OPINION

Ian Martin & Margaret Henderson Martin (Applicants)
v
(First) Mrs Josephine Turnbull, and
(Second) Niall Ross Macmillan and Another (Respondents)

Subjects: 5 Oswald Walk, Milngavie

Introduction

[1] Mr and Mrs Ian Martin, the applicants, seek variation of title conditions which prevent the development of a separate house in the garden of their house 5 Oswald Walk, Milngavie (“the subjects”) in terms of a planning permission. Mrs Josephine Turnbull, the first respondent, is proprietor of 3 Oswald Walk and an immediate neighbour who objects to the application. Mr Niall Macmillan is executor of the late Mrs Ursula Macmillan who was joint owner of 4 Cochrane Court. The other joint owner is Miss Alexandra Macmillan. Mr Macmillan objects to the application as executor and on behalf of Miss Macmillan. We refer to them as the second respondents. 4 Cochrane Court is immediately adjacent to the subjects.

Procedure

[2] After a certain amount of title research, the application was intimated upon 155 benefited or potentially benefited proprietors in terms of s93 of the 2003 Act. Once representations were received from the respondents owning the above two properties, parties agreed to the application being determined by means of written submissions. The Tribunal has agreed to proceed on this basis. The applicants were represented by Mr Fraser Geddes of Anderson Strathern LLP, Solicitors. The respondents represented themselves. We held a site visit in Milngavie on 5 June 2018. The second respondents did not attend the site visit, and consequently we were unable to view 4 Cochrane Court from within those premises, but we were able to view the garden satisfactorily from various external viewpoints.

Statutory material

[3] Title Conditions (Scotland) Act 2003 (“the 2003 Act”).

Title Conditions

[4] The applicants’ title is registered DMB11437. Burdens entry 6 refers to a disposition by Salvesen Homes Limited to Stuart Wilson and another recorded GRS (Dumbarton) 11 January 1980. The entry refers to an area shaded pink on the applicants’ title plan and provides as follows:-

“(FIRST) WHEREAS the dwellinghouse and relative offices … have been or are to be erected … it is hereby declared that … (two) no structural alteration shall be made to said buildings and no additional buildings or erections shall be erected on the said plot of ground without our consent; (Three) the said house shall be used solely as a private dwellinghouse and for no other purpose, and shall never in any way be sub-divided or occupied by any more than one family, …”

[5] The entry continues with detailed requirements as to the retention and maintenance of fences, walls and hedges including an obligation that hedges should be trimmed so as not to exceed five feet in height. There is a further provision requiring ground between the front building line of the dwellinghouse and the road fronting it to be used solely as ornamental garden ground. The entry further provides as follows:-

“(EIGHTH) WHEREAS we are to designate and form within our said development certain recreational amenity and open public space areas for the common use of the proprietors in the said development and to set up an Association of Proprietors to administer the same, our said disponees and their foresaids shall be bound to pay an annual charge … and (NINTH) the foregoing conditions, prohibitions, declarations and others are intended and are declared to operate so far as applicable in favour of and to be enforceable not only by us but also by each and every proprietor in the said development but subject always to the reservation in favour of us as proprietors of the remaining parts of our said development that we have and retain and reserve full power to alter the plans of and to deal with the said development as may be required by us from time to time including alterations in the layout of the said development, including siting of buildings, roads, footpaths, drains and sewers, areas of open public space and others … and to waive, alter or modify or not enforce observance of any conditions, restrictions and others hereinbefore set forth: and subject to the aforesaid reservation there is hereby conferred to our said disponees and their foresaids a jus quaesitum tertio for enforcement of the provisions of these presents and of other dispositions of subjects forming part of the said development inter se of the individual disponees or proprietors insofar as our said disponees or their foresaids shall from time to time have an interest to enforce the same …”

[6] Entry 7 of the title sheet refers to a deed of conditions recorded GRS (Dumbarton) 5 March 1982 by Whelmar Scotland (West) Limited of 38 87/100 acres of ground (referred to as “the development”). The entry refers to that part of the subjects tinted blue on the applicants’ title plan. The entry narrates burdens as follows:-

