Lands Tribunal for Scotland

OPINION

Christopher Dorman
v
Edinburgh City Council

Introduction and Summary

The applicant is admittedly entitled under the Housing (Scotland) Act 2001 (“the 2001 Act”) to purchase the house where he lives (“the house”), which is a former school janitor’s house, but seeks a finding that the respondent’s offer to sell did not conform with the statutory provisions in relation to the statutory discount in the purchase price. The extent of the discount depends on whether or not he enjoyed a secure tenancy immediately before 30 September 2002, the date on which the provisions of the 2001 Act (which involves a less favourable scheme of discounts) came into force. The respondents contend that the house was on that date “within the curtilage” of the former school, with the result that the applicant’s tenancy was not a ‘secure tenancy’ under the Housing (Scotland) Act 1987, as amended (“the 1987 Act”). The Tribunal has therefore had to decide on the status of the applicant’s tenancy in September 2002, in order to enable the appropriate discount to be calculated. A complicating factor was that the school building (although not the house) was so seriously damaged by fire on 27 September 2002 as to require complete demolition.

The Tribunal has decided that the house was at the relevant date within the curtilage of the school building and that the applicant did not then have (and had not had) a secure tenancy, with the result that his application fails.

The Issue

In August 2005 the applicant applied to exercise his statutory right to purchase the dwellinghouse at 31 Bryson Road, Edinburgh. He has been employed by the respondents, now the City of Edinburgh Council, as a school janitor, and occupied the house, for a number of years. The respondents accepted his application and in due course issued an Offer to Sell. The statutory discount on the purchase price reflected the provisions of the 2001 Act, but the applicant, relying on the transitional provisions contained in the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002, contended that he had had a right to purchase “immediately before the conversion date” (30 September 2002). He therefore applied to the Tribunal under Section 71(1)(d) of the 1987 Act for a finding that the offer did not conform with the provisions of Section 63(2) of the 1987 Act (under which he would admittedly have been entitled to the higher level of discount, which would have been saved by the Order of 2002). The respondents contended that, although the applicant had been a tenant at the relevant date, he had not been a ‘secure tenant’ because at that date his tenancy was of a kind mentioned in Paragraph 8 of Schedule 2 of the 1987 Act. Paragraph 8(1) is in the following terms:-

“8 (1) A tenancy shall not be a secure tenancy if the house forms part of, or is within the curtilage of, a building which mainly-

(a) is held by the landlord for purposes other than the provision of housing accommodation; and

(b) consists of accommodation other than housing accommodation.”

The respondents did not seek to rely on the separate provision in Schedule 2 relating to premises occupied under contracts of employment. Their acceptance that at the time of his application to purchase the applicant’s tenancy was not covered by this exception was based on certain changes made in relation to the house and the tenancy between 2002 and 2005. Parties were agreed that it was not necessary for the Tribunal to decide the actual amount of discount which would be applicable in the event of the applicant’s contention succeeding.

Procedure

An oral hearing of the application took place on 12 April 2006. The applicant represented himself. The respondents were represented by John Robertson, Advocate, instructed by the City of Edinburgh Council. The respondents led at the hearing and called William Henderson, an Acting Principal Officer in their Children and Families (formerly Education) Department, as a witness. The applicant called Michael Pegg, a Senior Service Support Officer (Head Janitor) at Boroughmuir School, and George Duncan Lee, a residential care manager and Convenor with Unison, as witnesses. The parties also lodged productions. The Tribunal carried out a site inspection.

Authorities

Parties referred to the following authorities:-
Sinclair-Lockhart’s Trs. v Central Land Board 1951 S.C. 258
Assessor for Lothian Region v B. P. Oil Grangemouth Refinery 1985 S.L.T. 453
Barron v Borders Regional Council 1987 S.L.T. (Lands Tr) 36
Burns v Central Regional Council 1988 S.L.T. (Lands Tr) 46
Richardson v Central Regional Council LTS/TR/1987/32
Walker v Lothian Regional Council 1990 S.L.T. (Lands Tr) 17
McTurk v Fife Regional Council 1990 S.L.T. (Lands Tr) 49
Smith v Dundee District Council LTS/TR/2000/18
Fee v East Renfrewshire Council LTS/TR/2004/07

Statement of Facts

1. Boroughmuir Secondary School Annexe (latterly North Merchiston Primary School) occupied a roughly square site extending to approximately 1 acre (0.4 hectares). It was bounded to the northwest by Bryson Road, to the northeast by Tay Street and to the southeast by Watson Crescent. The southwestern boundary of the site was formed partly by the gable end of the Watson Crescent tenements, partly by a substantial stone wall approximately 7 feet high and partly by the wall between the tenements on Bryson Road and the house, formerly the school janitor’s house, which is situated in the northwest most corner of the site.

