Lands Tribunal for Scotland

OPINION

McLaren
v
North Ayrshire Council

This case was presented on the basis that the only issue was whether the subjects tenanted by the applicant, Mr W Ian U McLaren, were within the curtilage of the school for the purposes of Schedule 1, paragraph 9, of the Housing (Scotland) Act 2001. The respondents accepted the onus of proof. The primary question of proof of the extent of the tenanted subjects was not addressed as such. However, the doubtful status of two areas – which we refer to for convenience by the neutral terms, “the grass patch” and “the yard” – was discussed in some detail as part of the issue of curtilage.

At the hearing at Lamlash on 14th September 2004 the applicant was represented by Mr John Armit and the respondents by Mrs Moira MacGillivray, both solicitors. They led evidence from a total of 9 witnesses. We visited the subjects.

Authorities

Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd 1985 SLT 453
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Burns v Central Regional Council 1988 SLT (Lands Tr) 46
Campbell v Highland Regional Council (LTS/TR/1995/18)
Fisher v Fife Regional Council 1989 SLT (Lands Tr) 26
Liddell v Grampian Regional Council (LTS/TR/1992/30)
MacDonald v Strathclyde Regional Council 1990 SLT (Lands Tr) 10
McTurk v Fife Regional Council 1990 SLT (Lands Tr) 49
Richardson v Central Regional Council (LTS/TR/1987/32)
Shipman v Lothian Regional Council 1989 SLT (Lands Tr) 82
Sinclair-Lockhart’s Trustees v Central Land Board 1951 SC 258
Stevenson v North Ayrshire Council (LTS/TR/1996/27)
Waddell v Falkirk Council (LTS/TR/1997/16)
Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17

Statutory material

The Housing (Scotland) Act 1987
The Housing (Scotland) Act 2001

In setting out a summary of facts agreed or not seriously in dispute, our brief descriptions of the physical layout are expressed in fairly broad terms. Greater accuracy would serve no useful purpose in this case. The physical layout is, of course, well known to the parties.

1. The main buildings forming the primary school and former schoolhouse at Corrie are set in the middle of a rectangular piece of ground. The school and undisputed school ground in the north part of the site occupy about 1500 square metres and the schoolhouse and land to the south occupy about 2,000 square metres.

2. Although there is an identifiable “boundary” round the said rectangular piece of ground, it has no visual consistency. To the front there is a low stone wall, surmounted by a metal fence with wire mesh where it runs opposite the school and with wire strands at the south section opposite the schoolhouse. A fence runs along the north side. On the west side there is a fence at the north end and a high stone wall at the centre. The fence at the south end, is, for the most part, hidden in rough woodland. There is a wall between the subjects and the church to the south.

3. The main buildings appear, from the front, to form one architectural entity but there is a solid wall dividing them. At the back, two buildings in an L shape are attached to the house and form part of it. These buildings form the west and south sides of a yard, the east side of which is partly the wall of the schoolhouse and partly the wall of the school. It is open to the north.

4. The school and the schoolhouse have separate means of access for both pedestrians and vehicles.

5. About one third of the ground around the schoolhouse, running along the west boundary, is steeply sloping and overgrown with trees, shrubs, bracken and briar.

6. There are various school outbuildings in the area around the school including a substantial annex built in about 1981 and used for a variety of school purposes.

7. In the south east corner of the site is an area which we refer to as “the grass patch”. It is square in shape with an area of about 300 square metres.

8. To the east of the two buildings, on an extension of the line of the division between them, is a wooden fence with a gate. This separates the school ground from the schoolhouse garden on that side.

9. The larger of the two buildings forming the L-shape extension to the schoolhouse extends further north than the dividing line between the school and the main part of the schoolhouse. To the west there is open space between that larger building and the wall which is the west boundary at that point. There is no form of fence or barrier between the school ground and the schoolhouse subjects at that side but the tarmac of the playground stops in line with the north gable of the extension. On the extension there are low windows facing west. Pupils do not use the area between the extension and the said wall.

10. The yard is tarmac and open on the north side to join the tarmac playground. The back door of the schoolhouse opens on to the yard. Within the yard is a “whirly” clothes dryer used by the tenant of the schoolhouse. This was renewed by the landlords during the tenancy of the present applicant. A coal bunker for use by the tenant is also situated in the yard.