“(FIRST) No house or building whether of a permanent, temporary or portable nature shall be erected on the development, nor shall any additions, enlargement, alterations, rebuilding or reconstruction in whole or in part be made on any house or building on the development until the plans thereof have been approved and written consent thereto given by ourselves or our foresaids; (SECOND) The house is to be used and occupied solely as a private dwellinghouse and the ground effeiring thereto as a garden and for no other purpose whatever and shall not be sub-divided or occupied by more than one family at a time …”. …“(EIGHTH) The development with the exception of the parts thereof disponed to the various proprietors … is hereby declared to be common ground and each proprietor shall have an equal interest therein; such common ground shall remain open and unbuilt on in all time coming except if otherwise agreed by our foresaids and shall be maintained in a clean and tidy condition to the satisfaction of our foresaids, …”

The entry continues so as to provide for the maintenance of boundary walls, fencing and hedges and for the hedges not to exceed 5 feet in height; the entry makes further provision as to the retention of ground at the front of the house as garden ground and for existing trees or shrubs not to be cut down except with prior written consent. Further provision is made in clause (THIRTEENTH) for Whelmar to designate and form certain recreational amenity and open public space areas for the common use of the proprietors in the development and for a maintenance charge. The Deed further provides:

“(FOURTEENTH) There is expressly reserved to us, the right to alter or modify at any time in whole or in part the reservations, real burdens, conditions, provisions, limitations, obligations, stipulations and others herein contained and in the event of us so doing, the proprietors shall have no right or title to object thereto, and shall have no claim in respect thereof, any such alteration or modification in respect of any one or more of the subjects shall not imply any similar alteration or modification in respect of any other subjects; FURTHER, there is hereby retained to us, the right to make whatever alterations or deviations as we consider proper upon any of the plans of the development or even to depart entirely therefrom and we expressly reserve the right to dispose of any part of the development for such purpose as we may think fit, or to alter or modify in whole or in part, the foregoing conditions and in the event of our so doing, no proprietor shall have any right or title to object thereto and shall have no claim in respect thereof …”

Background facts and circumstances

[7] The subjects are part of the Fairways residential development, Milngavie. We understood it was mainly constructed in the late 1970s and early 1980s. The subjects are within the south portion of the development where the ground slopes gently south towards Dougalston Loch. The loch is a feature of the development, which we understood to have been largely drained over time, and now consists of reed beds. It is surrounded by mature woodland and is part of an open space amenity area. To the north of the subjects lie other parts of the residential estate where there is adjacent parkland and a golf course.

[8] The estate comprises a mixture of detached and terraced houses. The terraced houses are compact and are located generally in the central part of the estate. The surrounding detached houses are in many cases fairly close to each other. The main arterial through route is Finlay Rise. This road is generally sweeping and the properties are set back often without formal front garden boundaries. The area is also characterised by abundant mature trees and shrubs. More detached houses are built along the spurs from Finlay Rise, such as Oswald Walk, which have been set out in a cluster fashion.

[9] An original brochure for the Fairways development was produced. It contains the following introduction:-

“To describe Fairways simply as a development of luxury homes would be to do this scheme a grave injustice. Nowhere in Scotland is there anything to approach its sheer magnificence. … People … can appreciate the tradition of craftsmanship and concern for ever higher standards that are making Fairways the finest residential development in Scotland.”

We do not quote the laudatory praise in full.

[10] The applicants’ property is a detached dwellinghouse. The house and part of the garden lie on the pink area of the title plan, which is the area referred to in burdens entry 6. The blue area on the plan is all garden, being the area covered by burdens entry 7. It was accepted that the blue area had been purchased in 1982 by the applicants’ predecessors from the developers, in order to extend the existing garden, hence the separate burdens entries. We were not provided with measurements of the size of the whole plot, but would not describe the garden as being particularly large, although it appears relatively large compared to most other properties on the estate. The applicants’ title also includes:-

“… a right along with us and the other proprietors of the said development to use the recreational amenity and the other areas of open public space to be set aside and formed by us within the said development for the common use of the proprietors thereof …”

[11] Oswald Walk is a cul-de-sac running southwards from Finlay Rise, and No. 5 is at the end of the cul-de-sac on the east side. The cul-de-sac leads to a large open space grassy area which we understood to be maintained by the residents’ association. There is a footpath running through part of it from different parts of the estate. Beyond the grassy area is the woodland and loch. A six foot high fence demarking the south boundary of a number of the individual back gardens of the estate runs alongside the grassy area. The southern boundary of the applicants’ property is marked by that fence adjacent to the open space area.

[12] The applicants have obtained planning permission from East Dunbartonshire Council Ref TP/ED/15/0704. This is in respect of a detached two-storey house on land to the south of the existing house at the subjects. The site, and proposed house itself, straddle the blue and pink areas on the title plan. The planning permission represents a renewal of two previous permissions dated 2007 and 2012. The current permission was granted on 27 January 2016.

