1. This is an application under sec 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) by Mr James O’Donnell of 1 Morrishill Drive, Beith, Ayrshire, for a variation of a title condition prohibiting the erection of additional buildings on his feu.
2. Mr O’Donnell’s feu is a large one. The area not taken up by the house which is his home and associated buildings is in excess of 1144 square metres and, up until now, as required by his title conditions, has been maintained as ornamental or garden ground. Now 30 years older and in less good health than he was when he acquired the property in 1987, he wishes to dispose of an area of 1144 square metres in respect of which he has obtained planning permission from North Ayrshire Council for the erection of three detached four-bedroomed houses.
3. The application having been intimated to all 87 of the other proprietors on the Morrishill Manor Estate (hereinafter “the Morrishill Estate” or “the estate”), five objected and have lodged written submissions. The applicant is represented by DLA Piper Scotland LLP, Edinburgh, solicitors. The objectors are not represented. All parties have agreed, in terms of Rule 26 of the Lands Tribunal for Scotland 2003, that the application can be disposed of on the basis of written submissions and without a hearing. We carried out a site inspection on 27 March 2018 in the course of which we met Mr O’Donnell and two of the objectors, Mr McMaster and Mr Craig.
Title Conditions (Scotland) Act 2003, sec 8(3)(a), 90(1)(a)(i), 95, 98(1)(a) and 100
Franklin v Lawson 2013 SLT (Lands Tr) 81
Prof Rennie, Land Tenure and Tenements Legislation, 3rd ed, page 211
4. The estate was built by London and Clydeside Estates Ltd between 1985 and 1987. It is a pleasant development, situated on the southwestern edge of Beith, and comprises 88 dwellings. It is entered from the B7049 Dalry Road and, as its address suggests, the applicant’s property is the first one you come to as you enter the estate, on your left. The plan (PDF) attached to this Opinion shows the layout of the estate and, in particular, the location of the objectors’ houses in relation to the subjects of this application.
5. The relevant title condition is contained in a Deed of Conditions by London and Clydeside Estates Limited dated 28 and recorded in the Division of the General Register of Sasines for the County of Ayr on 29 August 1985 and reads as follows:
“(THIRD) Each of the said dwellinghouses shall be used as a private dwellinghouse only and for no other purpose whatsoever and shall never in any way be sub-divided or occupied by more than one family at a time; no additional buildings of any description shall be erected on the feu or feuing estate without the prior written consent of the superiors and no additions, enlargements, alterations, rebuilding or reconstruction shall be made on or to the feu until the plans thereof have been approved and written consent thereto given by the Superiors and which additions, enlargements, alterations, rebuilding or reconstruction shall conform in all respects to the requirements of any local Authority Bye-Laws, Public Statutes and Orders and Others; All ground in the feuing estate (except as hereinafter mentioned) shall so far as not occupied by buildings as aforesaid be used as ornamental or garden ground all in connection with the said dwellinghouse and for no other purpose whatsoever”.
6. Clause (FIFTEENTH) of the Deed declared the foregoing reservations, burdens, conditions etc. to constitute a common plan or scheme with the effect of conferring on each feuar the right to enforce them against the other feuars “so far as they may in every case have an Interest to do so”. Thus all of the properties are both benefited and burdened by this condition.
7. The objectors are;
Mr & Mrs Wilson, 8 Morrishill Drive
Mr & Mrs McMaster, 11 Cuff Crescent
Mr & Mrs Craig, 11A Cuff Crescent
Mr & Mrs Cumming, 19 Cuff Crescent; and
Mr & Mrs Balmer, 23 Cuff Crescent.
