OPINION

Mark Cadman and Sheena Stevenson (Applicants) v (First) Mark Cook and Mary Rodgers, and (Second) Gavin Miller and Tracey Miller (Respondents)

Dunmail, 3 South Avenue, Cults, Aberdeen (Title No. ABN53044)

Introduction

1. This is an application for variation of a title condition under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”). The applicants are owners of the burdened property known as Dunmail, 3 South Avenue, Cults. The plot extends to about 1.1 acres. The first respondents are owners of Glendarroch, 5 South Avenue. This property sits within a plot of some 1.2 acres. The second respondents are owners of “Silverdale” which is also numbered 3 South Avenue. Its site is of the order of one fifth of an acre. The said three properties are situated on an original feu created in 1876. Subject to a possible issue about interest to enforce, it is accepted that the respondents are benefited proprietors.

2. The title condition which the applicants seek to have varied was originally created in a feu charter of 1876. Insofar as relevant the condition was varied by the Tribunal some four and a half years ago following its Opinion dated 20 December 2013 and Note and Order of 5 February 2014. Certain of the conditions not relevant for present purposes were also discharged. These were proceedings under the “Sunset Rule” in which Mr Cadman had served a notice of termination and a number of applicants sought renewal of the title condition. In those proceedings Mr Cadman was respondent and the present respondents were part of a larger group of applicants. In that application the Tribunal decided that the burden should not be discharged but should be varied so as to offer, as the Tribunal put it, a useful and reasonable measure of protection to permit some limited further residential development (paragraph 54). Our present Opinion should be read in the light of the Tribunal’s previous Opinion (LTS/TC/2013/04, 06) and Note. We do not seek to repeat at length the descriptions of the site, neighbourhood, history and discussion of the issues which are there set out.

Title condition

3. The Feu Charter by George Gibb Shirra Gibb ifo Edmund Geering recorded GRS (Aberdeen) 31 May 1876 (“the feu charter”) set out a series of real burdens, including the following:-

“… and my said disponees and their foresaids shall be bound to erect and ever after to maintain upon the said piece of ground a villa or dwellinghouse of stone and lime covered with slates or lead … declaring that my said dispone and his foresaids shall at any time be entitled to erect other dwellinghouses but not more than two upon the said area or piece of ground hereby feued …”

There is no dispute that the dwellinghouse and two further dwellinghouses envisaged by the burden presently comprise the three properties subject to this opinion.

4. This title condition was varied by the Tribunal so that the Dunmail title sheet contains the following variation:-

“… to the extent of permitting the erection on the subjects of not more than a total of four detached, semi-detached or terraced dwellinghouses, together with garages and other ancillary buildings, but subject also to a restriction on building not exceeding one storey high and a maximum height of 5 metres above the surrounding ground level within (i) that strip of ground 10 metres wide shown tinted blue on the cadastral map; and (ii) that strip of ground 5 metres wide shown tinted pink on the cadastral map.”

5. In context the “subjects” comprise the subjects within the applicants’ Dunmail title. The new restriction envisages the potential demolition of the existing house for the freeing up of a development site. The 10 metre strip tinted blue runs along the west boundary of the Dunmail site separating it from Glendarroch. The 5 metre strip shown tinted pink is an area along the east and northern boundary of the Dunmail site which separate it from Silverdale. An excerpt of the title plan is annex 1 to this opinion.

Application and procedure

6. The present application was lodged on 7 November 2017. It seeks to vary the above title condition by an order to allow the demolition of the present property and the construction of 21 retirement flats with associated parking and landscaping as set out and approved by Scottish Ministers in a planning appeal decision notice dated 21 August 2017 ref PPA-100-2079 (“the second DPEA decision”) and subject to the conditions attached thereto.

7. The respondents object to the variation and have lodged representations. The applicants were represented by Mr Kenneth Campbell, solicitor, DWF LLP. The respondents represented themselves. All parties wished the case to be determined by means of written submissions and the Tribunal agreed so to do. The Tribunal carried out an accompanied site inspection on 12 April 2018. The plans associated with the second DPEA decision were produced to us shortly beforehand.

8. All parties produced their written submissions prior to the site visit. We allowed a second round of written submissions in reply and requested a certain plan showing proposed boundary treatments. The further submissions included the requested plan, amongst others, together with a planning statement prepared by a consultant acting for a developer explaining the planning history. The second respondents objected to new information provided under the applicants’ further submission. As this mainly related to a clarification of the planning position, we have allowed it. The new information also related to an issue about loss of trees. As this appears to have been a matter raised by the first respondents in their main submission, we have allowed the applicants’ further submission to be taken into account.

Authorities

George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Cattanach v Vine-Hall LTS/TC/2006/62, 18.4.2008
Hamilton v Robertson 2008 SLT (Lands Tr) 25
Franklin v Lawson 2013 SLT (Lands Tr) 81

Background facts and circumstances

9. After the Tribunal’s order in February 2014, Cala Management Limited applied for planning permission for the demolition of the existing Dunmail dwelling and the erection of four houses including three detached garages (one with studio) on 15 April 2014. This application was refused (“the CALA decision”) by Aberdeen City Council on 15 January 2015. The reasons cited detrimental impact and incongruous relationship with the character and amenity of the locality arising from inappropriate and unacceptable intensification of residential use and the resultant high density of the development, as a result of which the proposal had not been designed with due consideration for its context. Further reasoning stated that the proposal would result in an unacceptable loss of trees in that the existing tree coverage contributed to local amenity and to the landscape character of the surrounding area and that its loss, along with proposed replacement planting, was considered to be insufficient.

10. After the planning application had been refused a tree preservation order (“TPO”) covering the Dunmail site and elsewhere was confirmed in January 2015 and registered against the applicants’ title on 5 June 2015. It would appear to have been identical to an earlier tree preservation order dating from 2001 which the council realised had not been formally confirmed.