[13] The latest planning application had received six letters of objection. The planning assessment noted that the side elevation of the proposed house would be 6 metres from the closest residential neighbour, namely the existing house at 5 Oswald Walk. There was one upper window proposed on the side elevation facing No. 5 and a condition was imposed that this window be finished with obscure glazing in order to protect privacy. The assessment also noted that to the (east) rear the new house would share a boundary with 4 Cochrane Court. The rear elevation would be 8 metres from the mutual boundary. There would be two upper floor windows facing this boundary, but it was noted that this was unlikely to cause any more overlooking than currently exists from the upper floor windows of the existing house. It was also noted that the proposed house would have windows and balconies overlooking the open space area which was considered to provide a positive effect through more surveillance of the area which, the report provides, is known to reduce crime/anti-social behaviour. In response to letters of representation, the report considered that the new house was not expected to be overly dominant to the footpath or open space as there would be 3 metres between the side elevation of the new house and boundary. The report indicated that the proposal did not cause significant issues relating to overlooking and was not considered to be a backland development. A further condition was imposed restricting the hours of construction operation.

[14] The first respondent’s property 3 Oswald Walk lies immediately to the north of the applicant’s property. It is also a detached house. As the development is proposed to the south of the applicants’ house, the applicants’ house lies between the proposed development and the first respondent’s property. The second respondents’ house at 4 Cochrane Court lies to the immediate east of the applicants’ property. Cochrane Court is another cul-de-sac running south from Finlay Rise. The second respondents’ house is also a detached house with large garden. We infer that the respondents, as owners within the Fairways development, also have rights to the open space areas similar to those of the applicants.

Submission for applicants

[15] There was no dispute that the respondents were, or were likely to be, benefited proprietors in terms of their titles. It was also accepted that the title conditions were intended to preserve the amenity of the quiet residential area through preventing owners from undertaking further building. Reference was made however to the factors mentioned in section 100 of the 2003 Act. In terms of factor (a) it was pointed out that since the housing development had been completed, there had been numerous changes to the original houses which had seen extensions and new buildings, including a very large extension to the opposite property at 4 Oswald Walk. The pre-existing layout of the development had been changed and thus the amenity of the area had also been changed, although the character had not been fundamentally altered. The development would be consistent in the size and nature and character of the existing houses in the area. It was accepted that the examples given all related to extensions of existing property and that there had not been a new and separate dwelling constructed within a garden. However, there were no other properties with sufficient land to enable a separate dwelling to be built, with the exception of 5 Oswald Walk.

[16] Under factor (b) it was pointed out that few properties would in fact see the proposed house since it would lie at the south end of the cul-de-sac. We took this reference to include number 3 Oswald Walk. It was accepted that the property most likely to be affected by the proposal was 4 Cochrane Court. The new house would not be adjacent to the house at No. 4 Cochrane Court and would thus not overlook that house. It was pointed out that that house was already overlooked by its neighbours including 5 Oswald Walk and 5 Cochrane Court. There was a line of mature trees along the 4 Cochrane Court side of the boundary. This would provide sufficient screening between the new house and the garden at 4 Cochrane Court. In contrast there was no such privacy from the east adjacent house 5 Cochrane Court which overlooked the garden of No. 4 already. It was also submitted that the new house would not adversely affect the common area. The proposal could not be described as a “backland development”.

[17] In terms of factor (c), the title conditions impeded the applicants’ enjoyment of their property since “enjoyment” included the ability to develop it sensitively in accordance with their planning consent. In terms of factor (e) the burdens had been in effect for 38 and 36 years respectively and within that time there had been many developments resulting in the garden ground becoming smaller. Turning to factor (f) it was accepted that the purpose of the title condition was to preserve amenity of the area, but it was pointed out that the proposals would not materially affect amenity of the area. In terms of factor (g) the planning consent could not be implemented on account of the title conditions. Under factor (h) the applicants were willing in principle to pay compensation should an application be made for such, but it was submitted that compensation should not be payable.

Submission for first respondent

[18] It was pointed out that any changes in the existing structures on the estate would have required consent. She was not aware of any properties having been changed so as to be more than a single dwelling. Reference was also made to the fact that each proprietor could enforce the conditions under entry 6. There was a risk that if a new house was permitted this would set a precedent for future variations. Under factor (b) it was pointed out that entry 6 provided for all residents of the estate to be able to enforce the title condition requiring the maintenance of a single dwelling. The development would adversely affect the amenity of the area. There was concern as to increased traffic, noise, pollution etc. Under factor (c) the condition did not impede the enjoyment of the applicants’ property as a single dwelling. In terms of factor (e) in the period of years since 1980 and 1982, there had been no similar developments resulting in the splitting of a property. It was maintained that under factor (f) the purpose of the condition was to maintain each plot as a single dwelling.

