OPINION

Trustees of John W Raeside & Son v Chalmers & Fraser

Introduction

[1] John William Raeside and Jamie Raeside as partners and trustees of the firm of John W Raeside and Son, Farmers, seek discharge of a title condition preventing development of houses on the site of an agricultural building at Brownhills Farm, St Andrews. The title condition was created in 1989 when 0.3428 hectares of adjacent ground was sold for the development of ten houses. The respondents are Mr and Mrs Nicholas Chalmers and Mr Donald Fraser the owners of respectively number one and number two Brownhills Steadings, St Andrews being two of the ten houses.

[2] By agreement between all parties, the case proceeded by way of written representations and a site visit which took place on 3rd September 2014.

Statutory material

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

Authorities

[4] Ord v Mashford 2006 SLT (Lands Tr) 15
McPherson v Mackie CSIH 7 2007 SCLR 351

Title conditions

[5] The burden in question was constituted by disposition by John William Raeside and Sheila Bruce Raeside in favour of R Bruce Baillie & Company Limited recorded in the General Register of Sasines (Fife) on 15th August 1989. The relevant condition which has been carried into the titles of the ten houses built on the site is expressed as follows:-

“(Second) in respect that a (sic) part of the adjoining subjects being retained by us there is erected an agricultural shed which lies along the north boundary of the subjects hereby disponed we hereby undertake that the said shed shall be used in all time coming for agricultural purposes only and in a manner that shall not be a nuisance to our said disponees or their successors as proprietors of the subjects hereby disponed and we hereby undertake that in the event of a sale of the said agricultural shed we shall bind our successors in title in like manner”

Factual background

[6] Brownhills Farmhouse is located about a mile and a half southeast of St Andrews on the south side of the Crail road around three hundred yards east of the junction of the B9131 with the A917. In general the surrounding land is agricultural in character however to the west at the junction of the A917 and the B9131 is a substantial complex of car sales and repair facilities.

[7] The site of the agricultural building that is the subject of the application (“the Shed”) is situated on the south side of the A917. The Shed itself has now been demolished. To the east across a track is the Brownhills Farmhouse and about a further hundred yards away slightly to the south is a large agricultural shed of fairly recent construction set amid paddocks. To the immediate west of the Shed is the road access to Brownhills Steadings a housing development that now contains twelve dwellings. To the west of Brownhills Steadings lies Brownhills House which is subdivided into seven flats to the south of which is a further modern development of six houses known as Brownhills Gardens. The entrance to both Brownhills House and Brownhills Gardens is located about two hundred yards west of the entrance to Brownhills Steadings along the A917.

[8] The layout of Brownhills Steadings is such that numbers one to three run west to east immediately adjacent to the Shed which lies to their rear, hard against their garden boundaries, with the remaining houses running mostly north to south. The houses in the development are of different sizes and storey heights arranged in terraces providing an attractive unregimented development. The construction is stone faced on some elevations and otherwise roughcast. The roofs are pantiled. The boundary treatments in the development are a mixture of hedges, stone dykes, brick walls, timber fences of various types and heights with some areas unbounded and given over to grass and shrubs.

[9] The Shed in question was about forty metres in length running east/west and around fifteen metres deep. It was a steel framed structure with a roughcast cavity wall infill to a height of about four and a half metres. The roof was of pitched corrugated asbestos panels.

[10] In May 2012 planning permission was granted for the erection of two detached houses with garages on the site of the Shed. In February 2014 this permission was varied to permit access to the A917 to be taken direct from the site rather than via a track running through the farm which meets the main road two hundred and fifty metres or so to the east. Following the granting of the relevant warrant in May 2013, the Shed, which had been largely unused for about three years, was partially demolished. The west and south walls have been left standing to a height of around two metres, currently uncapped, and the concrete floor plate remained in place at the time of inspection with the rubble from demolition heaped at its centre.

[11] The report associated with the planning application notes one letter of support suggesting that the entry to the Steadings would be improved and that visually the proposed development would be an improvement over the current dilapidated state of the Shed. The report also notes objections from numbers one to three expressing concern as to exposure to wind and road noise. It is stated that concern had been raised suggesting that a 1.8 metre high timber fence was inadequate and that a two metre high section of the shed should be retained to provide a suitable boundary treatment. The plans submitted to us indicate that the existing wall at its reduced height would be provided with a concrete coping and roughcast on the unfinished north face. Conditions attaching to the permission include one requiring that the southern boundary treatment be approved by the planning authority before development is commenced.

[12] The report also notes the existence of the title condition relating to the Shed but concludes that this is a legal matter for the owners and not a material consideration for planning purposes.

