OPINION

Danny Lai Chung Chan and Katherine Mei Kwan Hau (Applicants)
v
Christina Sanderson-Tolsma and Others (Respondents)

Subjects: 28 Dreghorn Link, Edinburgh

Introduction

[1] This is an application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 to discharge or vary title conditions in order to permit a proposed development. The applicants are owners of the detached dwellinghouse 28 Dreghorn Link, Edinburgh. Their proposed development is the construction of a further dwellinghouse on their ground. The relevant part of Dreghorn Link is a cul-de-sac containing nine detached houses. No. 28 lies at the entrance to the cul-de-sac on the east side. The site of the proposed dwellinghouse (“the site”) pertaining to the applicants’ ground lies just to the south of the No. 28 house itself and immediately adjacent to the cul-de-sac entrance. But for the following the site might be described as resembling the second part of a double plot. However, the site contains an underground storm sewer and attenuation tank and has not been built upon. Much (but not all) of the site is described as the “restricted area” in the relevant burdens entry in the title sheets.

[2] The respondents are owners of a number of the other properties in the cul-de-sac. They oppose the application. They are Mrs Christina Sanderson-Tolsma of 30 Dreghorn Link, Mrs Nasrat Rathore of 32 Dreghorn Link, Mr and Mrs Khalid Hafeez of 34 Dreghorn Link, Mr and Mrs Andrew Dalgleish of 40 Dreghorn Link, and Mr and Mrs Michael Royden of 42 Dreghorn Link. The owners of No. 44 Dreghorn Link, namely Mr and Mrs Graham Moodie, whose property is directly opposite the site, have written to the Tribunal stating that they believe the proposed changes to the titles are immaterial and that they therefore support the application.

Procedure

[3] All parties made written submissions. They have consented to the application being determined by means of written submission with the documents lodged, together with a site visit. The Tribunal is agreeable to this procedure. The Tribunal members duly visited the site on 24 October 2018. The applicants were represented by Mr G J Hunter of G J Hunter, Solicitors, Edinburgh. The respondents represented themselves.

Statutory material

Title Conditions (Scotland) Act 2003 (“the 2003 Act”)

Cases

Rubislaw Quarry Aberdeen Limited v Hill of Rubislaw (Q7) Limited and Others LTS/TC/2016/35, 5 January 2018
O’Donnell v Craig & Others LTS/TC/2017/18, 2 May 2018
Crolla v Reid LTS/TC/2017/32, 18 April 2018

Title Conditions

[4] The applicants’ title is MID53128 registered 5 December 2003. Burdens entry No. 2 relates to a Deed of Conditions registered 5 June 2003 by J G B (Dreghorn) Limited (“the developers”) who were proprietors of the subjects edged red on the title plan referred to as “the development”. The area edged red encloses all nine of the detached houses including those belonging to the respondents.

Condition 1.7 defines “property” as -

“a detached villa with integral garage with garden ground, drive, pathway and bin store (if any) pertaining thereto forming part of the development and “properties” shall mean two or more such dwellinghouses and others as aforesaid and shall be construed accordingly …”

Condition 1.9 defines “the restricted area” –

“is that part of 28 Dreghorn Link, Edinburgh of which the development shown coloured orange on the (supplementary) plan together with such of the woodland areas as are located within the western area of the area coloured orange …”

Condition 1.12 defines “the woodland areas” as –

“those parts of the development shown coloured green on the (supplementary) plan.”

The supplementary plan shows green areas mainly at the rear of the plots but some also at the front facing the access road. Most of the now proposed development site is coloured orange as the restricted area. However there is a green strip at the west of this area adjacent to the access road, thus denoting a defined woodland area. From our own observations this woodland strip – it in fact mainly comprises of large bushes – continues southwards from the green area to the orange area, so the latter part of it is “within the western area of the area coloured orange” and therefore part of the restricted area under condition 1.9. The other larger, northwest part of the strip, being coloured in green, is a woodland area but not, apparently, part of the restricted area. It is however also part of the site.