11. The CALA decision was appealed to a reporter appointed on behalf of Scottish Ministers. The reporter refused the appeal on 10 July 2015 (“the CALA appeal decision”). He did not consider the proposal to constitute overdevelopment and thus disagreed with the council on this point. However, he considered that the extent of the tree loss was unacceptably high and would represent an unacceptable impact upon the character and amenity of the local area. The proposal would involve the removal of 50 out of 65 trees within the site covered by the TPO and these included seven high quality trees and five of medium quality. The extent of the loss of trees derived from a combination of the number of houses, their size and in three cases, the size of the detached garages, their siting and the provision of an improved access into the site.

12. On 5 May 2016, McCarthy & Stone Retirement Lifestyles Ltd (“McCarthy & Stone”) applied for planning permission for a development described as “sheltered apartments (retirement living)” with associated landscaping and parking. The drawings (based upon a revised site plan F1562(--) 002 Rev D) (“Rev D”) show a building comprising 21 flats. Each flat has two bedrooms, shown as a double and a twin bedroom. There is a communal residents’ lounge and staff office. The building block is aligned east to west and generally sits on the south portion of the Dunmail site, with car parking arranged on the northern and north-western part of the site. The overall dimension of the block of flats is approximately 22m by 45m with a ridge height of approximately 12m. The central part of the building viewed from the north and south is a three-storey building, whereas the wings, as viewed from the east and west, appears as a two and a half storey building. Its footprint is about four times the footprint of the existing Dunmail dwelling. The layout is altered somewhat in a more recent iteration of the proposal which we shall discuss below.

13. The planning officer’s report recommended that planning permission be refused, and the application was accordingly refused by notice dated 27 October 2016. The first reason for refusal stated that the proposal was considered to be an over-development on account of its bulk, scale and massing and height. The second reason stated that there would be detriment to residential amenity for neighbouring properties 1 and 5 South Avenue (i.e. including Glendarroch) due to a loss of privacy and increased overlooking. (No. 1 is a property named Birchwood lying to the east of the Dunmail site.) The fourth reason stated that due to the site layout, size of the proposed building and extent of hardstanding over the site, there would be insufficient space to allow for root growth and crown spread of both existing and proposed replacement trees to fully mature. This was contrary to a planning policy which included a presumption against development that would result in the loss or damage to established trees that contribute significantly to local amenity. By way of background the officer’s report had recorded that the majority of trees proposed to be removed to facilitate the development were already dead or in a very poor condition and there was no objection to their removal. We understand these trees are located to the front of the proposed building, and are fairly central within the site. The third and fifth reasons for refusal are not relevant for present purposes.

14. This refusal was appealed leading to the second DPEA decision. The reporter upheld the appeal on 21 August 2017. The reporter acknowledged that the density of the development and proposed massing did not reflect the character of those buildings located immediately adjacent to the appeal site, but having regard to the sheltered flats at Rorie Court (located to the immediate west of Glendarroch) and Dunmail Manor (a block of sheltered apartments to the north of the appeal site on the north side of South Avenue) the density scale and massing of the proposal would not be uncharacteristic of the surrounding area. In these circumstances he did not consider that the proposal was contrary to relevant planning guidance concerning the respecting of the established pattern of development. He also found that building lines were generally respected. He found that the ridges and wall heads of the proposed building would exceed those of the existing dwelling Dunmail but would not be significantly higher than those of other existing buildings and that the scale and massing would not significantly affect the visual amenity of the area nor appear uncharacteristic of the area.

15. The reporter noted that the west elevation of the development would be about 2 metres closer to No. 5 (i.e. Glendarroch) than the existing Dunmail building and that the north elevation would be only very slightly closer to Silverdale. At no point would the supplementary guidance minimum window to window distance of 18 metres be breached. The relevant window distances would be significantly in excess of that, at about 30 metres to Glandarroch and 26 metres to Silverdale. He acknowledged there would be some reduction to the amenity of the gardens of Glendarroch, Silverdale and the property lying to the east of Dunmail, namely Birchwood. The largely three storey elevations would be located about 15 metres from the garden boundary of Glendarroch and 18 metres from the boundary of Silverdale. He did not consider the separation distances to be unacceptable within an urban setting, even one of relatively low density character as was the case here. He further concluded that the impact on privacy with adjacent dwellings and on amenity of adjacent gardens, although significant, was not likely to reduce the amenity of those dwellings to an unacceptable degree.

16. The reporter proceeded to deal with issues concerning amenity of residents of the proposed property which we need not elaborate here. The reporter then considered the impact on trees. He accepted that the area was characterised by a preponderance of mature trees. The appeal was supported by a tree survey and an arboricultural impact assessment. Based on this, the council had agreed that the majority of trees identified for felling to facilitate the developments were either dead or in very poor condition and did not object to their removal. It would appear that the proposal would require the removal of 15 trees, of which 12 were dead, dying or diseased and that some 71 trees would be retained, in marked contrast to the previous CALA proposal. There was a concern by the council that the replacement trees would be located very close to the proposed building and their roots could be compromised by proximity to the driveway and parking areas. However, the appellants’ arboricultural consultant had provided evidence to the effect that a variety of root protection and mitigation measures could be employed to counter these concerns. The reporter accepted this evidence and found it highly unlikely that the development would result in significant damage to trees within the appeal site, both during development and in the longer term.

17. The reporter’s +decision also dealt with an argument that there was an over-provision of retirement flats in the vicinity. The reporter was satisfied that there was a continuing need and demand for such a provision and that the appeal site was well located to serve the needs of such residents.

18. The reporter granted planning permission subject to conditions. One of these conditions was a suspensive condition requiring a detailed scheme of site and plot boundary enclosures for the purposes of preserving the amenity of the neighbourhood.

19. Numerous plans and visual aids used in the second planning appeal were lodged with us. There are also two plans which were subsequently approved by the planning authority under conditions imposed by the reporter. These are proposed site plan F1562L(--)002 Rev M dated 26/1/18 (“Rev M” – annex 2) which shows amongst other things a different parking layout, and soft landscaping proposals plan SC-2279-03-LA 001 Rev E dated 26/4/18 showing greater boundary treatment to the east and west. These were included in the supplementary submission of the applicants. We were advised that it is the layout shown on Rev M which McCarthy & Stone intend to develop.