11. For a time, the applicant stored a boat in the yard gaining access from his garden round the west side of said extension. This involved a short crossing of the school playground. However, for normal use of the yard, the applicant has adequate access through the house door. It is not contended that he has any right of access through the playground. He does not normally use any such access.

12. Children playing in the playground try to keep out of the yard but may occasionally go into it: for example, to retrieve a ball.

13. Access over the yard would be required for maintenance of the school wall and for cleaning and maintenance of school windows. Any noisy activity in the yard would disturb pupils in the school but because of the height of the windows pupils do not overlook the yard. Children inside the school building would not be visible from the windows of the extension. Persons in the yard could, however, look into the school room and would be visible from the school room if they were close to the windows.

14. The applicant came to Arran to work at Lamlash School in 1994. He was offered occupancy of “that dwellinghouse with any garden ground pertaining thereto known as Corrie Schoolhouse”. The offer was in standard form without any further attempt to describe or define the extent of the subjects to be let. The offer was made because of the applicant’s job and the tenancy was said to terminate with the employment. Nothing turns on that provision for the purposes of the present case.

15. When the applicant took possession of the house the garden was untended. He spent a good deal of time and effort clearing the garden including the area which we have called the grass patch. He had to use a scythe and hired a strimmer. The grass patch had been invaded by bracken and briar. It could not reasonably have been described either as a “playing field” or “football pitch” at that time.

16. The applicant and his wife now have two boys. Ian is now in his fourth year at secondary school. Jamie is in his fourth year at the primary school. Both children became keen on football and the applicant and his family have made full use of the grass patch for that purpose. The applicant installed two small, metal frame, goals. These are essentially moveable but can be pegged in position.

17. Pupils of the school played football with Ian on the grass patch during school hours. This required explicit permission from teachers.

18. After Ian left school little if any use was made of the grass patch by pupils during school hours although the applicant was happy for the school to use it when they wanted. It was used as part of a school fete and for an Egg Hunt game at Easter.

19. Recently, and subsequent to the application to purchase, pupils have used the grass patch on a few occasions under direct supervision of teachers. They gained access through the gate in the wooden fence on the east side.

20. The grass patch is not regularly used by the school for any class activity. It is not used by coaches for formal sports or gym instruction. Although it is the only suitable grassy area within the overall boundary, the tarmac playground has, in fact, been used for such instruction. Whether pupils might wish to use a football pitch would depend on the make-up of the school from year to year. If there were few older boys, there would be no demand for it. The grass patch gets too wet for use in winter months.

21. There was no evidence of the grass patch being maintained at any time other than by the occupants of the schoolhouse. Since the applicant took occupation all maintenance has been carried out by him.

22. When pupils first started to play football with Ian on the grass they had access through the passage between the said extension building and the boundary wall. However when the applicant began to store equipment at the south end of this passage it became more convenient for access to be taken through the gate in the fence on the east side.

23. The school is situated beside a road. There is a narrow verge but no footpath between the road and the wall. The verge to the north of the fence between the school and schoolhouse, is maintained by the local authority. The verge from there to the south is maintained by the applicant.

24. Facilities within the main schoolhouse are somewhat cramped. The annex is a temporary building and will probably require to be rebuilt within the next few years. Availability of adjacent ground such as the grass patch would facilitate rebuilding programmes. For example, temporary accommodation could be situated there to allow the school to continue in full operation while the annex was rebuilt.

25. Although the grass patch had become overgrown by the time the applicant took occupation it had been seen as a play area in the past. A copy letter of 25th September 1981 was produced. This narrated that the ground was “used by pupils in the better weather as a play area”. A letter of 8th March 1983 was to the effect that the ground was “retained for use by the school”. The letters bore to be in reply to enquiries from local residents about availability of the ground. The latter reply referred to the site as “vacant ground”. This may be taken to have been no more than a reflection of the terms of the enquiry.

26. The applicant, himself, made enquiry about purchase of this ground in 1997.

27. A further third party enquiry was made in 1998. This referred to the site as “a small gap site” but the drawing attached to the enquiry showed an area which would have incorporated the grass patch, part of the area to the north of it including at least part of the schoolhouse drive, and all the steeply sloping ground to the west. The Head of Education Service sought the views of the applicant as tenant of the schoolhouse and of the head teacher as user of the school. There was no evidence of any reply by the head teacher but Mr McLaren replied in detailed terms. His letter made it clear that he regarded the patch as “part of the grounds of the schoolhouse”. He said that the land was the main safe play area for his two young children. Other children in the village “appreciated” the facility. He also referred to the “restricted school playground” and said that he encouraged use of this “area of the grounds” for play or “for any other activities when they feel it appropriate”.