Condition 8.5 provides –

“The proprietor of each property shall be prohibited from altering the woodland areas lying within and forming part of that property from its present designated status as woodland to cultivated garden ground (without obtaining specific written permission from the relevant local authority planning and/or other relevant department) …”

Condition 9.2 provides –

“With the exception of existing boundary walls, hedges or fences to the front of the properties and the boundary walls, hedges or fences to the rear of the properties, no further boundary, division or other walls or fences, trellis work or ornamental fencing or draught board fencing or any other erection whatsoever shall be erected by the proprietors anywhere on the development; nor shall boundary walls or fences be used as a support for strengthening for trellis work, ornamental fencing or draughtboard fencing.”

Condition 10 provides –

“Uses and Prohibitions. So far as regards the development and all properties thereon; - 10.1 each property shall be used solely as a private dwellinghouse and for no other purpose whatever and none of the properties shall ever in any way be subdivided or occupied by more than one family at a time.”

Conditions 10.2 to 10.7 provide a lengthy list of prohibited uses, including the creation of nuisance and, for example, the parking of caravans and commercial vehicles. There are restrictions on the number and type of pets, and a requirement for dogs to be kept under control.

Condition 10.8 provides –

“subject to the terms of condition 8 hereof, no trees, hedgerow or shrubs on or overhanging any part of the development shall be cut down, lopped, damaged or removed from any part thereof unless they have become dangerous or overgrown.”

Condition 10.9 provides –

“The proprietor of 28 Dreghorn Link, Edinburgh is specifically prohibited from growing plants, shrubs, trees etc on the restricted area, nor shall the said proprietor alter the surface levels or do or permit anything which would be likely to or does damage the local authority services running through or under the restricted area or which would be likely to make access thereto more difficult.”

Condition 12.5 reserved to the developers the right to alter or modify the conditions and further reserved them the right to make alterations or deviations upon the development plans to the subjects. It also provides:-

“Subject to the foregoing reservation there is hereby conferred on each proprietor a ius quaesitum tertio for enforcement of these presents in a question with any other proprietor insofar as he shall from time to time have an interest to enforce the same.”

The applicants’ application seeks the discharge of Conditions 8.5, 9.2, 10.1 and 10.9 quoted above so as to permit the proposed development.

Background facts and circumstances

[5] Planning permission for the original Dreghorn Link development was granted in October 2001. We infer the development was completed in the early 2000s. To the south of the cul-de-sac comprises a petrol station, hotel, restaurant and parking area, which is a service area for the city bypass accessed via the Dreghorn Interchange. Further south lies the bypass itself and the Pentland Hills. To the north lies Dreghorn Barracks, which includes an active shooting range, and to the east there is a narrow belt of mature woodland before a steep escarpment falling to the main road also known as Dreghorn Link.

[6] The existing nine dwellinghouses are large and detached. They are set back some 5 metres from the pavement of the access road. The front gardens do not have boundary fences or hedges, which all makes for an open aspect along the access. The rear gardens are fairly substantial, and one or two are generous. The elevations are a combination of sandstone facade and white render. Most of the dwellings have inbuilt double garages. The design of each house might be described as a combined two storey and one and a half storey building. They have steep bungalow style sloping roofs of red tile. There are individual tall chimneys and the front entrances contain an archway form. We would venture that the architectural style, which is consistent throughout the development, is inspired by an arts and crafts vernacular.

[7] The applicants propose to build a house upon the site which comprises the restricted area and the above mentioned woodland area. The restricted area is in grass. The woodland area is a belt of mainly large bushes between the restricted area and the access road, and at the edge there is a line of boulders. According to the planning papers, the site measures of the order of 787 sq m. The site is on a slope falling southwards. The belt of large mature bushes to the west are of the order of 10 feet high or more. The south part of the site is at the entrance to the cul-de-sac where there is a stone wall and rail fence, and beyond that to the south is an electricity sub-station site comprising another grassy area. The west section of the development site fronts the access road of the cul-de-sac and, on the other side of the road, lies No. 44. To the north of the development site lies the applicants’ dwellinghouse No. 28, which is presently bounded by a stone wall. We understand that the proposed boundary would move a few metres north so that the new boundary would be closer to the No. 28 house than the existing wall in its current location. To the east is woodland and the escarpment. None of the respondents’ properties lies immediately adjacent to the site.

