OPINION

Andrew and Annabella Yule v Michael Tobert

Introduction

[1] This is an application under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 for the variation of a title condition, namely a servitude right of access. The applicants are owners of the servient tenement or burdened property which is Greenside Cottage, Abbey Close, St Andrews. The respondent is owner of the dominant tenement or benefited property which is 44 South Street, St Andrews. The right of access through the applicants’ property is for both pedestrian and vehicular traffic and is expressed in terms which do not contain restriction. The applicants seek to vary the title condition so that the right of access is for residential purposes only.

Title Condition

[2] Both the benefited and burdened subjects are registered. The title condition appears in the title of both subjects. It appears as entry numbers 3 and 4 in the burdens section of the applicants’ title FFE36341. Entry 3 provides as follows:-

“Disposition by Willis Roxburgh and Lilian Joan Roxburgh to James Allan Dron Burns and Janet Allyson Burns and their executors and assignees, recorded GRS (Fife) 7 June 1984, of the subjects in this title, contains the following burdens: reserving in favour of us and our successors a right of access for pedestrian and vehicular traffic along the curved strip tinted blue on the Title Plan …”

The burden detail goes on to provide for maintenance and shared expense.

Burden entry number 4 essentially repeats the terms of the burden as follows, making certain further provision about use and maintenance not relevant for present purposes:-

“Disposition by Edward Scott Shirras and Pamela Susan Shirras, with consent of Michael Timothy Tobert and Linda Ann Tobert to Andrew Yule and Annabella Allan Moore Yule, of the subjects in this title, registered 5 October 1999 contains the following burdens: reserving always to the said Michael Timothy Tobert and Linda Ann Tobert and their successors and assignees as proprietors of 44 South Street a heritable and irredeemable servitude right of vehicular and pedestrian access to and egress from 44 South Street from the public road known as Abby Court over the area tinted blue on the Title Plan, which right of access shall not be impeded by the locking or obstructing of the gate serving said access …”

The title condition appears in the respondent’s title FFE58629 as a right for pedestrian and vehicular traffic along the curved strip of ground tinted brown on the Title Plan. The strip tinted brown in the respondent’s title matches the strip tinted blue in the applicants’ title.

Statutory provisions

[3] Section 98 of the Title Conditions (Scotland) Act 2003 (the “2003 Act”) provides as follows:-

“An application for the variation, discharge, renewal or preservation of a title condition shall … be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in Section 100 of this Act, that (a) … it is reasonable to grant the application.”

Section 100(a) to (j) lists the factors referred to in Section 98.

Procedure

[4] The applicants applied for variation of the title condition by application received on 6 May 2015. The respondent entered written opposition. Both parties made further written responses. We held a hearing on 5 October 2015 and site visit on 6 October 2015. The applicants were represented by Mr Fraser Geddes, solicitor, Glasgow. Both applicants gave evidence. The respondent was unrepresented. He gave evidence and led the evidence of his wife Ms Natasha Ventsel. After the hearing we were supplied with a planning appeal decision dated 19 October 2015 relating to the benefited property. We required to take it into account and received written submissions about it. The respondent also sought to lodge further evidence in the form of a letter from a former owner of the burdened property. We do not regard the letter as material since it merely confirms part of the historical background which we had considered to have been likely in any event.

Authority referred to

[5] Ord v Mashford 2006 SLT (Lands Tr) 15.

Background facts and circumstances

[6] The Lang Riggs between South Street and Queen’s Terrace in St Andrews are believed to date from the town’s origins as a mediaeval burgh. There are about half a dozen of them to a greater or lesser extent. They consist of long narrow gardens from the terraced houses on South Street extending south to various buildings along Queen’s Terrace. The gardens are surrounded by high stone walls and, in the case of No. 44 South Street, is over 100 metres long. Greenside Cottage is the former coach house pertaining to No. 44 and is located at the foot of the rigg. No one hazarded an estimate of the age of the respective properties but they are clearly very old.

[7] No. 44 is on the south side of South Street. It is a terraced house with no front access to the rigg. To the west lies Abbey Lane which runs between Queen’s Terrace and South Street. It is pedestrianised apart from the very south where there is vehicular access to the respective subjects. There is also a secure pedestrian gate to the No. 44 rigg from the lane about 60m south of South Street. To the east of the lane are mainly flats and houses, and about half way up lies the Byre Theatre. At the south of the No. 44 rigg lies Greenside Cottage and Queen’s Terrace. To the west lies No. 46 and the other riggs beyond.

