OPINION

Ferguson v Gunby and Nelson

Introduction

[1] Mr & Mrs George Ferguson seek variation of title conditions preventing the construction of an extension to their house at 28 The Mount, Balmullo, Fife. They wish to build a two storey extension and a single storey porch for which they have received planning permission. The title conditions in question were established via a deed of conditions granted by T Docherty Limited, Builders in advance of the feuing of land for the erection of dwellinghouses which was recorded on 7th December 1972.

[2] The Respondents are Mr & Mrs Alexander Nelson of 43 The Mount and Mrs Lorraine Gunby of 41 The Mount who oppose the variation of the conditions in question principally due to the effect that they believe the proposed two storey extension will have on the views from their respective properties. Neither objector is wholly opposed to development and would consider a single storey extension to be acceptable.

[3] By agreement between all parties, we have considered the case on the basis of written representations and a site inspection which took place on 25th March 2015. Thorntons Law acted for the Applicants. CCW Business Lawyers Limited acted for the Respondents.

Statutory material

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

Authorities

[5] Barker v Lewis 2008 SLT (SH CT) 17
Franklin v Lawson SLT (LANDS TR) 81
MacKay v McGowan & Another 2015 SLT (Lands Tr) 6
Faeley v Clark 2006 GWD 28-626

Title conditions

[6] There is the normal preamble explaining that the deed of conditions is being drawn up in advance of feuing the site and there are then set out seven conditions dealing with various matters such as insurance, boundary features, drains and sewers etc. There is a clause that retains power for the superior to amend the feuing plan and to amend the deed of conditions and another that provides for reversion of the ground and buildings, at the superior’s option, for breach of the conditions. We are here concerned with the first half of the first clause which is in the following terms:

“(First) In the case of each of said lots into which the said area of ground is to be divided the feuar thereof shall be bound in all time coming to maintain and when necessary to re-erect on the said lot a dwellinghouse self contained and detached at a cost and to a value of not less than Four thousand five hundred Pounds sterling and the feuar shall have power to erect a garage greenhouse, garden house or other offices for use in connection with the dwellinghouse all in conformity with lay out plans, elevations, sections and drawings to be approved by the Superior before erection; the erections hereinbefore authorised other than said dwellinghouse shall not exceed fifteen feet in height to the ridge of the roof measuring from the surface of the ground and no part thereof shall be occupied as a dwellinghouse; the said dwellinghouse shall not be divided into flats or constructed for the accommodation of more than one family or otherwise used than for the occupation of one family and neither the external appearance nor the internal division or arrangement of the dwellinghouse shall be altered without the previous consent in writing of the Superior; the ground not occupied by the said dwellinghouse or offices shall be and remain unbuilt on and shall be used exclusively for garden or for planting or ornamental ground and shall be dressed and maintained in good order accordingly;”

The clause then proceeds to set out prohibitions on business use being matters that do not concern us in this case.

Background

[7] The village of Balmullo lies mostly to the west of the A914 about six miles north east of Cupar. The original village has been greatly expanded over the last fifty years and is now largely a dormitory village with a primary school, shop, pub and village hall. The Mount is a development of around fifty houses, mainly detached bungalows, built in the 1970s running south to north on rising ground to the edge of the village and the open countryside beyond.

[8] The Applicants’ house is located three quarters of the way up the hill on the south side of the road as it sweeps from west to east. The house is located at the east end of the long narrow plot with the garage hard to the east boundary and the lounge window looking west over the bulk of the garden which follows the curve of the road as it proceeds down the hill. It is into this area that planning permission has been granted for an extension. While the accommodation currently provided is on ground and attic floors, the property was originally a bungalow. The roof was raised in 1994 to provide first floor bedrooms. The work was carried out by the original builders, Messrs T Docherty Limited. The proposed development involves extending on two floors by about 3.8 metres across the full gable of about 7.1 metres to the same roof height and profile as existing. This will permit the reconfiguring of the layout of both floors. The lounge window view will continue to look over the garden to the west. In addition, a single storey porch of about 2.0 metres by 3.8 metres will be built at the north facing front door of the house. This part of the proposed works is not understood to be controversial.

