OPINION

Duffus and Others v McWhirter

1. The first applicants are Mr and Mrs Ross Duffus. The second applicant is Mrs Elizabeth Hamilton. The applicants seek variation of a title condition which prevents commercial use of the subjects in order to permit commercial use restricted to agriculture and equestrianism. A variation which would permit commercial equestrian use is opposed by the respondent Mr McWhirter. He is owner of Burnockstone Farm, Ochiltree, Ayrshire. His opposition is based solely on the view that intensification of use would adversely impact upon his farm access.

2. The applicants were represented by Mr Harry Sheddon, solicitor. He called Mrs Diane Duffus of the first applicants and Mrs Moira Drummond. The second applicant Mrs Elizabeth Hamilton gave evidence by affidavit. The respondent was represented by Mr Norman Fraser, solicitor. He led the respondent and Mr Christopher Smith in evidence. The hearing took place in Ayr on 26 August 2014 and we visited the site that day.

Legislation

3. Title Conditions (Scotland) Act 2003.

All references in this opinion to statute are to the 2003 Act.

Case referred to

Smith v Elrick & Another LTS/TC/2006/14

Title Condition

4. The title condition in issue is found in title sheets AYR66377 (“377”), AYR83540 (“540”) and prospectively, AYR87844 (“844”). Titles 377 and 844 relate to the burdened property and title 540 relates to the benefited property. The condition states:-

“(Two) No part of the retained property shall be used for any workshop or commercial premises nor shall it be used for a restaurant, club or shop nor for commercial use nor as a caravan site, nor for camping, nor for a purpose liable to cause a nuisance or occasion disturbance to the owners or occupiers of the disponed property or liable to interfere with the agricultural operations carried out thereon;”

Joint Minute

5. The parties have produced a joint minute setting out the title background. The parties have also agreed a variation to the title condition in order to clarify the fact that “commercial agricultural” use is permitted by the condition and the extent of that permitted use. It is not necessary to quote the agreed variation here. The issue remaining is whether the condition should be varied so as to permit commercial equestrian use. There is no dispute that private equestrian use is permitted under the condition.

Background facts and circumstances

6. The “retained property” referred to in the title condition is a six acre grass field. It is the burdened property. Burnockstone Farm is the benefited property. It is a mixed farm. It has dairy cattle and sheep. It produces hay and silage for feed. The respondent acquired the farm in 2011. The farm had belonged to the Drummond family for many years. It had been farmed by the late John Drummond, the father of the second applicant, since 1967. He sold it to Mr and Mrs Hadfield in 2005. The farm had comprised 88ha. When it was sold in 2005 the Drummonds retained the six acre area as well as two adjacent cottages, now known as Woodlands and The Bungalow. The Woodlands cottage had in fact been given to the second applicant in 1997. The intention was that the six acre field would enhance the value of the cottages since there was potential for equestrian use. The Hadfields insisted that a title condition be imposed on the retained land for the benefit of the working farm.

7. The retained property and The Bungalow were given to the second applicant in 2009. In 2013 she sold half the field i.e. three acres, and The Bungalow, to the first applicants. The retained property is presently comprised under Title 377 in the name of the second applicant. The Bungalow is held under Title 844, and the Keeper is in the process of amalgamating into Title 844 The Bungalow and the three acre portion of the field as sold to the first applicants. Burnockstone Farm is held by the respondent under Title 540.

8. The 2005 missives between Mr Drummond and the Hadfields were produced. There was a qualified acceptance by the Hadfields to an offer to sell by Mr Drummond. The documents show that the terms of the qualified acceptance had been negotiated by the parties. Paragraph 16.2 referred to the six acres being retained and stated:-

“16 … The following shall be title conditions imposed on both the bungalow and the six acre area (‘the retained subjects’) by dual registration in the relevant titles as benefited and burdened properties in the Land Register or Register of Sasines as appropriate:-

… 2. The retained subjects shall not be used for any workshop or commercial premises nor for a restaurant, club or shop, nor for commercial use as a caravan site, (emphasis added) nor camping, nor for a purpose liable to cause a nuisance or occasion disturbance to the owners or occupiers of Burnockstone Farm or liable to interfere with the agricultural operations carried out thereon”.