[8] The respective subjects were separated in 1922. At this point the boundary appears to have been alongside the northern elevation of the cottage itself. At some point the properties reverted into the same ownership of a Mr and Mrs Roxburgh. It is not possible to ascertain from the title sheets the date precisely when this occurred, but from the planning history it would appear to have occurred by 1976. At this time Mr Roxburgh obtained planning permission for “alterations to dwellinghouse and partial demolition of rear boundary wall to form vehicular access at 44 South Street”. In 1984 Mr and Mrs Roxburgh sold off the cottage subject to the servitude right of access through the rear of its ground. In 1985 the Roxburghs sold No. 44 to the respondent and his then wife with the benefit of the servitude.

[9] By 1985 the access had been created. It would appear that Mr Roxburgh had extended the rear of the cottage ground by about 10 metres and separated the properties within the rigg by a wooden fence and double gate. Another double gate was created within the main west wall of what was now the cottage ground. This is a high wall, over 6 feet high, with a stone lintel. The gate extends on to Abbey Court just before it is pedestrianised to the north. The access therefore runs from Abbey Court through a double gate to a small courtyard pertaining to the cottage and then through the other double gate into ground belonging to No. 44. This ground includes a parking area at the foot of the rigg.

[10] It would appear that the rear of Greenside Cottage was extended on its ground and first floors, northwards in the mid-1990s. It is likely that its rear door only came into existence at this time. The applicants bought the property in 1999. The cottage also has a double gate access from the south from Queen’s Terrace. This access is little used since the ground behind it has been converted by the applicants entirely to garden. At one time it would have been used for the purposes of coach and horses. The cottage now uses its rear courtyard for car parking with vehicular access to Abbey Court.

[11] The rigg has been mainly used for garden and the growing of fruit and vegetables. At some point the southern part of it became neglected. After a contentious planning history, the respondent and his present wife succeeded in building a small nursery school to the south of the rigg and close to Greenside Cottage. It operates as a Montessori school. It operates from 8.45am until lunch time, five days a week. There is no access to the school via the cottage access on account of a planning restriction. However that does not give the whole picture and it is necessary to consider the planning history which largely explains the background of the dispute. As shall be seen the planning position has firmed in a material respect between the tribunal hearing and the date of our decision.

[12] The respondent is married to a teacher. In January 2012 the respondent applied for planning permission for the erection of a single storey classroom intended as a nursery school. The classroom would be situated at the south end of the rigg, quite close to the cottage. The plans showed the parking area intended both for the house and school staff. A supporting statement indicated that there would be three members of staff, one of whom was resident at 44 South Street and that the other two staff members would require long-stay parking. The statement said that such parking would be accommodated in the existing parking area at the bottom of the 44 South Street garden, “subject to agreement by the owner of Greenside Cottage”. The statement went on to state that alternatively the school would seek to use the private parking arrangement in place at the school’s then current premises, namely the nearby Holy Trinity Church Hall. The application also proposed a new pedestrian access to be formed in the rigg wall. This access would go on to Abbey Lane, a few metres north of the car park. The supporting statement indicated that existing drop off arrangements could continue at Holy Trinity Church or, alternatively, parents could use South Street.

[13] The application was recommended for refusal by a planning officer, albeit for no reason connected with the access. On 30 October 2012 Fife Council refused planning permission for one reason, namely that the development would not respect the form and character of the historic riggs within the conservation area.

[14] The respondent appealed this decision to Scottish Ministers. A reporter dismissed the appeal by decision dated 28 February 2013. His reasoning was different to that of the council. He did not consider that the development would prejudice or adversely affect the prevailing character of the area. Nor did he share a concern regarding detrimental impact of noise on the amenity of occupiers which had been mentioned in the officer’s report. However, the reporter considered that the restricted parking and drop off/pick up arrangements would lead to road and pedestrian safety problems in the vicinity of Abbey Court. He said:-

“There are a number of lock-up garages arranged around a private courtyard beneath the Abbey Court flatted development. The movement of private cars and service vehicles in this area is already restricted as a result of the carriageway width and alignment and car parking in the courtyard. I believe that it would be inevitable that vehicles going to and from the nursery would park in Abbey Court, Queens Terrace and Greenside Place and that this would cause localised congestion and, most importantly, it would prejudice road safety and the safety of users of the proposed nursery and houses around Abbey Court.”