20. The applicants have entered into missives with McCarthy & Stone, conditional amongst other things upon a successful application to the Lands Tribunal for variation of the title condition. As discussed, they seek a variation such as would permit the development which was addressed in the above second DPEA appeal decision.

21. After the above planning application was made to the council but before the appeal was determined, on 30 January 2017 McCarthy & Stone lodged a second application for planning permission for sheltered apartments at Dunmail. We understand this application to comprise a somewhat different “L” shaped building, which was also refused permission by the council. There was no appeal. We were not provided with details of this application and refusal, which do not appear relevant for present purposes.

Submissions for applicants

22. It was submitted that it would be reasonable for the title condition to be varied so as to allow the specific development in terms of section 98(a) and the relevant factors under section 100 of the 2003 Act. The weight to be given to any factor would depend on circumstances, and the factors should be considered as a whole. Reference was made to Ord v Mashford and George Wimpey East Scotland Ltd v Fleming. It was submitted that the Tribunal’s previous opinion was helpful but also potentially distracting, in that the Tribunal was considering a slightly different matter and did not have before it any specific detailed proposals with the benefit of planning consent.

23. It was accepted there was no reason to depart from the Tribunal’s findings as to the history of the development of the area since 1876. However there was now significant change in the form of a planning consent for a particular detailed development. The second DPEA appeal decision granted consent for “sheltered apartments (retirement living).” That use was likely to reduce any perceived adverse effect on the amenity of the neighbouring properties. The proposed developer, McCarthy & Stone, would insert in all titles to individual flats within the proposed development, a condition that at least one of the occupants of the flat would be at least 60 years of age and all occupants will be over 55 years old. The applicants would accept such an obligation in any variation of the title as an additional burden.

24. Turning to the section 100 factors, in terms of factor (f) namely the purpose of the title condition, it was submitted that the present varied condition was to impose restrictions upon an uncertain development. What was envisaged at the time of the previous tribunal application, namely houses, did not proceed. It was deemed sufficient to protect the interests of the neighbouring properties by a restriction of four detached, semi-detached or terraced dwellinghouses together with garages and other ancillary buildings, together with the restriction on buildings not exceeding one storey high on the two adjoining strips of land next to Glendarroch and Silverdale. The Tribunal did not impose any additional height restriction on any buildings outwith the protected boundary strips. Apart from that the Tribunal had not sought to regulate the design of any future development.

25. Under factor (a), there was a very significant change in circumstances in that now the applicants had entered into missives of sale with McCarthy & Stone for land for the construction of 21 retirement flats. Importantly there was the planning permission which had been granted subject to conditions imposed predominantly to preserve the amenity and interests of the neighbouring properties. These included additional landscaping measures on the boundaries. In addition since the Tribunal’s opinion the TPO had been confirmed and registered in respect of the subjects. The Tribunal was now in a position to assess the potential impact of a specific development.

26. Turning to factor (g), namely the existence of the planning consent, it was submitted that this was the main change of circumstances since the Tribunal’s decision. Reference was made to Cattanach v Vine-Hall and Hamilton v Robertson for the proposition that it was of assistance to know the details of the proposed development, especially in relation to residential developments. There was nothing in the varied title condition to prohibit the construction of the 21 flats, other than the prohibition of the construction of more than four dwellings. There was no design, height or siting restriction which would otherwise prevent the development. The plans indicated that the majority of the windows in the third storey were incorporated within the roofline to reduce the height and scale of the building and had been designed to appear predominantly 2.5 storeys high. The maximum height of the building was only 3m higher than the existing building. The overall footprint would be similar or possibly slightly less than if the proposed development was for the construction of four terraced houses. The separation distance between the proposed building and the nearest respondents’ buildings was over 20m. The proposed building was set further away from the boundary with Glendarroch than the present garage and not a significantly smaller distance between the dwellings themselves. The new building would be to the side of Glendarroch and would not significantly affect its amenity. Both were south facing. Glendarroch had no significant windows facing the Dunmail site. There would be effective screening and a landscaping scheme, all provided under the planning conditions. Turning to Silverdale, there was no significant difference between the existing separation distance for the existing Dunmail house and the proposed building. Given the extent of the vegetation on the boundary, there would be little if any effect on the views of Silverdale.

27. It was submitted that it was likely that if four dwellinghouses were constructed on the site they would be family houses and the nature of their use would have at least as much if not a greater effect on the general amenity of the respondents’ properties. As the proposed development was for retirement flats the occupants would be likely to be quieter than if the occupants were families. The typical occupant of one or two bedroom apartments in such retirement developments was a 75 year old widow. Just because the flats contained two bedrooms did not mean that each flat would typically contain two persons. The actual use of the access for cars would not be significantly more than if there were four family houses with two or three cars per household. The restricted age profile of the residents tended to lower car ownership levels. The occupants of the flats would not be anticipated to be accessing the property at busy commuter times. The planning authority had had no objection in terms of traffic impact.

28. Under factor (b) the benefit to the benefited properties was limited. This had been recognised in the Tribunal’s previous opinion. The respondents did not necessarily have sufficient interest to engage with the application. It was submitted in general terms that the effect of the proposed development on amenity of the respondents’ properties would not be significant.

29. Most of the applicants’ submissions suggesting the development would have a limited effect upon amenity were made under heading (g) above. However it was submitted here that the use of new lighting was not something intended to be protected under the title condition, and that a submission by the respondents about loss of security was contradictory. It was also submitted that arguably the proposed single large building would be more in keeping with the immediate vicinity than the previous proposal for four two storey houses.

30. In terms of factor (c) the condition impeded the enjoyment of the burdened property since it prevented the applicants from carrying out an approved development. The existing restrictions were at odds with the decision of the reporter who approved the proposed development. The planning conditions had taken account of the standpoint of neighbourhood amenity. The Tribunal had previously acknowledged at paragraph 58 of their 2014 opinion that the title conditions would not allow the respondents to dictate the type of development carried out on the subjects. The planning process had refused to allow a development in terms of the prevailing restrictions.

