The case arises from the refusal of East Renfrewshire Council (the Respondents) of an application by Mr and Mrs Gordon B Fee (the Applicants) to purchase the house they currently occupy known as Carolside School House, 40 Ashfield Road Clarkston, Glasgow. The refusal was made under Section 68 of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001 (“the 1987 Act”). The grounds of the refusal were that the tenants were not secure tenants under the Act as the Council considered their occupancy to fall within paragraph 1 and also paragraph 9 of Schedule 1 of the Housing (Scotland) Act 2001 (“the 2001 Act”). The applicants applied to the Tribunal under Section 68(4) of the 1987 Act for a finding that they are entitled under Section 61 to purchase their house. Prior to the hearing the respondents intimated that they were abandoning their argument under paragraph 1 of the Schedule but were maintaining their refusal under paragraph 9 of the Schedule. The respondents accepted that the onus of proof lay with them.
The application was heard on 24 May 2005. The applicants were represented by Mr Matthew G Lynch of Messrs Mackinlay and Suttie, Solicitors, Barrhead and the respondents were represented by Ms Apryl Chalmers, solicitor for the Council. Ms Sheila Tulloch, Head of Education Services, gave evidence for the respondents and Mr Gordon Fee gave evidence on behalf of the joint applicants. The parties lodged a number of documentary productions including a Joint Minute of Admissions. We visited the subjects on 3 June 2005.
The right to purchase, under Section 61 of the 1987 Act, is now dependent on the existence of a “Scottish Secure Tenancy” within the meaning of Section 11 of the 2001 Act. Section 11(4) excludes tenancies of a kind mentioned in Schedule 1. The respondents now rely only on paragraph 9 of Schedule 1, which is in the following terms:-
“A tenancy is not a Scottish secure tenancy if the house forms part of, or is within the curtilage of, a building which —
(a) is held by the landlord mainly for purposes other than the provision of housing accommodation, and
(b) mainly consists of accommodation other than housing accommodation.”
That wording, although not identical, is substantially similar to the corresponding provision in Schedule 2 of the 1987 Act which it has replaced. On the basis that the ‘building’ relied on by the Respondents is Carolside Primary School, there is no dispute that (a) and (b) would be satisfied.
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Burns v Central Regional Council 1988 SLT (Lands Tr) 46
Fisher v Fife Regional Council 1989 SLT (Lands Tr) 26
Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Shipman v Lothian Regional Council 1989 SLT (Lands Tr) 82
Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17
McTurk v Fife Regional Council 1990 SLT (Lands Tr) 49
Smith v Dundee District Council 2001 Hous LR 78 (also reported at Lands Tribunal decisions LTS/TR/2000/18)
Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd 1985 SLT 453
Sinclair-Lockhart’s Trustees v Central Land Board 1951 SLT 121
We set out below a statement of the facts which we determined from the hearing and from our site inspection. Both parties agreed that many of the facts were not in dispute.
1. Carolside Primary School is constructed on a regularly shaped plot of land bounded on three sides by public roads and located in the Glasgow conurbation but lying within East Renfrewshire Council’s area. Ashfield Road bounds the subjects on the south-west, Mansfield Road on the north-west and Greenfield Road on the North East. The south-eastern boundary is along the rear fence of nine detached and semi-detached houses fronting Strathearn Road. The site has a gradual slope downwards from the North to the South.
2. The main school building is extensive in size and was constructed in 1950. It is situated near the centre of the feu positioned between the Northeast corner and the Southwest one. To the North of the main school building the land is laid out as the school playground although there are other play areas. Also within the feu there is the janitor’s house, Carolside School House, which is the subject of this application, built in the mid-1970s. More recently a children’s nursery was constructed some two to three years ago. The janitor’s house occupies the south-eastern corner of the feu and the nursery is positioned between the janitor’s house and the main primary school.
3. Until construction of the nursery, vehicular access to the janitor’s house was taken along a tarmacadamed internal roadway leading from the main entrance to the primary school. There was in addition a pedestrian access from Ashfield Road which led directly to the house. On construction of the nursery it was felt that there was a risk to pupils attending that nursery from any vehicle moving between the school entrance gate and the janitor’s house. Accordingly there was formed a new vehicle access for the janitor’s house in the position of the existing pedestrian access. Two bollards were erected in the driveway between the nursery and the janitor’s house to stop vehicle traffic passing along it. However pupils tended to run past the bollards and were thus at risk from any vehicles coming from, or driving to, the janitor’s house. Accordingly a set of gates was erected on the line of the bollards tying in with the fence line of the janitor’s house. The gates are locked and the janitor does not use the gates, preferring to proceed along the public footpath of Ashfield Road and then into the main primary school by way of the principal access road.