The Reporter accordingly refused planning permission.

[15] The respondent again applied for planning permission for the erection of the nursery school in July 2013. The design was changed so that the pedestrian access from Abbey Lane was closer to South Street, resulting in a long path within the rigg from the new entrance to the school building. The parking area adjacent to the cottage was described as “Parking for private house” and “Access to parking (existing right of access)”. In other words the plans showed that no school related use was intended for the existing right of access. The respondent’s planning case included a travel plan. This stated:-

“Access point for parents and children

Access to the school is pedestrian only. This access is solely through the school gate opposite the western entrance to the Byre Theatre.

There is no vehicular access to the school. Access through the double gates of Greenside Cottage is not allowed.

Car parking

Abundant short term car parking is available on South Street. This is to the north of the school and is the closest parking area.

There is no parking available close by to the south. Parents must not park on the double yellow lines of Queens Terrace or Greenside Place. Besides being illegal and further away from the school than South Street, this would cause upset to our neighbours.

Travel plan for staff

Staff are encouraged to come by bus, bike or on foot.

If coming by car, staff will use available long term parking in the town.

For short stays, staff will park in South Street.

The access point for staff is through the pedestrian gate opposite the western entrance to the Byre Theatre (see above).”

[16] The planning officer noted that the scheme had addressed the issue identified by the reporter, by moving the proposed access to the site 70 metres to the north to encourage those parents who travelled by car to use the existing parking on South Street. No access to the nursery would be permitted by the existing vehicular access to the south of the site. The proposed access was now approximately 60 metres from the parking on South Street and approximately 90 metres from the parking on Abbey Court and 130 metres from the parking on Greenside Close. Accordingly the new access would mean that parking on South Street would be the closest to the nursery and thus would be more convenient for parents dropping off their children by car to use the parking there. The officer recommended approval stating that with regards to amenity issues it was considered that in the context of the town centre location and the relatively small scale nature of the proposal that there would be no significant adverse impact on the amenity of neighbouring residential properties. In terms of road safety/parking and congestion issues it was considered that the revised access point would make South Street the most convenient location for parking thereby addressing the concerns raised by the reporter in respect of the previous scheme.

[17] The Council granted permission for the school on 8 November 2013. Condition 2 stated:-

“2. Access to the nursery hereby approved shall only be taken from the new pedestrian access gate on the eastern boundary of the site as approved under this application. FOR THE AVOIDANCE OF ANY DOUBT the existing access to the south of the site shall not be used to access the nursery.

Reason: 2. In order to define the terms of the consent.”

[18] Condition 3 restricted hours of operation between 8.45am and 12.30pm Monday to Friday unless otherwise agreed with the planning authority. A further condition required the operators of the nursery to promote the travel plan.

[19] The respondent then commenced the construction of the nursery. To do so he required to take access via the right of access through the applicants’ property. To facilitate this he wished the removal of the lintel above the entrance in the stone wall. The applicants did not agree to the access being used for this purpose or in this way. They raised proceedings in the Court of Session against the respondent in the early part of January 2014. Their contention was that there would be an unauthorised increase on the burden of the servitude on their subjects. At the point of an interim interdict hearing parties reached an agreement which would enable the respondent to construct the school, in which tradesmen would be able to use the existing right of access. The school was completed and its use commenced in February 2015.

[20] On 5 February 2015 the respondent made an application to Fife Council to vary condition 2 of the 2013 permission to allow the residential car park and existing access to the south of the site to be used by nursery school staff. Three parking spaces were proposed for use at the south of the school, adjacent with the cottage boundary. The school staff would therefore use the access hitherto only used for largely residential purposes of No. 44. The supporting statement amongst other things stated that there would be very little disturbance to the owners’ amenity by teachers accessing the nursery. It was estimated that the total crossing time (once in and once out) for each teacher would be some three minutes including the opening and closing of the outer gate. For three cars this would equate to nine minutes per teaching day. The statement also made the point that the reason for imposing condition 2 was not clear. The appeal decision on the 2012 application was, it was argued, associated with the use of the southern access by parents, guardians and children rather than staff and that residential amenity of the cottage was not a factor in the decision.

