OPINION

Margaret MacKay v Ronald McGowan and another

[1] Ms Margaret MacKay, the applicant, owns a property with spare land named An-Taigh-Sgoile, Heylipol, Isle of Tiree (“the subjects”/ “the burdened property”). She seeks discharge or variation of title conditions which would prevent the construction and use of a new dwellinghouse on her land and extension of the existing house. Mr McGowan owns the adjoining property, namely the Schoolhouse (“the benefited property”), and he and his wife (“the respondents”) object to the discharge or variation. The respondents contend that the development will adversely affect their views and disrupt the peace and tranquillity of their property. They have concern that the nature of the development could be more extensive than that presently proposed.

[2] At a hearing in Tiree on 7 August 2014, the applicant was represented by Mr Jeremy Benfield, solicitor. Mr McGowan appeared on his own behalf and for his wife. Evidence for the applicant was given by the applicant herself, Donald Yellowley MRICS of DMH Baird Lumsden, Mr William Maclean and The Reverend Elspeth Maclean. Mr McGowan gave evidence himself. We visited the site on 6 August 2014.

Statutory material

[3] Abolition of Feudal Tenure etc (Scotland) Act 2000
Title Conditions (Scotland) Act 2003
Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the “GPD Order”)

Except where otherwise specified, all references below are to provisions of the 2003 Act.

Authorities

Barker v Lewis 2008 SLT (Sh Ct) 17
Franklin v Lawson 2013 SLT (Lands Tr) 81

Title Conditions

[4] The title conditions which the applicant seeks to have discharged or varied were created in a feu disposition by Argyll and Bute Council to her recorded GRS (Argyll) 27 January 1999 (production A1). They are as follows:

“(Six) The garden ground and drying green, if any, pertaining to the Feu shall not be used other than as garden ground and drying green without the written consent of the Superiors and the said garden ground and drying green shall be kept in a neat and tidy condition to the satisfaction of the Superiors.

(Twelve) No buildings or erections other than the said dwellinghouse and any other buildings or erections for which the written approval of the Superiors was given prior to the said date of entry shall be erected on the Feu without the prior written consent of the Superiors and no external alterations of any kind (including the fixing of television aerials or similar attachments and alterations to fences, railings and walls) shall be made to the Feu without the plans having first been submitted to and approved by the Superiors in writing.”

[5] Without extensively quoting the remaining conditions we note they are detailed and gave the superior considerable control regarding various matters. For example, reference was made to condition (Four) which prevented occupation or use of the feu in any manner:

“which may be injurious to the amenity of the neighbourhood or a nuisance to nearby feuars, proprietors, tenants or others; declaring that it shall be within the power of the Superiors to determine what constitutes such injury to amenity or nuisance …”

It was argued this supports the view, with which we agree, that the conditions were standard conditions placed by the local authority when selling its housing stock under the right to buy legislation. The conditions envisaged that the authority would continue to require to carry out detailed property management, but henceforth of a mixed estate of both tenanted and owned housing. There was however no evidence to suggest the council had owned any more than the two adjoining properties at the location in question.

Background facts

[6] An-Taigh-Sgoile and the Schoolhouse are part of the same building. The building used to be a school and schoolhouse. It is mainly built of traditional stone. The school closed in about 1975. The school and schoolhouse respectively were converted or refurbished for residential accommodation by the council. An-Taigh-Sgoile comprises the former school part whose single classroom is now the living room. It is on one floor and has one bedroom. The properties are divided by an internal wall. The applicant moved to the subjects in 1979 and was tenant of the council while she took up teaching duties at Tiree High School elsewhere on the island. She retired in 1998 and purchased the subjects under the right to buy legislation. The property is let out.

[7] The first respondent bought the Schoolhouse in about 2002. He also purchased the property from the council. His title also comprised a feu disposition containing identical feuing conditions to those of the applicant. The title was registered on 6 January 2004, as it happened shortly before the appointed day for the abolition of the feudal system under the 2000 Act. It is one and a half storeys high. It has three bedrooms and a sitting room. The property is also let.