9. It can be seen that in the missives the words “nor for commercial use” are immediately followed by “as a caravan site”; whereas in the disposition and ultimately the title sheet the word “nor” appears between the two phrases. So the meaning of “commercial use” in the former appears to be significantly narrower than now occurs in the titles, since the expression only prevents commercial use as a caravan site and not commercial use generally. Mrs Moira Drummond as the wife of Mr Drummond was named as a consenter in the missives. She recalled discussion about the imposition of the title condition at the time with her late husband. She felt that the condition as applied did not reflect the intention at the time which was for a less restrictive condition. However there was no evidence how it came to be the wording was changed; ie. whether this was an error or had been discussed and agreed in any way with respective buyers and seller.

10. The first applicants are keen horse riders and take part in competitive eventing. They obtained planning permission for stables and an all-weather outdoor exercise area on part of the retained property which they had bought in 2013. The permission extends to seven stables. Four stables and an exercise area have been built. The planning permission had the following condition:-

“1. The stables and all-weather outdoor exercise area hereby approved shall not be operated as a commercial facility unless a further planning application is submitted to and approved by the planning authority.

Reason. For the avoidance of doubt and to ensure that any intensification or commercialisation in use is adequately assessed against the relevant policies of the development plan”.

11. The Roads and Transportation Service of the planning authority had commented upon the application. Its initial comments recommended two conditions, one of which stated:-

“CONDITIONS

1. The private access road must be widened to 5.5m over the first 15m length from the public road and bitumously surfaced over the same length”.

The observations also had the following comments/ reasons:-

“The private access road would require to be widened to allow two vehicles to pass and avoid vehicles waiting on the public road. The road should be surfaced over the length stated to avoid overcarry of loose material onto the public road.

I would recommend that a number of passing places be installed along the length of the private road”.

Subsequent comments from the Roads and Transportation Service stated:-

“Further to confirmation from planning that the proposed development is solely for private use the conditions applied to the original response have been deleted. However the original conditions will apply in any future application relating to commercial use”.

Accordingly, the planning permission which is for private use only does not contain any conditions requiring road widening or installation of passing places.

12. The farm access is used by Burnockstone Farm, Woodside Cottage and The Bungalow. Part of it is also used by the neighbouring Burnton Farm. It is a private access. The access is of the order of 750m from the public road to The Bungalow, and the Burnockstone Farm steading lies about a further 100m beyond The Bungalow. The route is indicated by a blue line in respondents’ production R5A, which is an excerpt from the title plan 540. From the main road at point “A” to “B” the road belongs to Burnton Farm. From point “B” to “C” the road belongs to Burnockstone Farm. The carriageway is about 3m wide and is of hard standing but not tarmac. On one side of the carriageway there is a narrow and uneven grass verge and stone wall. On the other there is a narrow grass verge and ditch. There are two ninety degree bends between “A” and “B” and a hump between “B” and “C” all of which impede sight lines. There is a somewhat informally constructed passing place at the first corner which is approximately 400m from the public main road which has a sight line to the main road junction. There is a layby at The Bungalow which is close to point “C”. There is a parking area at Woodside cottage which, if empty, could also be used as a passing place. The two or three passing places we mention are no wider than the carriageway itself. Otherwise the access road has no passing places to speak of.

The Factors

13. We now turn to consider the evidence and arguments relating to the factors under section 100:

14. In terms of paragraph (a) the only change in circumstances identified was the 2013 planning permission for private equestrian use which had been partially implemented. The first applicants keep a horsebox on site which is driven at weekends.