31. Under factor (e), the title conditions were superficially from 2014, but they were in reality against the background of an 1876 set of conditions which had been varied under the sunset clause in the legislation. The relatively recent timing of the variation was a neutral factor.

32. There had been no request for compensation under head (h). In terms of any other factor which the Tribunal thought to be material under (j) there had been uncertainty, at the time of the previous opinion, as to the precise nature of future development although development was expected in general terms. The Tribunal’s comments about the potential for flatted development were obiter and had not been related to retirement flats.

33. Turning to matters raised by the respondents, the applicants pointed out that the argument that the subjects would be used for “trade or business” contrary to the title condition was irrelevant. That prohibition had previously been discharged and in any event required the use to be “hurtful, nauseous or noxious”. The use as retirement flats would generally be recognised as a good neighbour development. The applicants were also wrong to suggest there had been a two-storey limit on the four houses which was also incorrect. This only height restriction was within the relevant strips.

34. The applicants rejected the implication made by the first respondents that they had deliberately attempted to uproot or destroy any healthy trees. Correspondence was produced with the council in which Mr Cadman had sought permission for the trimming of hedgerow even although this was not strictly required in terms of the TPO. Correspondence in August 2016 between Mr Cadman and a forest pathologist was produced. This indicated that samples taken from Corsican pine trees in the garden had an infection in the form of needle blight known as Dothistroma.

Submissions for respondents

35. The first respondents as owners of Glendarroch submitted that they had both title and interest to enforce the title condition. The proposed variation would result in material detriment to their amenity, enjoyment and value of their property. The Tribunal had settled on a variation of allowing four houses on the Dunmail site. In other words any more than four houses would generate an unreasonable intrusion so clearly 21 apartments would go far and above unreasonable levels.

36. Turning to the section 100 factors, in terms of factor (a) there had been no material change since the title condition was varied in 2014, apart from the removal of a section of large cypress hedge at the boundary between the respective properties, and the death of mature trees at the centre of the Dunmail site. The Tribunal had indicated in their decision that it seemed highly unlikely that the planners would allow several mature trees to be felled. The respondents pointed out that the loss of trees was a major reason for the rejection of planning permission for the four houses by the council in January 2015 and the only reason advanced by the reporter in July 2015. In the six months after planning consent was refused, eight trees earmarked for removal in the centre of the site died or began to die. Photographs taken in May 2014 showed healthy trees in the centre of the site but which were seen to be dying in August and September 2015 and had died by April 2016. Grass under some of the trees was also dead. The trees were dead by the time of the McCarthy & Stone planning application in May 2016.

37. The first respondents had noticed there were problems occurring with the Dunmail trees in August 2015 and had contacted the council at that time. According to the correspondence produced by the applicants, Mr Cadman only noticed the trees were dying in June 2016. The explanation of needle blight could only refer to the pine trees on site, not the large Lawson Cypresses which had died. The dead trees should be replaced under the TPO, but this would be difficult or impossible in the confines of a densely developed site.

38. The benefit under factor (b) was that the condition prevented the construction of a 21 apartment, three storey block of flats. The design had not properly considered the Victorian character of the area and the predominance of large gardens with mature trees. The high standard of the grounds at Glendarroch was the product of much work by the first respondents over 20 years and reflected the high value they placed on the amenity of the setting of their property. The scale of the proposed development was out of proportion in style and massing to the neighbouring detached villas and would not complement them. The building was substantially larger and higher than the existing one. A site visit would be more accurate than the photographic evidence of the character of the area. Given the extensive hard surfacing and bin store, the remaining green space would be limited to the periphery of the site, meaning there would be little room for replacement trees in terms of the TPO. There were many large trees on the property and if they were to be removed there would be little scope for replanting due to the massing of the building and extensive paved and tarmacked areas. New trees would require to be managed to restrict their size to prevent the shading of the flats. This would erode the character and amenity of the area. This had been a key factor in the council’s refusal to grant planning permission.

39. The plans showed that there would be windows and balconies overlooking the first respondents’ garden. This intrusion was a factor in the council’s decision. The first respondents had calculated that from the kitchen the new gable would appear doubled in width and the roofline higher by 20%. The balconies on the west gable would face directly into two large windows of the livingroom of Glendarroch as well as the kitchen picture window. The proposed screening by trees would not mitigate this loss of privacy. The landscaping scheme envisaged existing trees along the boundary being retained but being pruned or pollarded to maintain safety margins. These trees were in poor condition and the proposal could be interpreted as giving the flats more outlook into the Glendarroch property. The development would overlook the garden area. There would also be increased traffic, car parking and bin stores and light pollution from the high level of lighting required for elderly people. There would be constant circulation of residents and visitors in the bin and car park area.

40. On-street parking would also be likely to increase which had occurred at a recent McCarthy & Stone development at Florence Court. This was despite the application indicating that the expected age of the residents would be over 80 so that the parking provision as offered would be sufficient. In the present case it was anticipated that the age of first residents would be 60 years with their spouse or partner at least 55 years of age, who would reasonably be expected to be economically active. A presumption of one car per household seemed unreasonable and the allowance of a single parking space for visitors and maintenance and carer personnel seemed unreasonable. The role of large garden grounds as currently existed at Dunmail had an important role in promoting biodiversity in the community. The opportunity for replacing the dead trees under the TPO was limited to the boundaries of the site. The final height which would be tolerated due to limitations on crown spread would be substantially less than the current tree heights.

41. Glendarroch was currently on the market. The first respondents had been informed that one prospective purchaser would not note interest while there was the prospect of the flatted development at Dunmail. Their property had been valued at £2m in March 2016. A surveyor had indicated that if the development proceeded it would result in a reduction of about 15% in the value of Glendarroch, i.e. potentially £300,000 and possibly more.

42. It was also pointed out that an appeal had been refused in 1985 by an inquiry reporter for the erection of flats since it would change the character of an important site and impact upon the tranquillity of the neighbouring properties beyond that which the neighbours should be expected to tolerate. The respondents founded upon various passages in the officers’ reports for the CALA decision and the first McCarthy & Stone decision.