Submission for second respondents

[19] Mr Macmillan submitted that the conditions in question were not outdated. All the examples given of modifications to Fairways properties were extensions to existing buildings. The fact that some houses had already been modified underlined the fact that the estate had the flexibility within itself to adapt a home to today’s requirements; there was no need to change the conditions to enable a second house to be built in a garden.

[20] The proposal was described as a backland development. It would eliminate most of the existing garden of 5 Oswald Walk. His adjacent property 4 Cochrane Court was only minimally overlooked by neighbouring properties and the proposed development would overlook his house and garden. The 4 Cochrane Court garden was substantial and its privacy was valuable. This would be now overlooked and dominated by the new house.

[21] The open area at the foot of the Fairways estate is popular recreational space. It is also used by the public. The Fairways gardens including No. 5 Oswald Walk create a natural buffer between the houses and the open space. The proposed development would abut the open space closing in on it and making it feel overlooked to the detriment of those using the open space. The proposed house would be out of line with the original houses adjacent to the common ground. The proposed change would set a precedent to other owners of the estate. Mr Macmillan’s late mother had been agitated and stressed by the potential development since its inception in 2006.

Discussion by Tribunal

[22] As we have noted above, there was no dispute that the respondents were, or were likely to be benefited proprietors in terms of their titles. No particular analysis was put forward by parties as to the likely route to such a position, i.e. whether by section 52 and/or 53 of the 2003 Act, but for present purposes we are prepared to assume that the respondents are benefited proprietors.

[23] As we have also noted, there was no dispute in terms of factor (f) of section 100 that the purpose of the title condition was to preserve amenity. We did not receive any particular analysis as to whether the original purpose was from the perspective of the developer, or the individual proprietors. Both sets of conditions provide the developer with the ability to waive the conditions. That said, clause ninth of entry 6 expressly provides for the individual proprietors to be able to enforce the conditions. Thus we think it can be said, at least to a certain extent, that the purpose of entry 6 was to provide certain enforcement rights to the other proprietors in order to protect their amenity. We also note that the conditions contain detailed provisions – not all quoted here – as to the preservation of amenity on various matters (e.g. hedge heights, no caravans to be parked in the open etc.) which is consistent with seeking to provide a high level of amenity.

[24] Turning to factor (a) there have been a number of house extensions in the estate. There has been a comparatively large extension at 4 Oswald Walk which has perhaps doubled the size of the house there and consequently reduced the size of the garden. This is on the opposite side of the cul de sac from the subjects. We also accept there have been a number of house extensions elsewhere, some of them quite large. There have been at least two such extensions to the rear of properties adjacent to the open space area to the east of the subjects. Nevertheless, we do not think there have been any changes which can be said to have changed the character of the area from anything other than a high amenity residential development. It was accepted that no other property in the estate had been created by subdividing a garden. We do not rule out the possibility that one or two other gardens (such as No. 6 Oswald Walk) could be large enough to enable a stateable case to be made in planning terms for sub-division, and thus the potential for the present case to set a precedent. The old and proposed houses at No. 5 would appear somewhat constrained together and thus represent a change to the existing sense of space at the location. We are inclined to agree with the second respondents’ analysis which is that the estate has adapted to modern requirements by only permitting house extensions within relatively generous gardens.

[25] Looking to factor (b) it is necessary to consider the impact of the proposal upon the benefited properties which the title conditions prevent. We agree with the applicants that there is unlikely to be any material loss of amenity to the property 3 Oswald Walk. The new house would be largely hidden by the No. 5 house, and will thus be largely invisible to No. 3. We do not think increased traffic will be significant.

[26] The position is less straightforward concerning 4 Cochrane Court. There will be two east facing upper windows from the new property overlooking it, particularly over the south/rear portion of the No. 4 garden. The boundary is marked by a line of mature birch trees on the No. 4 side running south to a point where the boundary becomes irregular, where a small triangle of ground protrudes from the subjects eastwards. Thus there is scope for the southmost of the two windows to overlook the south portion of the garden across the triangle in summer, and for both windows to overlook through filtered views in winter. It is true that No. 4 Cochrane Court garden is already overlooked from its east neighbour No. 5 Cochrane Court. So it can be concluded that the condition benefits the benefited property to some extent by preventing the additional overlooking. We consider this benefit to be fairly minor in the circumstances, but do not say it is insignificant.