[21] The planning officer recommended refusal of the application to vary planning condition 2 for three reasons. The council duly refused planning permission for those reasons on 15 May 2015. The first reason related to the opening of the boundary wall of the cottage onto Abbey Court being unsuitable for intensification due to sub-standard visibility displays to the detriment of road safety. The second reason related to the loss of three off-street parking spaces for the dwellinghouse at No. 44 South Street which would put pressure on existing on-street parking. The third reason was that the proposal would have an unacceptable detrimental impact on the existing levels of residential amenity currently enjoyed by residents of Greenside Cottage in terms of loss of privacy, noise and disruption.

[22] Specifically regarding the third reason, the officer’s report stated under the heading of “Residential amenity” the following:-

“2.3.3 It is considered that the proposals would cause a significant detrimental impact on the existing levels of residential amenity enjoyed by the residents of Greenside Cottage due to the levels of disruption, noise and loss of privacy which would be anticipated by an unspecified number of vehicles crossing through their private rear yard just two metres from the principal entrance into their property and adjacent to their principal family room/kitchen which faces into the rear yard area. Therefore, all matters considered, the proposal does not meet the terms of the development plan in relation to the residential amenity as the current proposal would intensify the use of the current access causing a detrimental impact on the neighbouring property and is therefore not acceptable.”

[23] The respondent appealed this decision to Scottish Ministers in July 2015. The supporting statement repeated the submission that there would not be an unacceptable detrimental impact on the existing levels of residential amenity enjoyed by the residents of Greenside Cottage. It made the point that the respondent, his family and other visitors associated with the house can come and go as they please whereas teachers accessing the site would only be on a limited basis and only on teaching days. In paragraph 2.3 the planning consultants indicated that the approved plans for the nursery school annotating the parking spaces for the respondent’s house was an oversight as explained in the respondent’s own statement of support. The respondent’s statement contended that condition 2 was unworkable and divisive and he criticised the three reasons produced by the council for its decision. He did not, apparently, specifically explain the “oversight”. One of the supporting statements was a letter from a former teacher who considered it “absolutely essential to have immediate access to a car. I can think of many occasions when proximity of a vehicle was a godsend taking an injured or sick child immediately to a hospital. Of course there are ambulances and most of the time they are available but not always straight away”.

[24] The council defended its decision. At the hearing we were informed that a decision on the planning appeal was expected by 23 November 2015. In fact a decision was issued sooner on 19 October and was forwarded to us by the applicants. We require to take it into account. In that decision an assistant chief reporter refused the appeal. Her decision notice states:

“9. People wishing to use the parking area have to open both sets of gates and drive across the rear yard area of Greenside Cottage, as they are legally entitled to do.

However, this must cause some disruption to Greenside Cottage residents, albeit minor at present given the low frequency of use by residents of 44 South Street. Were the parking area to be used by nursery staff, there could be 6 vehicular movements (in and out) every day during the week, in addition to the use by residents in the afternoons and evenings. I appreciate that, as the parking area is not restricted residents could make much more intensive use of it than they appear to do at present. Nevertheless, I consider allowing nursery staff to be able to access the nursery from the parking area would be an unacceptable intensification in the use of the parking area which would be detrimental to the amenity of residents in Greenside Cottage and affect their privacy.

10. In addition, as it is not possible to see into the parking area from Abbey Court, anyone wishing to use the parking area would have to open both sets of gates before they knew whether there was any room for their vehicle. I do not envisage this to be a significant issue currently as only residents at 44 South Street and their guests use the parking area. However, were the parking area to be used for nursery staff and tradespeople associated with the nursery, as well as residents, there could well be times when the parking area (which only holds 3 cars) would be full and the gates would be opened unnecessarily, adding to the disruption suffered by Greenside Cottage residents.”

[25] The present application to the Tribunal was made on 6 May 2015, just before the notice of refusal by the council on 15 May 2015. At that time the outcome of the planning process about use of the cottage access was, therefore, uncertain. The position now is that planning permission for access for school staff use has been refused both by the council and a senior reporter on amenity grounds relating to the cottage. To use the cottage access for access to the nursery would be unlawful in terms of condition 2 of the relevant planning consent.

