1. This is an application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 to discharge or vary a title condition. The applicant seeks a variation or discharge so as to permit the subdivision of his flat number A1 which could then be occupied by separate owners. A number of benefited proprietors have made informal comments and one, Mr Robert Reid the owner of flat A3, has formally objected. Mr Reid contends that variation or discharge would be unfairly prejudicial to the other owners and would impede their enjoyment of the property.
2. The applicant’s title is DMB18695 and burdens entry No. 2 refers to a deed of declaration of conditions recorded GRS (Dumbarton) 11 April 1978 by Faviar Property Company Ltd. This refers to the subjects known as Camis Eskan House, Craigendorran, Helensburgh, a dwellinghouse being divided into self-contained flats and dwellinghouses known as flats A1, A2, A3, A4, B1, B2, B3, B4, and houses C1, C2 and C3. Clause (Tenth) provides:-
“The said self-contained flats or dwellinghouses shall be occupied as a private residence only and shall not be used for the purpose of carrying on any trade, business or profession and shall not be sub-divided or altered for more than one ownership or the occupancy of more than one family and no animal or birds (with the exception of one dog and cat per family) shall be kept in or about the subjects by any proprietor which may cause a nuisance to other proprietors”.
3. The application seeks the removal of the words “…and shall not be subdivided or altered for more than one ownership or the occupation of more than one family…”.
4. The parties represented themselves although we understood that the applicant had certain legal assistance in completing the application form. Parties agreed that the case be determined by means of written submissions. We carried out a site visit on 22 March 2018, which included the inspection of the flats belonging to the respective parties.
5. At this point we should also note informal comments from certain other proprietors. These questioned whether any order for variation or discharge would relate only to the applicant’s flat or to the other flats in the building. The answer is that any variation or discharge would only release the applicant’s flat from the relevant condition since his flat is the only burdened property in issue: cf section 90(1)(a)(i) of 2003 Act. Doctors John and Rosalind Russell of flat A4 indicated that they would have less reason to object to the creation of a self-contained “granny flat” within the curtilage of flat A1, as opposed to the subdivision of flat A1 into two independent properties that could be sold separately in the future. We did not treat this as a formal representation, but the point they make – essentially objecting to an intensification of use - is one which we have considered under factor (b) in any event. There was a letter of support for the applicant’s plans by a Mr Mannucci, the owner of Coach house No. 3 which is another benefited property.
Title Conditions (Scotland) Act 2003 (“the 2003 Act”) sections 90, 98 and 100.
6. The present Camis Eskan House dates back to the 1600s and was prominent in the 1800s as a private mansion. We understood that the building was largely modified and extended in 1915. During and after the Second World War it had a number of institutional uses. Then in the 1970s it was developed into eight flats and three houses. The mansion is a category B listed building. It has a grand sandstone Doric column entrance with parapets above. Essentially there is a south block, a north block and adjoining coach houses appended to the north block. The mansion has substantial communal grounds which we were informed extend to some seven acres. For the upper floors there are fine views of parkland, woodland and the Firth of Clyde.
7. The applicant’s flat A1 comprises most of the ground floor of the south part of the former house. It is the area hatched in blue on the title plan to DMB18695. It includes the former main entrance door and reception hall to the mansion which now exclusively belong to the flat. The front of the interior is grand, becoming more utilitarian to the rear. As converted in the 1970s, it also had a large drawing room, a large dining hall, a smaller family room or study, a kitchen and four bedrooms. There is also a rear access via a porch.
8. The respondent’s flat A3 is a first floor flat immediately above A1. It occupies about two-thirds of the area of the lower flat. Flat A3 is entered by a door at the south end of the building and includes what was once the main imposing staircase for the house. It is furnished to a very high standard and has particularly impressive views.
9. There is another ground floor flat, B1, which occupies the north block of the building and is entered from a door at the north side. The remainder of the flats, namely A2, A4, B2, B3 and B4 are entered via a common entrance at the rear of the property which is to the east. These flats are comprised within the north block of the house and, on the first floor, further extend over the north part of flat A1. These flats also occupy the extensive second floor of the mansion. Adjoining the house again to the north are three coach house dwellings C1, C2 and C3.
10. The applicant is a retired gentleman who no longer has family living with him and wishes to downsize. He has lived at Camis Eskan for 16 years and wishes to continue living there. He proposes to divide the flat into two in which there would be a small flat and a larger flat. The conversion would allow him to continue living in the small flat and to sell or let out the larger flat.
11. Under the applicant’s plans the larger flat would retain the front entrance/reception area, dining hall, drawing room and two bedrooms. A third bedroom has already been converted into a kitchen/dining area. The separation can be achieved by the simple expedient of blocking one narrow corridor towards the rear of the flat. The smaller flat thus created would be accessed from the existing rear porch, albeit with some additional works which required planning permission. The smaller flat would comprise a living/dining room, kitchen and a bedroom along with ancillary wash, shower and utility rooms.
12. There are 15 lock-up garages around the whole subjects which have been allocated among the various owners. These are mainly to the rear of the property where there is also a large area of communal parking on parking aprons. The titles also specifically allow the proprietors of flats A1, A3 and B1 to park in front of the subjects owned by them. The applicant owns two of the lock-ups to the rear and so could allocate these should he succeed in dividing his flat. The respondent’s property includes a brown area on the relevant title plans to the south of his doorway used for his own exclusive parking, and also two garages situated there.
13. The applicant obtained planning permission and listed building consent for the subdivision of the flat and alterations to the porch on 5 June 2017. Copies of the plans insofar as relevant were produced.
14. It is proposed that the division of common charges and maintenance costs are not altered among the remaining proprietors; i.e. that the costs already attributed to flat A1 would be apportioned between the two separate flats created.