Submissions for respondents

Although the applicant’s evidence had been led first, Mrs MacGillivray accepted that she should lead with submissions. She opened with the suggestion that as the schoolhouse and school could be seen as one building, the schoolhouse should be treated as part of the school for the purposes of paragraph 9. However, we are satisfied that the Act did not intend such an interpretation: Allison. In any event, we did not consider it to be established on the evidence that the school and schoolhouse were one building. They are of different width and height at the point of division. The chimney is clearly situated wholly on the house side. There was no direct evidence of how the school was built. We accept the evidence that the schoolhouse itself was self contained with a solid wall between it and the school extending up through the attic space. The suggestion that the schoolhouse was to be treated as part of the school was not pressed and needs no further consideration.

In relation to the question of whether the schoolhouse was within the curtilage of the school, Mrs MacGillivray contended that there was one external boundary which included both buildings, and that the situation was accordingly quite distinct from cases such as McTurk, Barron and Burns. It could not be said that the schoolhouse here had its own distinct enclosure.

As the schoolhouse did not have any separate curtilage it was submitted that the use of the grass patch and the benefit of having this land available was relevant. These were features which contributed to the comfortable enjoyment of the school. Reference was made to dicta in Richardson and in Walker. It did not matter that the grass patch might lie within the schoolhouse grounds. That did not mean that it was out of the curtilage of the school. Pupils were permitted to use it. Whether this was by invitation or not was said to be largely irrelevant. They exercised access to the grass patch through the gate and the schoolhouse garden. Mrs MacGillivray submitted that there was no dispute about the fact of use by pupils. There was just a dispute about the frequency of that use. Frequency depended amongst other things on weather and the age distribution of pupils in any particular year.

Another important aspect of curtilage related to the yard at the back door of the house. It was not physically separated from the playground. The windows of the school overlooked the yard. Access was needed for maintenance. The situation was unusual. the yard was plainly part of the curtilage of the school. In the hands of a less sympathetic neighbour it could cause serious problems.

The Tribunal should have regard to the purpose of the legislation: Walker. Control of the yard was needed to ensure that operation of the school was not adversely affected.

Mrs MacGillivray also laid considerable stress on the future development of the school. The respondents had an obligation to provide adequate educational facilities. It was not possible accurately to predict future demand. However, the evidence showed that there could be a requirement for further development. The grass patch would be required for that purpose. It was not “surplus to educational requirements”.

Submissions for applicant

Mr Armit stressed that it was accepted that the onus was on the respondent to show that the tenanted subjects were within the curtilage of the school. He addressed the issues by looking separately at the house, the garden ground, and the grass patch. There was no sufficient evidence that the house was “integral or served the purposes of the school”, the test propounded in Sinclair Lockhart’s Trustees. The present case was, in his submission, on all fours with MacDonald. The house did not serve the purposes of the school in any way even if it could be said to fall within an overall outer boundary. He referred also to Barron where the schoolhouse could be described as lying within an overall outer boundary.

He submitted that there was no real dispute about the garden ground. As far as the grass area was concerned, the respondents had not proved their case. There was nothing to set against the clear evidence of the applicant’s witnesses. He pointed out that no attempt had been made to lead witnesses, such as Mrs Fisher, who had been the headmistress in the mid-90s, who could have spoken to the situation when the applicant took entry. Although Mrs Kelly, the present headmistress, had seemed to assert regular use of the grass area, she had ultimately accepted that use was very infrequent – “virtually nil” - since the departure of Ian and that the basis of use might well have been consent of the tenant under an arrangement with Mrs Fisher.

Mr Armit submitted, however, that it did not really matter what use was made of the grass patch. It could not be in the curtilage of the school as it was not adjacent to it, being separated by the house and garden: Fisher.

He concluded by considering what was covered by the right to buy. In other words what went with the schoolhouse. He submitted that all the land between the house and the church was covered. This had been shown hatched blue on the plan produced by the respondents’ technical witness, Mrs Wildridge. The only possible area of doubt was the yard. If the Tribunal felt that the yard was not included in the tenancy, the Tribunal should take the approach taken in Waddell and deal with questions of maintenance by an appropriate order under section 64(1)(b) of the 1987 Act.

