Lands Tribunal for Scotland

OPINION

Methven
v
Lothian and Borders Fire and Rescue Board

[1] This is an appeal by the tenant of a dwellinghouse against a decision of his landlord refusing his application to buy under the provisions of section 61 of the Housing (Scotland) Act 1987 (as amended). The house was built as part of a fire station complex at Marionville Drive, Edinburgh. The ground for refusal was that the dwelling was said to form part of the fire station building, or to be within the curtilage of it. This would mean that the tenancy was not a “Scottish secure tenancy” and that the applicant did not qualify for the right to buy.

[2] At the hearing on 27 February 2008 the tenant, Mr Methven, appeared on his own behalf. The landlords were represented by Mr Mohammed, Solicitor. Mr Mohammed led evidence from Gordon MacLeod, Property Manager, Lothian and Borders Fire and Rescue Service. Mr Methven gave evidence on his own behalf. We carried out an unaccompanied inspection of the subjects on the same date.

Statutory material

Housing (Scotland) Act 1987, as amended
Housing (Scotland) Act 2001 (“the Act”)

Authorities

Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Assessor for Lothian Region v BP Oil Grangemouth Refinery 1985 SLT 453
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Burns v Central Regional Council 1988 SLT (Lands Tr) 46
Dorman v City of Edinburgh Council LTS/TR/2005/9
Fee v East Renfrewshire Council LTS/TR/2004/07
Fisher v Fife Regional Council 1989 SLT (Lands Tr) 26
McTurk v Fife Regional Council 1990 SLT (Lands Tr) 49
Pepper v Hart 1993 A.C. 593
Shipman v Lothian Regional Council 1989 SLT (Lands Tr) 82
Sinclair-Lockhart’s Trustees v Central Land Board 1951 SC 258
Smith v Dundee District Council LTS/TR/2000/18
Waddell v Falkirk Council LTS/TR/1997/16
Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17

[3] Under section 61 of the 1987 Act a tenant under a “Scottish secure tenancy” has a right to purchase his house. In terms of section 11(4) of the 2001 Act, a tenancy is not a Scottish secure tenancy if it is a tenancy of a kind mentioned in Schedule 1 of that Act.

[4] Paragraph 9 of that Schedule provides: “9. 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”.

[5] It is plain that the fire station is a building held by the landlord for purposes other than the provision of housing accommodation. It consists of accommodation other than housing accommodation. Even if the building as a whole is taken to include the accommodation occupied by Mr Methven and his neighbour, there would be no doubt that the building was “mainly” held for purposes other than the provision of housing.

Factual background

[6] There was no significant dispute over issues of fact and we find the following matters established to our satisfaction:

(a) The fire station was built in the 1960s on a site at the corner of Marionville Drive, Edinburgh. The site is broadly rectangular although the short south side follows the curve of the road. There is no physical boundary at the edge of the site on the south side, most of which is occupied by the driveway for emerging fire appliances. The east side is bounded by the wall of an adjacent churchyard. The north side is bounded by a wooden fence with a low hedge on the inside. The west side is largely occupied by garden ground as described below, the physical boundary with the pavement being a typical wire mesh garden fence.

(b) Within the outer boundary the buildings can be described as forming an L shape with the long leg on the west and the short on the south. There is one overall building which has several constituent parts. From the north, the long leg consists of three houses. Mr Methven’s house, No. 47, is the middle one. He and his neighbour at No. 45, to the north, are firemen but they do not work at the Marionville Drive station. The house to the south of Mr Methven, No. 49, has come to be used, not as a dwelling, but for leisure and training purposes connected with the operation of the fire station. At the south end of the long leg are office premises on the ground floor with training and billet facilities on the upper floor.

(c) The short leg provides the garage facility, housing two fire appliances. The main doors face south.

(d) To the north of the buildings on the long leg there is a vehicular access from Marionville Drive to the yard enclosed by the L shape. Fire appliances returning to the station use that route. The yard is used for a variety of operational purposes. Staff on duty use it to park cars. There is a training tower in the north-east corner of the yard.

