherently modest in size.

[31] Mr Macneal suggested that the purpose of the condition was to keep ancillary accommodation only for the main house, and to avoid separate artisan dwellings. Although he accepted this was to some extent conjecture, we note that the planning papers quote from the New Town Conservation Area Character Appraisal thus:

“Craig’s New Town contained lanes that were composed of artisans’ dwellings, but as the expansion of the New Town took place, the original purpose of the lanes transferred to the provision of mews. These provided accommodation for stabling and coaches usually associated with town houses on the streets that lay behind.”

[32] Therefore we think it plausible to suggest that the main purpose of the condition was essentially to preserve amenity in the sense of keeping the whole plot congenial to the main house by preventing separate occupations and uses. This is a different type of amenity to that which might be envisaged by a building restriction per se, although the inherent effect of the restriction would likely preserve both types of amenity. But we do not think that the main purpose was to restrict the size of the buildings, which could have easily been provided for in the deed. We think the lack of specific restriction is consistent with the historical practice of the mews buildings being created in a bespoke fashion.

[33] The contention that the condition should only be varied in a way which would restrict the size of the building to a specific depth is essentially to seek a rewrite of the condition. The Tribunal has of course varied conditions in many cases by permitting a specific building while the underlying building restriction remains otherwise undischarged. But the difference here is that to do so would be to change the main underlying purpose of the condition from an occupation and use condition to an express building restriction.

[34] It is not necessary for us to determine whether the respondents are proprietors of benefited property under sections 52 or 53. There was no argument whether or not the purpose of the condition was to enable co-feuars to enforce the condition as well as the superiors, the superiors have purported to discharge the condition for their interest. It might be argued the right of co-feuars pre 2003 Act to enforce the condition would depend, amongst other things, upon whether a jus quaesitum tertio was implicit in a common feuing plan. Absent the original plan, there might be some doubt on the matter. But as this point was not argued, we do not regard it as a factor in our consideration.

[35] (g) This raises the issue of the planning permission granted in the public interest, in the context of private rights created by the burden. We think we should distinguish between conservation issues and specific amenity issues in this connection, since it was the former which played a key role in the planning process. The respondents wisely disavowed that they were seeking a re-run of the planning arguments, or that their position depended upon an opposing view the style of the proposed building. It was noted that two of the more traditional and smaller mews buildings were at “their” end of the lane. Clearly the planning authority is best placed to consider arguments regarding the form conservation should take, having as it does its own policies and access to various consultation bodies. On the other hand we accept that it is appropriate for us to consider how individual amenity issues were dealt with by the planning authority. We note the terms of the City of Edinburgh’s “City Development Planning Development Quality Handbook” with policy guidance relating to mews properties, produced by the respondents. This is generally aimed at the preservation of the character and appearance of the conservation area. As appears from the text of the relevant standards (paragraph 2), they are less concerned with individual amenity in that issues such as day lighting, privacy and sunlight are dealt with in other guidance. So in other words the depth restriction is applied by the guidance from the perspective of character and appearance of the conservation area, rather than individual amenity. For what it is worth, we note the officer reporting to committee recommending planning permission be granted considered there was a justified exception to the policy to the guideline. It did not appear that the guidance was strictly applied, a practice which reflected Mr Macneil’s understanding of the present attitude of the council. The planning documents do not particularly focus on individual amenity issues for neighbours. For our part we have considered the amenity issues at [25] above, and do not think the planning history adds much to this.

[36] (h) The applicants do not propose an offer of payment in compensation. As is the Tribunal’s practice in other cases, we do not propose to give this factor much weight.

[37] (i) Not applicable.

[38] (j) We think certain of our comments in (e) above could equally be made under factor (j).

[39] The above factors weigh decisively in favour of granting the application, and we are satisfied that it is reasonable for us to do so. In summary we consider that the burden outweighs the benefit even on the assumption that the condition were to be varied to the extent of maintaining a 6 metre or thereby depth restriction. We are not persuaded that it would be reasonable to maintain such a restriction which in any event is not apparent given the absence of the plan or particularly consistent with the underlying nature and purpose of the condition. Given the uncertainty as to the extent of the “stable ground” and the outmoded nature of the restriction we consider that it is appropriate to discharge the condition as a whole rather than to attempt some form of variation.

Compensation

[40] We accept that the respondents’ main purpose was not, as they stated, to obtain an award of compensation. Mr Lloyd very fairly accepted on the basis of certain advice he had received that any loss of value, in a monetary sense, was impossible to quantify objectively. Recognising the subjectivity in the approach, the respondents indicated they would be prepared to pay £1,000 per annum to retain an amenity based upon a 6 metre building depth, for the next 30 years. They accordingly sought compensation of £30,000. If their property was worth £1,000,000, that would equate to 3% of its value. We accept that the respondents would be prepared to pay this amount in order to reduce the scale of the development. They have made a “with prejudice” offer of £30,000 to this effect.

[41] Mr Sinton indicated that he had received professional advice to the effect that a development of the mews house at the end of his garden would not diminish the value of his property. This was also the view of Mr Macneal who went further, indicating that the development would serve to unlock the development potential of the respondents’ own property next door by setting a precedent.

[42] The heads of compensation which we may allow under section 90(7)(a) are a sum to compensate for “any substantial loss or disadvantage” suffered by the owner “as owner of the benefited property”. As the Tribunal has discussed in Franklin v Lawson at [43] the starting point is to identify any “substantial loss or disadvantage” to the respondent as owner of the benefited property. 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. There requires to be “substantial loss” and even where there is a substantial loss there is no direct entitlement to compensation as such. The Tribunal is given a discretion to award such sum as it thinks just. We also note that in Gallacher v Wood at [40] the tribunal ruled out any award of compensation or solatium to the respondent in respect of personal disappointment.

[43] We accept that it is not essential to any claim for substantial loss or disadvantage that there be supporting expert evidence. However in this case there is only subjective evidence of loss and, on the contrary, positive evidence, albeit to some extent hearsay, to the effect that there is no loss in value to the respondents’ property. Absent objective evidence as to substantial diminution in value we are not prepared to find that a quantifiable loss or disadvantage has arisen. Nor do we feel the balance of factors favouring a discharge to have been sufficiently narrow to justify an award. We are not therefore prepared to make an award of compensation.

[44] We have reserved all questions of expenses for written submission.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 11 June 2014

Neil M Tainsh – Clerk to the Tribunal