[26] We now turn to other matters. There was a factual dispute as to how often the applicants stayed at the cottage, and the extent to which the respondent historically used the vehicular access for the purposes of No. 44 South Street. As this is essentially background information we do not think it is necessary to make very specific findings, but we think the following can be concluded from the evidence. The applicants are in their 60s. When they bought the cottage in 1999 they were looking for a place to retire, particularly with the golfing attractions of St Andrews. They have a residence in Glasgow where they have business interests and family. They also have family connections in St Andrews. Their main residence for the purpose of GP registration and voting is St Andrews. The applicants were not entirely forthcoming as to how much of their time they spent there, but we infer that the property is used more than as a holiday house, and that it would be reasonable to infer that their residence there will probably increase over the years.

[27] The respondent and his former wife parked their cars via the right of access until council parking permits were issued to residents of South Street. They had acquired the property in 1985 and we understood permits to be issued in about 1997. For this period the access would have been used for domestic purposes such as daily school runs, shopping trips and the like. The current parking scheme allows one on-street parking place per household. The respondent has been part of a one car family since about 2000, in which his car has been parked on the main street rather than the back entrance. The rear access has been used by various contractors from time to time as well as the gardener every two to three weeks in the growing season. From 1990 to 1991 the respondent ran a company from his house in which two other employees or directors used the rear parking space. Between January 2011 and August 2011 the Montessori school was based on the ground floor of 44 South Street. Between September 2011 and February 2014 the school moved to the church hall and for over two years the teachers and children would visit the garden of No. 44 about three times a week during the school term, entering by the rear access by foot. For several years the respondent has rented out the ground floor of 44 South Street for weekly lets in the summer. Guests use the rear car park. Construction vehicles and workers used the rear access on a regular basis from 2014 to February 2015 for the construction of the school. The house 44 South Street is large and contains six bedrooms. The parking area pertaining to it has now been formalised. There is just enough room for three cars.

[28] The riggs are on the southern edge of the town centre. According to the local plan it is a mixed use area. The respondent has gone some effort to seek to demonstrate that the area has been more than residential. To the east there is the Byre Theatre although there are also fairly modern flats to the east. To the west, the next rigg but one pertaining to 52 South Street may have had a baker’s delivery depot still there in 1984. The foot of the rigg pertaining to No. 54 appears to have had a smithy still in occupation in 1986. The house at No. 54 appears to have been used as a university supplies office at least until the early 1980’s. The Holy Trinity Church Hall occupies the foot of the rigg pertaining to No. 58. It was nevertheless our impression at the site visit that predominantly the uses now at the foot of the riggs along Queen’s Terrance are residential. There are also modern flats adjacent to the church hall running up Westburn Lane which appears to have been a sizeable development. The wider locality, both to the east and west, contains numerous school and university buildings.

Applicants’ submissions

[29] The applicants submitted on a balance of the factors mentioned in Section 100 of the 2003 Act, and under reference to Ord v Mashford, that the title condition should be varied so as to be restricted to residential use only. It was submitted that, under reference to Section 98(a) that it was reasonable to grant the application.

[30] It was submitted that, with reference to factor (a) there had been a significant change in the character of the benefited property. That change was the construction and use of the nursery school. This would result in a material adverse impact upon the amenity of the burdened property. The application for development of the school 28 years later could not have been foreseen at the time the condition was imposed. Turning to factor (b) the benefit of the apparently unrestricted deed of servitude did not presently have practical consequences, since there was no planning consent associated with the rear access and the school. In practical terms the benefit was for access for residential purposes and that use had been somewhat infrequent. It was apparent that the school could operate without use of the rear access, since this was what it was doing. Turning to factor (c) the condition if unrestricted would impede the enjoyment of the cottage. The applicants were seeking to protect the status quo. There would be an intensification of use. The applicants had reasonable concerns that the nursery school could be used both morning and afternoon, and in the summer holidays should the operators so chose or different operators were in place. They had concerns for the safety of young children within their back court area. It would be fair to describe the full extent of the benefit and burden in terms of “potential” benefit and burden, in the light of the pending planning appeal.

[31] In terms of factor (e) the condition was first created over 30 years ago. It was submitted that the recent change of circumstances was more important than the time factor alone.

[32] In terms of factor (f) it would appear that the purpose of the burden was no more than to provide the house No. 44 with vehicular access. There was no evidence that Mr Roxburgh had intended to construct another building, or maintain another use since the planning history had been researched and the only relevant planning application was for the formation of the access in 1976.