(e) From the west, the building has a distinctive appearance. The north sections of each house have two storeys. This might have produced a stepped appearance from the west or front, but the various parts are tied together by decorative concrete beams, one at full roof height and the other running some four feet below, spanning the three houses and also part of the office block. They give the building a unitary appearance.

(f) The houses are structurally identical. The external appearance of No. 45 has been modified by the effect of creepers and parts of the building are hidden from view by a hedge. The somewhat harsh impact of the building on the west side is softened by planting. The creepers cover most of the walls of No. 45 and extend over the concrete beams. There is a tree in the garden ground of No. 49. There are shrubs and grass areas in front of the office on that side. There is a substantial privet hedge in front of Nos. 47 and 49

(g) Mr Methven’s house, No. 47, has its own garden on the west side. It is enclosed by wire mesh fencing. Part is also bounded by the hedge and the remaining part by a willow or wattle type fence. He has access for all necessary purposes to his house from Marionville Drive through this garden.

(h) To the east or rear, each house has a small yard or open area bounded on the north and west by the walls of the house itself, on the south by the wall of the adjacent house and on the east by solid metal fencing some five feet in height. Viewed from that side the houses can be taken to have a boundary marked by the line formed partly by their rear walls and partly by the said fencing. However, the fencing behind No. 49 had been removed. There is a container for cigarette butts outside that house. Staff using the house can move freely between it and the fire station yard.

(i) Adequate access to each small yard is provided by the back door of the house. However, there is a gate in each of the fences. This allows tenants to obtain access to the fire station yard.

(j) Mr Methven formerly used the yard to park his car. However, he stopped this several years ago when he realised it might clash with other uses of the yard including recreational activities by staff on duty. He has used the rear access on occasions when convenient for delivery of large or heavy items, parking his car in the yard for this purpose. He would seek permission from staff on duty before doing this. He would go out through the gate in the fence to clean his rear windows. It would be possible to clean them from inside the house.

(k) The terms of the lease expressly prevent tenants from keeping any vehicle on the subjects or from leaving any vehicle on any ground belonging to the landlords. It was not suggested that Mr Methven had been given any express right to use the yard for any purpose, but the existence of the gate would allow tenants to assume that access was permitted. It may be that this was initially for convenience of any occupants who were employed at the fire station.

(l) We think it reasonable to assume that the houses were built for the purpose of accommodating staff employed at that station although we heard no evidence of this. We did hear evidence that operational practices had changed. A review had taken place and was about to be implemented. It was not suggested that the houses might now be required to provide accommodation for the purposes of the station. Indeed it is probable that the fire station will soon be taken out of service.

(m) When work was recently carried out to upgrade windows on the premises this was restricted to the operational parts of the building. Garden maintenance is similarly restricted to the garden areas to the west of the house No. 49 and the office block to the south of it. However, viewed from the road on the west side there is no clear visual break between gardens occupied by the tenants at Nos. 45 and 47 and the gardens to the south.

Submissions

[7] There was no dispute of law between the parties. Mr Mohammed helpfully took us through various Tribunal decisions bearing on the issue of curtilage. He stressed that the respondents relied only on the geographical test. There was no question of Mr Methven’s house being needed for comfortable enjoyment of the fire station subjects. Both parties dealt with the detail of various physical features bearing on the question of curtilage. We found their submissions helpful in our consideration of the inferences to be drawn from the facts and layout and we deal with them in our discussion below.

Discussion

[8] We are satisfied from our inspection that the house appears to be part of the same building as the fire station and that it can be seen to lie within the fire station site. The architectural features of the building tend to hide the separate domestic characteristics of the three houses and, in any event, one of them is no longer used for domestic purposes. The site itself is comparatively compact.

[9] Our impression was quite clear that the house appears to be part of the fire station rather than to be a residential unit which simply happens to be attached to a fire station. That impression came from various features. It was contributed to by the very obvious presence of the drill tower. This is visible from the street and tends to emphasise the essential working nature of the complex as a whole. However, the main factor was the shape and style of the building itself. We accept that architectural symmetry or homogeneity is not a clear indication that subjects are to be seen as part of one building but we think that the style of this building does emphasise its essential functional purpose.