8. The objectors’ concerns have to do with safety and the amenity of the Morrishill Estate. So far as safety is concerned, they point out the proximity of the proposed development to a bend in the road entering the estate. It is said that vehicles already park on the road in the vicinity of this bend, restricting visibility and the apprehension is that, if three new houses are built, each with, in all probability, at least two cars, the problem is going to get significantly worse. The entrance to the estate is also a crossing point for children who use a purposely created lane to the east of the estate in order to get to and from school. There is also a bus stop just beyond the entrance to the estate (going northwards) where stopping buses will add to the congestion. Moreover there is an electricity sub-station and a gas installation at the entrance to the estate, immediately adjacent to 1 Morrishill Drive, which require to be maintained from time to time and Mr & Mrs McMaster cite an occasion when some half-a-dozen vehicles were parked along the road, from the substation, round the bend and all the way to the junction of Morrishill Drive with Cuff Crescent so that other vehicles entering and exiting the estate were forced to use one lane of the road and were, therefore, meeting head-on. In short, it is said that if three new houses are allowed to be built in this location the entrance to the estate will “become a nightmare”.
9. Mr & Mrs Balmer, who live in Cuff Crescent, also mention a problem with visibility when exiting their street and turning left onto Morrishill Drive.
10. So far as loss of amenity is concerned, the objectors contrast the present character of the ground – open but with some trees – with the effect of “three detached houses piled together”. This increased density of housing at the entrance to the estate will, it is said, be out of character with the rest of the estate and detract from its present open and welcoming character, to the detriment of property values.
11. In summary it is said that implementation of this proposal would be to the material detriment of other properties on the estate and their proprietors and would not be in the public interest due to traffic and road safety concerns.
12. It is pointed out that, although many houses on the estate have had alterations carried out on them over the years, this is the first time that the condition of one house per feu has been sought to be altered. Some of the objectors have said that if the applicant is doing this because he is no longer able to maintain the ground his remedy is to downsize, not cash in on the value of his land to the detriment of other properties.
13. The applicant's agents have made submissions under the following paragraphs of sec 100 of the 2003 Act:
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties).
14. It is said that many houses have had extensions and alterations such as the building of conservatories or summer houses carried out and that seven trees on the applicant’s land which were protected by a Tree Protection Order have been felled by high winds, creating a clear area on which three houses can be built.
(b) the extent to which the condition – (i) confers benefit on the benefited property; or (ii) where there is no benefited property, confers benefit on the public
15. It is said that the proposal would “not remove a real benefit from the benefited proprietors nor adversely affect or detract from the existing amenity of the Estate”. Traffic impact will, it is said, be minimal and each new house will have a driveway for two cars. The existing planning permission contains conditions as to landscaping, drainage and “visibility splays” which, it is said, will protect both the amenity of the estate and public safety.
(c) the extent to which the condition impedes enjoyment of the burdened property
16. It is explained that due to advancing years and ill-health the garden is now more of a burden than a benefit to the applicant. The title condition impedes his ability to realise its value and thus prevents him from enjoying his property.
(e) the length of time which has elapsed since the condition was created
17. The condition was created 32 years ago.
(f) the purpose of the title condition
18. It is accepted that the condition was created to preserve and protect the amenity of the estate.
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents
19. Full planning permission for the houses was granted by North Ayrshire Council on 5 December 2016, subject to the foresaid conditions.
(j) any other factor which the Lands Tribunal consider to be material
20. Under this head the applicant’s agents make the following points:
(i) The applicant is no longer physically able to maintain this ground; it has become largely unoccupied land which has no other very obvious beneficial use other than housing.
(ii) The provision of additional housing is a reasonable use of the land.
(iii) The housing proposed would not bring about any material change in the character of the estate or remove any particular benefit from neighbouring proprietors.
(iv) The amenity of the estate is more likely to be detrimentally affected if such a large area of ground falls into disrepair.
(v) There is no reason to believe that granting this application will lead to a flurry of similar applications, there being no other property on the estate large enough to accommodate this scale of development.
(vi) The estate already has open spaces and play areas which are the common property of the proprietors and are not affected by this development.
21. The applicant’s agents have challenged the interest of the various objectors to oppose this application. They base this challenge on sec 8(3)(a) of the 2003 Act.