[33] Factor (g) did not apply because there was no relevant planning consent in relation to the burdened property. However the planning position regarding the benefited property was, it was submitted, a factor which the tribunal could consider to be material in terms of factor (j). The planning permission of 2013 permitted the new use of the south part of the rigg for the school. The applicants were seeking to preserve the status quo. The planning regime worked in the public interest and one could conclude that the construction of the nursery did not offend public policy. On the other hand, the amenity issues were such in relation to the cottage, standing the terms of the council’s refusal of the application to vary planning condition 2, that the increased access would offend public policy. If planning permission were granted in the appeal for the access, there would be a loss of amenity for the cottage.

[34] In terms of factor (h) the applicants were willing to pay compensation if that were to be a requirement of the tribunal in allowing the variation.

[35] Following the reporter’s recent decision it was submitted that it was still reasonable to grant the application. The factual scenario was unchanged. The respondent had demonstrated tenacity in various planning processes and certain submissions he had made appeared to challenge whether condition 2 succeeded in preventing the access for school use. There was a danger of “creeping” permissions. The applicants had no control of the enforcement of the planning condition. The respondent would not be prejudiced by the title condition being varied since his own residential access would be retained. It was reasonable to enshrine the titles now in a way which would preserve the status quo.

Respondent’s submissions

[36] The respondent did not make a detailed closing submission, but we would attempt to set out his position regarding the various factors. Much of his position at the hearing related to factual differences with the applicants’ position.

[37] In terms of factor (a) he emphasised the number of educational establishments in the locality to which, it might be said, his efforts had added only one. In terms of factor (b) but for the unrestricted servitude it would not have been possible for him to have constructed the school. Had there been a restriction to residential use only, it would not have been possible to bring in materials and machinery. It would not have been possible to use the new pedestrian side entrance, or access through the house of No. 44. The ability to enable staff parking at the rear for the nursery would be useful and valuable. Access to a vehicle could be critical in the event of an emergency involving one of the children. Turning to factor (c) it was the respondent’s position that the applicants had not made much use of the cottage. When access had been taken they had rarely seen the applicants being present. As argued in the planning process, three teachers per day using the access in the school term would amount only to a total of nine minutes of use. This was not significant. As No. 44 was a large house it could easily be occupied by a three car family, each making regular use of vehicles at the rear. So potentially the burden could be greater with a residential use than with the school use. There was no intention to increase the use of the school to the afternoons or within the school holiday periods. The school had three staff members, one of whom, his wife, was resident at the house in any event. We inferred that the third space might be used by visiting staff. It was also pointed out that large vans could not use the access on account of the lintel at the gateway.

[38] Following the reporter’s decision it was submitted that there was no material burden since the access could not now be used for the school. It was argued it was significant that the cottage had only recently had access to the north. He also wished the tribunal to give a decision in principle as to the limits of his right of access.

Discussion by Tribunal

[39] Quite apart from the remarkable nature of the benefited property, this is an unusual case. The familiar situation is where some title restriction prevents a new use or new building to be built upon the burdened property. Very often changes in circumstances are pointed out, since the condition was laid down, to show that the condition is out of date, has lost its utility or is no longer relevant. But here the applicants are seeking a restriction of the width of a title condition as would prevent a new use by the benefited property. The applicants’ position is therefore to seek to vary the burden so as to preserve the status quo, and in particular to preserve the amenity of the burdened property as it stands hitherto.

[40] Another unusual feature is the state of the planning permission. In the familiar case the burdened property will have secured a planning permission for the construction of some building or for some new use. It will thus be demonstrated that the new building or use is acceptable as far as the public interest is concerned. Here there has been a planning permission for the construction and use of the school on the benefited property, now implemented, but permission to use the rear access in association with the school has been expressly refused. Therefore the potential measure of the apparently unrestricted servitude, and in real terms the benefit and burden upon the respective subjects, would only have come into play had the planning appeal been allowed. In that event the benefited property would, on the face of it, have been free to intensify its use of the access. But planning permission has been refused. At the time of the hearing it would have been fair to describe the burden and benefit as “potential” depending upon the outcome of the planning process. Given the uncertainties it would not be easy to quantify the weight to be given to potential burden and benefit, but potential future use could not, we think, be easily ignored by the tribunal. There are no doubt circumstances where a potential benefit or potential burden is nevertheless a benefit or burden of some weight. A developer with an unrestricted right of access has the benefit of being able to make assumptions now as to what he can do with his property in the future, and proceed accordingly. Equally the owner of the burdened property may also have to make assumptions as to how future developments could affect him and make provision accordingly.