15. In terms of paragraph (b) under reference to Smith v Elrick and Another the applicants maintained that in looking to the benefit to the benefited property, one should not focus too closely merely upon the access road. Only part of the access road belonged to the farm and it had a servitude for the remainder. The argument was taken from paragraph [32] where the Tribunal had emphasised the words in paragraph (b) as to the extent to which the condition “confers benefit on the benefited property.” We do not think this is a sound submission. The point the Tribunal was making was that the condition under consideration only prevented building, not use, so potential loss of amenity fell to be regarded from what future uses could still be permitted. That is not the case here since the condition does prevent a use. Moreover, the servitude is not a separate right from the ownership of the farm. The servitude enures to the farm and would not exist independently to the farm. It would be unrealistic to separate it from the benefited property.

16. Paragraph (b) requires us to consider the extent to which the condition benefits the farm in that it prevents an intensification of use which could cause conflict with farm traffic. An indication of the extent of present farm access traffic was given by Mr Smith. He is the farm manager and son-in-law of the respondent. He drives up to and down from the farm twice a day. The first trip to the steading for milking is very early in the morning around 5am. His son who works at the farm will drive up and down perhaps a similar number of times for general purposes. A milk tanker comes in the evening. There are feed lorries about every 3 weeks depending on the time of year. There are silage lorries in operation following the lifting of the crop twice per annum. The silage operation takes place both on the farm and on land outwith the farm so the lorries will use the access to bring the silage to a silo on the steading. There are other deliveries. There is domestic use of the cottages. We also heard the first applicants commute separately to work each day. They use their horse box at weekends.

17. The narrow access could cause delays and awkward situations. If a driver leaving the farm at the top of the 400m straight saw a vehicle coming up the drive from the main road junction he would have to wait at the corner layby. Otherwise it would be necessary for one of the vehicles to reverse. We inferred that in other places vehicles are liable to interface on account of poor sight lines, necessitating reversal to a layby. Lorries presented bigger problems. Mr Smith indicated that if a vehicle was coming down the 400m straight a lorry wishing to turn into the access would have to wait on the main road until the vehicle reached the main road. We infer any vehicle, not just a lorry, would require to wait on the main road in such circumstances. The respondent was of the view that passing places would be necessary for any intensification of use in addition to widening at the junction entrance.

18. At the site visit we were struck by just how narrow the access road is. The respondent was clearly correct when he said that two normal cars could not pass. We are doubtful whether the passing places we have mentioned are large enough to be suitable for lorries, although if there was interface between car and lorry the car could presumably use the passing place. The fact there is a ditch so close to the carriageway means that one would not wish to encourage reversing long distances, particularly where a vehicle might have a trailer and be awkward to reverse. It would appear that the situation is manageable at present in that there has not been any specific incident. Nevertheless we accept that the title restriction preventing commercial use and therefore an intensification of traffic on the access road is a significant benefit to the benefited property. The access road is not, we conclude, generally busy, but the amount of its use is still significant. The farm operation would be impeded by having to wait or reverse for other vehicles, and there could be particular delays should two lorries meet or should one of the drivers be unfamiliar with the situation.

19. Turning to paragraph (c) the first applicants wish to have the option of making commercial use of their property. At present they have four horses. They have planning permission for three further stables. The three additional stables could be used for breaking in young horses. We were informed this could be done with very little additional traffic since the owner of the horse would not require to visit regularly. The condition would prevent such use.

20. Mrs Duffus accepted that if there was unrestricted equestrian use perhaps with a different owner that could involve liveries and/or a riding school. In her opinion the full six acres (of which she only owns three) could graze six or seven horses. DIY liveries could potentially involve two trips to and from the stables per day per client with potentially more use of horseboxes and trailers. A riding school could involve large numbers of pupils at any one time. The burden would also prevent such greater operation.

21. The condition can therefore be seen to impede enjoyment of the burdened property in the sense that potential uses are prevented. However, it has to be seen that this is in the context of an inherent limited capacity of the site to accommodate further traffic.