22. Section 8 of the 2003 Act has to do with the enforcement of real burdens. It comes into play where someone is positively wanting to enforce such a burden at his or her own insistence in the way, for example, of an action in the Sheriff Court, of which Barker & Ors v Lewis 2008 SLT (Sh Ct) 48 is an example. Although they can be seen as doing the same thing (enforcing a burden) in different ways, we do not consider that it has any application to sec 90. That is because Part 9 of the Act, which has to do with the powers of this Tribunal in relation to title conditions, contains, at sec 95, its own provisions as to who can object:
“95 Persons entitled to make representation
The persons entitled to make representations as respects an application under section 90(1) or 91(1) of this Act are –
(a) any person who has title to enforce the title condition;
(b) any person against whom the title conditions is enforceable;
(c) in the case mentioned in paragraph (b)(ii) or (e) of section 90(1), the person proposing to register the conveyance; and
(d) in the case mentioned in paragraph (d) of that section, the owners’ association and the owner of any unit of the development.”
23. It will be seen that there is no test of interest to enforce here, only title. Accordingly we do not consider that the objectors are obliged to show interest and the applicant’s preliminary objection is repelled.
24. In terms of sec 98 of the 2003 Act we can grant an application for the variation, discharge, renewal or preservation, of a title condition (unless it falls to be granted as of right under sec 97(1)) only if we are satisfied, having regard to the factors set out in sec 100 of the Act, that it is reasonable to do so.
25. We consider these factors in turn.
(a) changes since the title condition was created
26. Such changes as there have been have no bearing on this application. Nothing like this has happened before.
(b) the extent to which the condition confers benefit on the benefited properties, or, where there is no benefited proprietor, on the public
27. In our view the extent to which this condition confers benefit on the benefited properties, and, therefore, on the present objectors, in terms of amenity is minimal. None of them is an immediate neighbour and only Mr & Mrs Wilson live in the same street. It interferes with no views except from the upstairs bedrooms of Mr & Mrs McMasters’ home at 11 Cuff Crescent and, we understand, to a lesser extent from the upstairs bedroom of Mr & Mrs Craig’s home at 11A Cuff Crescent. As with all the residents of the estate, the objectors will certainly have to drive or walk past the application site every time they come in and out of the estate. Although it is no doubt more pleasant as it is than it will be with three houses built on it, we reject the notion that it alters the character of the estate. This is a large estate of 88 houses and the addition of another three is not going to change its character, especially when the planning authority consider that the proposal “has been well designed for its context, taking into account density, design and layout” (North Ayrshire Council Report of Handling 16/01037/PP).
28. We think that is so despite its position at the entry to the estate. It is not a dominant feature, defining the character of the estate. Rather it is offset to one side as one enters the estate. At inspection it struck us as pleasant but not in any way exceptional.
29. So far as safety is concerned, we are unpersuaded that three new houses at this location would constitute a hazard. When we visited the site some of the objectors had parked their cars at the curve immediately before the site, partly to shelter from the rain as they awaited our arrival but also to illustrate the problem. Admittedly it was not a busy time of day but we had no difficulty in negotiating our way past these. It is very often the case, in housing developments, that one has to weave in and out of parked vehicles to negotiate one’s way and also to stop to allow advancing traffic to get by. The responsible driver will do that.
30. So the impression we formed was not one of any great problem. More important is the view of the planning authority. This was, of course, something they considered but they decided that public safety would be adequately protected by a planning condition insisting on 2m x 20m “visibility splays” being provided (something which their Roads Department say can be achieved).
31. So far as volume of cars is concerned, we accept that it is possible that some of the houses will have more than two cars and that visitors to the properties will also park in the street but, given that the planning authority is happy with the situation, we would have required strong evidence that this would in fact constitute a safety risk in order to come to a different conclusion. No expert evidence to that effect was presented by the objectors. No doubt they felt that the matter was plain for anyone to see but we would require more in order to hold that the condition is of significant benefit to the benefited properties from a safety point of view.