Discussion in relation to the grass patch

We heard a great deal about the needs of the school and its potential future development. However, the Act does not provide any broad test based on the possible needs of the landlord, be that landlord an educational authority, water authority, recreational authority or whatever. Reported Tribunal cases provide many examples of tenants being found to have a right to buy in situations where the landlord might well appear to have an interest in retaining control of subjects to meet potential long term public needs. The legislature has not provided any such test. No attempt was made in the 2001 Act to change the relevant law in this area. We must attempt to follow the approach established by previous decisions: see, for example, Walker, page 19 B-E and Barron page, 38 G-K.

The difficulties in this case may be thought to arise from a somewhat relaxed attitude by the former education authority to its property interests. Not surprisingly, this has been compounded by the close and harmonious relationship between the applicant’s family as tenants and the teachers occupying the school. There was never thought to be any attempt to spell out to the tenant what precisely was comprised in his tenancy and there was never any practical need to do so.

We are satisfied that if there had been any attempt to identify the subjects formally when the applicant took up the tenancy, the schoolhouse garden would have been identified as bounded by the line of an old fence which was shown on the various plans including the most recent plan, taken from an Ordnance Survey base and lodged as No. 7 of the respondents’ productions. However, the line as shown on the plan is no longer marked by any distinct fence. Bits of the fence remain on the west side and there are some indications of the line at the south. There was a broken fence when Mr McLaren took entry. He told us that he had no idea what the fence was intended to enclose. An obvious explanation might have been that it had defined the schoolhouse garden. The area bounded by it was of good size and shape for such a garden. The area to the west of the north-south line of the fence was rough woodland. The evidence of the letters in 1981 and 1983 goes some way to support the view that the grass patch was in occasional use by the school at that time but these letters also support an inference that the grass patch area was seen by the public essentially as a vacant site. In other words, a site distinguished in some way from the garden of the schoolhouse.

We are satisfied, however, that the applicant has occupied and used the grass patch since he moved into his tenancy. Although it was not suggested to him that his active use of that ground was motivated by any awareness that its status was in doubt, it must be said that his own evidence as to motivation was not entirely persuasive. He initially said that he had set about clearing that area because of his “childrens’” enthusiasm for football, but he later corrected this explaining that he had only one son, aged about 4, at the time. His wife said they cleared it to make it safe for the child. It had been infested with briar. As we have said, however, there is a substantial area of rough briar or bramble infested ground at the west side of the site. It was not clear on inspection why there could have been any reason of safety to clear the south end, but not the west side, unless the south end was predominantly in grass and thus a likely play area.

On the question of safety, it may be added at this point, that on inspection we were struck by the absence of any gate or barrier across the driveway adjacent to the grass patch. It is simply an opening for vehicular access on to the road. Although we heard no evidence that there had ever been a barrier across this opening, it is likely that some barrier would have been in place when the applicant’s own children were young. Be that as it may, it is unlikely that children in the care of a primary school would be allowed to play unsupervised so close to an unguarded opening to a public road. The absence of a barrier now tends to confirm the view that little use is made of that area by the school.

In any event, we accept the evidence that the grass patch was not in use by the school when the applicant took up the tenancy. It was an area which could have been regarded as part of the garden at that time. There was certainly no effective barrier between it and the rest of the garden. The wall was an obvious external boundary. The applicant had free use of the land. There was no reason for a tenant not to see it all as part of the tenancy.

The pleadings made reference to an incident of which we heard nothing in evidence. It was alleged that in or about 1997, the applicant made an approach seeking to purchase the area of ground used as a school playing field. In response the applicant averred that he did not make an approach to purchase “an area of ground used as a school playing field”. He asserted that his enquiries related to the land immediately adjacent to Corrie Church and “beyond the garden of the schoolhouse”. On the evidence and inspection we are satisfied that the only land which might reasonably have been described as lying between the “garden” and the church was the grass patch (and, perhaps, the rough bank to the west of it). That land had, and, no doubt, has, potential as a house site. There is no significant ground between the grass patch and the wall and we can find no content for these pleadings if the use of the word “garden” was intended to include the grass patch. In short, although the pleaders seem to have treated this as no more than a dispute about nomenclature, it might in substance be thought to justify the inference that the applicant did not, at that time, regard the patch as part of the “garden ground pertaining to” the schoolhouse. If it did not so pertain, it was not land covered by the terms of the written offer of tenancy.