[8] According to a plan produced by Scottish Water the restricted area contains a storm sewer and attenuation tank. The storm sewer generally follows the line of the access road of the cul-de-sac as it runs downhill south, but at the south point of the No. 28 house it detours into the grassy area in a salient shape. The storm sewer runs in 3 lines of a rough rectangle, i.e. east into the site, then south adjacent to the east/rear boundary fence and then west returning to the access road at an angle. The existing attenuation tank lies underground along one of these lines.

[9] The applicants indicate that the site was conveyed to them at the time they purchased their property in 2003. It was not apparently envisaged at that time that a dwellinghouse could be erected on the ground due to the location of the attenuation tank. There is no evidence to contradict this, and we accept that this is likely to have been the case.

[10] The dwellinghouse proposed by the applicants is a four-bedroom, two storey dwellinghouse. It is a modern design. According to the planning report the drawings indicate a mix of brick, render and cladding. Part of the roof rises at a south facing 15 degree pitch in order to house solar panels. The remainder of the roof is flat. Along the south elevation is a balcony on the top floor. There are two car parking spaces. The west facing front of the house lies about 1m from the pavement. Ground to both sides and rear of the house is shown not built upon. According to both the architects’ and engineers’ drawings there is a “wayleaf (sic) to be 3m wide each side of the (storm) sewer” as it runs around the proposed house. At the ground to the north of the proposed house, adjacent to the parking area, is a new filtration trench. At the ground to the south of the house, connected to the storm sewer, is the proposed relocated attenuation tank.

[11] The applicants applied for planning permission from Edinburgh City Council on 18 September 2017. There were 11 letters of objection following neighbour notification. The Planning Committee decided to grant planning permission in terms of a letter dated 18 December 2017. The reason given was:-

“The proposal complies with the development plan. The proposal is acceptable in this location and will not have a detrimental impact on the character and appearance of the special landscape area. There will be no impact on residential amenity, traffic and road safety.”

[12] The decision follows the officer’s report. The report noted that the site was within an established residential area and taking account of the siting, height and massing of the development would not have an adverse impact upon the Pentlands special landscape area. In the context of scale, form and design, the report indicates that the proposed dwelling matched the general height and massing of the surrounding area, although was of a contemporary design. The proposed dwelling sits closer than the surrounding properties to the pavement, one metre compared to five metres at the neighbouring property. However, the report indicates that the proposal still respected the general form of the existing housing estate in terms of its setting and large garden ground. The report notes that the design of the dwellinghouse introduces a contemporary palette to the existing development and although differing to the houses consented in 2001, it is in keeping with the wider surrounding area that includes a hotel and petrol station. A condition was recommended, and subsequently attached to ensure that all materials were agreed with the planning authority prior to any work commencing on site. It was recommended that the scale, form and design of the proposals were acceptable.

[13] In addressing neighbouring amenity the report indicates there is a distance of 15.3m gable to gable with the neighbouring property, but that the latter does not have any gable end windows. The proposed balcony faces south away from any neighbouring properties. The proposal would not therefore have a detrimental impact on residential amenity. The report goes on to consider that the proposal exceeded minimum floor space requirements and provided sufficient open space for perspective residents.

[14] The report also mentions there is adequate off-street parking space for two vehicles in the development; that the development would not result in an unacceptable increase in traffic; the site is well served by public footways and there was no detrimental impact on road safety.

[15] One theme of the objections to the Tribunal application was that the applicants had not produced evidence identifying which services for the rest of the development in fact run through the restricted area, which could thus be interfered with by the development. During the process the applicants produced various plans from the utility operators which establish, and in the case of BT Openreach tend to establish that the only services running through the site are the storm sewer and attenuation tank. We were satisfied that the other services follow the access road.

[16] A letter dated 3 November 2017 from Scottish Water indicates that an application to connect to the public waste water network has been approved. The approval relates to a layout drawing D3265-1001 Rev B which was produced to us. This indicates the existence of an access area/ no build zone around the storm sewer and attenuation tank discussed above.