4. Although no plan was attached to the lease document in respect of the janitor’s house there was no dispute between the parties as to the extent of the ground associated with the house. Parties were agreed that it extended right in to the corner of the feu at Ashfield Road. A footpath passed through the garden ground to the east of the janitor’s house and formerly led to what can be described as a rear playground of the Primary School. On construction of the nursery, use of this footpath was terminated and the section north of the garden fence of the janitor’s house has been allowed to become overgrown. Although the pathway is not used the gap in the fencing which was previously available to accommodate people walking over the pathway has not been filled in.
5. The boundary between the janitor’s house and the rest of the school is delineated by a low rise ranch style fence. On construction of the nursery the Council considered that an additional area of ground was required to enable the playground for the nursery to be of a reasonable size and shape and accordingly land was taken back from the garden area of the janitor’s house. The boundary along this new line was formed by a vertical timber fence approximately 5 feet high. A small gap still exists in the fence arrangements between the janitors house garden and a grassed area associated with the Nursery
6. The entire boundary of the school, including the Nursery and the janitor’s house, is enclosed by a metal railing fence of uniform style and type approximately 5 feet 6 inches high. In particular this fence runs along the rear of the gardens of the houses fronting Strathearn Road although it is supplemented by bushes etc., growing along the back fence of the private housing. A very short length of the metal railing backing on to one of the houses fronting Stathearn Road is slightly lower than the remainder of the fence.
7. The youngest pupils in Primaries 1 and 2 use a playground which lies immediately to the rear of the back fence of No. 2 Strathearn Road.
8. The utility services connections to the janitor’s house are “self contained” running directly from Ashfield Road. Located within the garden area of the janitor’s house there is a gas governor station which may provide the gas connection to the school.
9. The janitor’s house was purpose-built and is of similar design to other janitors’ houses within the authority’s area. It is one storey high with cedar panelling walls and a concrete tiled roof. It has been continuously occupied as the janitor’s house with the exception of a period immediately prior to Mr Fee taking up the position of janitor at the school when the previous incumbent, who had by then retired, was granted a period of grace before moving out.
10. Mr Fee was appointed as the janitor of the school in January 1993. It was a condition of his engagement that he occupy tied accommodation. Prior to the offer of appointment Mr Fee had been for a period of nine months to one year a temporary janitor at the school. On his appointment being made permanent it was about 9 months before the janitor’s house became available.
11. For a period of six years after his appointment Mr Fee was the sole janitor at the school. At that point a second janitor was appointed. The second janitor does not reside on site or within a tied house and stays some distance from the school in Dennistoun in Glasgow.
12. Mr Fee occupies the house along with the joint applicant and their two children.
13. The salary rate paid to Mr Fee is the same as that paid to an off-site janitor. However, he pays a low level of rent, namely £3 per week, and is excused payment of council tax. In addition the Council meets the cost of renting a telephone line. Mr Fee is not expected to spend any more hours on his duties than an off-site janitor and is entitled to overtime for any time spent on site dealing with emergencies outwith his normal working hours. He works from 7.00am to 5.00pm on a Monday and 7.30am to 5.00pm on a Tuesday to Friday. There is a one hour lunch break. In addition he is required to work two hours on both Sunday and Saturday at times suitable to him. Any other hours worked would be paid as overtime. Mr Fee does not normally work overtime. Originally the heating system in the school was coal fired and Mr Fee was required to deal with the boilers and ensure their continual running. Nowadays the system is run on gas and is automatic.
14. The principal duties of the janitor are caretaking, key-holding, dealing with the heating (originally stoking the coal fired boiler), security, odd jobs and maintenance. The janitor’s principal duties cease at 5.00pm when he makes a final inspection of the school. In the event of evening lets which generally are on a Tuesday, Wednesday and Thursday, the person taking the let ensures that everyone has left and secures the premises.
15. Mr Fee developed a serious illness some two to three years ago and was off work for a period of nine or ten months. Alternative janitorial arrangements were made which did not involve an on-site presence.
16. The School has a burglar alarm system but no CCTV system. The burglar alarm system has not operated satisfactorily, there being an excessive number of false alarms The system resets after approximately 30 minutes provided no one has entered the school.
17. The position of the janitor’s house is such that he can see very few areas of the school, in the main being shielded by the new nursery. Similarly and exacerbated by double glazing he very infrequently hears the alarm. Mr Fee is the principal key holder, the second janitor the second key holder and the third key holder is the head teacher of the school. On the alarm sounding, the alarm company is automatically notified and they in turn would normally notify Mr Fee as the first key holder. If emergency repairs are required, he would contact the Council’s Clerk of Works, who would arrange for the work to be done by contractors. In the event of the janitor attending, he would not enter the school unless there was a police presence available.