Although these pleadings were not referred to in oral evidence or submissions, the applicant’s qualified admission is part of the material before us. We think it supports his position that he genuinely did not regard the patch as being in any way in use by the school. We have little doubt that if it had been in active use as a playground of any sort, he, as a teacher, would not have seen any point in attempting to buy it. His attempt to buy is not, in itself, inconsistent with the land being part of his tenancy but it might tend to suggest that it was not then viewed as part of the garden or at least that the position was seen as ambiguous.

However, the applicant made his position very clear in the letter of 3rd August 1998 to Mr Leckie (referred to in our Finding 26 above). There was no attempt at the time to suggest to him that he had got things wrong in that letter. There was no action of any sort by the Education Authority to suggest to him that his tenancy did not include the grass patch. At the hearing there was no attempt to put it explicitly to the applicant either that the grass patch was not part of his garden or that he must have known or, at least, suspected that it was not within the tenancy. Questions related solely to the use of the ground by the school and ultimately it was not disputed that this might have been due to an informal understanding of some sort between him and Mrs Fisher. There was no challenge to Mrs McLaren’s evidence that they thought it was their responsibility to maintain all the ground between the house and the church and that they would not have put all the effort into clearing it if they had not thought it was theirs. There was no explicit challenge to the evidence of Mrs McLaren that the school never used the grass patch when her own boys were not there Ultimately, Mrs MacGillivray submitted that it did not matter whether the grass patch was covered by the tenancy or not. She submitted that the important point was that the school had enjoyed the “benefit” of use of that ground.

The pleadings reflect the respondents’ overall approach to this question. There is no attempt to assert a boundary of the schoolhouse which does not include the grass patch. It is averred that the school “makes use” of a grassed play area and also that goal posts stand on this area. Neither averment explicitly asserts any right and it is subsequently admitted that it was the applicant who erected the goals. There is an assertion that the area was used as a sports and games area for the school since at least 1989 and an assertion that, at that time, the ground was maintained by the local authority. There was no attempt to prove these averments. Mrs Kelly’s evidence in chief was quite positive. She had been at the school before the applicant arrived. She said the patch had always been used. She did not remember a time when it was not used. This was, of course, wholly inconsistent with the unchallenged evidence of the applicant, his wife and supporting witnesses. In cross-examination she admitted that she did not actually remember the nature of the ground at the time when Mr McLaren took occupancy and did not dispute that the applicant had had to work hard to clear it. She accepted that use of the ground by pupils during her time as head teacher was consistent with tacit continuation of an informal agreement between the applicant and Mrs Fisher and that in fact there had been little or no use after Ian left.

A particular difficulty for us on this matter was the absence of any direct challenge to the evidence of the applicant and his wife, or indeed to the evidence of the local residents, Mrs Blain or Mrs McConnachie, that use of the grass patch by the school had been limited to use with the applicant’s children and for special functions in which the applicant himself had willing participated. There had been a “beat the goalie” competition in connection with the school fete. The applicant had been goal-keeper. This was not part of the normal use of the school by pupils. There had been a “hunt the egg” competition at Easter. This had involved use of the whole garden and must have been recognised as dependent on consent of the applicant or his family.

The cross-examination of the applicant went so far as to point out that he would be at school in Lamlash when any use was made of the grass patch during school hours. He would not necessarily know what use was made of it. It was put to his wife that she would sometimes work in the annex but it was not suggested that use of the grass patch could be made without her having any knowledge of it. Jamie McLaren is still a pupil and, one way or another, both the applicant and his wife might reasonably have been expected to be able to comment on any explicit assertion of current use. There was no attempt to put the positive case that it was in fact regularly used for football or to segregate big children and little ones. However, both these matters were, at least, suggested in the pleadings. Our main surprise came when we heard Mrs Kelly giving express evidence that the ground was regularly used, by the school as a whole, on “golden time” on Friday afternoons and that it was used for non-stop cricket.

In the event, that evidence was not explicitly challenged on behalf of the applicant but it was pointed out that any positive use for such purposes was subsequent to the date of the application to buy. Mrs Kelly was pressed to concede, as she did, that use in the period between that date and the time when the applicant’s son Ian left, had been “virtually nil”.