32. As to the extent to which the condition produces a benefit in terms of upholding property values, again no expert or third party evidence was led by the objectors. The applicant’s agents, on the other hand, have lodged a report by Mr Ian Donald FRICS, which concludes that only one house in the estate, number 2 Cuff Crescent, might suffer material detriment to value. At para 8.6.1 of his report Mr Donald says this:
“Of the 83 (sic)properties in Morrishill Estate there is only one, 2 Cuff Crescent, where the question of material detriment in relation to the value can be regarded as a possibility. In respect of all other properties in Morrishill Estate there arises a possibility of the perception that a proposed development on the application site would have an adverse effect, but in my opinion that would be no more than a perception. Employing my own judgement on this matter, I would judge the effect on all other properties on Morrishill Estate to be trivial, or even imagined.”
33. As it happens he goes on, at para 8.6.4, to say that he is not of the opinion that the market value of even that property “would depend to an material extent upon the certainty that the garden ground of 1 Morrishill Dive would remain for all time coming as private garden ground.” The proprietors of that property have not, of course, objected to this application.
34. Accordingly, under this head, we have come to the conclusion that the condition confers only a very marginal benefit on the benefited properties.
(c) the extent to which the condition impedes enjoyment of the burdened property
“Enjoyment of the burdened property” and its predecessor “a reasonable use of land” have always been interpreted widely (see footnote in Rennie Land Tenure and Tenements Legislation 3rd ed page 211 and the cases cited there. Thus, in Franklin v Lawson at para  the Tribunal (Lord McGhie and Mr Darling FRICS) said “We have no doubt that the restriction significantly impedes enjoyment of the burdened property. We are satisfied that the term “enjoyment” is used in a wide sense encompassing all the uses an unburdened owner might seek to make of his or her property.”
35. Applying that approach, but for this condition the applicant would be free to realise the value of his land by selling it for housing. The condition is, therefore, a very significant impediment to the enjoyment of the property, given the (presumably) substantial sum involved.
(d) not applicable
(e) the length of time which has elapsed since the condition was created
36. The condition has subsisted for 32 years but we do not see that as being significant either way.
(f) the purpose of the title condition
37. As we have said the purpose of the condition was to preserve the amenity of the estate, which would include its character. More particularly it was to prevent increased density of housing, affecting the comfort and enjoyment of individual proprietors who might otherwise find a house being built between them and their neighbours. Because of the position of this particular site there is no risk of that. The property most directly affected is on the other side of the road. Also, because of a lack of other plots of this size this sort of thing is unlikely to proliferate. This is something which Mr & Mrs Cummings, in their letter of objection, dispute in relation to corner sites on the estate, saying “Both roads [Morrishill Drive and Cuff Crescent] have the capacity to collaborate and have properties built in the rear gardens”. That may be possible at the corner between Morrishill Drive and Cuff Crescent. It would require the collaboration of the owners of 2 Morrishill Drive and 1 Cuff Crescent. We do not regard the risk of that as being significant but should it arise such a project would be subject to the same controls as the present one, in terms both of the planning process and the need to apply for a variation or a discharge of the same title condition.
(g) whether there is planning permission
38. Here there is full planning permission. The significance of that is that it reassures us in relation to matters such as density of housing and traffic congestion. The proposal is within the parameters of what is acceptable in a development of this size and character.
(h) whether the owner of the burdened property is prepared to pay compensation
39. No question of compensation arises in this case. The interests of the objectors are not being infringed to any compensable extent.
(i) not applicable
(j) any other factor which the tribunal considers to be material
40. There is nothing further which we consider to be material.
41. For reasons which will be apparent from our discussion of the sec 100 factors above, we are satisfied, in terms of sec 98(1)(a), that it is reasonable to grant this application. We have therefore varied the title condition in question in so far as relating to 1 Morrishill Drive, to the extent of allowing the development of three additional dwellinghouses within the existing garden area of that property.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 2 May 2018
Neil M Tainsh – Clerk to the Tribunal
Annex to this Opinion (PDF)