15. The applicant submitted that the removal of the burden would allow the subjects to be subdivided and provide more affordable accommodation in the form of two properties as opposed to one exceptionally large flatted dwellinghouse. Planning permission and listed building consent had been granted. The other proprietors would not be disrupted. The entrance to the rear was being formed out of an existing rear entrance and would not disrupt the other proprietors. The burden was created over 40 years ago at a time when it was not envisaged there would be less demand for large flatted dwellinghouses. The division would not adversely affect the subjects as a whole and would not increase the burden on services, access and parking. There could in fact be fewer people occupying the two flats than one grown up family occupying one large flat with separate cars. There would be no increase in the cost of common repairs.
16. The respondent’s submission indicated that the subdivision would impede the enjoyment of the property for the other proprietors. He mentions there were some seven acres of communal recreation grounds, there was a private sewage plant, and a long tarmac drive which required to be maintained. The subdivision would be contrary to the titles.
17. There is no dispute that the other proprietors of the flats and coach houses, including the respondent, are benefited proprietors. So we now turn to the factors mentioned in section 100 of the 2003 Act. In terms of factor (f) the purpose of the condition relates to amenity. It is a familiar condition. There is no question that the subjects from their nature are intended as a high amenity development and that the numerous conditions (which we have not set out in detail here) including condition (Tenth) are designed to maintain this. It would be fair to describe the prohibition upon sub-division as being intended to limit the density of the development and thus preserve the sense of tranquillity there.
18. In terms of factors (a) and (e) the suggestion is that since the condition was created 40 years ago, there has been a change of circumstances in that there is now less demand for large flatted dwellinghouses. We have to say we entertain doubt as to the validity of this proposition, for which no supporting evidence was produced. In our opinion the property including the extensive communal grounds would be attractive for the family market. In short, we cannot find support for the application under factors (a) or (e).
19. Turning to factor (b), namely the extent to which the condition confers benefit on the benefited property, we must consider the impact upon the other properties, and in particular the respondent’s flat above, which the condition would prevent. Often one would envisage the creation of two dwellings out of a single dwelling to intensify the use of the burdened property. However, in this case it does appear from the applicant’s plans that instead of a single four-bedroomed flat there will be one large flat with two bedrooms and another small flat with one bedroom, i.e. a net loss of one bedroom. In these circumstances it is difficult to conclude there will be much intensification of use in objective terms. Further, as the communal grounds are large we do not think the development of another small flat is likely to impact upon their use or the existing sense of space and tranquillity which they provide.
20. The coming into being of two households instead of one means it is reasonable to expect each flat will be used by at least one car. As the amount of car use is subjective we cannot conclude there will necessarily be an overall rise in trips compared with the number of trips associated with one large flat. However we accept there is likely to be a minimum amount of necessary vehicular use for each household. So taking a purely objective approach we think it is fair to infer there will be some increase in vehicular use overall.
21. The access to the new flat will be from an existing access at the rear porch. Flat A1 has an exclusive parking area at the front of the property, it has the benefit of extensive communal parking areas to the rear of the property and also two lock-up garages. Under condition (Seventh) the garages may not be disposed of separately from the flats and coach houses. So an intensification of use by means of additional parking on communal areas to support two flats instead of one is likely to be very minor. Moreover Mr Reid has his own exclusive parking area and garages so is unlikely to be personally affected by additional parking relating to a divided flat A1.
22. The proposed subdivision will not increase the burden of maintenance charges on others for major items such as the roof, since weathering etc. does not depend upon the number of proprietors. It is, of course, likely that there could be some increase in use of the driveway, and therefore more maintenance charges for that, but as these are already being shared by 11 properties we do not think this will amount to much in the overall scheme of things. So even allowing for the high quality of amenity of the subjects, we think very little weight can be given to factor (b) in favour of the respondent.
23. Finally under (b), as we point out below, we have some doubt as to the wisdom of the resulting internal layout of the proposed division. However we do not think this is a matter which would significantly affect the amenity of the respondent’s flat so as to alter our view under this factor.
24. Under factor (c) the case being made suggests that the enjoyment of the burdened property is impeded since it cannot be subdivided into more marketable smaller flats. As we have indicated, we are not convinced that two individual flats would necessarily be more marketable than a single large flat. It is by no means clear that a conversion resulting in a net loss of one bedroom, will add value. Moreover the only bedroom pertaining to the smaller flat is a markedly narrow room as it extends towards a front window. The room feels little more than an extension of the corridor leading to it. We think that the marketability of such a flat could thus be challenged.
25. We accept, of course, that the applicant wishes to downsize given that he no longer has family living with him, and wishes to use the smaller flat. As this is something of a personal decision it is doubtful that the title condition can be said, at least in normal circumstances, much to impede enjoyment of the burdened “property.” On the other hand, the architecture of the property does lend itself to a very simple conversion for a smaller flat, albeit subject to the issue of the narrow bedroom. So we suppose we can give some little weight to the fact that the condition impedes the inherent potential of a downsizing conversion.
26. For the purposes of factor (g), the applicant’s proposal has received planning permission and listed building consent. This indicates that the planning authority is satisfied, in the public interest, with the proposal.
27. This case is remarkable for the limited merit in both the application and the objection. With some hesitation we have decided that factors (c) and (g) may be given just enough weight, and more decisively factor (b) should be given sufficiently little weight, to make it reasonable to grant the application.
28. We propose to vary Clause (Tenth) of Entry 2 in the burdens section of Title DMB18695 to allow the subdivision of the applicant’s flat into two flats each for the ownership or occupation of a separate family.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 April 2018
Neil M Tainsh – Clerk to the Tribunal