[41] However, as matters now stand there is a definite planning conclusion with the result that the rear access cannot be lawfully used in association with the school. The benefited property does not have the benefit of use of the access for school purposes (factor (b)), and the burdened property does not have the burden of such use (factor (c)). As presently advised we cannot see how there can be a reasonable prospect for the respondent to overturn or circumvent the relevant planning restriction. So it seems unrealistic now to speak of a significant “potential” burden or benefit for this reason. This goes to the heart of the case. We therefore consider that the potential intensification of use, which this application was designed to seek to prevent, is now not a live issue. So we believe that the factors can be disposed of on this narrow ground. With this in mind we turn to the factors:

[42] In terms of factor (a) we conclude that there has been a change in circumstances since 1984 and 1999 in that the character of the benefited property has changed, namely with the construction and use of a nursery school in its grounds. We acknowledge that there are many educational buildings within the wider neighbourhood of the subjects. But we do not think this type of use could have been foreseen at the point when the burden was created. The burdened property has also changed somewhat by the construction of the rear extension. Our own observations suggest that this may have made the property more vulnerable to an intensification of the use of access – various overlooking windows exist as part of the extension - but we infer at the time these were created the cottage owners could not have foreseen the likelihood of the school. So we think the change in circumstances would have been relevant and in favour of the applicants if the increased use of the access had been a live issue. To some extent this point is aligned to (f) considered below.

[43] We have noted that the surrounding area, in particular buildings at the south of the other riggs are predominantly residential in nature, although not exclusively so. An argument could probably have been advanced that land at the south of the riggs has, since 1984, been used more for residential than commercial use. However, we do not consider this to be a significant point.

[44] Turning to factor (b) we are not being asked to discharge the servitude altogether. The applicants accept that a servitude for residential use should remain since that was the case when the property was sub-divided in 1984 and when they came to the property in 1999. The question is therefore whether the condition confers benefit for the use as a nursery. We accept that but for the apparently unrestricted terms of the servitude, it would probably have been impossible to construct the school. But the school has been built. So the question is whether the condition confers benefit for what had until very recently been sought, namely for the use of staff vehicles. In addressing this point we cannot ignore the fact that the school has apparently been able to operate successfully without on-site staff parking. The respondent presented a travel plan in the planning process stating, amongst other things, that staff would use available long term parking in the town and would be encouraged to come by bus, bike or on foot. We were given to understand that the school had all necessary statutory consents in place, including in relation to children’s welfare. Accordingly we cannot give significant weight to the argument that the ready access to a vehicle was essential on safety grounds in an emergency. We heard no evidence that the inability to provide staff with their own parking was likely to deter the recruitment of good staff. So even ignoring the planning restriction discussed above, we would give relatively less weight to this factor in comparison with factor (c).

[45] That said, we accept that there would be significant benefit should tradesmen require to take equipment and materials for the school building by vehicle, given that the only other access is on foot and not close by.

[46] Turning to factor (c), and again for the moment leaving to one side the planning restriction, we accept that the condition, if unrestricted, would impede enjoyment of the burdened property. We accept that the shared access does raise amenity issues. The access is through what would otherwise be a private back area of the cottage. It is in fact now the main entrance to the cottage. Any vehicle taking access requires to go through two sets of double gates. The angles of the gates are at right angles to each other and, given that there is relatively little room, are not particularly easy to negotiate. The discreet parking area for No. 44 is also fairly tight for the purpose of three vehicles and a certain amount of manoeuvring would be inevitable. Both sets of gates require to be pinned back in order to leave them open for the driver to drive through. There is noisy gravel. The motorist cannot see from Abbey Court if parking space is available until both sets of gates have been opened. The main room of the cottage looks both north and south. We agree that the main view is to the south and would be unaffected. However the view from the window looking north from the kitchen part of the main room looks directly to the private entrance of No. 44, and would align with the view of the driver leaving there. There are also two or three upper windows at the cottage which look directly either to the No. 44 entrance or to the wall entrance.