[9] The Respondents’ properties lie to the north and a little to the west of the Applicants’ house across the road and sit at a considerably higher level. While the principal rooms face south, the houses are entered from the north as The Mount reverses its direction and runs from east to west. Both of these bungalows have been extended.

[10] In the case of no. 43, the Nelsons have constructed a large south facing sun lounge which is entered from their living room and has doors to the garden at its west side. The sun lounge has a full wall height and raised glass roof which due to the slope of the site sits at a lower level than the ridge line of the main house. Both the sun lounge and garden have distant views to the east towards the estuary and St. Andrews and to the west over farmland towards Cupar. There is also a distant view to the south through the gap between the roofs of nos. 26 and 28 described below. This view can also be seen from the lounge off which the sun lounge is entered. More immediately the sun lounge looks down upon the houses and gardens below.

[11] To the east of the Nelsons, a little closer to the Applicants’ property, Mrs Gunby at no. 41 has a dining room extension which has a view to the south as well as a view from the adjacent, original, lounge. Again, due to a stepping down and the slope of the plot, the ridge of the extension’s roof is at a lower level than that of the main house. The views from the lounge depend on whether one is standing at the window or seated in the lounge. At the window one can look to east and west and also to the south between nos. 24 and 26. Sitting, the main view is through the gap between the roofs. From the dining room the main view is again through the gap. There are patio doors on the west side leading to the garden. The view of the Fergusons’ garden below is blocked out by a dense and lofty coniferous hedge at the southern boundary of the plot; all that can be seen of the Fergusons’ house is the roof.

[12] The house at no. 26 is of some relevance. It was originally a single storey bungalow which, like the Fergusons’ property at no. 28, has had its roof lifted to provide first floor accommodation. This took place prior to 1996. The house lies to the south of the Fergusons’ garden area at its west end at a slightly lower level on the hill as the road straightens to run approximately south. When viewed from nos. 41 and 43, with their elevated positions, there is a gap between the roofs of nos. 26 and 28 through which the countryside and hills lying beyond the village can be seen. It is the reduction in the view through this gap that is of concern to the Respondents. While the measurements will vary with the angle and the height at which they are taken, a gap in the range of 15-17 feet will be reduced to about 2 ½ - 4 ½ feet in the vicinity of the extension. A further bungalow where the roof has been lifted to provide an attic floor is no. 24 which lies south of no. 28. From the viewpoint of nos. 41 and 43 the elevated roof of no. 24 is largely obscured by that of no. 26. This work was carried out in 2009 or thereabouts.

Title and Interest

[13] As a preliminary matter the Applicants concede that the Respondents have title to oppose the application but submit that they have no interest to do so, citing in support Barker v Lewis as developed in Franklin v Lawson. The test is set at a level, they say, quoting Franklin, where there is “an identifiable element of detriment which cannot be disregarded as insignificant or of no consequence”. Or, as we would add, as the point is again put later in Franklin, “where an adverse element of detriment can be identified as something more than fanciful or insignificant it can properly be described as material”. The test of “material detriment” is set out in section 8(3)(a) of the Act. What the Applicants say is that the loss of view in this case “does not even meet the very low test advanced in the Franklin case”.

[14] While we should be inclined to view the interest of properties on the estate more distant from number 28 as failing this test, we are not prepared to hold that there is no interest on the part of the respondents to oppose the application. The properties in question are across the street from each other. The view will be affected by the proposed works, that much is conceded. We are dealing with a preliminary test that will, if passed, lead to a full balancing exercise. We are not persuaded in this case that the detriment is so slight as to be described as insignificant; it is material.

The Application and the Objections

[15] The information before us takes the form of the application, replies and a series of adjustments submitted by the legal representatives with related productions, supplemented by letters submitted directly by the parties. The background above and what follows takes account of all of this material. In the interests of brevity we do not attempt to reproduce all that has been written. The application in part (a) refers to the nature of the title condition as being “Prohibition from building on unbuilt part of plot to remain garden ground or ornamental ground”. The variation sought is “to allow 1½ storey extension shown on approved planning documentation”. The main focus is on the following section 100 factors:

a) Change in circumstances

[16] Under factor a) the Applicants point to considerable change over the years reporting that more than half of the properties at The Mount have been extended or altered in one way or another with a number having had their roofs raised, or attics converted, as well as a range of more modest extensions and outbuildings being built. The Respondents do not deny the fact of the alterations but make detailed comment on each. They do not dispute that some 1½ storey extensions exceeding 15 feet have been constructed but say that in none of these cases have the views of neighbours been affected in the way that the proposed extension will affect their outlook. They make it plain that a single storey extension limited to 15 feet in height would be acceptable. In response to the Applicants’ reporting of attic conversions where the roofs were raised they point to variation in the roof heights of the original buildings making the height increase differ from case to case and suggest that a marginal increase in the heights of roofs on conversion is not relevant so long as the external appearance of the dwelling does not change substantially.