18. There have been very few occasions when Mr Fee has been disturbed at home. Two occasions involved pupils leaving either musical instruments or spectacles in school over a weekend or longer holiday period.
19. There are 24 primary schools and 7 secondary schools in the local authority area. Thirteen of the schools have on-site janitors’ houses. There are 7 nurseries within the local authority’s area of which 5 are not within existing school grounds.
20. It is rare to have two janitors appointed to a primary school. The reason in the case of Carolside is the size of the school – 700 pupils – and the fact that originally it had a coal fired boiler. Another school at Newton Mearns also has multiple janitors. In a recent joint private public partnership for the provision of schools, multiple janitors are involved.
21. If a janitor whose contract of employment required him to live in the janitor’s house wished to live elsewhere, his application would be considered on an individual basis. In Mr Fee’s case, it is likely that he would be allowed to live elsewhere and Carolside Janitor’s House would be utilised in another way.
22. In other schools within the local authority’s area, janitors have been appointed without being tied to the school house. At Springhill School on the retiral of the janitor in the summer of 2004, the position was advertised without a requirement to stay in the school house. The former house is being considered as an adult learning facility for council staff. At Thornliebank Primary School the retiring janitor agreed to stay on as a tenant and the new janitor was appointed without requiring to stay in the existing janitors house. At Cross Arthurlie School the former janitor’s house is now being used by the Social Work Department and there is a non-resident janitor. At another Barrhead school which the applicant was unable to name, the janitor wished to leave and the new appointee was not required to occupy the janitor’s house. At St Luke’s Secondary School the janitor was permitted to leave his house some 2 to 3 years ago, while retaining the post of janitor.
23. There would be no significant impact in the janitorial operations at Carolside School in the event of there being a non-resident janitor.
Ms Chalmers reminded the Tribunal that the grounds for such a rejection were now wholly contained within paragraph 9 of Schedule 1 of the Housing (Scotland) Act 2001.
The question which the Tribunal therefore had to address was whether the reference subjects, namely the janitor’s house, lay within the curtilage of the larger property and in her primary submission the larger property was Carolside School. No help was provided either in the 1987 Act or the 2001 Act in regard to the definition of curtilage. The definition of Lord Mackintosh in the Sinclair-Lockhart’s Trustees case had been widely quoted and approved in subsequent decisions. It had been particularly used in the Barron case and in her submission involved two tests. The first was a geographical test and the second was a use test. She started with the geographical test.
She reminded the Tribunal that Lord Mackintosh was dealing with a situation where land had not been marked off with enclosures. The Tribunal required to look at the situation on the ground and to have regard to the access arrangements as well as all of the other geographical features. The Tribunal also required to consider the circumstances as at the date of application which had been agreed as November 2004. She immediately distinguished the situation at Carolside from the situation in the Fisher case, where the dwellinghouse was located across a public road. In the current case there was a metal boundary fence round the entire perimeter of the school including the outer boundaries of the janitor’s house plot. The janitor’s house occupies the southmost corner of the larger school plot, all as set out in the parties’ Joint Minute. She particularly referred us to the access points in the fences. The metal gate across the former access road to the school house provided an access between the janitor’s house and the nursery. The opening at the top of the pathway which passes through the janitor’s house garden leads to an area to the north which, while overgrown, still contains the pathway and which, in turn is open at the top to the school car park. Given these accesses the plot was not self-contained.
She emphasised that many of the authorities made reference to the existence of substantial boundaries. This was not an issue here but the fencing round the janitor’s house was not substantial. It would be perfectly normal for the Education Authority to wish the school house to be separately fenced off but that did not necessarily mean they intended to create a second curtilage, merely that they wished a definition between the operational school and the house and garden occupied by the janitor.
She particularly referred us to earlier statements made by the Tribunal in the Barron case where the Tribunal agreed with the solicitor for the council that the fact that a dwellinghouse is within its own separate enclosure does not by itself exclude that house from being within the curtilage of another building. Equally, in that case, the Tribunal did not agree with the solicitor for the applicants that because the school house had its own curtilage it could not therefore be within the curtilage of another building. It had never been the intention of the respondents to create a non-integral plot. So even if the janitor’s house was separately fenced that by itself was not conclusive and did not mean that the house lay outwith the curtilage of the school campus. Ms Chalmers said we required to ask ourselves from a geographical standpoint whether the janitor’s house lay within the normal confines of the school boundary. The janitor’s house and garden were part of a larger plot encased within a standard metal railing. On plan they were integral.
She submitted an alternative view, still based on the geographical analysis, that the larger building referred to in the legislation could be considered to be the nursery. It was arguable in her view that the nursery could be considered to be the main building and on that basis she felt the geographical test was stronger. Because the nursery occupied a much smaller site than the main school, the size of the janitor’s house and garden and the nursery were almost equal. Ms Chalmers accepted that there were serious weaknesses in such an argument and emphasised that it had been put forward by her very much as a second line of submission.