2. Following a major fire on 27 September 2002 all the buildings on the site, with the exception of the house, were demolished over a period of several weeks. The building rubble was subsequently removed. The site has not yet been redeveloped. The boundaries are still well defined partly by remaining stone walls or by fencing where walls were removed following the demolition works. With the exception of the janitor’s house and adjoining yard much of the site is now overgrown with bushes which have self-seeded following the fire.

3. The house is a two storied dwelling of stone and slate construction, built about 1882 in the same late Victorian style and with similar materials to the former school buildings. To the southwest the house adjoins the four storey tenements on Bryson Road. Between the northwest elevation of the house and Bryson Road there is a strip of yard about 5½ feet wide bounded on the pavement by a low stone wall surmounted with wrought iron railings. The door of the house is on the northeast elevation and there are two steps down to a small yard at the rear of the school building. Prior to the fire the distance across this yard between the northeast elevation of the house and the two storey wall of the school buildings was approximately 18 feet. To the side of the house, i.e. to the southeast, the distance between the house and the nearby two storey school buildings was about 16 feet. A passageway extended South-eastwards from the yard giving access, along the side of the school, to the playground areas and the front of the school.

4. Access to this yard area from Bryson Road is by way of a wrought iron gateway about 6 feet wide situated within the school boundary wall.

5. When the school buildings were in use the yard was used in a number of ways: firstly, for the storage of paladin refuse bins which were emptied by way of the gateway to Bryson Road; secondly, as an emergency exit from the school gymnasium which opened on to the yard; and thirdly, for access to the boiler room of the school by way of steps down to the basement level. The boiler was gas-fired although it had originally been coal-fired. The yard was not used as a playground when the school was operational, nor was it used as a staff access. Matters of this nature were under the control and discretion of individual headmasters.

6. The strip to the northwest of the house was formerly used for coal bunkers for the janitor’s house, and an area of the yard to the southeast as a drying area for the house. There was no objection to the janitor, or the respondent, sitting out in other areas of the yard in the vicinity of the house

7. In more recent years, the school building had been used by the Council as an audio visual and I.T. repair unit, and then from August 1998 to July 2002 it was used by St Thomas of Aquin’s High School whilst that school was being rebuilt. In September 2002 the school was transferred into an education public private partnership to be upgraded and refurbished to provide accommodation for children with emotional and behavioural difficulties. Listed building consent for the refurbishment work was granted in May 2002. In July 2002 temporary herris fencing was erected across the yard segregating the construction site (and subsequently the demolition site) from the janitor’s house.

8. The applicant had been employed by the respondents and their predecessors on their janitorial staff for some years prior to 30 September 2002. Following changes in the approach to ‘tied house’ employment terms, the applicant had for some time, including before that date, pressed to be given a secure tenancy. Following the fire in September 2002, it was some time before any decision was taken regarding future use of the site. In 2004 the City of Edinburgh Council Education Department decided that the site was no longer required for school purposes and on 24 December 2004 the applicant was offered a secure tenancy. Permanent metal railings were then constructed around the house, along with a new opening in the wall incorporating a pedestrian gate providing exclusive access to the house, following the grant of planning consent in May 2005. These permanent railings have been erected approximately 2 metres from the Northeast and Southeast elevations of the house. The applicant had apparently before then not had any formal lease. A Scottish Secure Tenancy Agreement, with an entry date of 13 June 2005, was entered into on 2 June 2005.

9. The respondents had in some cases carried out such separations of houses, typically janitor’s houses, from school grounds while schools remained operational. In such circumstances, where there had not been any enclosure of the grounds of the houses, railings or fencing would normally be erected approximately one metre from the wall of the house, this being regarded as the minimum necessary to allow reasonable access for external maintenance of the house. In the present case, a width of two metres was required, at least at the northeast elevation facing the yard, because of the front door and doorsteps. The erection of such a fence would have caused practical problems in the operation of the school building because of the proximity of the house to the school building.

