DESCRIPTIVE RUBRIC

Landlord and tenant — Public Sector Housing — Tenants Rights — Right to Purchase — Whether Tenancy Secure — Janitor’s House at Primary School — Whether House within the Curtilage of Other Building — Housing (Scotland) Act 1987 and Housing (Scotland ) Act 2001, Schedule 1 Para 9

Mr. and Mrs. G.B. Fee v East Renfrewshire Council
1 July 2005
LTS/TR/2004/07

The applicants were tenants of the janitors house at Carolside Primary School in Clarkston, East Renfrewshire. They made application to buy under the “Tenants right to buy legislation”. The Local Authority refused on the grounds that the tenants were not “secure tenants” under the Housing (Scotland) Act 1987 as amended by the Housing (Scotland) Act 2001 referring in particular to Paragraph 9 of Schedule 1 of the 2001 Act claiming “ the house forms part of, or is within the curtilage of, a building” held by the landlord for non-residential purposes. In addition to the primary school there was a nursery within the school grounds along with the janitor’s house. There was one other janitor responsible for the school but he resided off-site. No benefit was provided to the local Authority by the applicant being on-site and the applicant performed no additional duties. Any additional time spent outwith the contracted hours were paid as overtime. There were other janitors’ houses in the Local Authority area but on a number of occasions a new janitor had been appointed to a school without any requirement to occupy the existing janitor’s house. Surplus janitors’ houses were apparently used for other local authority purposes rather than sold off, because the Local Authority was concerned from the school’s security point of view if the janitor’s house were ultimately to be able to be occupied by a party over which they had no control. There was a substantial iron railing round the entire school grounds including the primary school, the nursery and the janitor’s house. The boundary between the janitor’s house and the school and nursery was less substantial. There was clear visibility between particularly the nursery and the janitor’s house. The nursery was only 3metres distant from the nearest point of the janitor’s house garden.

Held, refusing the application, that there was no dispute between the parties as to the tests which required to be considered in deciding what was comprised within a “curtilage”. These were a use test or a geographical one as set out by Lord Mackintosh in Sinclair-Lockhart’s Trustees v Central land Board 1951. The evidence clearly pointed to the janitor’s house no longer being “useful” to the school in terms of the performance of the janitor’s duties and that although the Local Authority were entitled to have a safety concern about possible future occupation of this house, that concern mainly related to the nursery which was not the “building” in this case.

However, the geographical test was satisfied. The particular physical circumstances in this case pointed to the janitor’s house lying within the curtilage of the school. A substantial railing fence encompassed the school, nursery and janitor’s house. There were unbroken boundaries to public roads on 3 sides of the school and the fourth boundary was a straight line along the back boundary fence of houses fronting a fourth road. There were no topographical features which indicated that the house was separate from the school and nursery and there was an openness between the house and the nursery. There was no “substantial” fence or wall between the house and the school as in other cases where the Tribunal had decided that a janitor’s house was not within the curtilage of a larger property.

Authorities referred to:-

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 SLT (Lands TR) 65
Shipman v Lothian Regional Council 1989 SLT (Lands TR) 82
Walker v Strathclyde Regional Council 1990 SLT (Lands TR) 82
McTurk v Fife Regional Council 1990 SLT (Lands TR) 49
Smith v Dundee District Council 2001 House LR 78 (Also reported at Lands Tribunal decisions LTS/TR/2000/18
Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd. 1985 SLT 453.458
Sinclair Lockhart’s Trustees v Central Land Board 1951 SLT 121.123
Housing (Scotland) Act 1987
Housing (Scotland) Act 2001


See full decision:  LTS/TR/2004/7