The Application

[13] In the application, Messrs Rollos, Solicitors, on behalf of the applicants address briefly the factors set out in section 100 of the Act. It is not disputed that the respondents are entitled to oppose the application. Under a) which is concerned with change, they point to the granting of planning permission and the demolition of the shed. Under b) they suggest that there is no benefit conferred on the benefited properties or the public by the condition whereas under c) they say that the applicants’ ability to diversify is impeded. Factor d) is noted as not being applicable and the restriction is noted under e) as being twenty three years old. The purpose of the condition, factor f) is said to be to prevent the former developer from preventing the applicants from using the Shed for agricultural purposes. Under factor g) the planning and demolition permissions are noted. As to factor h) willingness to pay compensation, the answer is in the negative; factor i) is not relevant. Under factor j) any other matters, it is asserted that the proposed development will enhance the entrance to Brownhills Steadings and due to the fact that the proposed houses face north, the privacy of nos. 1-3 Brownhills Steadings will not be affected to any material degree. A wall of 1.8 metres height had been retained by the applicants in order to protect the privacy of these owners. In response to the respondents’ comments the applicants added that they did not consider that the title condition imposed any maintenance or reinstatement obligations and that demolition was not contrary to its terms. There was no obligation to keep the walls. The respondents’ comments as to wind and road noise they considered to be subjective and were matters that had been considered by the council in granting planning permission.

The Objections

[14] The submissions by the respondents are succinctly expressed and do not trouble to address all of the section 100 factors in turn. This is no doubt partly a consequence of the fact that neither respondent is altogether against the development in principle; both have indicated that they are willing to see the proposed development proceed subject to their concerns being addressed.

[15] Mr Chalmers narrates that demolition of the shed had been sought for some years. He was willing to see redevelopment take place and would welcome the replacement of the Shed by two houses at the entrance to Brownhills Steadings. This had been communicated to the Raesides and to the planners. No agreement had been reached. The development should blend in and there should be a suitable boundary wall to provide protection against wind and traffic noise. A stone wall ten foot in height would be appropriate; Mr Chalmers did not wish to be left with the remnants of an agricultural barn. He was not concerned about his privacy or being overlooked, nor challenging the demolition of the Shed. He had purchased his home with the expectation that he would enjoy the protection of the Shed in perpetuity; he simply wanted what he had always had, namely, protection against wind and road noise.

[16] Mr Fraser also referred to a background where change in the status of the Shed had been in issue. He had always expected change to involve negotiation. At one point some progress has been made with a potential purchaser but the transaction did not proceed. He states that at one point Mr Raeside indicated that he might reduce the wall of the Shed to two metres to allow ventilation for cattle. Mr Fraser valued the protection from wind and road noise provided by the fifteen foot high walls of the Shed. He felt that that a wall of 1.8 metre height was meagre and in its unfinished state an eyesore. Mr Fraser had concerns as to his privacy and in this context a 1.8 metre wall was insufficient; a reinstated wall of 3.5 metre height using materials approved by him would be appropriate. He considered that demolition of the Shed was contrary to the title condition and that its effect was that the Shed was to remain in place for all time. As regards the suggestion that concerns as to wind and road noise were subjective, Mr Fraser indicated that he believed that his view would be supported by expert study. Until the houses were built his privacy was breached as cars could look into his garden. Once the houses were built his garden would be overlooked.

[17] In addition to the written submissions we were provided with copies of relevant titles and plans. A number of photographs were also produced. Copies of the planning and demolition permissions were submitted as were quotations for construction of walls of various specifications and heights.

Consideration

[18] The purpose of the condition factor f) is said by the applicants to be “to prevent the former developer from preventing the applicants from their use of the land for agricultural purposes”. While it is possible that some motivation along these lines might have been in the mind of the seller is not the most obvious purpose in the circumstances. This description of the purpose is not set out in the titles or otherwise vouched. It may be that the intention of the submission was to suggest that such a purpose supported the submission under c) that the condition conferred no benefit on the benefited properties. This link is not however expressly made. We do not take the statement as to the purpose as being a factual report as might arise when the applicants in question were also the sellers of the land that was subsequently developed as Brownhills Steadings. It is not clear that the persons involved were the same. In any event there were two parties to the sale transaction and it seems equally if not more plausible that a developer prepared to progress a housing development with an agricultural building in place might seek to protect himself and his disponees from a future change to a less acceptable use. These considerations suggest that there are instances where unsupported speculation as to purpose is of little assistance and that we ought in this case to focus on the terms of the condition.

[19] As we read the title condition it is a user restriction. It limits the use of the Shed for all time to agricultural purposes only in a manner that does not cause a nuisance. There is no stated requirement to maintain the building, to refrain from adapting it or to reinstate it. The condition does not require continuous use for agricultural purposes, nor does it limit the type of agricultural use. As it seems to us the condition does not prohibit alteration or partial demolition of the Shed; it is difficult to imply a building restriction from a use condition. Were the condition to prohibit such action then enforcement of the condition would be a matter for the courts. It has not been suggested that there is any action pending or being contemplated. There does remain part of the building, that is, the west and south walls at a two metre height and the concrete floor which together are no doubt capable of some use. As we interpret the condition that use, as matters stand, would require to be agricultural.