Submissions

For the respondents, Mr Robertson first drew attention to the approach, on the authorities, to ‘curtilage’ issues. The word had primarily a geographical connotation – Assessor for Lothian v B.P. Oil, per Lord Robertson at 458. This was mirrored in the Tribunal’s decision in Fee. The context in which the other, ‘reasonable use’, test had evolved was where the subjects had not been marked off in any way: Sinclair-Lockhart’s Trs. In Barron, at 38 F, I, and in Richardson, the reasonable use test had also been seen as a way of overriding geographical separation. The situation had to be considered at the relevant date, and not on the basis of what could be, or was subsequently, done.

Mr Robertson considered first the position before the fire. The school had a single, regular enclosure, completely enclosed externally, and the house was clearly within this. There was a row of conventional tenements, with a quite dissimilar house beside them. The architecture was homogeneous with the school. There was no physical delimitation between the house and the school building, each having a functional connection with the yard between. There had been some degree of shared use, reinforcing the difficulty of separating the house. The location of the front door of the house was crucial. Formation of a separate access was going to be a problem because of the need to give the house adequate space. The use of the yard was at the school’s discretion. There was not even any physical delimitation. The buildings were very close together. The house was clearly within the curtilage of the school building.

Mr Robertson submitted that the position at the relevant date had not been changed by the consequences of the fire. It was inconceivable that the position about an exception such as this could be changed merely by a chance, albeit catastrophic, effect. The exception was clearly directed at the use of the principal building, which must be ‘held for’ a purpose. If the fire and demolition could convert the applicant’s tenancy into a secure tenancy, that would obstruct any planned replacement building. It was necessary to construe ‘building’ as including the remains of a building where there was an intention to reinstate. The cut-off point would be a decision not to reinstate, which in this case only happened a long time after the relevant date. Alternatively, a change could not be said to have occurred until the demolition was complete, which, again, was some time after the relevant date. It was not proper to regard the fire as having made a difference, and the change had not occurred until the applicant’s new tenancy.

In his submission, the applicant compared the position with that at the Royal High Primary School, where the house had been right inside the playground. He had always seen the area round about his house as being part of it. By breaking through the wall, as the respondents subsequently did, it could be seen that they had only taken a small part of the school’s yard for the house. The yard had never been used as access for pupils or staff, or as playground, although there were sometimes deliveries for the school. It had always been seen as part of the house. The applicant accepted that there was no physical boundary, but referred to the herris fencing in place from June or July of 2002. He further submitted that even if the house had been within the curtilage before the fire, after the fire there was no curtilage because there was no main building. After 27 September 2002, and as soon as the instruction to demolish had been given, the exception could no longer be said to apply. It was highly unlikely that another school would be built there. It could not then be said that there was a building which was ‘held’.

Tribunal’s Consideration

Parties were agreed that in the circumstances of this application, the relevant date at which it has to be considered whether or not the applicant had a secure tenancy is ‘immediately before’ 30 September 2002 and that the test of that is to be found in the Paragraph 8 of Schedule 2 to the 1987 Act. Mr Robertson did not contend for any broader interpretation of ‘immediately before’, and it is necessary to consider whether the very particular circumstances following the major fire on 27 September 2002 should lead to any different result. It is, however, appropriate and convenient first to look at the position before the fire and then, if necessary, consider whether the circumstances in the aftermath of the fire alter the position.

The applicant presented his case with moderation, but it was clear from his productions and some of his remarks that he felt aggrieved that the respondents had not, before 30 September 2002, acceded to his request to take steps to separate his house from the school building and issue him with a secure tenancy agreement. This was particularly so because he compared his situation with one or two other cases where such steps were taken. The Tribunal requires to make clear that the issue in these proceedings is not whether the respondents should have acted differently but whether, in the particular circumstances (and whatever view the respondents themselves took) there was, as a matter of law, a secure tenancy within the meaning of the legislation. The Tribunal does not ignore the examples of other situations, but can only view them as background material which goes some small way to illustrate the issues in such cases. This case must be decided on its own facts and circumstances, on the basis of the applicable law.

In considering the position before the fire, it is clear that the ‘curtilage’ issue – whether the applicant’s house was within the curtilage of the school building - is determinative. Before the fire, although the school building was in the course of refurbishment, it was clearly a building held for non-housing purposes and consisted of accommodation which was not housing accommodation. So the tenancy would come within the exception if the house was within the curtilage of the main building.