Submissions for applicants

[17] It was submitted that there were no express burdens prohibiting building on the restricted area. The applicants would ensure that any access required to the local authority for the relocated attenuation tank was provided whenever required. It was submitted that there was not believed to be any material detriment to any of their neighbours’ property in respect of value, amenity or enjoyment for the individual proprietors or on the character and appearance of the landscaped area, and that there would be no impact on residential amenity, traffic or road safety.

[18] It was submitted that it was reasonable to discharge the title conditions. In terms of factor (a) of s100 the development was an established housing development of nine houses, some of which had been extended or altered since the original construction. In terms of paragraph (c) the title conditions restricted the useful development of the area in question which was too large for additional garden ground. In terms of paragraph (e) circumstances had changed since 2003 when it had not been envisaged that a dwellinghouse could be erected on the ground. In terms of factor (g) planning permission and consent from Scottish Water had been granted. In addition Mr and Mrs Moodie of No. 44 supported the application.

[19] Reference was made to Tribunal cases, namely, Crolla v Reid and O’Donnell v Craig & Others which were similar examples where the Tribunal had not thought there would be material detriment to neighbouring properties.

[20] The applicants had had no indication as to what the developers’ intentions had originally been for any future development. The existing shrubs and bushes at the site could be considered overgrown and unsightly. The garden ground at No. 28 was already more than sufficient for the house whose boundaries were well established.

[21] The definition of “property” was narrow and was separate from the definition of “the restricted area”. The new house was being erected on the restricted area where there was no express prohibition in the deed of conditions against building on this area. The applicants were not building on garden ground or sub-dividing the original house as prohibited by the title conditions.

[22] In relation to various points made by the respondents, it was indicated that the south wall of the restricted area had been knocked down by a reversing lorry. This had been the subject of an insurance claim and the wall had been reinstated. In terms of condition 8.5 there was only a very small amount of woodland to the front of the site affected by the grant of planning permission, and that the council were unconcerned since they had granted permission for it to be altered. Condition 10.3 related to the creation of a legal nuisance or disturbance which was not relevant here. The garden and woodland area pertaining to No. 28 are unaffected by the development.

Submissions for respondents

[23] In terms of factor (a) the only changes to the original dwellings were in respect of Nos. 34, 38 and 40 which were conservatories and in one case a sunroom at the rear of the house, none of which could be seen other than from an adjacent back garden. There was no change to the character of the estate.

[24] In terms of factor (b) the proposal would remove the planted landscaped entrance to the estate which comprised trees, shrubs and some boulders. Services ran under the restricted area which should not be disturbed. The new building would sit on the pavement at the entrance to the estate and would not be set back like the other properties. The estate would lose the landscaped entrance which would change the character of the estate to its detriment. The design of the house was out of character with the rest of the estate.

[25] Under factor (c) the purchasers of No. 28 would have been aware of the size of their garden and the restricted area when they made the purchase. It was suspected that the area had originally been intended as an “amenity area” for the whole estate, but that did not happen. It was understood that the original builders ceased to trade. The area could still be enjoyed in its current state as it is a sunny secluded area with lovely views of the Pentlands Regional Park. This secluded benefit would be lost along with the removal of the trees and shrubs at the entrance.

[26] In terms of factor (e) circumstances had not changed in the short period of 15 years since the imposition of the burden in 2003. Reference was made to Rubislaw Quarry Aberdeen Limited v Hill of Rubislaw (Q7) Limited in which the Tribunal took the view that 14 years was a relatively short period.

[27] In terms of factor (f) it was submitted that the title conditions were intended to protect and maintain the character of the estate. The relevant burdens applied to all the properties such that there was a community of interest. Should an owner be allowed to demolish their boundary and build on the ground would set a precedent for future developments and more than one proprietor had already been approached by someone wishing to build in the existing back gardens.

[28] Turning to factor (g), planning permission had been given but the planners had expressly not taken account of private title interests.

[29] Looking at factor (h) no mention had been made of any proposed compensation. The character of the entrance would be replaced by a house built totally out of character with the rest of the estate. There had been no consideration of possible damage to the escarpment “cliff face” of modern pile driving foundation works or the excavation required to move the tank.

