Lands Tribunal for Scotland

OPINION

William Taylor and Catherine Taylor
v
Renfrewshire Council

Introduction and Summary

[1] This is an application for a finding that the applicants have the right to buy the house of which the first applicant is tenant. At the time of the application he was a school janitor, but he has now retired. The house was built as the janitor’s house beside the entrance to a modern school. Policy regarding janitors’ accommodation has changed, with the result that janitors are no longer required to occupy ‘tied’ houses. The single issue, under the legislation, is whether the house is within the curtilage of the school building.

[2] On the evidence and submissions, and on the basis of our own inspection at the location, the Tribunal are satisfied that this house is within the curtilage, and have accordingly decided that this application must be refused.

The Issue

[3] The applicants applied to the respondents to purchase the dwellinghouse, Houston Primary School House, Houston, Renfrewshire under the ‘Right to Buy’ provisions of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001. The respondents timeously refused the application on the ground that Mr Taylor was not a tenant under a Scottish Secure Tenancy (and accordingly not eligible to purchase) because his tenancy was a tenancy of a kind mentioned in Paragraph 9 of Schedule 1 of Housing (Scotland) Act 2001, which 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.”

It is not in dispute that Houston Primary School comprises a building which satisfies (a) and (b) above. The dwellinghouse does not form part of that building. Accordingly, the issue is whether the dwellinghouse lies within the curtilage of the school building.

Procedure

[4] The application was heard at an oral hearing on 15 October 2009. The applicant was represented by Mr David Forbes, solicitor, of Messrs Walker Laird, Paisley, who called the applicant and Mark Ferguson, an official of Unison, who had prepared a report on ‘Tied Housing’ and in particular other cases in which the respondents had recently sold “janitors’ houses” to their occupiers. The respondents were represented by Mrs Dorothy Briggs, a Senior Solicitor within Renfrewshire Council, who called James Kerr, an Assistant Managing Solicitor with responsibility for Council house sales, and Ian Thomson, an Education Manager with responsibility for estates, each with Renfrewshire Council. Both sides lodged certain documentary evidence, including a number of photographs. The Tribunal carried out a site inspection on the same day.

Authorities referred to:-

Sinclair-Lockhart’s Trustees v Central Land Board 1951 SLT 121
Assessor for Lothian Region v B.P. Oil Grangemouth Refinery Ltd 1985 SLT 453
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Burns v Central Regional Council 1988 SLT (Lands Tr) 46
Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Shipman v Lothian Regional Council 1989 SLT (Lands Tr) 82
Fee v East Renfrewshire Council LTS/TR/2004/07, 1.7.2005

The Facts

[5] The primary facts were not in dispute. On the basis of the evidence, submissions and our site inspection, we found the following material facts established.

[6] Mr Taylor was employed, first by the regional council and then by the respondents, as janitor to Houston Primary School from 1987 until his retirement in September 2009. He initially lived in Erskine, but obtained the tenancy of the janitor’s house at the school in about 1988. There was no written tenancy agreement. Mr Taylor paid a reduced rent of £3 per week and was not required to pay Council Tax. The respondents paid his telephone rental. However, latterly at least, in accordance with the respondents’ policy in relation to janitors’ employment, his duties did not require him to reside in the janitor’s house. He basically discharged his duties during normal day-time working hours, with any attendance in the evenings being overtime. In relation to security, he was not on call. If an alarm was activated, and he was available, he would call the police. As at the respondents’ other schools, the job could these days be, and frequently is, done by non-resident janitors, as is now and will continue to be the position at this school.

[7] The approximately square site on which Houston Primary School is built was acquired by Renfrew County Council and subsequently vested in Strathclyde Regional Council and then Renfrewshire Council as a result of local government reorganizations. The site so held extends to 1.84 hectares and has a relatively rural setting. It is approached from the north by Houston Road, which is a cul-de-sac ending at the entrance to the school and serving one other site, the local cemetery on the east side of the road. There is no housing on Houston Road. To the west of Houston Road and the school site, a footpath separates them from open agricultural land. This footpath also runs round to the south of the school site, separating it from an area of housing. A strip of rough woodland lies to the east of the site. The only vehicular access to the site is from Houston Road to the north. Two gates along the southern boundary afford pedestrian access.