[10] The fact that the house is physically part of a larger building and appears to form part of that building might be thought to discharge the initial evidential onus on the respondents. It is, on any view, an important starting point. However, from the earliest cases, the Tribunal has applied a purposive test to the definition of “building” as used in what was Schedule 2 paragraph 8 of the 1987 Act and is now in virtually the same terms, Schedule 1 paragraph 9 of the 2001 Act. We need to consider various other factors.

[11] Although the Tribunal in Allison had no initial difficulty in referring to “the building in this case being the house, the former school and the hall” they went on to examine the detail and concluded that the house was not in fact part of the building for the purposes of the Schedule. Plainly they applied a construction based on an understanding that the intention of the legislation was to exclude only the minimum number of houses consistent with the function of the public authority: Barron page 39E. In other words, the purposive test which they applied was based on the perceived purpose of the legislation as a whole rather than the purpose of the exceptions. They rejected, as inadmissible, evidence of the Parliamentary debate: page 38L. They might have taken a different view had they been considering matters after the decision in Pepper v Hart. But, it is not clear that they regarded it as important to identify the purpose behind the exception.

[12] Be all that as it may, there is no doubt that it is well established that mere physical connection between the tenanted house and some other property, such as a school, will not necessarily mean that the two subjects are to be treated as one building within the meaning of the Schedule. The Act has been amended since the decisions in Barron and Allison and there is no doubt that opportunity has been available for change in the law had Parliament disagreed with that approach.

[13] However, we must be careful not to let the observations in Allison supplant the terms of the legislation. For example, the example given in Allison of an internal flat within a school building cannot be treated as if it defined the only situation where a dwelling can be said to form part of a larger building. That should be seen as an example at one end of the spectrum. But in terms of paragraph 9, a separate house falling partly within the curtilege of another building is also excluded. There is potentially a range of excluded dwellings based on a purely geographical test. We accept that where a house can properly be described as “semi-detached”, the two semi-detached properties are not to be regarded as one building for the purposes of the Schedule. However, in the present case, the dwelling does not have the appearance of a semi-detached house. Properly examined, it appears to us to be part of the L-shaped fire station building which encloses the fire station yard. We recognise, of course, that it would be possible for others to take a different view. As has been said in various previous cases, the final decision may be a matter of impression. Our own impression was clear.

[14] Mr Methven presented his arguments very clearly. He drew attention to the self-contained nature of the house and garden. Access direct to the street was convenient and adequate. We accept that the house itself is a self-contained unit. This, however, is not surprising. In terms of section 11 of the Act one test of a Scottish secure tenancy is that it be a house “let as a separate dwelling”. Such accommodation will normally be self-contained. There is nothing in the Act to allow the conclusion that some inter-connection is necessary to bring subjects within the exception. It seems to us that the primary test must be one of geographical layout. That test has been applied in many of the school-house cases under the second branch of the exception, namely, the question of whether a building falls within the curtilage of another. We think it reasonable to apply it as an important aspect of the question of whether a house is part of a larger building.

[15] The tenant also pointed out that when maintenance work was carried out on the fire station to replace windows, the work did not extend to the houses. The garden ground to the west of the fire station was maintained by the Fire Service. The individual tenants had to maintain their own gardens. There was no internal “turn-out” system within the houses. The house No. 49 had been fitted with such a system after it ceased to be used as a house. We accept these factors as relevant in making an overall assessment but we do not accept that any great weight can be attached to them. Paragraph 9 plainly envisages a building with separate functional and residential premises. There is no reason why owners should not refurbish the functional part of a building without refurbishing the residential part. In relation to grass cutting, we do not think that a landlord would be expected to maintain private gardens and many tenants would not welcome such intrusion. It was no part of the respondents’ case that there was a functional connection between the house and the fire station. There was nothing in the Act to require such a connection and the absence of it cannot assist the tenant.

[16] Mr Methven made a reference to a colleague being permitted to buy a house at another fire-station. No detail of this was provided. We are aware from the papers that he may have had in mind a case relating to a house at Telford Road. Study of our own files suggests that the landlords may have found themselves accidentally out of time to object in that case. In other words, it may not be a genuine example of a situation where a particular tenant had a right to buy. In any event, we know nothing of the factual detail and, accordingly, nothing can turn on this matter.