We do not impugn the good faith of Mrs Kelly who impressed as a dedicated teacher. We do not think she had given quite enough attention to the need for care in sorting out her memories on this issue before giving evidence. There may have been a failure of some sort at precognition stage.

We proceed on the basis that the onus of establishing the extent of subjects tenanted rests on the applicant. But we consider that the respondents did not displace the inference to be drawn from the evidence led on his behalf. We are satisfied that, on the whole evidence, we must treat the grass patch as being within the subjects tenanted as part of the schoolhouse. While that tenancy continues Mr McLaren has the right to exclude other people including the school staff and pupils. Whatever use they in fact make of the grass patch cannot be use as a pertinent or part of the school. It may be viewed in the same light as use of a friendly neighbour’s garden.

We need not go so far as to say that the nature of use of the tenanted subjects will never be relevant to the question of curtilage although it may be thought unlikely that the legislature contemplated such benefits when limiting the test to one of curtilage. Plainly paragraph 9 is concerned with subjects tenanted as a separate dwelling. It is not concerned with the role of the occupant in relation to the school. The very fact that subjects are let to a third party as a residence might be thought to show that their use was not to serve the purposes of the retained subjects.

That argument was, in substance, advanced in the submissions in Richardson and, indeed, it appears that it was part of the submissions in Burns and Barron. In Richardson it was complicated by being wrapped in a challenge to these earlier decisions and the way it was dealt with by the Tribunal was a rejection of the proposition that these cases were wrongly decided. However the Tribunal said: “Curtilage is not defined in the Act and must therefore be a matter of interpretation. To interpret it as has been done in the context of schools and schoolhouses, far from having a result which could not have been intended, would appear most likely to achieve the result which the legislature must have had in mind, that is, to exclude from the right to buy only houses so situated in relation to schools, such as by being in a school playground, that their ownership by others would be impractical or would adversely affect the operation of the school. Such houses would be exempt from a secure tenant’s right to purchase even although they were not used and served no useful purpose in connection with the school. But where a house was not so situated in relation to a school, but was in an enclosure which could be regarded as separate from that of the school, so that for it to be in separate ownership would not have the slightest effect on the operation of the school, then it could be regarded as being outwith the curtilage of the school, so long, that is, as it did not serve any useful purpose in connection with the school. If it did serve such a purpose, then that fact might bring it within the curtilage of the school”. In short, it was accepted that if a schoolhouse lay within a curtilage otherwise defined, the fact that use of the house itself had nothing whatever to do with the school would be irrelevant. But the Tribunal accepted the possibility that use of a house might be of a nature which would bring it within a curtilage if it served some useful purpose in connection with the school. The Tribunal did not in Richardson – or in any other case drawn to our attention – expressly address the question of how it might be that subjects used for the primary purpose of accommodating a person who must be assumed to have no connection with the school, could ever be said to serve the purposes of the school in the sense envisaged by Lord MacIntosh in Sinclair-Lockhart’s Trustees. Plainly a use or benefit which is entirely dependent on the whim or goodwill of an occupier cannot be said to be “necessary” for the retained subjects and we think it takes the dictum out of its proper context to treat such a benefit as “serving” the school “in a reasonably useful manner”.

We need not express a concluded view on this matter but it may be that where there is no reserved legal right of use, only purposes attributable to the physical characteristics of the house subjects could be relevant for this purpose. One example of a situation where let subjects might possibly be thought to serve a necessary or useful purpose would be if they were needed as an emergency fire escape. That could arise even where the subjects appear, otherwise, to lie in a separate curtilage. This point does not seem to have been taken in MacDonald although it might have been open on the facts of that case. That would be a purpose entirely attributable to the physical location of the house subjects. Similarly, open garden ground might be important for light or seclusion. We are not persuaded that a benefit attributable to the kindness of an occupier is relevant in assessing the issue of curtilage.

It may be added that if we had found that the grass patch was not part of the tenanted subjects but was still available for use at the will of the school, we would have regarded this as sufficient to bring the whole subjects within the curtilage of the school. The schoolhouse and garden would then have been between two areas occupied together as part of the school and with access between them running through the subjects. The identifiable external perimeter fence could have been accepted, in these circumstances, as marking the curtilage of the school. We think that Mr Armit’s contention that the grass patch could not be within the curtilage of the school as it was not contiguous to it, begs the question. The curtilage of a school as a whole may encompass a schoolhouse and, if so, no question would arise of the schoolhouse separating different parts of the curtilage. In short, the question of physical curtilage must first be looked at as a whole.