‘Curtilage’ is not defined in the statute but its meaning has been considered in authoritative cases in other areas of law and in a substantial number of cases under the ‘right to buy’ provisions where this particular exception has been considered. In this case we did not hear detailed argument on the matter but we can accept that the position is as outlined by Mr Robertson. The primary connotation is geographical – is the house within the physical enclosure and within reasonable proximity of the main building? Use may also be made of a functional approach, asking whether the house “is used for the comfortable enjoyment of” the main building, or “serves the purposes of the house or building in some necessary or reasonably useful way” (Sinclair-Lockhart’s Trs. v Central Land Board, per, Lord Mackintosh). In this case, however, we do not require to explore that approach because the respondents do not rely on it. Although the house is or was a janitor’s house, and although the applicant is employed as a janitor or the modern equivalent and presumably obtained the tenancy as a result of his employment, there is no suggestion that the house was at the material time used for the enjoyment of, or served the purposes of, the school building. To the extent that there is reference in such cases to a security justification for not selling the house and thus ensuring that it does not fall into the hands of complete strangers, we bear this in mind as part of the policy justification for the provision but do not consider it to be a directly relevant factor in this case.

The identity of the current occupier of the house is thus irrelevant in this case. However, in applying the geographical approach, the element of shared use, brought about by the proximity of the two buildings, of the yard which separates them, is relevant and we think important in this case. If access to one can only be obtained through the other, that may suggest just the sort of situation in which Parliament sought to limit the right to buy, in order to ensure council control over future occupation of the house – c.f. Walker v Strathclyde Regional Council.

It seems appropriate, for the purpose of applying the geographical approach, to consider the actual extent of the applicant’s tenancy at the relevant time. Was it simply a tenancy of the house itself or did it include any of the surrounding ground? So far as the evidence goes, there was no written lease before the Scottish Secure Tenancy Agreement issued in 2005 following the fencing-off of the area round the house. (We note incidentally that the fourteen pages of text of this agreement would be of no assistance whatsoever in determining the physical extent of the tenancy!). ‘House’ includes ‘any yard . . . belonging to the house or usually enjoyed therewith’ (1987 Act, Section 338). The evidence, particularly of Mr Pegg, does suggest that the easily defined strip between the northwest elevation of the house and the Bryson Road wall was regarded as the janitor’s; that the janitor did have some personal use of a perhaps similar but not defined strip along the southeast elevation; and that the occupier might be free for example to sit out in the sun in the main part of the yard, to the northeast also. It seems to us that at the relevant date the first of these three areas could be regarded as part of the tenancy but the other two were areas whose control was within the school’s discretion and therefore could not be seen as within the subjects let.

We have reached the clear view, on an application of the geographical approach, that the applicant’s house was (subject to the issue of the effect of the fire) within the curtilage of the school building.

Firstly, we agree with the respondents that the house was within the school enclosure. There was a regular, roughly square, enclosure which was very clearly delimited by walls and fences. We have considered whether the applicant’s house (plus at least the strip of ground between the house and Bryson Road, which could be regarded as included in the applicant’s tenancy) might be excluded from the enclosure. We do not, however, think that the house could be seen as simply the end of the row of tenement houses – it is of a different style, a different height and does not face in the same direction. Nor do we think it could simply be seen as standing on its own as a separate enclosure or curtilage. It naturally fits within the enclosure of the main building. There were other buildings or covered areas around the perimeter of the school grounds and it seems to us that all of these, along with the former janitor’s house, fell naturally within the enclosure. This conclusion is reinforced by the lack, in September 2002, of any separate enclosure of the house, although such an enclosure would not necessarily of itself have taken the house out of the curtilage.

Secondly, we feel that the very close proximity of the house to the nearest part of the main school building, together with the necessary sharing of use of the yard in between for access, links the house to the school building and is an additional pointer to the house being within the curtilage. The house is within the curtilage not just because it is within the same enclosure but also because it is very close to the main building. Our findings above indicate the approximate measurements. The area is of such a size that only smaller vehicles would be able to turn within it. When there is added to that the necessity, in order to enter the house, of access through a part of the yard which we do not consider was included in the applicant’s tenancy, this point becomes even stronger. It is the necessary sharing of the route to the front door, rather than the sharing of the entrance gate, which we consider important here. Had it been the case that there was only one opening of the wall, perhaps because of the ‘Listed Building’ status and protection of the boundary wall, but the route to the house then immediately diverged, the sharing would not have been as significant, but in fact the front door faces straight out into the middle of the very small yard, access across which is required in order to reach the house. Not only did the house not have any separate enclosure, but such enclosure would not in our view have been practical in that very small yard area.