[17] As we are satisfied that the house should be regarded as part of the overall fire station building, it is strictly unnecessary to consider the test of curtilage as a separate issue. It may be said that the very existence of this second branch of the exception makes it clear that it is inappropriate to adopt too analytical an approach to the first branch. The provision appears to show an intention to cover subjects closely associated with the main building in a geographical sense. While the various schoolhouse cases show that it may be possible to regard two parts of a building as being in themselves separate buildings, that cannot be presumed to be the case.

[18] In any event, we do consider that the house properly falls within the curtilage of the fire station. This is a comparatively restricted site. The natural curtilage is the rectangular shape described above. It is not of excessive size in relation to the functions of the fire service. That curtilage is not marked by the type of boundary fences frequently to be found in relation to schools. But the emphasis on the nature of the boundary in the particular context of schools should not be allowed to give the impression that a physical boundary is in any way necessary. It must not be forgotten that the case of Sinclair-Lockhart’s Trustees, which is frequently referred to as providing a starting point in discussion of the concept of curtilage in Scots Law, involved an entirely notional curtilage. It concerned a development charge which had been levied on a proposed new house on the basis that it would have a certain area of garden ground. The ground taken into account in the assessment was larger than the site allocated by the developer. There was no question of fencing or any other physical feature. A curtilage may be quite distinctive without any boundary. For example, in the present case, there can be no doubt that the curtilage includes the open space in front of the appliances’ section. There are identifiable physical boundaries on the other sides.

[19] It is unnecessary for us to deal with the specific question of access from the back gate of Mr Methven’s subjects over the fire station yard at the back. On any view, the yard itself was part of the curtilage of the fire station. We have little doubt that the occupiers of the houses regarded themselves as having a right to use their back gates. Such use necessarily involved crossing part of the yard. Mr Methven, of course, explained that he had only used this for vehicular access by express permission. However, access using the gate could be used for bicycles or for wheelie bins to avoid taking them through the house. There was no need for such access: bikes, bins and burdens could all be taken through the front door. But, when considering whether a house falls within the curtilage of other subjects it is necessary to note that the house includes all its pertinents: section 338(1) of the 1987 Act. A right of access is perhaps the most obvious pertinent of a dwelling. If the applicant’s tenancy includes a right which falls within the undisputed curtilage of the main building that would, on a straightforward construction of the Act, bring the case within the exception in paragraph 9: Walker; Waddell.

[20] We discussed in Waddell the implications of a need to have access over other ground for the purpose of cleaning or maintenance. In that case there was no evidence of such a right having ever been exercised. In the present case the tenant has regularly taken access over the station yard to clean his windows. He would need such access for maintenance. In short, even if a restricted view of curtilage could be justified, a right of access essential to proper running of the house falls within the undisputed curtilage of the fire station. We did not hear full argument on this point and like the Tribunal in Walker “we are not prepared to say that the fact that the house overlooks the playground or that what we might describe as necessary servitudes for window cleaning and maintenance would be required would necessarily be fatal to the application”: page 20E. As it is unnecessary for us to deal with this issue we express no concluded view. It is a difficulty which might face many tenants and, indeed proprietors. It is perhaps best seen as an aspect of an overall assessment of whether the subjects lie within a particular curtilage rather than as an issue critical in itself. However, as we are persuaded that the natural curtilage of the fire station extends to the street and is not limited to the edge of the working yard, this issue does not arise.

Decision

[21] As we have found that the applicant’s house forms part of, and is within the curtilege of, a fire station which is a building of the type described in paragraph 9 it follows that the tenancy is not a Scottish secure tenancy within the meaning of the right to buy provisions and the application must be refused. It was agreed by the respondents that it would be appropriate, in these circumstances, to make no award of expenses.

Decision issued: 14 March 2008

Members: Lord McGhie; I M Darling, FRICS

Case Ref: LTS/TR/2007/10


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 March 2008

Douglas Ballantyne – Depute Clerk to the Tribunal