Discussion in relation to the yard

We are satisfied on the whole evidence that the area we have called the “yard” must be seen as part of the subjects tenanted. The applicant thought it was part of the schoolhouse. There was no challenge to his evidence. His back door opened directly on to it and as the back door was not needed for access to the house from the road, some area outside the door must have been thought part of the schoolhouse subjects. He used the yard without protest for his own purposes, including storage of a boat. Although there was no shortage of space for a clothes line to the south, the respondents replaced the “whirly” clothes drier in the yard. We accept, too, that there had been a fence or gate across the north end of the yard at some time before the start of his tenancy. Although this fence was no longer there, the marks showing that there had been a fence would, no doubt, encourage both sides to regard the yard as part of the schoolhouse. Pupils were instructed not to go into the yard unnecessarily.

The only clear challenge to the yard being within the tenancy was in a plan, No. 7, of the respondents’ productions. This was unusual in that the “copies” sent for use by the Tribunal were different versions of the same base plan with different annotations. These plans were very helpful visual aids to an understanding of the physical layout but of no evidential value as to the status of any of the subjects in dispute. The witness who prepared the plans did not purport to have any direct knowledge of the status of the ground. For example, one version of the plan clearly included the grass patch as part of the schoolhouse subjects. We have given no weight to this in our assessment above. We can give no weight to the fact that the plan included the yard as part of the school area.

In the pleadings the question of whether the yard was part of the tenancy was not addressed explicitly. Averments of a need for the school to get access over that part for matters such as window cleaning and maintenance suggested that its status as part of the tenancy was conceded.

Although we treat the onus as lying on the applicant, we are satisfied that he has established his contention that the yard is part of the tenanted subjects.

Before considering the significance of this, it may be added that, but for the complication of the yard, we would have concluded, in light of our findings about the grass patch, that the schoolhouse and grounds were sufficiently separated from the school to be treated as lying in their own curtilage outwith the curtilage of the school. The wooden fence at the front is a clear boundary at that point. The line of a boundary on the west side in line with the north gable of the extension is indicated by a change from tarmac to grass. The fact that this narrow grass area is immediately overlooked by the windows in the extension imprints it with an obvious character as part of the schoolhouse. This is apparently respected by the school children. They do not play in that area. Although we have heard no evidence of this, there were signs on the wall indicating that there had been some outhouse attached to the west wall of the extension at its north end. This would have provided a physical boundary. It would be extremely easy to provide a physical boundary on the line of the north gable. This would have no impact of any sort on the current activities of either schoolhouse tenants or school and pupils.

There remains the question of the yard. We are satisfied that it lies within the curtilage of the school. In a visual sense that is very obvious. It is, physically, an extension of the playground. It provides an open area between the school building and its nearest boundary. We consider that it can, accordingly, be treated in a primary sense as part of the curtilage of the school building. The wall of the long extension and the north wall of the kitchen are part of the immediate physical boundary within which the school is situated. That marks the curtilage in its primary sense. It is unnecessary to go on to consider the possible extension covered by reference to “comfortable enjoyment”: Burns page 48F.

But, in any event, we consider it clear that the characteristics of the yard as an open quiet space are important for the comfortable enjoyment of the school. Control of occupation of the yard is important. It is enough to have in mind an inconsiderate neighbour who might like to have a radio blasting out while hanging up the washing. No doubt a DIY fanatic or someone using a power saw to cut logs would be worse. An unfriendly face appearing at the windows would, at best, be distracting for pupils and staff. It is not necessary to look at potential criminal misconduct. Access to the windows for cleaning is also part of the comfortable enjoyment of a building. This requires use of the yard. Access over the yard would also be required for maintenance purposes.

Paragraph 9 provides, in effect, that a tenant has no right to buy “if the house …. is within the curtilage of” a building such as the school. The “house” is defined by section 111 as including any “yard, garden, outhouses and pertinents belonging to the house or usually enjoyed with it”. Although that definition only applies “unless the context otherwise requires” there was no suggestion in the present case, and as far as can be ascertained from reported cases, there has never been any suggestion, that this definition should not apply in the context of paragraph 9.