22. In terms of paragraph (e) only 9 years have elapsed since the condition was created.

23. In terms of paragraph (f) it is clear that one of the purposes of the condition was, in terms, to prevent interference with the agricultural operations carried out on the farm. This is precisely the point at issue in the present application for variation. It underlines the fact that the condition benefits the benefited property.

24. At the end of the day little was made of the fact that the title condition as imposed had become more restrictive from the agreed version in the missives. The evidence does not allow us to conclude that the imposed version was not in fact agreed or was an error. We have to be cautious as to one party’s suggestion years after the event that the condition did not see through an underlying intention. In this case there is a particular difficulty with this position. The clause had always said that no part of the retained property “shall be used for … commercial premises …”. Therefore, as stables can be described as “premises” it can be maintained that there was never an intention to permit their commercial use. We are therefore satisfied factor (f) favours the respondent and not the applicants.

25. In terms of (g) there is a planning permission for private equestrian use. There was discussion as to the likely position of the planning authority in the event of an application to it for a change to commercial equestrian use. From the documents we have referred to we think it is inevitable the planning authority would require the first 15m of the access from the junction to be widened. It is however unclear whether the planning authority would require passing places to be installed, such as by the imposition of a negative planning condition. There was only a recommendation for passing places to be installed in the event of commercial uses. Mrs Duffus’ position was that she would wish to negotiate the matter with the planners. The installation of passing places would be expensive and there would have to be negotiation with the landowner. As the commercial use which she intended was limited – i.e. for breaking in young horses only which would involve limited extra vehicular movement, she would wish to seek to persuade the planners that passing places were unnecessary. Accordingly there is no assurance there would be passing places imposed by the planners. This conclusion if not strictly falling under paragraph (g) would fall under the catch all paragraph (j).

Discussion

26. We are clearly of the view that the access to the burdened and benefited properties has limited capacity. Any increase in its use has the potential to interfere with the farming operations of the benefited property. The condition was designed to prevent such interference and succeeds in doing so. The private interest of the respondent in maintaining the condition is palpable. The extent of the burden upon the burdened property has to be seen in the context that the site as it stands has inherent limited capacity. In our opinion the potential commercial use of the burdened property would potentially be at the expense of the efficiency of the benefited property. We therefore give decisive weight to factors (b) and (f) over (c) in the respondent’s favour. We do not think the respondent’s private rights can be reduced to the possibility that the planners might insist, in the public interest, in the installation of passing places. As we have mentioned, in any application for a change of use it has to be anticipated that the applicants would be entitled to negotiate with the planners against the need for passing places. So there can be no assurance that the planning system would protect the respondent’s access to the same extent he enjoys at present under his private rights.

27. It was suggested we might allow a more restricted variation in order to allow some form of commercial use which did not significantly increase the use of the access. This was the scenario which, it was maintained, might also be put to the planners in negotiation. But even if a form of words could be devised to achieve such a result in a real burden in an acceptable way – none was put to us – we find it hard to avoid the conclusion that almost any increase in vehicular use of the access has the potential to interfere with the farming operation. In our view the access is simply not fit for public use in its present state, and some use by visiting members of the public would probably be inevitable in any commercial operation. That would mean a greater likelihood of persons using the access without knowledge of local protocols which have no doubt evolved to allow, as far as possible, for vehicles to pass with limited delay and without incident. And a small variation would only weigh, as it were, as a small reduction in the burden.

Result

28. Accordingly we refuse to make an order varying the title condition so as to permit commercial equestrian use. We should point out that both the respondent Mr McWhirter and Mr Smith were clear that if the road was widened appropriately, i.e. at the junction entrance and with appropriate passing places thereafter, they would have no difficulty in agreeing to a variation. For our part had the applicants achieved such widening and parking places, or had bound themselves in some way to do so prior to commencing the sought use, we would have granted the application. As it is we shall make the agreed variation regarding agricultural use.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 October 2014

Neil M Tainsh – Clerk to the Tribunal