[30] The respondents made a number of points more generally. The proposed house was on a prominent, if not commanding place at the entrance to the estate. The present semi-hidden character of the development would be lost with the loss of the shrubs presently on the site. The entrance gives the estate a hidden appeal and separates it from the outside service area. What was proposed amounted to a sub-division contrary to the conditions. The title conditions gave the parties reassurance that the estate would remain unchanged. The conditions were particularly important since the commercial area outside the development plays a negative role.

[31] There would be an increase in traffic. Lorries had already damaged the development. There would be access and egress problems during the building phase. There were safety concerns given the necessary stream of HGVs and heavy plant having to work in a restricted area. Young children lived in the estate. The attenuation tank was thought to be deep, meaning that its relocation would involve heavy equipment at the entrance to the estate. The two visitor spaces were already under pressure and another house would put strain on the parking provision.

[32] It was clear that the conditions did prevent the development of the restricted area, since the “surface levels” would be altered contrary to condition 10.9. All the trees and shrubs at the landscaped entrance would be completely removed. The plans indicated the boundary wall between the restricted area and the garden of No. 28 being moved west by some metres, thus disturbing an existing boundary wall contrary to the conditions. They did not agree with the applicants’ interpretation that the “restricted area” was a separate area from the remaining “property”. There was a lack of commitment by the applicants to preserve the identity and appearance of the estate who had not repaired the entrance wall which had been knocked down twice in the past two years.

[33] The development was also prohibited by Clause 10.3 which prevented anything being done which may be deemed a nuisance. This would occur when building works commenced due to the restricted space available for diggers and other heavy equipment.

Discussion by Tribunal

[34] Our first observation is that the site appears to be somewhat constrained. The plans indicate a 6 metre wide reserved access area of some sort which we would interpret as a no build zone along the route of the storm sewer and attenuation tank. Although none of the submissions directly addressed this matter, we would infer that this is a design requirement of Scottish Water, or at least a feature consistent with their requirements. We would infer that in approving the application to connect to the public waste water network, Scottish Water sought to retain the ability to take access to the infrastructure under the restricted area as shown by the relevant drawing. As we have indicated, the line of the storm sewer and attenuation tank is in effect three sides of a rectangle, i.e. salient shaped, running through the site. The no-build zone thereby created is a relatively large proportion of the site, we estimate to be of the order of 290m2.

[35] Accordingly we infer that this constraint has somewhat limited the development options. Again, the constraint was not directly addressed in the submissions before us, but it does appear that the west elevation of the new house will at one point lie only one metre from the pavement of the access road. It has been observed that this is less than the set-off distances for the other properties. It would not seem possible, or would at least be problematic, to increase the set-off distance for the proposed dwelling at the access since to do so would move the building eastwards and thus conflict with the no-build zone to the rear of the property. We also note that the relevant plan indicates “existing boundary shrubs to be removed” at the west boundary with the access road. As we have indicated this belt mainly comprises fairly high bushes, which would be removed for the siting of the proposed house.

[36] We now turn to the relevant factors in terms of section 100. We think it can be fairly said that, in general terms, the purpose (f) of the title conditions is to preserve amenity of the whole residential estate. The Dreghorn Link development is a low density residential area. The conditions contain detailed provisions as quoted and mentioned above, and are no doubt aimed at preserving a good quality amenity residential area. The deed of conditions confers a jus quaesitum tertio on the individual proprietors for enforcement purposes. There is no dispute in the present case that the respondents are benefited proprietors.

[37] Having said that we tend to agree with the applicants’ submission that the conditions are not particularly focused on the possibility of building upon the restricted area itself. The only condition specifically dealing with the restricted area is condition 10.9. In general terms this is aimed at preventing anything which would prejudice the services running through the restricted area or make access thereto more difficult. The only services which run through the restricted area are the storm sewer and attenuation tank, and the design proposals seek to maintain these including the possibility of access thereto.

[38] We are inclined to think that the wording of the definition of “property” has a certain tension in relation to the “restricted area.” In particular the wording could be clearer in the context of whether the “restricted area” is the “property” of No. 28 for the purpose, for example, of the no subdivision clause in condition 10.1. The “restricted area” is given its own definition in terms of the supplementary plan, and if it were intended to be “garden ground” for the purposes of “property” in 10.1 one would not expect the prohibition on growing plants etc. as is the case here. That said, if it is not an owner’s “property” of some sort, comprising a “bare” form of garden, it is difficult to see what else the restricted area could be. Whichever view is correct, we think it can be said that the conditions are not particularly focused on the restricted area being specifically retained as an amenity area. This is perhaps unsurprising if, as the applicants suggest, the possibility of building there was not contemplated at the time of the deed of conditions.