[47] We think it is inevitable that there would be an intensification of use. All else being equal, the addition of new floorspace and the introduction of staff working on the benefited subjects is, objectively, likely to produce a greater trip generation. We accept the argument that, theoretically, the house could have at any one time a large number of residential occupants each using a car which could generate more trips than the school use. However, adding the school use, objectively speaking, is only likely to lead to an intensification of use. Although the respondent and his wife have no present intention of increasing the amount of days and hours over which the school is used, objectively that could happen in the future. Even on present permitted hours school staff could use the access in the morning and residents could use it in the afternoons and evenings. On these matters we cannot improve upon the reporter’s summary quoted above.

[48] In conclusion, but for the planning restriction, we would have found the burden upon the burdened property to have been significant. Increased use of the access would have been material and would have been likely to cause a significant loss of amenity to the burdened property. At present there is only residential use of the access and this right is not sought to be removed. To some extent the existing residential access use for the benefited property is inherently limited. This is because vehicular access at the rear is not particularly convenient, since the motorist would require to walk over 100 metres from the parking space to the house itself, which (unless he chose to backtrack up the lane) would also involve walking past the school. Thus there will be a deterrent factor. Also, since the property is in the town centre of St Andrews where local services are available, there is less need to use a car on a regular basis. So the weight of the burden would be significant in relation to the benefit, if the nursery access had been permitted.

[49] Turning to factor (e) we agree that the length of time which has elapsed since the condition was created is not particularly significant.

[50] Turning to factor (f) we accept the inference that the purpose, or at least the main purpose of the title condition was to allow vehicular access to No. 44, at the point when the properties were split. One might infer there was some ancillary purpose to allow the cottage a further vehicular access, thereby freeing up land at the front for a garden. Perhaps, at the risk of conjecture, this was seen as a counter-balance for the intrusion which would be caused by the shared access. However, there is no evidence to suggest that the purpose was to enable any form of property development at the south of the rigg.

[51] Factor (g) is not relevant because there is no relevant planning consent for the burdened property. But there is a refused consent for benefited property which we think is relevant under factor (j). As we have discussed above, we cannot envisage how there is now a real prospect that lawful nursery school access use could materialise. In effect the applicants are asking us to vary a title condition because the vicissitudes of the planning system might mean the respondent could come back another day with another application and another intrusive development which might affect them. But given that the only possible use for the nursery school appears to be as a nursery, and that permission for the access for that purpose has been refused on amenity grounds both by the council and a senior reporter, we do not think we can attempt to add weight to a burden on the basis of some unspecified further eventuality.

[52] Finally, under factor (h) we would have agreed that if the planning appeal had succeeded, the variation of the condition as proposed would have been likely to have caused the loss of a valuable right. On that scenario there may have been an arguable claim for compensation under section 90(7)(a). However this matter does not now arise.

Conclusion

[53] We think it can be concluded that the relationship between burden and benefit has, in reality, changed little since the condition was imposed. In 1984 there was no intention to use the access for nursery school staff because there was no school in prospect. Now in 2015 there can be no bona fide intention to use the access for school staff because although there is a school, planning permission for such access use has been refused and in no uncertain terms. We do not believe that the use which the applicants wish the title variation to prevent is any longer a live issue. So we do not think the factors weigh heavily enough such that it would be reasonable to grant the application.

[54] There is a further point. Had we decided to vary the condition so as to prevent school staff use or permit only residential use, notwithstanding the planning restriction we would have wished the titles to permit access to enable maintenance, repair or renewal for the nursery building. That building has now been built and is in active use. The only possible vehicular access is from the cottage access, and from a pragmatic point of view it seems to us that such access would be useful to the benefited property, with relatively little extra burden to the burdened property. To make the distinction about what is and what is not permitted would potentially need a fairly elaborate form of order. While that could no doubt be made, we do not think it is a good idea to attempt a further and detailed tier of property regulation unless demonstrably necessary.

[55] We should finally point out in fairness to parties that had the planning appeal allowed the access to be used for school staff, then our conclusion would have been different. As discussed above we would have found that the increased burden would have been significant in the light of changes in the benefited property since 1984 and in the light of such a planning decision. We would have found that these factors were not outweighed by the more limited benefit to the benefited property. We would have acknowledged that the benefit to the benefited property was still likely to have been valuable. In these circumstances we would have been prepared to vary the title conditions, but only after giving the respondent an opportunity to make a case for compensation.

Decision

[56] We refuse the application. We reserve any question of expenses.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 November 2015

Neil M Tainsh – Clerk to the Tribunal