[20] We are unable to find support in the condition for the idea that it is intended to guarantee shelter from wind and noise or to provide privacy for all time coming.

[21] In considering the remaining section 100 factors that seem to require attention, under a) the granting of planning permission can be viewed as a change though it is usually considered under factor g). It is also relevant to take account of the pressures in the agricultural sector favouring or compelling diversification.

[22] While the applicants assert under factor b) that there is no benefit to the benefited properties, that depends largely on acceptance of their account of the purpose discussed above. At a minimum the condition precludes use of the Shed for other uses that might be objectionable, for example an engineering workshop or a vehicle repair outlet such as is found a few hundred yards away. That is clearly of benefit to residential occupiers of the adjacent properties. We do not therefore accept the applicants’ submission on this point.

[23] The impact of the condition on the burdened property factor c) is clear. The owners are prevented from developing their property in the manner that they would wish despite having planning permission in place. The applicants’ reference to their need to diversify adds further context to this limitation although the point is not greatly developed. It seems probable that the Applicants will be prevented from realising financial benefits if the condition is not varied.

[24] The remainder of the factors do not appear to bear greatly on the issue. We have the benefit of a full planning permission which provides a definite development to consider. No compensation is being offered.

[25] We understand the subjective perception of the respondents that the shelter and privacy provided by the Shed is valuable and they would wish it to continue. Never the less, we are inclined to agree with the applicants that the construction of two houses in place of the shed will enhance the entrance to Brownhills Steadings. Mr Chalmers agrees with this view. Again, while we appreciate that with the benefit of familiarity the respondents see merit in the height and proximity of the Shed wall at their boundaries, we require to take an objective view (see Ord v Mashford and Others 2004). We consider that the objective person would regard a more open outlook to the north as preferable to the looming presence of a large agricultural building. It is certainly the case that the undeveloped site as it stands today is unattractive but we need to look through that temporary state of affairs to one where the proposed development is complete. (see McPherson v Mackie 2007). At that stage we do not consider that in the eyes of the objective person the situation of the houses at 1-3 Brownhill Steadings would be seen as having been affected detrimentally.

[26] Accordingly, while we hold that the condition provides a benefit, from an objective standpoint we incline to the view that the proposed development would mark an improvement in the general amenity of Brownhill Steadings and the objectors’ properties in particular. In weighing the relevant factors we are of the clear view that the burden outweighs the benefit and that overall the balance of reasonableness favours allowing residential development.

[27] It is necessary to consider whether any requirement should be imposed as to boundary treatments along the lines suggested by the respondents. They favour building a new wall of considerably greater height than the existing wall in its current state. From an aesthetic point of view the Brownhills Steadings will be improved at the north end. It will be a domestic rather than a mixed agricultural and domestic location. A new ten foot high wall would look out of place and retention of a wall of greater height than that currently existing would be out of keeping with the norm in developments of such a character. Either of these approaches would give rise to considerable cost. A roughcast wall would not be inappropriate; that is what has been to the rear of the houses since they were built and the proposed height seems reasonable. A heavy duty fence of the same height would also serve. This, together with the mass of the proposed houses and any related plantings is likely to provide adequate screening against noise and wind. We have not been provided with any material as to traffic and noise levels but it seems unlikely, given the roads layout in the area, that the volumes of traffic on the road will be particularly heavy and while there is noise to be heard we do not judge it to be severe. The back gardens of the respondents’ houses are about twenty five yards from the carriageway and will be behind two houses and a wall or a fence.

[28] From the point of view of privacy with the proposed houses in place, this seems unlikely to pose any material difficulty. It is, we consider, correct to suggest that there will be some overlooking of the back gardens of numbers 1-3 from the upper floors of the proposed houses. This would be normal in most domestic settings whether in a town or a hamlet and we do not consider that in the round it would offset the improvement that will result from the replacement of the Shed by a residential development or justify the construction of a new ten foot wall. We are content therefore to leave the decision in this matter to the planning authority as an issue to be settled with them prior to development commencing.

[29] While much of the foregoing discussion has been concerned with the proposed residential development for which planning permission has been granted, it is not certain that the development will be carried out. As discussed, the respondents are not in principle opposed to residential development on the site but that does not imply acceptance of a use that is neither residential nor agricultural in character. The Applicants do not suggest that they intend to carry out anything other than residential development but have applied for complete discharge of the condition.

[30] In all the circumstances we have reached the conclusion that it is appropriate to vary the title condition to permit residential development on the site of the Shed and shall make an Order under section 90 of the Act to that effect.

[31] Neither party raised the issue of expenses. Given the sensible choice to avoid a hearing and to proceed largely using the original application and representations there may be no issue requiring consideration. However we shall allow an application to be made if any party so wishes and deal with the matter as is our practice by way of written representation.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 2 October 2014

Neil M Tainsh – Clerk to the Tribunal