43. Under factor (c) it was not reasonable to vary the burden simply because the applicants wanted to develop the site to an even greater extent than they wished in 2014. None of the material considerations upon which the Tribunal relied in 2014 had changed. The current title condition was created four years ago which was very little time in terms of factor (e).

44. In terms of factor (f) the purpose of the title condition had been to restrict uncertain development; i.e. to provide certainty to both parties for the future. In terms of factor (h) the applicants had not addressed the issue of compensation. This was significant since there was evidence that the development was jeopardising the sale of Glendarroch.

45. The first respondents also submitted – we record it here under factor (j) – that there was already a large amount of retirement accommodation in Cults and to add 21 further apartments there would distort the demographics relative to the local population of Aberdeen.

46. The second respondents indicated that a number of dwellings additional to the four permitted would have an adverse effect upon the enjoyment of Silverdale. The high density development and triple storey block would impact upon the tranquil residential nature of their property. The traditional and domestic character of the area would not be preserved. The development was an over-development. There would be loss of privacy, and a reduction in the value of Silverdale. There would be additional traffic via the new and larger driveway adjacent to Silverdale. There would be a significant increase in noise from vehicles and a significant increase in light pollution.

47. It was also submitted that the existing burdens prevented a development in the nature of a use for “any trade or business.”

Discussion by Tribunal

48. As a preliminary we would deal with the last noted point made by the second respondents, namely that the burdens prohibited the development since the land “could not be used for any trade or business’”. This submission is simply erroneous. The part of the original 1876 burdens preventing use of the premises “in any trade or business whatever which may be hurtful, nauseous or noxious …” was discharged by the Tribunal in the order of 5 February 2014. The matter does not arise as an issue. It is the “as varied” burden which prevents the development by limiting the number of additional dwellings.

49. Next we deal with the applicants’ suggestion that the respondents, although benefited proprietors, did not necessarily have interest to engage with the application. We took this as an argument that the respondents did not have interest in the sense of section 8(3) of the 2003 Act in that the development would not result in “material detriment to the value or enjoyment of … the benefited property.” In this context we would reiterate what the Tribunal said in Franklin v Lawson at paragraph 10:

“Determination of what is “material” does involve assessment of matters of degree but what is required is a decision as to whether or not the subject matter is “material”. The term is not primarily an adjective expressing quantity. Where an adverse element of detriment can be identified as something more than fanciful or insignificant it can properly be described as material. We are not yet persuaded that Parliament intended a higher test. Section 8 must be construed in the context of the Act as a whole. The Act makes express provision for burdens to be varied when it is reasonable to do so. If a burdened proprietor considers that the interest of the benefited proprietor is of no great weight he can apply to the Tribunal under sec 90(1)(a)(i). The Tribunal will then require to balance the interests of one against the other in terms of sec 100, factors (b) and (c). When Parliament has provided for such a balancing exercise, there is no good reason to assume that it intended a preliminary test under which a real identifiable interest would have to be of some special weight before being allowed to be enforceable.”

50. In this case we would therefore propose to follow our normal practice and consider the issue of potential detriment to the benefited property as subsumed within the context of factor (b), and not as a standalone test as the applicants would seek. As will be seen in any event, we are satisfied that the respondents’ interest can be seen as more than fanciful or insignificant.

51. We now deal with our approach under sections 90(1)(a)(i), 98(a) and 100 of the 2003 Act. But for the previous application to the Tribunal under the sunset rule, the title conditions would have been presumptively discharged. However, the present respondents succeeded in persuading the Tribunal that it was reasonable, having regard to the section 100 factors, that the 1876 title conditions should not be discharged. The Tribunal took the view (paragraphs 54 and 55) that the burden was by no means obsolete and that it was reasonable, by reference to the factors in section 100, to vary it. The title condition having been varied in this way, one might say refreshed, it seems to us given the language of section 98(a), that it now falls to the present applicants to persuade us that it is reasonable to grant the present application for further variation. In other words, the onus has reverted to the present applicants as burdened proprietors to demonstrate that it would be reasonable for us to vary the title condition in the light of the relevant factors.

52. We now turn to the factors and deal first with factor (f), namely the purpose of the title condition. In context we treat this as the purpose of the title condition as varied by the Tribunal in 2014. We therefore primarily look to the thinking of the Tribunal at that time. In the background it will be borne in mind that the purpose of the 1876 title condition was to limit the density and type of development on the whole subjects. Thus the purpose implied the preservation of amenity, which at paragraph 44 the Tribunal described as spacious general residential amenity. As varied, the purpose remains to limit the density of development, and this is now particularly from the perspective of the benefited properties. It is clear from the Tribunal’s opinion that its intention was to seek to protect the amenity of Glendarroch and Silverdale to an extent consistent with the Tribunal’s assessment of the balance of all the factors.

53. In this connection we think it helpful to underline the Tribunal’s thought process at paragraph [54] in the original opinion:

“The applicants’ (i.e. the present respondents’) concern at the possibility of large scale development, such as flatted development, is reasonable even if that might not be an immediate prospect. If varied rather than renewed, the burden can still offer a useful, and reasonable, measure of protection. It is capable of being varied so as to permit some limited further residential development.”

54. Later on the Tribunal said at paragraph [59]:-

“We think that, with the protected strips, more than two houses could be built consistently with the general amenity which the burdens sought to secure. We would be inclined to think that three houses, a density broadly similar to that of the Silverdale site if the entrance area is excluded, might be an appropriate number. However, as a matter of reasonableness in relation to the burden, we feel that the respondent (i.e. the present first applicant) should have the opportunity of deciding to build up to four. … As regards more than four houses, we consider that that would be likely to impose an unreasonable degree of physical intrusion as well as having an unreasonable impact on the scale and character of the housing. Further, the increased traffic and movement would, in our view, again having regard to the burden, amount to an unreasonable intrusion, particularly in relation to Silverdale which, essentially, shares the same site if not the same driveway.”