Ms Chalmers then turned to the second of her tests, namely that of use. She pointed out that use is expressly mentioned in the Burns case. Notwithstanding that a separate enclosure can create a smaller curtilage within a whole, if the smaller curtilage comprises ground (which can include buildings) used for the comfortable enjoyment of the main school building then it must be seen as part of that larger curtilage. This could override the fact that there are separate enclosures and thus a potentially separate curtilage for the school house. The ability to look at use derives from the latter part of Lord Mackintosh’s dicta and enables the Tribunal to look beyond the physical layout of the property and to have regard to use. Use may bring the janitor’s house within the overall curtilage if it serves the purpose of the school in a reasonably useful way. She accepted that there would require to be some sort of connection between the two and the janitor’s house could not be distant from the main school. The question could be “does the school house serve the school in a useful way?” She contended that we required to look at what the house was – a janitor’s house – and also to look at the role of the janitor, particularly one residing on site. As Ms Tulloch had said in evidence, the janitor is a custodian of the school and by being resident there, he can keep a look out for any untoward events affecting the school. His mere physical presence, without him necessarily doing anything, could be a deterrent. It had not been suggested that the janitor should be an all-seeing and all-knowing person. It was fully accepted that he was not required to be there at all times and that in any event the physical arrangements were such that he cannot see everything. Were he, however, to spot something untoward then he could report it more speedily and thus there would be a more immediate response. By being on site he was better placed, because of his knowledge of the school and its pupils, to identify any party who should not otherwise be there. He could also possibly act as a witness in the event of any criminal charges being raised. In the event of the alarm sounding the response time would be quicker from a janitor on site than the second janitor residing in Dennistoun. It was convenient for the local authority and the janitor for him to reside on site. Such convenience made it reasonably useful. She accepted that the test was being complied with on the grounds of usefulness rather than of necessity, the two measures in Lord Mackintosh’s dicta. The school house served the school in a useful manner and it connected with the school.
She then developed her argument on security, and related this not just to the fabric and integrity of the school. It was important also for the pupils themselves. As long as the janitor’s house was owned by the local authority, they would know who resides in it and have some control over it. Child protection was a major issue for the local authority and if the house were to be sold this control would be lost. Because of that and the link to the school the present use was a useful one to the school. Looked at in reverse, separate ownership of the school house would result in uncomfortable enjoyment by the local authority.
Ms Chalmers accepted that the result reached in most of the authorities was against the respondents’ position. However in her view there were specific reasons in each case for the decision reached and she set out the distinctions for us. In the Barron case the school house was no longer used as part of the school and thus there was no evidence that the school house added to the comfortable enjoyment of the school. In the Burns case also the school house was no longer used. The tenants were not carrying out the janitor’s job whereas in the current case the applicant was still employed by the local authority as the school janitor. The Fisher case involved a building on the opposite side of a public road, a situation which does not pertain here. In Allison the applicant was a head teacher who had retired and accordingly the use connection was again severed. In addition the Council had declared the larger site surplus to requirements. In the Shipman case the applicant had retired and accordingly the use connection had again been broken. Interestingly from her standpoint the Walker case was refused – i.e. the respondents position was upheld – but Ms Chalmers accepted that it was on a very narrow point only and she could make little use of it in the current circumstances.
She had, however, reviewed the McTurk case of 1990 in detail and had determined a number of similarities which she set out for us. Although the decision had been made on both the grounds of better performance of duties and on the curtilage argument it was the latter which she wished to refer to. Firstly the Tribunal had found that the janitor’s house had been purpose built. In the current case the janitor’s house had also been purpose built. Secondly, Ms Chalmers pointed out that in McTurk the school house had been constructed within the same plot of ground. This also applies in the current case. In both cases the janitor’s house occupied a corner of the overall plot; in the case of McTurk the north-eastern corner and in this case, the south-eastern corner. In McTurk the entire subjects were enclosed with an overall fence which took in not only the school but the house and its garden. A similar situation applies in this case. In McTurk the janitor’s house and garden were themselves totally enclosed by walls, railings or fences of one kind or another and the house therefore had a defined curtilage of its own. It was thus a smaller curtilage contained within a larger one. A similar situation applies here in that there are a variety of fence enclosures around the janitor’s house and garden and it lies within a larger defined curtilage. The similarity extends to the fact that one boundary of the janitor’s house in McTurk was bounded by the garden grounds of other domestic property as is the case here. Also in McTurk the larger curtilage was mainly bounded by public roads which is also the situation in this case. In McTurk there was an area of school grounds across which a footpath leading from a public street to the school ran. Once again a similar situation applies in the reference subjects albeit that the footpath is no longer used. It does however still exist, albeit overgrown. Ms Chalmers also identified that in McTurk there was direct access between the house and the school provided with a gate which separated the garden of the janitor’s house from the footpath. Here, there is a gate within a fence dividing off the janitor’s house and a small area of driveway from the previously used driveway. Finally, Ms Chalmers noted that the minimum distance between the garden of the house and the nearest part of the school building was 5 metres in McTurk. In the present case the minimum distance between the garden fence of the janitor’s house and the nursery school building was 3 metres as set out in the agreed Joint Minute of Admissions for the parties.