b) Benefit

[17] The Nelsons say that they bought their property for its “stunning views”. The current open outlook would be reduced considerably by the proposed development. They have concerns that the gable window in the upper storey of an extended no. 28 would overlook their conservatory. This would not arise if the extension was single storey. Mrs Gunby states that her house is not currently overlooked or boxed in by neighbouring houses. If the proposed extension proceeds her view will disappear. She has concerns that if everyone were permitted to build to full house height then a “rural area” would become an “urban town”. Against this the Applicants consider that the benefit of the condition is slight. The gap between the rooflines of nos. 26 and 28 would be reduced but the effect would be minimal.

c) Burden

[18] The Applicants argue that their extension is a development that will improve the layout of their property on both levels. The footprint is not large and will still leave ample garden. A restriction to a height of 15 feet, as sought by the Respondents would be a substantial impediment compared to the limited benefit of a view between two gables. A flat roof would be inappropriate. The Respondents emphasize the restriction in the burden and argue that a restriction to 15 feet would result in very little impact on the views.

d) Purpose of the title condition

[19] In general, the Applicants state in the application and adjustments that the purpose of the condition is to regulate future construction work in the development for the benefit of all proprietors. They say that any intention to create uniformity was lost almost immediately through extensions and heightening of roofs. The purpose could not be to protect views as many of the properties down the hill have no views of any moment. These matters were now largely superseded by planning law. The Respondents take the contrary view. They say that the purpose was to protect views and amenity. They say that the burden contains a specific height restriction in order to protect the amenity of the area and views from houses including theirs. To allow the proposed extension would be contrary to that purpose.

[20] In more specific separate legal submissions the Applicants’ agents make detailed comments on the precise terms of the condition. They argue that the purpose of the condition has three aspects. Regulating the height of outbuildings is the first and is irrelevant to this case. The Respondents, they say, misconstrue this part of the condition which has nothing to do with extensions to houses and the height restriction of 15 feet is not therefore relevant to the application. If they are wrong in that then they also seek variation of this part of the burden. Regulating the extension of houses onto garden ground is the second purpose and was designed to protect and control the amenity of the estate from inappropriate development with a view to protecting the amenity of everyone on the estate and not any particular individual owner. This, they say, is the part of the condition that requires to be varied to allow the development to proceed. The final purpose was to provide the superior with an irregular income stream. They emphasise that the condition has nothing to do with preserving views. If that is right then they say that the Respondents’ submissions under factor b) should be given no weight and the application should be granted.

[21] The Respondents made no legal submissions separate from what was contained in their replies and adjustments summarised above. At numerous points there is a clear implication that they are of the view that the 15 feet height limitation applies to extensions to houses. They discuss the condition as allowing certain buildings to be built (garage, greenhouse, garden house and offices), noting that most of the constructions on the estate fall within or are consistent with (emphasis added) these types of buildings. They say that they would accept a variation to allow an extension to be built on garden ground subject to a 15 feet height restriction but do not link that directly to the height limitation in the title conditions but rather to the conclusion that this will have only a “minor impact” on the view. They also say that Mrs Gunby’s extension does not contravene the burden. They add that it is not higher than 15 feet and that the Nelsons’ conservatory is only single storey. They do not say that the 1½ storey extensions elsewhere on the estate violate a restriction of 15 feet but rather emphasise that they do not affect the views of neighbours.

g) Planning consent

[22] The Applicants merely observe that planning permission has been granted. Mrs Gunby argues that the planning consent is of no relevance as the authority was not entitled to take account of the views as a valid planning consideration.

h) Compensation

[23] No compensation was offered in this case.

Other heads

[24] No other heads were developed apart from noting without comment the age of the burden as 42 years.