55. The Tribunal’s order went on to permit the erection on the subjects of not more than a total of four detached, semi-detached or terraced dwellinghouses etc. subject to the height restriction within the specified surrounding strips. In other words, the Tribunal did not permit flatted dwellinghouses – it is difficult to see what other type of residential development could have been circumscribed - having made the comment to the effect that a concern about a flatted development was a reasonable one. In these circumstances we think that the Tribunal’s approach was purposive and the comment cannot be dismissed as simply obiter.

56. Moreover, we agree with the respondents that the Tribunal’s intention was to seek to provide parties and their successors with certainty for the future. This would normally be implicit in a decision of this nature, and we can find nothing in the terms of the opinion suggesting that the decision was in any sense provisional. The Tribunal’s thought process is indicated in paragraph [47] stating that “without this burden there would be unwelcome uncertainty.”

57. We now turn to factor (a) namely any change in circumstances since the title condition was created. While the Act refers to the “creation” of the title condition, we think in context we should read this as primarily the date when the title was varied in 2014, rather than its original creation in 1876. This was the time when, under the sunset rule, the condition was presumptively liable to discharge and its continuing existence and variation required to be justified, as indeed it was.

58. The applicants found on the fact that they have now concluded conditional missives with McCarthy & Stone and have secured planning permission for the block of flats. As a change of circumstances, we think only limited weight can be given to this factor. Factor (a), although its terms are widely expressed, focuses upon changes to the character of land. Here we are dealing with essentially a change in the applicants’ subjective development intentions, for which they now have missives. The fact there is a new planning permission will be taken into account under factor (g). Moreover, the Tribunal had at least an open mind to the possibility of the development of flats in the future:-

“[47] … the respondent may be right in suggesting that substantial flatted development might not at present get planning consent, but in our view neither that, nor the extent of housing which the planners might allow, can be taken as certain, now or in the future …”.

59. In addition, the passage at paragraph [54] of the original opinion (quoted above) highlights the fact that the prospect of a flatted development in the future was considered as a possibility, although not immediately on the horizon. So the only “change in circumstances” is that a possible type of building, namely flats, which the Tribunal evidently had had in mind, has recently become a serious prospect as a retirement development, in which a detailed assessment of the plans has become possible.

60. The other potential change in circumstances highlighted by the applicants was the making of the TPO. Although we were not shown a copy of the order we understood it to apply to all the trees in the applicants’ garden as well as those within the benefited properties. It is correct to say that the TPO was only confirmed and registered in 2015, a few months after the Tribunal’s earlier order. However, again we do not think much weight can be given to this, for two reasons. In the first place, the Tribunal foresaw that it was likely that the trees would be given a degree of protection. This is apparent from the Tribunal’s opinion at paragraphs [48] (“… It also assumed (a mock up photograph produced by the applicants), which seems highly unlikely, that the planners would allow several mature trees to be felled …”) and [59] (“… a degree of protection by planners in relation to existing trees may be anticipated …”). Secondly, it would appear that a number of trees at the centre of the Dunmail site have indeed recently died. This has allowed the applicant to present expert evidence to the reporter in the second appeal, with some success, that replacement trees can be planted elsewhere within the site and that appropriate protective measures would be implemented during the construction phase and in future management so that tree loss would be unlikely. Both sets of approved plans, namely Rev D approved by the reporter and Rev M subsequently approved by the council in dealing with reserved matters, show existing trees being retained essentially around the periphery of the site and at the entrance area, but not in the centre of the site. So in these circumstances we do not think it can be said that the existence of the TPO has made it much more difficult to develop the site than was assumed by the Tribunal in 2014. Indeed we did not understand such an argument to be developed.

61. At this point we note a significant factual dispute between the applicants and the first respondents. The submissions of the first respondents, although not making a direct accusation, imply that the first applicant had in some way been responsible for the death of the trees in the centre of the site. It is said that the condition of these and surrounding grass were seen to deteriorate following the refusal of the CALA appeal for houses in July 2015. Photographs said to have been taken before and after this time were produced by the first respondents in support of this implication. At this stage we should point out that when the Tribunal agreed to parties’ request for the case to be determined by means of written submission, this part of the dispute had not been highlighted as an issue. An allegation such as this, bearing in mind that the destruction of trees protected by a TPO is a criminal offence, cannot be properly investigated and determined in the written submission procedure. It would have been essential to see and hear witnesses and to have the evidence tested by cross-examination. So although we would have been interested to hear an explanation for the loss of trees other than the Corsican pine trees mentioned in the correspondence with the forest pathologist, we are unable to draw any adverse conclusion against the first applicant on this point.

62. Turning to factor (b), it is clear that we are dealing with a high amenity area within a desirable location. Many of the applicants’ arguments on amenity issues were made under head (g), i.e. with reference to the planning permission and in particular the second DPEA decision. For correctness we would consider these points in detail here under head (b). The title condition prevents the current proposed development. The extent of the benefit to the benefited property may be gauged by the amount of amenity which would be lost without the existence of the condition. In context, this requires some sort of assessment of any potential loss of amenity which could presently lawfully occur within the terms of the existing title condition, in order to assess any further detriment on account of the proposed development. We have not found this exercise to be entirely straightforward. Although we have had produced to us very detailed plans and illustrations of the proposed flatted development, we have no illustrations of the existing development potential to compare them with. The applicants have not provided evidence as to what a housing development of up to four houses – say three or four - might look like as having good prospects of being granted planning permission. We can therefore only seek to visualise matters as best we can.

63. In this respect it is true to say that apart from the protection strips, the varied condition does not seek to control the location or design of the potential houses. We bear this fact in mind. However, we must also be realistic. Unless the houses or some of them were to be terraced or semi-detached, we would expect it likely for them to be dispersed in some pattern within the site. Given the topography, i.e. a site sloping southwards towards the Dee valley, we anticipate that a developer would probably seek to design the houses with a south facing aspect, similar in outlook to Glendarroch and the existing Dunmail.