Ms Chalmers also pointed to the statement in the McTurk case where the Tribunal observed that the janitor tenant paid a low level of rent when compared to the established rateable value. In our case the rent is also low. The Tribunal in McTurk noted that the lower rent had been fixed at that level, not to augment the janitor’s effective remuneration by giving him a benefit in kind rather than an equivalent higher wage, but to compensate for the fact that he had to live there with no security of tenure and so no right to buy the house.
Ms Chalmers concluded by making a final comparison to the McTurk case. In McTurk the applicants sought to compare their situation to that in Barron and Burns but the Tribunal identified a significant difference, namely that this was a janitor’s house, built as such, and erected in that particular position because of the advantage to the school of having a resident janitor there. In this case also, the janitor’s house was in use as a janitor’s house and occupied by an employed janitor for the adjacent school. It therefore serves the purpose of the school. In the cases of Barron and Burns, as previously stated, the houses were no longer used as janitors’ houses. Ms Chalmers therefore invited us to identify very closely with McTurk which she felt was on all fours with the situation which existed here. She asked us to find that the respondents had been correct in concluding that Mr Fee was not a secure tenant under the legislation and therefore the applicants had no right to acquire their house.
Mr Lynch commenced his submission by noting that there was little in dispute between the parties so far as facts were concerned and that much of what had been given in evidence was in agreement. Both witnesses had been clear and straightforward in their manner of delivery and both had given their views honestly. Both approached it, however, from a different vantage point. For the respondents the witness occupied a higher managerial position with additional responsibilities in the local authority whereas the applicant was involved directly with Carolside School and the reference subjects. He was the man on site. Ms Tulloch was not so involved and she was thus more generalised in her views. Her evidence was not specific to Carolside Primary School although she tried to relate to it. In these circumstances where there was any difference of view we should prefer the evidence of Mr Fee because of his particular local knowledge.
Mr Lynch conceded that much depended on the particular circumstances of individual cases. He accepted and agreed with the respondents that there were two issues. The two issues were overarched by a single main issue, namely, whether the janitor’s house and ground lay within the curtilage of the larger school. That could be decided from two facets, one was geography and the other was necessity or usefulness as set out by Lord Mackintosh. He accepted that if the respondents were successful in one only of the two aspects his case would not succeed.
He started from the geographical approach. He conceded McTurk was similar and equally that McTurk was decided on both the geographical basis and as being reasonably necessary or useful to the larger school property. In the current case, as has been accepted by all parties, there were distinct physical boundaries to the janitor’s house and grounds. We should look at the factual, the geographical situation. It was plain that the school house was an entirely separate entity albeit that it lay within the larger curtilage of the school. It was a mixture of facts and law. The school house had a separate access and it also had separate services. He conceded there was a small gap in the fence and it might be envisaged that this was to allow the janitor to have access to all of the grounds of the school as a janitor. We should however make a distinction between the old situation and the new or current situation. The path was not now used. While the continued use of the path might have been a problem in the past, it now was no longer an issue because it was no longer used.
He addressed Ms Chalmer’s secondary submission whereby the nursery might be viewed as the larger building. In his view a brief look at the ordnance survey map showed that the nursery was approximately the same size as the school house. If the nursery therefore was the main building it would be difficult to conclude that the school house should be part of the nursery given that the two are of more or less equal sizes and as had been said by Lord Ross in Assessor for Lothian v B.P. an essential feature of “curtilage” must be that the piece of ground in question is small in extent.
He conceded that the biggest problem for his case was in the definition of Lord Mackintosh. The use of the word “or” by Lord Mackintosh between “necessary” and “reasonably useful” was he felt requiring of understanding. Necessary is clearly a higher test than reasonably useful. Therefore the use of the two words cannot be treated simply as alternatives given that they embrace two different levels of requirement. In his submission the use of the word “necessary” imputed to the “reasonably useful” definition a higher standard of requirement. A more stringent test required to be applied to the test of usefulness because of the use by Lord Mackintosh of the word necessity. The evidence was in fact quite clear. There was very little need for the janitor’s house to be located at its present position so far as the janitor’s duties were concerned. On the evidence there were only two occasions in 13 years of a janitor being required to open up the school out of normal hours to accommodate a parent or pupil. Given that the evidence clearly showed that off-site janitors performed their duties as well as on-site janitors and that the convenience of the janitor’s house arose only on extremely limited occasions it could not be argued that the school house was useful to the school.
