OPINION

Ivan C Paterson v City of Edinburgh Council

Mr Paterson applied to the Tribunal for a finding in terms of section 68(4) of the Housing (Scotland) Act 1987 that he had a right to buy the subjects known as New School House, 2C Greendykes Road, Edinburgh which he occupies as a tenant of the City of Edinburgh Council. The subjects lie close to Castlebrae School. They were formerly regarded as the janitor’s house. It was not disputed that Mr Paterson would have a right to buy if the Council could not show that the subjects lay within the curtilage of the school. In the event, we were satisfied on the evidence, confirmed by inspection, that the subjects plainly fell within that curtilage and the application had to be refused.

At the hearing on 16 December 2013 Mr Paterson appeared and gave evidence on his own behalf. The respondents were represented by Ms Reid, solicitor. She did not lead evidence as it was agreed that the Tribunal would be able to form a view of the location on site inspection.

Statutes

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

Relevant provisions

It was agreed that the applicant would have a right to buy if his tenancy was a Scottish secure tenancy within the meaning of section 11 of the 2001 Act. Section 11(4) provides that a tenancy is not a Scottish secure tenancy if it is of a kind mentioned in schedule 1. Schedule 1 paragraph 9 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”

Section 111 includes the following definition:

"house" includes -

(a) any part of a building, being a part which is occupied or intended to be occupied as a separate dwelling, and in particular includes a flat, and

(b) any yard, garden, outhouses and pertinents belonging to the house or usually enjoyed with it,

Authorities

Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
McLaren v North Ayrshire Council 2005 HousLR 9
Fee v East Renfrewshire Council 2006 HousLR 99

Factual background

The applicant’s house lies within the perimeter fence of Castlebrae Community High School. There is no access to it other than through the school grounds. The house is part of a “block” of two houses on ground level. The house to the north of the applicant’s house is currently occupied for the purposes of an activity known as “Books for Babies” and it has not been used for residential purposes for many years. Initially it was the only house. It had a garage at its south side. The applicant’s house and garage were subsequently added. The block now appears as a single unit with a house at each end and two garages between them. The houses are not identical in style but the same design features appear in both houses. There is no obvious join but they are divided in effect by the central wall of the two garages.

To the north, west and south of the school buildings lies extensive open ground, mainly occupied by playing fields. Closer to the school buildings there is a boundary formed by a fence which runs a short distance from the north east corner of the school buildings to near the side of the road and then turns at right angles to run south for about 200 metres between the school and Greendykes Road. It then heads west for about 200 metres before turning north to join the school building near its south west corner. The area bounded by the school buildings, on the north and west sides, and by the metal fence on west, south and east sides is, very approximately, 200 metres square. The subjects lie within the east side of this square as described more fully below.

We heard evidence from the applicant of the history of his occupation and of discussions about janitors’ rights to buy. However, the substantive issue in this case turns on the physical layout of the school in the vicinity of the applicant’s house as it is at present and has been during his tenancy. It was not suggested that there had been any relevant change from the time of the application to buy. We do not think it necessary to go into the detailed history.

Submissions

The issue was a short one. There was no dispute on matters of law. The authorities listed above had been referred to in letters prior to the hearing but were not discussed before us. The meaning of the word “curtilage” was discussed in some detail in Fee v East Renfrewshire Council and we need not repeat that. The submissions dealt mainly with the weight to be given to various facts relating to the physical lay-out of the premises. We have taken these submissions into account in our assessment of the evidence.

Discussion

In correspondence with the Tribunal staff, the applicant advanced various reasons why he should be allowed to buy his house and it is, therefore, important to stress again the limits of the jurisdiction of the Tribunal. Our task in the present case is to decide whether the applicant has a Scottish secure tenancy within the meaning of the legislation. That requires us to decide whether the house falls within the description in paragraph 9 of Schedule 1, set out above. In his correspondence and in evidence the applicant referred to tied houses, to janitors’ duties and to arrangements at other schools which were said to have been made to take the janitor’s house out of the curtilage of the school and allow it to be purchased by the tenant. However, this is not a tied house case. The respondents do not seek to found on the provisions of paragraph 1 of Schedule 1. Our concern is not with what might have been done at other schools or even what could be done at this school. The issue is whether the applicant’s house lies within the curtilage of the school. As a second argument the respondents asserted that the house forms part of the block described above, a building which is held by them for purposes other than the provision of housing. These are the only two points we have to consider.