In Walker it was held that where a shed impinged into a playground and access to it was necessarily over the playground, this brought the tenancy within the equivalent provision of the 1987 Act. The Tribunal said: “While therefore the main part of the house may not be within the playground and hence the curtilage of the school building, and the garden is within its own separate enclosure, it is our opinion that the lean-to shed which forms part of the house building and which impinges, as it does, into the playground and with its only entrance opening on to the playground, does indeed bring Miss Walker’s tenancy within the second leg of para. 8. It seems to us that this case is indeed one of the situations which Parliament has sought to control by excluding from the right to buy houses that were within the curtilage of another building, in this case the school building”.

It is not entirely clear whether the main concern of the Tribunal in Walker was the fact that the mere presence of the shed “impinged” into the playground or was related to the need for access. Such access was a pertinent of the house. What is clear is that the Tribunal proceeded on the basis that where any part of the house including a pertinent of access falls within the curtilage, that is sufficient to bring the matter within the provisions of the Schedule.

There is, of course, a danger in attempting to proceed in any case on the basis of close comparison with the apparent detail of previous cases. Much may in fact have turned on impression of size, space and relative location. We must attempt, however, to apply the principles followed in previous cases unless satisfied that there is good reason not to do so. That is particularly the case in relation to applications which raise questions under paragraph 9. Although its terms differ from the original provisions of paragraph 8 of Schedule 2 to the 1987 Act in that they use the qualifier “mainly” in relation to the nature of what we may term the retained building, there is no attempt to alter or clarify the test of curtilage. Parliament may be assumed to have accepted the principles applied by the Tribunal in relation to the earlier legislation. We have no doubt that we must proceed on the basis that it is sufficient for the respondents to show that part of the tenanted subjects lies within the curtilage of the school.

In Walker the question was raised as to whether the existence of a minor pertinent over the curtilage would necessarily be fatal to the application: see at page 20E. That issue was touched on in Waddell. The Tribunal was there prepared to say that the existence of a right of access for occasional maintenance would not necessarily be treated as a part of the house falling within the curtilage. That particular issue could be dealt with by an order under section 64 of the 1987 Act: see Waddell at pages 12 to 14.

We referred the parties to Liddell where the existence of a right of vehicular access within the retained curtilage was held fatal to the application. For completeness, reference might be made to a similar decision in Campbell v Highland Regional Council. Whatever the implications of a lesser right of access for repairs over a retained curtilage, we consider that the applicant’s full rights of occupancy as tenant of the yard are clearly covered by dicta in these cases. The respondents’ position in the present case is, if anything, stronger than in Walker. The part of the applicant’s house which lies within the curtilage of the school is his whole back yard not merely a right of access.

Conclusion

As we see no sensible basis for distinguishing the present case from cases such as Walker, it follows that we must conclude that the respondents have established that the tenancy falls within paragraph 9. The application, accordingly, must fail.

Expenses

Both parties moved for expenses in the event of success. The respondents have been ultimately successful. But the circumstances are somewhat unusual. The issue upon which they have succeeded is a narrow one. Paradoxically, they would not have succeeded on that point if their main contention that the yard was not part of the tenancy had been successful. Further, we consider that it is always necessary for the Tribunal to take a view of the reasonableness of the whole conduct of the case by a successful party. While that will not normally involve close scrutiny of questions of “divided success” we are entitled to have regard to the fact that in the present case the main disputed issue related to the history of use of the grass patch. The respondents’ evidence on this matter was unsatisfactory. Further, evidence about the school and its needs which took a good deal of time was said to be justified on the basis that it had a bearing on that issue. We think it right, in the circumstances of the present case, to have regard to the respondents’ lack of success in this rather confused chapter.

It might also be worth pointing out that we were not persuaded of a need to lead evidence from Mrs Wildridge. Recent photographs are, of course, welcome and useful aids at the hearing stage. However, when it is plain that there will be an inspection there is seldom a need for formal proof of such photographs. The same will usually go for plans prepared to show the current layout. It can be expected that parties’ representatives will be able adequately to explain such plans without need for formal proof. The Tribunal will be able to determine any doubtful or challenged points on inspection. Of course where photographs or plans are relied on as having an evidential value bearing on the merits quite different considerations apply.

We consider it reasonable in this case to find no expenses due to or by.