His principal submission was that the onus was on the local authority to satisfy the Tribunal that the exclusion under Schedule 1 should apply. He accepted that in this particular case the matter was getting down to fairly fine lines and was marginal. As the Tribunal had observed in Barron the underlying intention of the exclusions to secure tenancies was to exclude only the minimum number of houses consistent with the particular authority’s functions. It was speculation as to what “reasonably useful” or “necessity” meant. Something unforeseen may arise and we had to look at the matter on the balance of probability. The main school grounds were open as the gates were not shut. There was housing surrounding the entire site (albeit on the opposite side of public roads) and the view of the school from the janitor’s house was much restricted.
So far as the security of pupils was concerned appropriate conditions could be made in the event of a favourable decision to his client. It was open to the local authority to impose conditions regarding fencing etc. in any title transaction. He also reminded the Tribunal that Mr Fee had indicated that if he was successful in purchasing he would immediately erect a higher fence along the boundary with the nursery because at present those in the nursery were able to overlook and see into the main public room in his house. For that reason he kept the curtains of his house closed. Finally he pointed out that Mr Fee would remain in occupation at least for the foreseeable future and any further issues arising could be dealt with over time.
The issue for the Tribunal is a straightforward one. Does the janitor’s house, along with its grounds, lie within the curtilage of another building, Carolside School? Both parties were agreed that the decision required to consider two tests, namely, a geographical one and a use one. Both parties also agreed that if the Tribunal found for the respondents in either of these tests the application must fail.
There have been a significant number of generally similar cases many of them decided by this Tribunal over the years. In almost all cases reference has been made to Lord Mackintosh’s definition of curtilage. This was set out in the case of Sinclair-Lockhart’s Trustees v Central Land Board in 1951. The background to the case was that the government of the time had introduced a development charge leviable on the development of ground. The Trustees had erected a new house on part of a large farm area. They had not enclosed or fenced any area of ground round the house. The Central Land Board responsible for levying the development levy had decided that there should be assumed to be attached to the new house an area of land which would be deemed to lie within the house’s curtilage and the development land charge was assessed accordingly. The Trustees sought to argue that the land charge should be restricted to the solum occupied by the house building. Lord Mackintosh’s view has been accepted as authoritative. He had referred to dicta in the earlier case of Caledonian Railway Company v Turcan in 1898 to the effect that a piece of ground could be just as much part of the house as if it were a separate room in the house, “a part of the curtilage of the house”, or “ an integral part of the property”. Lord Mackintosh said:-
“ ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby an integral part of the same, even although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or reasonable useful way”.
The facts in this case are clear. There is a substantial iron railing fence round the entire school taking in the primary school, nursery and the janitor’s house. The local authority’s current ownership at this location is therefore fully enclosed in a uniform manner. There is however a separate fence definition separating the janitor’s house and ground from the balance of the property, principally the nursery, but also part of the school grounds. That dividing fence is not as substantial as the fence surrounding the entire property but we can accept that the janitor’s house itself has its own curtilage.
The question which the Act requires us to answer is whether the janitor’s house and garden, even although it may have its own curtilage, lies within the curtilage of another building? We thus have to also decide what is meant by “building” in the context of this case. The principal submissions were that the whole primary school (including the nursery) was the “building” but the respondents put forward an alternative submission that the nursery could be the “building”. There is no discernible boundary fence which separates the primary school from the nursery and we heard no evidence that the nursery was run separately from the school. It is reasonable to assume that the nursery will be the first stage in a child’s education at Carolside School and that pupils will move on from the nursery to the main primary school. Nothing was presented to us which in any way suggested anything other than that the Nursery was just as much part of the school as any other class in the school. We accordingly do not see any solid basis for upholding that the “building” should be seen as the nursery. We reject that alternative submission for the respondents. We must consider the extent of the curtilage of the primary school building.