Castlebrae is a school and the school buildings are plainly held by the landlord for purposes other than the provision of housing accommodation. The substantive question before us is whether the subjects fall within the curtilage of the school. We see no need to attempt a full definition of the curtilage of a school. Some schools have very extensive grounds and what might be described as the “school grounds” will not always be the same as the curtilage of the buildings. There may also be many circumstances in which the physical boundary includes an area more extensive than the curtilage. However, although Castlebrae has extensive playing fields which we would not necessarily accept as part of the curtilage of the buildings, the square area described above as bounded by the buildings and a fence can reasonably be seen as indicative of the curtilage. The fenced area includes the subjects, the driveway and two car-parks. There are also places for car-parking close to the school building and close to the subjects. But, in any event, the critical area is that lying to the east of the school buildings.

The school grounds are bounded on that side by Greendykes Road. A seven foot high, close paled, metal fence runs between the school and the road. This appears to be in a good state of repair. The main entrance to the school is from that road at a point close to the north end of the block. There is a gate across the driveway for vehicles. This is locked when the school buildings are not in use. There is an adjacent pedestrian gate. The main entrance to the school buildings lies opposite the main gate.

From the road the school is well screened by a stand of mature trees and related undergrowth running from the gates and along the fence to the south. The fence runs through the trees. The block, including the subjects, is effectively screened from the road by these trees. To the north of the drive the line of the fence is softened by a hedge but the school buildings are visible over that hedge.

The school buildings are rectangular in layout. There is a north section running east and west and very approximately 200 metres by 30 metres. The south section lies parallel to the north one but is shorter and narrower. The block lies to the east of this south section. The subjects lie within about 50 metres of the school buildings. On an aerial photograph, the area bounded by the east end of the north section, the east facade of the south section and the block itself appears to form something like a courtyard. The main door of the school and the doors of the two houses in the block face onto this. On the ground the impression of a court yard disappears because the main drive runs between the block and the school and the residential character of the applicant’s house and fenced garden ground is more obvious and contrasts with the school buildings.

However, on any view of the matter we are satisfied that the house itself is clearly within the existing curtilage of the school at that side. The house is in relatively close proximity to the school and we have no doubt that the fence and gate provide a clear indication of the extent of the curtilage at the front of the school.

Quite apart from the physical house itself it is clear that access to the subjects goes through the curtilage of the school. That is sufficient to bring the matter within paragraph 9 because the definition of “house” includes pertinents. Rights of access are important pertinents of any subjects. Vehicular access to the house is by way of the main school drive. People going to the school by car use this drive and either park between the subjects and the school or in the car-parks immediately to the south. The gate is usually locked when the school is not in use. But it is often used for functions in the evenings and weekends. Mr Paterson has a key. There are many key-holders. No access to the subjects is available other than through the main gate or the adjacent pedestrian gates.

We are forced to conclude that the application fails because the applicant’s tenancy is not a Scottish secure tenancy as falls within the exception created by paragraph 9 of Schedule 1 of the 2001 Act. He has no right to buy in terms of the Housing (Scotland) Acts.

The respondents advanced a second argument based on the fact that the applicant’s house is physically part of the said block. However, it is well established that mere physical attachment is not sufficient to make a house part of another building for the purposes of paragraph 9 and that an ordinary semi- detached house is not to be regarded as part of another building for the purposes of this legislation. The main reported authorities are Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65 and Barron v Borders Regional Council 1987 SLT (Lands Tr) 36. The question is not always entirely straightforward but in the present case, the block can properly be described as having the appearance of a pair of semi-detached residences. We do not think it can be described as being part of the Books for Babies building except in the sense that it is physically attached to it. It is impossible to take a functional view of the two buildings without having regard to the fact that they are both within the curtilage of the school. We see no useful purpose to be served by discussion of shared pertinents in relation to these two properties. The dominant feature is that they are both within the school complex. It is unnecessary to deal formally with the subsidiary argument but we did not find it persuasive.

Expenses

It is well established that the main principle to be applied in relation to expenses is that expenses should follow success. The Council has been put to the expense of opposing this application. We are satisfied that their grounds for opposition have been successful.

We have some sympathy for the applicant who may not have understood the Council’s position initially. However, it is equally well established that the principle of expenses following success is not to be set aside simply on grounds of sympathy. We have been unable to find any substantive reason for refusing the respondents’ motion. We find the applicant liable to the respondents in the whole expenses of the cause.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 January 2014

Neil M Tainsh – Clerk to the Tribunal