[8] The island of Tiree is the most western of the Inner Hebrides. It is about 12 miles long and 3 to 4 miles wide. There are three hills to the west of the island, including Ben Hynish to the south of Heylipol where there is a radar station. Otherwise the island is fairly flat. Heylipol lies inland to the west of the island. Heylipol, like most of the rest of the island, is characterised by small scattered dwellings and wide expansive views across flat land.

[9] Traditionally life in Tiree has revolved around the crofting community. In recent years tourism has increased and over the last 30 years the island has become well known for surfing and other wind related water sports. The applicant indicated that at the most recent census the local population of Tiree had fallen about 18% to 632. Mr Maclean who is involved in the tourist industry indicated that, on the other hand, the number of visitors recorded by Caledonian MacBrayne had gone from 2,000 per annum in 1998 to 28,000 visitors more recently.

[10] An-Taigh-Sgoile has a significant area of land attached to it. The whole feu is some 3213 square metres which is approximately rectangular and runs for over 70 m along the public roadway and is over 46 m wide. The dwelling is in the southwest corner and an immediate area is fenced off as garden. The remainder of the land is unused and consists of rough grass extending to nearly 2200 sqm or over half an acre. That land at one time was used as a playing field. We describe this land as spare land. The site of the onetime school and schoolhouse is surrounded by a traditional stone wall. The properties are divided by a wire fence at the rear. There is no boundary feature between the respective front gardens.

[11] The Schoolhouse belonging to the respondent is connected to the south of An-Taigh-Sgoile and is in effect the south portion of the building. The rear garden is quite large extending to about 460 sqm.

[12] About 80m to the north of the An-Taigh-Sgoile building lies Heylipol Parish Church. This lies at a crossroads. To the north of the church lies a small dwellinghouse. The church is also of traditional stone construction. The three buildings, namely An-Taigh-Sgoile/the Schoolhouse, the church and the dwelling to the north of the church can be seen as a rough building line along a horizon from certain distant viewpoints. They are isolated. There are no other buildings in the short or middle distance and there are but few in the long distance in line of sight from An-Taigh-Sgoile/the Schoolhouse. The roads are very quiet.

[13] In 2011 the applicant obtained planning permission in principle for the erection of a dwellinghouse on the spare part of her land. The red line area extends to about 1,700 sqm. The site lies to the north of An-Taigh-Sgoile and is bounded by the church and its land. Condition 3(iii) of the permission was that the house be of no greater than one and a half storeys in height. Other conditions were appropriate for a house in a rural environment. The planning report had recommended that planning permission be granted. As discussed by the report, the local plan of 2009 designated land within which the site lies as land where small scale development was encouraged on suitable sites, including small scale infill development. The site was regarded as an opportunity for infill development as it was positioned largely between substantial buildings to the north and south. The siting of a dwellinghouse at the site would be of a scale subordinate to the combined scale of the buildings adjacent to the site. This was a reference to the church and the An-Taigh-Sgoile/the Schoolhouse buildings. The report attaches some significance to the fact that the indicative position of the dwellinghouse paid regard to context in that it was centrally located within the site and in line with the properties to the south.

[14] The planning conditions further contained a condition 6, in which various provisions of the 1992 GPD Order were disapplied. In effect, the condition prevented what would otherwise be permitted development in the form of extensions to the dwellinghouse or outbuildings etc. This was said to be

“in the interests of visual amenity, to protect the visual qualities of the area and the setting of the proposed dwellinghouse from unsympathetic siting and design …”

[15] The 2011 planning permission was renewed in 2014. The conditions were similar although condition 6 was more elaborately expressed. The reason was said to be

“to protect the sensitive area and the setting of the proposed dwellinghouse, in the interest of visual amenity and public health from unsympathetic siting and design of developments normally carried out without permission; these normally being permitted under article 2(4) of the (1992 Order).”

There had been no objections to the 2011 planning application of which the respondents had been notified. The respondents objected to the 2014 renewal. There were no other objectors.