[27] As we have indicated, the benefited properties have the right to use the open space area adjacent to the south fence. This is maintained to a high standard where there are pleasing views of woodland and the marshy loch. There is an east/west vista within the open space. The views include a view across the southern fence and over the existing gardens with their hedges and trees. The building line behind the gardens is not uniform but it was striking that the garden from the subjects protrudes into the open space when viewed from the west. If the two storey new house were to be built, that view would be somewhat occluded and adversely affected, particularly from the west but also to a lesser extent from the east. In our opinion this is a moderate and significant impact, and would affect all users of the open space area. This will potentially include all benefited proprietors within the estate. Mr Macmillan’s evidence indicates that the area is popular, and we infer that the area is valued by the residents’ association which maintains the area to a high standard.

[28] In terms of factor (c) we accept that the title conditions prevent a development opportunity for the applicants’ property. That said, the garden appeared well proportioned and not in any sense excessive. Absent the title restriction, many future owners would no doubt be content to keep the garden as it is. We also consider that the proposed house is fairly large and would be close – we understood some 6m – to the existing house. The construction of the new house is bound to reduce the desirability and value of No. 5 with the loss of much of its garden and south aspect. Thus the extent to which the burden impedes enjoyment of the property is somewhat limited. We were not addressed upon the possibility of a more modest form of development, such as a south extension to No. 5, but our observations indicate there would be ample space for an extension should it be architecturally viable.

[29] In terms of factor (e) the title conditions have now been in existence for 38 and 36 years respectively. The conditions appear to be relevant in that the estate remains well maintained and a desirable place to live. The developments which have taken place in the form of various house extensions, although perhaps of varied degrees of architectural merit in some cases, appear largely unobtrusive.

[30] Turning to factor (g) the applicants have the benefit of a planning permission for the construction of the new property. They have had a permission since 2007. The planning officer had recommended that permission be granted having concluded that the proposal would not have an adverse impact upon the existing property, neighbours and the wider street scene. We have taken into account the views of the planning service, including the comment that the house would not be visually harmful to the area. However, it will be borne in mind that planning permission is granted from the perspective of the public interest. Here we are dealing with private rights which may require a higher standard of amenity than that provided under the planning system.

[31] Turning to factor (h) the Tribunal has previously indicated that it is difficult to assess the inter-play between this and the other factors, since if the Tribunal deemed compensation to be appropriate, an owner can usually be taken to be willing to pay it since, should he decline, the condition will not be varied. In this case compensation is neither offered nor sought. We do not think we can give this factor any weight, one way or another.

[32] We have commented under (b) above that the condition is likely to benefit individual proprietors of the estate in that it protects views within the communal open space area. Although only two respondents have entered the process, who are immediate neighbours, we think we can take account of wider interests of the integrity of the estate generally. Experience suggests it is very possible that other benefited proprietors may have not objected because they were not “immediately” affected and because of the risks of litigation. If not strictly falling under either limb of head (b), we take account of the wider interest under factor (j).

[33] Drawing the threads together, we consider that the pattern of change in the area thus far has been limited to house extensions, without any fundamental change to the character of the estate or its intelligent layout generally. The conditions seek to safeguard a high standard of amenity and, from what we could see, have been largely successful in maintaining that standard over the best part of 40 years. The first of the two sensitive issues concerning the proposal, namely the impact upon 4 Cochrane Court on account of potential overlooking, is relatively small. The impact upon the existing east/west vista along the south aspect of the development we have described as moderate adverse. Its significance is increased by the fact that it is likely to affect a number of benefited proprietors using the open space going beyond the immediate respondents. We feel that the balance between burden and benefit in this case would be more equal, and in keeping with changes to the estate occurring thus far, if we were only dealing with an extension to the subjects which compromised on the two sensitive areas we have discussed above. However, that is not the proposition before us. While we consider this to be a narrow case, we do not think that factors (c) and (g) assisting the applicants go far enough to outweigh the other factors supporting at best a more limited proposal. In these circumstances we are not persuaded that it would be reasonable to vary the conditions as sought.

Decision

[34] Accordingly we shall refuse the application.

Annex 1 – Title Plan DMB11437


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 26 June 2018

Neil M Tainsh – Clerk to the Tribunal