64. Absent detailed information to the contrary, we are sceptical that the total footprint of four houses, terraced or not, would likely extend in total to an area similar or more to the footprint of the block of flats at 22m x 45m. Our impression is that such would have to be very large houses in relation to the surroundings. We are also doubtful that houses would be likely to have second (top) floors, or at least as extensive second floors as the flats. However, with separate houses the massing would be spread over an area, through which there would be filtered views, and so in principle ought to have less visual impact. When one takes account of the new building, the 23 parking spaces and ancillary structures, there is relatively little left within the Dunmail site other than a perimeter area. This is apparent in plan Rev D. Thus there is significantly less sense of space than we anticipate would be the case with three or four houses. Also, the block of flats has a compact design in which there are flats facing in all directions.

65. This position is altered somewhat by the plan Rev M subsequently approved by the council (under condition 5 reference to parking) making changes the parking layout. The plan shows more open space / landscaping in front of the new building to the north, i.e. between it and Silverdale. As a consequence however there is more parking to the west and adjacent to the Glendarroch boundary. The new building to boundary distances are now reduced compared to the figures mentioned by the reporter; from 15m to 14m in the case of Glendarroch and from 18 to 15m in the case of Silverdale. Window to window distances between the new flats and Silverdale are reduced from 26m to 21m. There is also likely to be some reduction in the Glendarroch window to window distances although we were not provided with a figure.

66. Intuitively one would think that a total of 21 flats each with two double or twin bedrooms each would create more activity generally than three or four family sized houses. The flats are however intended to be occupied as retirement flats. The applicants maintain that occupants of retirement flats are likely to be quieter than families. This is no doubt true as far as it goes. They also maintain that the typical occupant of 1 or 2 bed apartments in such developments is a single 75 year old widowed person. A supporting planning statement indicates that some 85-90% of McCarthy & Stone residents are widowed or single. We would have preferred to see some analysis as to whether that is the likely profile of residents to be expected at this particular development. Nevertheless, on the face of it, we would infer there will still probably be more people living in the 21 flats than would be the case in three or four houses. The amount of car parking spaces proposed, namely 23, is greater than the amount of parking than would be associated with three or four houses. We have not been provided with evidence as to whether the amount of daily vehicle trips associated with retirement flats is likely to be greater or less than family houses. There is no reason to think that “retired” persons over the threshold age will not still be active. One must also bear in mind that depending upon the age and health of the occupants, there will no doubt be regular visits by relatives and carers in some capacity or other. It seems fair to suggest that many elderly residents are more likely to spend their days at the site. Given that there would be an increase from three or four to 21 households, each requiring a minimum amount of servicing, we find it difficult to conclude that there would not be some increase in use, activity and/ or vehicular traffic at the site.

67. That said, there was no argument that the retirement flats might pose an “agent of change” risk to Glendarroch – i.e. a risk of complaints to activities there such as use of the tennis court and large football area in the north part of the garden.

68. We note that the Rev D plan includes six 3.5m high light posts around the parking area, as well as numerous lower level lights as part of the proposal, no doubt for the safety of elderly residents. No internal site lighting is shown on plan Rev M. We infer that this is an omission since it was not suggested that this type of lighting was not required, and neighbouring sheltered housing we viewed also has such lighting. We think this lighting is a potential cause of loss of amenity in the form of light pollution which would be less likely to be required in the case of normal housing.

69. We would now turn specifically to Glendarroch amenity issues. The development of the flats would mean that Glendarroch would have flats situated at its west, north and now eastern boundaries. Thus there could be a cumulative impact upon the property leading to a perception of being surrounded by flats, in an area which at least to the immediate east had been characterised by spacious housing. That said, we think that the existing flats to the west, namely the sheltered housing at Rorie Court, are not intrusive since they are shielded from the house by a mature tree belt and only occupy an area overlooking a north portion of the western part of the Glendarroch grounds. The flats to the north are on the north side of South Avenue and, being across the road and behind a high stone wall, do not create much of an impact. Both these blocks of flats are situated well away from the Glendarroch house itself. On the other hand we think the proposed flats will have more of an impact as we now discuss.

70. The boundary between Dunmail and Glandarroch is characterised by a long beech hedge. It is about 4 feet high. The south third of the boundary on the Dunmail side also has mature deciduous trees which have been pollarded in the past. The northern third of the boundary has mature trees on the Dunmail side. There are a few trees on the Glendarroch side and a short stone wall about 8 feet long and 6 feet high located just to the south of the house a few feet to the west of the boundary. We understood that there had also been a high hedge or coniferous belt at the central part of the boundary, but which has more recently been removed by the applicants.

71. The recent plans indicate that the south third of the boundary will have a 1.8m high timber fence, and that a new supplemental beech hedge, or a laurel hedge, will be planted alongside and allowed to grow to 1.8 – 2m. The applicants’ documents indicate that the existing trees there will be pollarded or sensitively pruned (para 3.2 December 2017 arboreal impact statement.) There will also be replacement trees along the central part of the boundary and a few to the north part.

72. As we have indicated the proposed block of flats is orientated east to west, with the “long” sides facing north and south. The east and west wings are designed to be two and a half stories high. One of the first floor flats on the west wing, and the second floor flat there both have living rooms whose only window looks west; i.e. towards Glendarroch. In the case of the second floor flat there is also a balcony looking west. In all there are two ground floor flats, two first floor flats and one second floor flat with windows facing west. We therefore think that the potential for overlooking Glendarroch – i.e. from several separate upper flats – is likely to be more significant than might be expected from the development of three or four sensibly designed and located houses dispersed through the site.

73. We think the most sensitive part of Glendarroch to overlooking is a kitchen/patio area at the south facing rear of the house. The area extends from the kitchen through a glass door outside all along the south face of the house. The area adjacent to the kitchen is about 11m from the Dunmail boundary. The illustrations indicate that even in the summer at this location the flats will only be partially screened by existing trees. We infer from the landscape plans there would be limited screening by the existing stone wall, proposed new fence and new or reinforced hedge, at least in respect of the upper floors of the flats. This area is close to the proposed car park and where we would expect there to be lighting and a degree of light pollution which does not presently exist. Other parts of Glendarroch also appear to be sensitive. The south part of the tennis court would have a clear view to the development and vice versa. The south east part of the garden slopes downwards, so would be particularly overlooked in winter. Equally a view northwards from there in winter would see a somewhat dominating presence of the flats rising above. To a lesser extent peripheral views from the front living rooms and first floor balcony of Glendarroch would be affected. So there will be an impact upon the present sense of seclusion.