[16] The applicant had tried to sell her property in 2012 with the benefit of the planning permission. Much time was taken in the proceedings particularly by the respondent commenting upon this contentious matter. While missives were ongoing the purchasers’ solicitors noted the existence of the title conditions and took the view these were an impediment. There was discussion between solicitors whether it was necessary to obtain a discharge both from the council and the respondents. The purchasers eventually insisted in a discharge. The council executed a discharge for its part. The first respondent gave an indication that he was prepared to sign but, ultimately changed his mind. The transaction eventually fell through in October 2013. We do not detail the full history here. While that history is no doubt partly an explanation for the present dispute it is not relevant to the factors which we require to consider, save paragraph (c) of section 100 in that it can be seen the conditions impede the development of the burdened property.

The Factors

[17] Subject to an issue whether the respondents had interest to enforce the title conditions there was no dispute that the subjects An-Taigh-Sgoile falls to be treated as burdened property and the Schoolhouse falls to be treated as benefited property. Accordingly we now turn to the respective evidence and arguments relating to the factors under section 100.

[18] In terms of paragraph (a) it was argued that the coming into force of the 2003 Act after the creation of the title conditions was in itself a change in circumstances. No authority was cited for this proposition and we are not attracted to it. If correct it would mean that if all other factors were neutral, the fact the Act had come into force would mean that all pre-existing title conditions should, on balance, be varied or discharged. We do not think it was the intention of Parliament to introduce what would be, in effect, an implied presumption in favour of discharge.

[19] The subjects are situated on a very quiet road and it is a peaceful if not tranquil location. It was argued that there was a change of circumstances in that the neighbourhood had become busier. Kirkapol Church had closed in December 2013 and now the two Church of Scotland congregations in Tiree were united at Heylipol Church. Services were carried out every Sunday instead of alternate Sundays. New businesses had opened in the Heylipol area namely a campsite in 2008, and chocolate/gift shop within the last 10 years. As Mr Maclean put it, in his lifetime Tiree had gone from essentially a crofting community to one increasingly based upon tourism. It was a well-known location for water sports and there was a well-known music festival each year. The island had become busier.

[20] That said we do not think the evidence went far enough to justify a finding that the character of Heylipol has changed significantly since 1999. It remains a very quiet location. We do not think any increase in traffic in Heylipol generally or specifically driving past the subjects is significant. No new houses in the area were identified to us. We therefore do not find anything in this factor to support the applicant’s case. However, the changing demography we have described at [9] above would have been likely, we think, to have been a factor in the evolution of the development plan which supported the proposed development. It is at least consistent with a policy to retain population and promote tourism on the island. We deal with the resulting planning permission at (g) below.

[21] Under paragraph (b) the Schoolhouse has windows facing west, south and east. Each of these provides wide and expansive views of a distant horizon. There is only one window from an upstairs study which faces north towards the development site of the proposed house and the church beyond. However as was apparent at the site inspection this window is well above head height and is designed to let light in rather than allow views out. East facing windows would only have oblique views of the development site. The front garden of the Schoolhouse has limited views north on account of the An-Taigh-Sgoile building and the wall of a coal bunker. The back garden as well as having views south and east also has views north and any building on the development site would tend to obscure the existing view of the church and perhaps beyond. That view would also be impeded by any extension built from An-Taigh-Sgoile eastwards. Should any extension be built northwards from the north wall of An-Taigh-Sgoile the extent of its visibility from the rear garden of the school house would depend upon its shape and size.

[22] In Mr Yellowley’s opinion the construction of a bungalow, which he took to mean a one and a half storey dwellinghouse in terms of the planning permission in principle, would have no impact on the amenity or market value of the Schoolhouse. The Schoolhouse did not face north and the proposed development was to the north. He did not think the slight increase in traffic on account of such a house would have any impact. He also took the view that an extension of An-Taigh-Sgoile to the north or east would not affect the market value of the Schoolhouse. He took the view that there was unlikely to be an impact on the assumption, as he put it in his report, “that planning consent would only be obtained for a reasonably sized extension, in line with standard local authority stipulations.”