It can also be said that the house appears to have been part of the original school development and, until 2005, always naturally regarded as part of the school grounds. The architectural homogeneity of the two buildings confirms that impression, although we do not regard it as of itself of much importance; if, for example, an original janitor’s house (but not the school building) had been replaced by a modern building on the same footprint, we think that that would be of little significance.

The applicant points to the fencing-off of areas around former janitors’ houses elsewhere, and of course that was also subsequently done at this location. That does not, however, establish that there was such an area surrounding the house at the relevant date. We have to look at the actual situation, not what might have been done. In any event, we accept Mr Henderson’s evidence that because of the proximity of the school building this was not a practical possibility before the relevant date. The situation at that time was that there was still a school building, still intended to be used as a school: it would no doubt have been possible to make a new gate and erect fencing as at present, but it would have made this yard used (in that scenario) by the school, even smaller than it already was and would have considerably curtailed its usefulness. We also do not think that the erection of the moveable herris fencing during the refurbishment works assists the applicant: this cannot be said to have altered the extent of either the applicant’s tenancy or the curtilage.

The other point made, understandably, by the applicant, is that, as we accept on the evidence, this yard was not part of the playground. We appreciate that that might lessen security concerns about possible separate ownership, but it does not, as it seems to us, affect our basic assessment that the house is clearly within the same enclosure and in very close proximity to the main building. The applicant may feel aggrieved that at other locations such separation of former janitors’ houses, apparently closer to children’s play areas, was carried out, but we do not have the full picture in relation to these other locations and in any event have to apply the law as we see it to the circumstances of this case.

For these reasons we consider that the house was within the same curtilage as the school building. We must now consider the effect of the very recent fire. It seems clear enough on the evidence that the school building had been very seriously damaged, perhaps, to use a popular expression, ‘gutted’; and by 30 September its demolition had, for safety reasons, been instructed. The process of demolition took some weeks, so it can be said that at the relevant date the building was gutted by fire and in the course of demolition. There is no evidence of any decision by that date not to rebuild a school, or indeed of any kind about the future of the site, and we can readily accept that no such decision could have been taken by the respondents between Friday 27 September and Monday 30 September 2002. How do these unfortunate circumstances affect the operation of the exception set out in Paragraph 8?

The exception, read short, requires the house to have been within the curtilage of a ‘building’ which, firstly, was held for non-housing purposes and secondly consisted of ‘accommodation other than housing accommodation’. In the Tribunal’s opinion, there was still a building on 30 September. It was of course severely damaged and completely unusable, and demolition had started. In our view it was a building in the course of demolition. It would follow from the applicant’s submission that there was no building on 30 September that a tenant whose house had been clearly within the curtilage could have a secure tenancy on a particular date on which a building required demolition although it was immediately to be replaced by a similar building. The position where all that remained was rubble following demolition but there was an intention to reinstate, might be more difficult. Perhaps some purposive construction would be possible in that latter situation, but we do not need to decide that. We uphold the respondents’ alternative contention that the consequences of the fire were not material to the issue before us while the building was still in the course of demolition.

On the view that there was still a building, the rest of the provision appears to us also still to be satisfied: the building was ‘held’ by the landlord, and it was so held for non-housing purposes; it consisted of ‘accommodation’, albeit temporarily useless accommodation, which was not housing accommodation; and the house remained within the curtilage of the building, even though the immediate situation with regard to sharing use of the yard was not the normal situation.

We conclude, on all the evidence and submissions as well as our own inspection, that the respondents have satisfied us that the statutory exception applies; the applicant did not have a secure tenancy on the relevant date; and accordingly that the offer to sell, as it relates to the discount on the purchase price, conforms with the statutory provisions. This application therefore fails.

Expenses

Mr Robertson very fairly indicated that in the event of the respondents being successful they would not seek expenses. Accordingly, we make no award of expenses.