[39] We note that condition 9.2 contains something of a catch all provision (“… no further boundary, division or other walls or fences … or any other erection whatsoever shall be erected … anywhere on the development; …”). Superficially the proposed house is caught by the words “any other erection whatsoever.” But in context, the preceding words suggest this phrase would relate to boundary features rather than the house itself. We understood the plans to imply the creation of a new boundary wall with No. 28. So while not expressly preventing the building of a house as such, the form of words indirectly has this effect because the words prevent the delimitation of the new plot.

[40] As we have mentioned, the strip of vegetation forming the west boundary of the site would appear to come within the definition of “woodland area” since much of it is located on the green strip on the supplementary plan adjacent to the access road. Condition 8.5 seems to provide only limited protection to the “woodland areas” of the development. Once there is “specific written permission from the relevant local authority planning … department” allowing alteration of the woodland areas to become “cultivated garden ground,” it would mean that condition 8.5 prohibition no longer provides protection. We note that the condition 10.8 prohibition does not limit itself to the defined “woodland areas”, but is expressly “subject to the terms of condition 8 …” The words “subject to” appear to be the opposite of, for example, “in addition to”. So if the condition 8.5 prohibition falls away, because the planning authority has given a relevant permission, then it would follow that condition 10.8 is not applicable.

[41] However, in the present case the applicants are not entirely free of condition 8.5, since in essence the green woodland area is not only approved to become cultivated garden ground in the development, but also to some extent to become the build area for the house itself. Interpreting the planning plans and the supplementary title plan as best we can, it appears that some of the “woodland area” will become cultivated ornamental garden or equivalent, but some comprising part of the build area for the house will not. Because condition 8.5 is not engaged for the solum of the house, the general prohibition in condition 10.8 is engaged. So it follows that the conditions, taken together, can be taken to provide a small degree of protection for the woodland area from an amenity perspective. We say a small degree because, as we interpret the conditions, the protection only relates to that part of the “green” strip upon which the solum of the house would be constructed.

[42] So in conclusion under (f) we think that a general purpose can be elicited from the title conditions that they are there to protect the amenity of the estate. The conditions would succeed in preventing the development of the proposed house. It is more difficult to infer there is a specific purpose to maintain the restricted area for protecting wider amenity as opposed to the protection of services. It can however be said that the purpose of the conditions includes the protection of the woodland areas to a limited extent. In the circumstances of this case there is a small area of protection within the “woodland” strip on the west of the site.

[43] Turning to factor (a) we do not think there has been any material change of circumstances since the title condition was created. There will have been normal ageing of soft landscaping. The small number of rear extensions to certain of the properties within the development are not generally visible other than from adjoining back gardens. We do not therefore think the character of any of the properties or the neighbourhood has significantly changed. We are not inclined to think that the realisation now by an owner that a development opportunity exists is of itself the sort of change in circumstances envisaged by factor (a). We shall consider the opportunity itself in the context of factor (c) and the planning permission and the Scottish Water consent under factor (g) below.

[44] Looking to factor (b), as we have indicated, the conditions seek to preserve the services under the restricted area and access thereto serving the development. That would be an important benefit to the whole estate. The plans, including the description of a wayleave would seek to uphold this benefit. So in the event of a title variation in suitable terms, the benefit would be maintained.

[45] The site is at the interface between the commercial service area and the residential development. It is a fairly prominent location as the ground rises from the commercial area. The landform and existing vegetation tend to obscure the residential area from the commercial area. The vegetation gives the residential area a somewhat discreet setting and we agree with the respondents, up to a point, that the conditions provide some benefit in protecting this. As we have indicated above, the woodland/ tree related protection is somewhat limited to the area of the solum of the proposed house. Also, the existing vegetation is not of particularly high quality. In addition, we should point out that the vegetation at the very south of the site is shown in orange on the supplementary title plan and thus forms part of the restricted area – i.e. any protection as a “woodland area” depends upon condition 1.9 whose relationship with condition 10.9 is difficult to reconcile. However, as this part of the woodland area is subject to planning approval as a garden area it is on any view unprotected further by the woodland/ tree related conditions.