[23] We agree with Mr Yellowley that, objectively, the construction of the one and a half storey dwellinghouse on the development plot would not have a significant impact upon the Schoolhouse for the reasons he gave. We have to be more cautious with his view regarding any extension. We accept it is likely that an extension of some sort to the north could be designed so as to have no significant adverse impact upon the benefited property. Depending on its design such an extension would not be seen from the house and would not appear prominent from the back garden. On the other hand we are not satisfied this would necessarily be the case with any extension, such as to the east. House extensions of certain dimensions are of course permitted under the 1992 GPD Order without the need for separate planning permission. We have noted above the reason why the planning authority disapplied the 1992 Order from the 2011 and 2014 permissions. From our own impression of the site, particularly the expansive setting and the high quality visual amenity of the area we think the planning authority had good reason to treat the site with care. We think similar reasoning exists for exercising care in any future extension development of An-Taigh-Sgoile. For example, even a single storey extension eastwards with a poorly designed window could potentially overlook the Schoolhouse’s back garden. If big enough an extension could create a sense of enclosure around the Schoolhouse. That would not be fitting with the general location which, as we have said, is remarkable for a wide and expansive landscape. This is particularly relevant where the benefited property has potential to be, and indeed is, let to tourists . An unsympathetic choice of materials could detract from the whole building which comprises attractive stone. We think therefore the title conditions have some benefit in being able to prevent potentially unsympathetic building. Mr Yellowley’s assumption was that an approved extension would not raise amenity issues. However not all extensions would need planning approval. We were not addressed in detail as to the type of extensions which would, or would not require planning permission and there was no specific proposal in the form of a plan which could be focussed upon. We shall return to this matter.

[24] One of the respondents’ concerns was that the development site could be put to business use. In particular, he had had a discussion and certain communication with the prospective purchaser for An-Taigh-Sgoile. The prospective purchaser had apparently indicated that he had an intention to carry out a business development over and above the construction of a house. The respondent was under the impression this was in the nature of the construction of wind surfers’ accommodation amounting to a house in multiple occupancy. Therefore, insofar as we understood the argument, the title conditions would prevent such a development occurring should a prospective purchaser seek and obtain planning permission for such a use.

[25] At this point it is appropriate to mention one of the arguments of the applicant. In essence, clause (Six) of the title conditions is a user clause whereas clause (Twelve) is a building restriction clause. The former applies only to “the garden ground and drying green, if any …”. The evidence of the applicant was to the effect that what could be considered the garden ground and drying green was fenced off in relatively close proximity to the building itself. The wider area having been a playing field was never a garden or drying green. Accordingly the user clause would not apply to any development on the more distant site with planning permission. Only “buildings or erections” would be caught by clause (Twelve) and not their use. If condition (Twelve) was varied or discharged by the Tribunal for the development plot so as to allow the construction of a dwellinghouse, its use would be beyond the regulation of condition (Six). Its use would remain subject to the planning system. There was no planning permission for a business or house in multiple-occupancy and in any event the relatively small one and a half storey dwellinghouse would constrain any abnormal potential use . We think there is force in this argument, ie that condition (Six) does not confer benefit upon the benefited property as regards the development site for the new house within the meaning of section 100(b).

[26] Finally the first respondent indicated that the construction noise and disruption would have, as he put it, a devastating effect on the amenity of the Schoolhouse. We do not agree. The Schoolhouse is one building away from the development site. The construction work will be of a transient nature. It would be in everyone’s interest to have the work done outwith the holiday season when the respective properties are less likely to be let out.

[27] In terms of paragraph (c) Mr Yellowley indicated that the subjects including the field with planning permission had attracted an offer of £140,000. He had valued the whole subjects at £155,000; ie An-Taigh-Sgoile house with the field with benefit of planning permission and no title impediment. The plot if separate would have a market value of about £50,000. On the other hand An-Taigh-Sgoile as a house with a large area of ground without development potential would be worth perhaps £110,000. Thus it could be seen the effect of the title condition was to reduce the value of the burdened property by the order of some £40,000. The title conditions also impeded any extension to the An-Taigh-Sgoile building. At present there is only one bedroom and it was reasonable to assume that any future purchaser would wish to use the available space to extend. The inability to extend would affect marketability.