As parties agreed, the issue involves both a geographical test and a use test; if the geographical test of curtilage is not satisfied, there may be such a functional connection as to bring the house within the curtilage of another building which it serves in some way. We propose to start by reviewing this use test. There are, we concede, certain difficulties with Lord Mackintosh’s definition. There is undoubtedly a difference of degree between “ necessary” and “reasonably useful”. Something which is reasonably useful might not be necessary. On the other hand, however, something which is necessary would be more likely to be considered to be useful. We do not think however that we require to be too analytical. Lord Mackintosh has used the words “necessary” and “reasonably useful”. There has been a considerable body of case law which has been built up on the back of that dictum. If the words “reasonably useful” had not been included then there is a high hurdle, namely a test of necessity. However Lord Mackintosh has used both “necessary” and “reasonably useful”. It is quite clear that reasonably useful is a lower level of test. We also note that at the start of the sentence Lord Mackintosh used the words “It is enough that it serves the purposes of the house or building ….”. That also to our mind could imply a relatively low level of hurdle to be overcome. He did not use the word “essential” but simply that it was “enough”. It could be argued that the definition is satisfied by the smallest element of usefulness. Such an interpretation, however, would run directly counter to the use of the word “necessary”. If a low level of usefulness could satisfy the definition it is extremely unlikely that Lord Mackintosh would have used the word “necessary”.
Given these circumstances it is reasonable for us to conclude that not only does the local authority obviously not consider it a necessity to have on-site janitors at a school but it would appear it is not even reasonably useful to them since the authority have not sought to require any new appointee to occupy an existing janitor’s house. The fact that the local authority did not insist on new janitors occupying existing janitor’s houses on school sites appears to us to be a strong indicator that the degree of usefulness in having the janitor on site is very slight. We do not think that the respondents have made out a case on the basis of the usefulness of having a resident janitor.
However the respondents had another argument related to usefulness. They clearly have a responsibility for the safety of the children in their care while at school or nursery. The local authority is concerned that should ownership of the janitor’s house pass on to a third party it will have no control over the occupants of the house or the use they make of it. We have noted that although in the other cases referred to the local authority have not insisted on janitors re-occupying the existing school houses, they have not sold these off, instead retaining them for their own activities. No reason was given to us and it was not suggested that there was a policy of retaining such houses but the fact remains there is no evidence of janitors’ houses which are no longer used as janitors’ on-site accommodation being sold off. Accordingly the local authority continues to have control over what use is made of former janitors’ houses and who occupies them. That control would cease, or be very substantially reduced, if the janitor’s house passed over to a third party owner, which, of course, would have to be anticipated at some point in time if the present application succeeds.
This argument has some attractions. Although it comes slightly close to the argument, based on the usefulness of control over future development, which was firmly (and we consider rightly) rejected in the cases of Barron and Burns, we think it can be distinguished. Under present day conditions, there could, perhaps, be a legitimate current objective of achieving complete peace of mind for the safety in all respects of the school children (whether, for example, from dogs, errant balls, or forms of criminal behaviour).
However, in the present case, the argument seems really to be based on the nursery building, not the primary school building. We have already indicated our view that it is difficult to regard the janitor’s house as being within the curtilage of the nursery building and we think that even deploying this argument that would produce a very artificial curtilage. We wonder also whether sufficient recognition of this type of thinking might not be provided by seeing this simply as a policy justification for the exclusion of houses such as this on the basis of a geographical test of curtilage. In these circumstances, we do not think we can, in this case, uphold the argument put this way.
There is, however, one further point in relation to the argument based on responsibility for the safety of children. Mr Fee pointed out that young children in the main school play immediately adjacent to the rear garden of one of the houses fronting Strathearn Road. The implication of this statement was that that situation was no different from that which would result should the applicants succeed in acquiring their house. We think the situation on the ground is different, but we are in any event not satisfied that this would necessarily bar the argument. The local authority has no direct control over the houses in Strathearn Road. At present they do have direct control over the janitor’s house. While they might not, although we had no evidence of this, be particularly happy at the situation so far as the other playground is concerned, that would not necessarily mean that it would be reasonable for the authority to create, for it, further issues by allowing the sale of the janitor’s house. It is clear that the houses in Strathearn Road have been there for many years, probably being constructed at the same time as the school. Safety issues at that time were likely to be much different to those which prevail today. It might be a valid argument of the local authority that, even although they have less control over an adjoining house, this should not mean that another similar situation has to be created.
At all events we are unable for these reasons to accept the respondents’ case on curtilage based on the use test, and we turn to consider the position in relation to the geographical test. There we have taken a different view, as it seems to us, in the particular facts and circumstances, and as a matter of degree, that this case, unlike quite a number of other cases which have come before the Tribunal, falls on the side of the line of satisfying the geographical test alone. In short, we think that, on a mere geographical test, the janitor’s house (as well as the nursery) is within the curtilage of the school building.