[46] As has been pointed out in the objections, the design of the proposed dwelling is dissimilar to the design of the existing dwellings. The vernacular is of a different nature. The proposed roof is either flat or slopes at a small angle inwards to the centre of the building; i.e. an opposite design to that of the traditional pitched roofs along the cul-de-sac. Whether or not the planning authority succeed in prescribing similarly coloured materials to the existing buildings, we accept that some would conclude that the design of the proposed building is rather incongruous to the remainder of the residential estate. Such difference as there is is exacerbated by the fact that the set-off distance from the access road is significantly less in the case of the proposed building than the existing buildings, thus giving it a degree of prominence.

[47] The extent to which this design contrast can be described as an adverse impact, prevented by the conditions, is however debateable. There are many examples in south Edinburgh of modern architecture sitting next to traditional buildings without damaging, and indeed enhancing, the character of the neighbourhood. The proposed house is not, as it were, in the middle of a row within the residential estate so as to break up a uniform design. Rather, it is at the entrance where a design solution is required for the interface with the commercial service area. While we ourselves might not find the modern design of the house to be particularly attractive in context, we have to recognise that appreciation of architectural design can often be subjective. So although we give some weight to the benefit of the conditions which can be used, in effect, to veto the construction of building of a different style to the existing buildings, the weight we can give is limited in the above circumstances.

[48] We are aware that a title variation or discharge can potentially set a precedent by means of a future developer seeking to rely upon factor (a). But given its location at the entrance as discussed above we are doubtful that the present proposal would change the character of the estate from one where the design is uniform to one where it can be said the overall design is haphazard or in some sense random. In addition, we feel that any development pressure relating to the one or two large back gardens in the estate would probably involve somewhat different design and amenity issues to those before us here.

[49] We agree that some building works are quite likely to take place in the somewhat narrow entrance area of the cul-de-sac. We accept this could well cause inconvenience for a temporary period. It is possible that vehicular access could be limited in some way. There would be noise and no doubt safety issues to be addressed by the contractors. However if it would otherwise be reasonable to allow a variation or discharge to permit the development, we do not think the possibility of temporary disturbance should swing the balance the other way. We do not accept the respondents’ argument that construction works are necessarily likely to create a nuisance, contrary to the conditions. A temporary nuisance would only exist depending on the manner in which the works are carried out, whose existence and actionability at common law could in any event be independent of the words in the title conditions.

[50] We accept that another house will increase pressure upon the existing on-street parking. In the overall scheme of things, this is a small benefit to the benefited properties.

[51] In terms of factor (c) the conditions prevent a development opportunity being realised. The existing uses for the site, particularly that part of it falling within the restricted area, are fairly limited. It is maintained as a protected area for the storm sewer and attenuation tank. It cannot be used for serious garden cultivation, as emphasised by the planting restriction in condition 10.9. Given the existence of trees and vegetation on two sides, and a wall on the third side, we agree that it can be described as a somewhat secluded area. It could potentially be a fairly large children’s play area. But as an adjunct to the existing private garden of No. 28 we doubt it to be of particular value. There is also likely to be fairly significant upkeep in terms of grass cutting, pruning etc.

[52] We have described the site as being constrained from a development point of view. In a sense this limits the extent of the development opportunity which is being prevented by the existence of the conditions. On the other hand it can be argued that the proposed development makes good use of the constrained areas. These appear to be intelligently integrated as part of what we infer to be a grassed garden area for the new house. So bringing into use the non-constrained part of the ground makes a good use of the constrained areas.

[53] In terms of factor (e), 15 years has elapsed since the conditions were created. In the context of no substantial change in the neighbourhood of the properties, this is not a lengthy period of time.

[54] Turning to factor (g), we have discussed the planning consent in some detail above. We understand the planning officer’s comment that the design of the dwelling is in keeping with the wider surrounding area to include the hotel and petrol station. The planning regime of course operates from the perspective of the public interest, and the officer’s comments should be seen in that context. We also require to consider the private interest of the neighbouring proprietors, as we have sought to do under (b) above.