[28] We were referred to Franklin v Lawson for the proposition that “enjoyment” of property in the sense of paragraph (c) includes the right to enjoy the full potential of property including its development potential. We accept that the title conditions impede enjoyment of the burdened property to a significant degree.

[29] With regard to paragraph (e) it is only some 15 years since the relevant burdens were created. Although this is a relatively short period it was submitted that there had been material changes in the legal and planning regime. We deal with these arguments elsewhere. Our approach to (e) is from the perspective of the continuing relevance of the title conditions. Such relevance is subsumed within the arguments under the other heads we discuss.

[30] In terms of paragraph (f) it was pointed out by the applicant that the conditions were drawn up from the perspective of a local authority being the owner of a housing estate seeking to continue to manage that estate as and when some of its properties were sold off. The conditions were designed to enable the estate to continue to be managed as a unit and for its value to be maintained. It was suggested that if planning permission for some development was obtained in a situation where there would be little detriment to the estate, the council as superior would in all probability grant any necessary waiver of title conditions for modest consideration. This position could be contrasted with a private individual in right of the superiority.

[31] We do not think we can assume, absent evidence, that a public authority superior would not have sought to participate in development value which would be unlocked by that authority granting a waiver. All that can be said is that the perspective of a public authority superior would not necessarily have been the same as that of a co-feuar. However we pointed out under (f) that both conditions in question entitled the superior to waive the condition. Thus, at common law there could have been be no implied mutuality entitling any co-feuar to enforce the burden. This is recognised in section 52(2). Before the passing of 2003 Act the first respondent would have had no right to enforce the burdens. Only through section 53, which it was accepted applied here, was the first respondent owner of a benefited property in a common scheme after the coming into force of the 2003 Act. Before 2003 the superior could have enforced the condition in order to protect a neighbour’s view. Alternatively, in theory at least, the superior could have permitted a development in order to exact a waiver payment irrespective of a neighbour’s objection. So only with some diffidence can be said that the original purpose involved the protection of a neighbour’s view, and only then from the perspective of the superior in managing the estate. As the superior had a discretion, the point where he might have waived the condition cannot be identified. This means it is difficult to identify a historical purpose with precision. The provision entitling the superior to waive the condition now falls to be disregarded under section 73(2A) of the 2000 Act. Thus in the light of that section the conditions are now blanket prohibitions. On one view they are in terms, paradoxically, more restrictive than they would have been before the passing of 2003 Act. The “revised” wording of the conditions does not seem particularly focussed so as to be amenable to use by co-feuars or, as is now the case, members of a common scheme. One cannot discern a purpose such as the protection of any specific view or aspect of amenity from the perspective of any particular neighbour. Nor are they well suited to the present circumstances in which there are only two related and somewhat bespoke properties. For example, the words “if any” in the user clause (Six) in the context of the garden and drying green do not presuppose a clear focus for the former playing field. So we do not think factor (f) adds much to the respondents’ position.

[32] Under paragraph (g) we note that the planning authority considered the development site to be an infill site, upon which development was supported under the development plan. As we have already indicated, the planning authority accepted the site to be sensitive, that the setting of the proposed dwellinghouse required protection and that there were visual amenity issues. We take from the planning permission in principle that nevertheless it is not contrary to the public interest for a one and a half storey dwellinghouse to be built on the relevant plot. We have concluded at [23] above that the construction of an extension of the existing An-Taigh-Sgoile house under the deemed planning permission of the 1992 GPD Order if implemented has the potential to raise amenity and setting issues which could not be controlled by the planning authority.

[33] As we understood the respondents’ argument the planning permission in this case was “bogus” because the applicant had no intention of implementing it herself, and that a potential purchaser might have greater ambitions than that implied by the particular permission. However this is to misunderstand that planning permission runs with the land and it is common practice for sellers to sell land with the benefit of planning permission in principle, thereby increasing the market for the property. The permission underlines the property’s potential.