74. The relevant plan (SC2279-03-LA-001 Rev E) shows new trees being planted along the boundary on the Dunmail side. In the central part of the boundary there is a “gap” in the existing trees and thus the potential for upper flats to overlook parts of Glendarroch above described. At this point new trees, both cypress and deciduous, are proposed. The plan shows the new trees having smaller canopies than the existing trees, and do not in fact create a full screen. The new trees are located adjacent to hard standing for car parking and pedestrian access. As we understood it the issue with screening is that it may be difficult to grow larger trees successfully on account of the hard standing. The amount of hardstanding in this area has moved closer to the boundary and increased somewhat from what was shown on Rev D in the planning appeal. So overall we have to be sceptical as to how successful the screening will be, in both summer and winter, and particularly in relation to the upper west facing floors and top floor balcony. However, the more effective the screening, it follows the greater would be the loss of sense of spacious residential amenity which the condition is intended to preserve.

75. There is some valuation evidence suggesting that the value of Glendarroch would reduce in the event of the development being able to proceed. We have not seen anything like a formal assessment of potential loss, and we are uncertain whether the figure mentioned, namely a reduction of 15% of value, has taken into account the fact that a development of up to four houses would still be permissible under the title condition, subject only to planning. That said, we are inclined to think that in the above circumstances, there is a significant risk of a diminution in value – no doubt difficult to quantify – based upon the difference in loss of amenity caused by a neighbouring development of flats as opposed to limited housing.

76. Turning to Silverdale it is the case that those subjects will see little or nothing of the flats given the proximity of the high and dense leylandii hedge along its southern border. This hedge is to the immediate south of the boundary fence and accordingly lies on the applicants’ ground. At some points the south elevation of the house is only 3-4m from the hedge. Little beyond the hedge can be seen even from the first floor bedrooms. If the hedge were to be reduced to a reasonable height sometime in the future, the view south would be blocked by the flats, albeit at a distance of some 25m (now 21m under Rev M). Potentially new houses could also restrict views south should one or other be closer to Silverdale than the flats, which appears quite possible. As we have no layout designs for possible houses, it is difficult to gauge whether the flats would cause more overlooking, and restrict views more than a pattern of houses. Given that the flats are designed to face in all directions, and would probably be higher than houses, and as we have said would expect houses at this location to be designed to have more of a south facing aspect, we would not conclude that the houses would necessarily result in a visual impact to the same magnitude as the flats.

77. As the Tribunal pointed out previously, the Silverdale site was carved out of the Dunmail site. It is more designed to look west and now has a west facing conservatory. The west boundary is marked by a slatted fence. On the other side lies the entrance area to Dunmail which would be expanded by the development and be visible to Silverdale. This aspect would be sensitive to increased traffic, parking and light pollution. As discussed above, we think these impacts would likely be markedly less in the case of a development of three or four houses, and it is unlikely that there would be room to site a house upon the entrance area.

78. In summary we are satisfied that the benefit of the condition to each benefited property is palpable and significant. The development of 21 flats, even as retirement dwellings, would probably result in greater loss of amenity to Glendarroch and Silverdale that the construction of 3 or 4 family houses.

79. We now turn to factor (c), namely the extent to which the condition impedes enjoyment of the burdened property. In context what is being impeded is the full development potential of an existing house site for the development of 21 retirement flats. However, we note that the applicants did not present any case that a housing development permitted by the existing condition – say of three or four houses, was unlikely to succeed in terms of a planning application. It was not argued that there was any fundamental bar to a development of this nature because of the CALA decision. That refusal was based upon narrow grounds relating to tree loss. Lessons have no doubt been learned from that decision. If anything, the prospects for a planning application for housing development are better now, following the death of a number of trees in the centre of the site, than they were in April 2015. The second DPEA decision implies that a development which provides a few replacement trees in the centre of the site would be acceptable in planning terms. Thus we have no reason to think that a housing development on a suitable scale, could not succeed. So, in terms of an impeded development opportunity, we are unable to quantify just how significant this is. We have no evidence to help us measure the extent to which an ability to develop retirement flats would be a greater development opportunity than the existing opportunity for limited housing.

80. In terms of factor (e) namely the length of time since the creation of the condition, we have treated the date of creation as primarily 2014. The period is clearly a short one. As we have discussed at (a) above, there has been relatively little relevant change within that period.

81. In terms of factor (g) we accept that the planning permission granted on appeal in August 2017 means that the development can be viewed as acceptable in the wider public interest. The terms of the reporter’s decision letter and the preceding planning officer’s report are helpful to us, particularly in our assessment of the impact upon surrounding amenity. The fact there were differing views between the reporter and the planning officer serves only to highlight the difficulty of those issues in the planning application. However, we can only give limited weight to these views, useful as they are, since we are dealing here with private rights of landownership which may provide additional protection to that afforded by the planning system.

82. Turning to factor (h), as we have indicated in other cases, it is unclear what role willingness to pay compensation plays under this factor. In this case, compensation is neither offered nor claimed in a formal way. We do not give weight to this factor. Nor do we find any other relevant factor which may be given weight in terms of sub-paragraph (j).

Conclusions

83. Drawing the threads together we consider that the Tribunal, in varying the condition in 2014, did so in a way which purposively excluded the possibility of a future large flatted development. This was intended to draw a line in terms of future development for anything more than four houses. In this context factor (f) markedly supports the respondents. Each respondents’ position is further supported by factor (b) and we find nothing in the other factors which outweigh these matters in favour of the applicants. We are therefore of the clear view that it would not be reasonable to vary the title condition.

Decision

84. In the foregoing circumstances we refuse the application.

Annex 1 – title plan ABN53044
Annex 2 – site plan F1562L(--)002 Rev M


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 June 2018

Neil M Tainsh – Clerk to the Tribunal