Tribunal’s consideration

[25] The title conditions seem to us to be a fairly typical of those applied to housing estates of forty years ago. The terms of the conditions provide a means of regulating development of which there has been a fair amount over the years. The extent to which this considerable change has been achieved by express consent, acquiescence or otherwise is not clear and we have no information as to what developments have been rejected. We do not view the changes as being radical in character, rather, the estate has matured along familiar lines.

[26] We agree with the submission of the Applicants on factor d) - purpose - to the effect that the limitation of 15 feet in height applies to outbuildings and that the relevant part of the condition is that relating to alteration of the external appearance and internal arrangement of the dwellinghouse and to building on garden ground. We also agree that there is nothing in the condition to suggest that it is intended to protect views at particular properties. The conditions seem to be aimed at establishing a general regime that applies equally to properties throughout the estate with or without views of countryside; there is nothing to suggest otherwise.

[27] We not consider that “offices” can be taken to include significant parts of dwellinghouses such as dining rooms. Nor do we accept that it is correct to characterise single storey house extensions and conservatories that contain significant living accommodation as being consistent with garages, greenhouses and garden houses.

[28} We are drawn to the conclusion that in the absence of any provision suggesting that the purpose is concerned with protecting particular views, consideration of purpose does not assist the Respondents. The provisions are general and apply equally to properties that have no views. We have described and discussed this head at some length given the amount of material and argument that was devoted to it and the great emphasis laid on a purpose of protection of views by the Respondents. It is, however, but one factor that requires to be taken into account.

[29] So far as factor c) is concerned, we have to assess the extent of the benefit. We can approach this by considering what would be lost if the development was to proceed. We do not consider that the impact of the proposed development would be very great. The loss of view, by which is meant view into the distance, will have a greater impact at no. 41 as the property does not benefit from the all-round windows of the conservatory at no. 43. There will be some diminution in the impression of openness which existed by virtue of the elevation of the Respondents’ sites. Some of that openness had already disappeared when nos. 26 and 28 had their roofs raised. Some of the remaining advantage of the elevation and position of the Respondents’ sites will be lost. While it is necessary to set aside Mrs Gunby’s particularly strong personal attachment to her outlook, we do not doubt that a hypothetical occupier of the Respondents' properties would likely prefer the “before” to the “after”. But we do not consider that someone arriving fresh on the scene with the development completed would find the revised outlook at all objectionable. It would be normal for an estate of this character. They might well prefer it to being located further down the hill however much better the view might once have been. There will always, of course, be those who prefer to be on more level ground and closer to the village amenities.

[30] As to the concern of the Nelsons that the upper floor bedroom window of the extension will prejudice their privacy by overlooking their conservatory, we do not consider that this is a material matter. The impact will be of a window looking to the west moving four metres closer than under the existing arrangement. In an estate of this character there is always a certain amount of overlooking, indeed, the Nelsons’ conservatory, projecting out of the hillside, overlooks a number of properties including no. 28.

[31] As to the burden, factor c), we are of the opinion that prohibition of the works, or limiting the height of the extension would significantly diminish the opportunity for the Fergusons to develop their property as they would wish. They would not be able to take full advantage of their possibilities as have many others on the estate, including the objectors. That is a serious impediment to the enjoyment of their property. As indicated in both Franklin and MacKay, “enjoyment” includes the right to enjoy the full potential of property. The increase in the accommodation would add value to the house. As it seems to us, the proposed extension accords very well with the nature of the site and existing house. It takes full advantage of the character of the plot.

[32] The fact that planning permission has been granted may be an indication of acceptability in some general sense but there remains a place for private obligation. We place no emphasis on the fact of planning approval in this case.

Conclusion

[33] Having taken account of all of the material lodged and giving due regard to the relevant factors in section 100 of the Act, we are satisfied that the burden outweighs the benefit and that the balance of reasonableness favours varying the conditions in the Applicants’ title to allow the development for which planning permission has been granted to proceed.

Expenses

[34] The Applicants made brief reference to seeking expenses in the event of success but we have not heard from the Respondents in the matter. We shall allow a period for written submissions to be lodged and issue a decision in the usual way.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 15 April 2015

Neil M Tainsh – Clerk to the Tribunal