We found it of note that Carolside Primary School is bounded on three sides by public roads and on its fourth side by a long straight boundary line comprising the rear boundary fence of the houses in Strathearn Road. Although all three public roads have slight curves there are no indentations or breaks in the natural boundary line. This is therefore a very regular site contained within boundaries which in all four sides are uninterrupted. These boundaries are all enclosed by a standard metal railing fence which encompasses the janitor’s house. It is also clear, from the productions, that the entire site was acquired by the local authority when it developed the school in 1950. Our inspection of the immediate environs of the janitor’s house, the nursery and the main school revealed an openness between the nursery and the janitor’s house and there to be clear visibility between the janitor’s house and the nursery and parts of the school, its playgrounds and car parks. There are no topographical or other geographical features which would indicate a natural boundary between the janitor’s house and the balance of the school campus. The only defining features are the fences between the primary school and the nursery and the house and for at least 2 lengths these are quite low in height and insubstantial. They provide less of a fence which would be seen as defining a separate ownership and more of a marker fence delineating parts being put to different uses. The nursery and the janitor’s house are quite close together and each can see the other quite clearly. In this sense the fences between the house and the nursery provide no privacy. The nursery and the house give the appearance of being parts of the same development, the whole of which, enclosed by the outside metal railing fence, provides the curtilage of the school building.
Although two gaps exist in the timber fencing between the janitor’s house and the balance of the school campus we do not find this feature unduly significant principally because the fencing enclosing the house does not, in any event, give the impression of being a significant and permanent boundary.
We find no difficulty, from the geographical standpoint, in the situation of the houses on the same side of Strathearn Road. Although the rear gardens ground of No. 2 is only some 6 metres from a corner of the main school building, these houses clearly have completely separate enclosures on the other side of the fence surrounding the school site.
It is a question of fact and degree whether a curtilage includes a separately defined property when considered from the geographical stand point. In some cases decided by the Tribunal particular physical circumstances have been a major influence, including the presence of an adjunct to the school house protruding into the playground of the school (Walker v Strathclyde Regional Council) but such features do not always occur. The absence of such specific features should not, however, disallow us from forming a view based on the overall geographical position. We accept that, as the Tribunal observed in Barron, the intention of the Act was that it should be applied widely and that the right to buy should apply to as many local authority houses as possible. Nonetheless, by introducing a “curtilage exception” the Act does recognise that there may be purely physical circumstances where it would not be appropriate for the right to buy to apply. The geographical circumstances in this present case point us in that direction.
In Barron the Tribunal found:-
“the schoolhouse and its garden forms the southwest corner of this original site and extends to one third of an acre or so. It is separated from the school and playground by similar stone walls, with the exception of a short section of the northeast and southeast boundaries where the boundary is a substantial iron railing and again for a further section of the northeast where the main school building itself forms part of the boundary. It is, therefore, on each of the three sides where it adjoins the school and the school ground, separated from the school and its grounds by very substantial boundary features”. (our emphasis).
As we have found in the present case a substantial fence surrounds the whole school campus including the janitor’s house but the fence between the primary school and the nursery and the janitor’s house is very much less significant. In Burns the school house was separated from the school and its surrounding playground by a brick wall just over 6 feet in height. Although the circumstances of the buildings in Allison were quite different to what we have in the present case the Tribunal described the garden of the school house in Allison:
“to the south and runs down to the main road. Its side boundaries, that is the boundaries which separate it from the ground pertaining to the former school and hall on the east and pertaining to the new school on the west are substantial ( our emphasis) stone walls some 3 or 4 feet in height”.
Under no circumstances could we say that the entire boundary of the janitor’s house at Carolside School is a “substantial” one.
We recognise that, situated as it is at one corner of the site, the janitor’s house and its garden could be extracted from the curtilage. We also accept that there may be cases in which small gaps in the separation could be so easily “plugged” that an overall impression of removal from the curtilage could be sustained. Such a situation was recognised, in the slightly different context of an issue whether a school house “forms part of” a school (see Allison v Tayside R.C., at p.69C), and we could have overlooked the small gaps in the fences in this case. However, we are looking not at the future but at the situation on the date of the application to purchase, and it is not these small gaps, but our overall view of the position, which persuades us that this particular janitor’s house is within the curtilage of the school building.
In these circumstances we have concluded, from the geographical standpoint, that the correct interpretation of the curtilage of Carolside School is that it includes the janitor’s house and garden. It is accepted, and indeed self-evident, that Carolside School is a building held by the landlord for the purpose other than the provision of housing accommodation and that it consists of accommodation other than housing accommodation. We accordingly uphold the Respondents’ right to reject the Applicants’ request to buy as the tenancy is not a secure one in terms of the relevant legislation.
There is one other matter which we think it appropriate to mention, as the Tribunal did in McTurk, at p.51 L. Mr Fee receives very favourable housing perquisites by comparison with his fellow janitor. On his own evidence, these cannot be justified by any usefulness of having him resident on the site. They could, therefore, be seen as compensating him for the undoubted substantial disadvantage of not having a secure tenancy and thus, unfortunately for him and his wife, not being able to purchase this house.
We refuse this application.
At the conclusion of the hearing, both parties stated that they would not move for expenses. Accordingly we make no award in regard to expenses.