[55] We note that the planning assessment did not consider there would be a detrimental impact upon residential amenity in terms of window/window distances. We do not think any objection was made to us by the respondents on this point. That said, we are unable to understand the point the officer made that the neighbouring property, referring we think to No. 28 itself, does not have gable end windows. Our site visit indicates that it does. However, any overlooking between the new building and No. 28 would impact upon the applicants’ own property, and not the respondents’. In the overall scheme of things this is a fairly minor point, affecting slightly the weight to be placed upon factor (c).

[56] We note that the Transportation Department did not object to planning permission subject to certain conditions or informatives being imposed or made. The planning officer concluded that the proposed development would have no detrimental impact on road safety. As we have mentioned, the respondents raised concerns as to road safety, particularly in relation to building works being carried out within a constrained area. But if there was an obvious safety issue we would have expected this to have been picked up in the planning process. While we accept that the entrance into the residential estate is somewhat narrow, there is a footway which on both sides of the access so if there were large vehicles temporarily working there, one footway could be fenced off.

[57] The applicants have successfully applied to Scottish Water to connect to the public waste water network. This is referred to in the letter by Scottish Water dated 3 November 2017, and is linked to the drainage layout D3265-1001 Rev B which we have discussed above. It seems to us that the approved plan maintains the purpose of condition 10.9 designed to protect the restricted area.

[58] In terms of factor (h) no compensation is offered. As we have said in other cases, it is difficult to give weight to this factor in practice, since should we make it a condition of discharge that compensation be payable, the applicant in continuing to seek the discharge can be taken to have accepted the requirement.

[59] In terms of (j) there is no other factor which we consider to be material.

Conclusion and Decision

[60] In this case we find the factors to be fairly evenly balanced. In general terms the purpose of the title conditions (factor f) is to preserve the amenity of the estate, which has changed little since 2003 (factors a and e), so we think that the conditions are still relevant and useful. The amenity to be preserved includes a small part of the site which can be termed a woodland area. Inasmuch as the conditions expressly focus upon the restricted area, being the main part of the site, this suggests a purpose for the protection of services rather than preservation of amenity. Subject to what we say below, the proposal intends to ensure the protection of those services. Thus the weight we give to factor (f) requires to be tempered somewhat. We consider that the conditions confer some benefit on the setting for the benefited properties under factor (b), but also they impede the enjoyment of the burdened property under factor (c) which has the permissions referred to under factor (g). We put significant weight upon the fact that the proposal would bring in to use somewhat sterile ground as discussed under factor (c) above. With some hesitation, we do not think it would be appropriate to refuse the application because of the arguably controversial nature of the architecture. We conclude that factor (c) tips the balance in favour of the applicants, and that subject to what we say below, it would be reasonable to grant the application.

[61] As we have indicated, we think an important feature of this application is that the plans seek to uphold the purpose of condition 10.9 by safely retaining the storm sewer and relocated attenuation tank under the restricted area and by preserving access thereto. The applicants’ submissions indicate that they would ensure for access to be provided as appropriate. From our study of the plans we are satisfied that this will be feasible, but we do not think it appropriate to make an order until we have either (a) sight of an appropriate wayleave agreement or suitable equivalent granted by the applicants in favour of Scottish Water or their nominees or alternatively (b) evidence that Scottish Water do not require a formal wayleave agreement (or equivalent) to be entered into. We shall leave it to the applicants to satisfy us upon these matters, at which point we would be inclined to think it reasonable to grant the application by making a formal order under s90(1).

[62] In the above circumstances we think it would be more appropriate to vary the conditions so as to enable the specific development to proceed, rather than to grant an outright discharge of certain of the conditions. We would propose to make an order linked to the set of plans for which planning permission was approved. Certified full scale copy plans containing the planning authority’s stamped approval should be produced to the Tribunal for this purpose.

[63] For the avoidance of doubt the above conclusion is intended to be a decision for the purposes of s11 of the Tribunals and Inquiries Act 1992 and the Lands Tribunal for Scotland Rules 2003.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 November 2018

Neil M Tainsh – Clerk to the Tribunal