[34] In terms of paragraph (h) the applicant’s position was that if the tribunal thought that compensation was required, that would be a condition of any discharge or variation which the applicant would consider as necessary. However compensation was not sought by the respondents and in the light of the evidence, it would not be possible to establish a figure for any diminution in value of the benefited property. Reference was made to Franklin v Lawson for the need to identify “substantial loss or disadvantage” but as we were not asked to award compensation we do not consider this factor further.

Conclusions

[35] We are persuaded it is reasonable to vary the conditions so as to permit the construction and use of a dwellinghouse on the development site envisaged and identified in the planning permission in principle, restricted to a height of one and a half storeys. We conclude that loss of amenity to the benefited property, if any, will be minimal and that the enjoyment of the burdened property is otherwise impeded to a significantly greater extent. In the light of the balance of factors we think it is reasonable to make an appropriate variation order. As we have mentioned we agree that the planning authority had good reason to treat the site as a sensitive one. The applicant accepted that as part of a variation order, she would accept that the proposed dwellinghouse should be required to lie approximately within the footprint of the building shown on the approved plan. That would mean the size of the building would be approximately that shown in the plan which we have been able to consider. We are prepared to make an order which reflects an intention to vary the conditions so as to permit a one and a half storey dwellinghouse of the size shown on the planning permission plan. The footprint had been designed to follow approximately the building line of the church and the An-Taigh-Sgoile/ Schoolhouse building. This appears from the planning report to be of some significance to the planning authority, and we infer any application for approval of matters contained in conditions would be scrutinised regarding this siting issue. We do not think it necessary for our order to say anything more specific about siting other than the building should be located within the red line site of the planning permission.

[36] On the other hand we are not prepared to discharge the conditions altogether, or to make a variation order which would permit the development of an unspecified extension to An-Taigh-Sgoile. This is because we were not provided with any specific plan for an extension against which we could consider the impact of the development. As we have discussed at [23] a poorly designed extension could have a significant but avoidable negative effect on the benefited property. Thus the title conditions have some benefit which, for aught yet seen, could outweigh the burden. The extent of the burden would no doubt be slight if the negative effect could simply be avoided by some alternative design. We think it only fair to parties to point out that should plans be drawn up for a north extension which do not detract from the existing building as a whole we would find it hard in any future application for variation, on the evidence before us, to conclude there would be a significant impact on the amenity of the benefited property.

[37] To the extent we have not agreed to a complete discharge or wider variation, it is necessary for us to consider the applicant’s argument that the respondent did not have interest to enforce the conditions. It was argued under reference to Barker v Lewis and Franklin v Lawson that the respondent could not show material detriment to the benefited property within the meaning of section 8(3). We were given no reason not to apply the Tribunal’s approach in Franklin v Lawson at paragraph [10], namely:

“Where an adverse element of detriment can be identified as something more than fanciful or insignificant it can properly be described as material”

and

“Where Parliament has provided for such a balancing exercise (under section 100), there is no good reason to assume that it intended a preliminary test under which a real identifiable interest would have to be of some special weight before allowed to be enforceable.”

The reasons we have given for not agreeing to a complete discharge or wider variation seem to us to recognise the potential for more than insignificant material detriment in the sense used above.

Result

[38] We have therefore concluded it is appropriate to vary title conditions (Six) and (Twelve) so as to permit a one and a half storey dwellinghouse to be built within the red line site of the planning permission in principle. Before issuing a formal order we would leave it to parties to suggest to us a form of words to ensure that the size of the dwellinghouse coincides with the size of the building shown in the footprint in the planning permission (drawing 1111/01 relating to consent 11/00788/PPP). We suggest that the words might specify the dimensions of the building as in fact appear on the plan. For the avoidance of doubt this opinion is not an order in terms of section 90(1) or the Lands Tribunal for Scotland Rules 2003. An order will be made once parties have had the opportunity to suggest a suitable form of words to articulate the intention discussed here and at [35] above.

[39] We have reserved all questions of expenses which will be dealt with by written submission.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 September 2014

Neil M Tainsh – Clerk to the Tribunal