[8] The school and janitor’s house were apparently built around 1976. A detached nursery building was erected in 1996. A major extension to the school building was completed in 2006. The school building now occupies most of the west side of the site. Entering from Houston Road, the main school buildings are approached through a parking area which includes a bus parking bay. The east side of the site is mainly occupied by a grassed playing field, but also by an overflow car park off the main parking area and by the nursery building, which is itself securely enclosed. There are currently 460 pupils on the school roll plus those attending the nursery. The site appears slightly congested, with relatively small surfaced playground areas around the school building and limited space beyond these.

[9] The (now former) janitor’s house is located near the north-west corner of the site, near the entrance from Houston Road. It has a small area of garden ground on each side. The garden is enclosed by a series of fences most of which are now hidden by overgrown hedges and bushes. Access is through the school grounds. There is no vehicular access, and the applicants have no use of and do not rent any parking space. The house is about one to two metres higher than the adjacent playgrounds and access areas. The front of the house is on its east side. A pedestrian gate in the front fence leads onto a pavement which leads from Houston Road along the west side of the main parking area to the school building. The windows to the front of the house overlook the car park, entrance road and playing field. The other three sides of the house are bounded by grassed areas within the school grounds. On the north side, the boundary is about 8 metres distant; on the west side about 27 metres. The mown grassed areas on these sides of the house are ornamental, being accessible but not used for any particular school purpose. On the south side of the house, nearest the school building, a narrow passage within the garden leads to a side door with steps up to it. At this point there is a substantial gap in the shrubbery and the fence is about one metre high, with a small gate into the school grounds. This side door is approximately 27 metres from the nearest point of the school building, at which the main entrance to the building is situated. The ground in between comprises part of a playground and a grassed area with trees. This grassed area, which is not separated from the areas to the west and north of the house, is easily accessed by pupils, who are allowed to play on it except on wet days or when the grass is already wet and muddy.

[10] There is no consistent pattern of walls or fences around the school site. There is no gate or barrier at the entrance from Houston Road, although a change of surface and traffic calming signs make the entrance obvious. The boundaries at the north-west corner, i.e. the section nearest to the house, are not physically delimited other than by the limits of the mown grassed areas, which approximately follow the boundary. To the north, a triangular rough scrub area lies between Houston Road and the footpath. Elsewhere on the west and south sides, fences separate the safe play areas from narrow sloping grass verges which although within the site owned by the respondents are not used for school purposes. On the east side, there are fences but also bushes and trees, which form something of a natural barrier, in the area of the legal boundaries.

[11] Many of the respondents’ schools do not have school houses. Some such houses have been sold to janitors or retired janitors who had occupied them. During 2009, applications to purchase 12 such houses were received. 7 applications were granted; 5 refused. The respondents have no apparent policy in relation to such applications, beyond looking at each case and considering whether the statutory exclusion applies. In the event of such houses becoming vacant, they are generally not offered to janitors or any other residential occupier and may simply be boarded up pending a decision in regard to their future. The site of the house might in the future be used for a rearrangement of the vehicular circulation space, further extension of the school building or as an additional playground area, but there are no immediate plans for any such development. The respondents have no intention to dispose of the site to a third party for redevelopment.

Applicants’ Submissions

[12] Mr Forbes first referred to the guidance on ‘curtilage’ in Sinclair-Lockhart’s Trustees, per Lord Mackintosh at 123, and to the consideration given, and the contrasting facts of, Fee v East Renfrewshire Council decided by the Tribunal. In this case, there was no all-encompassing fence or enclosure of the school grounds but there was a fence around the garden of the house and the gap facing the school could be addressed with a larger fence. The house was some distance from the school building, on the margin of the school grounds. The strip of grass to the north of the house served no specific purpose and was of no use to the school. The house plus that strip provided a natural demarcation, leaving them outside the curtilage. The whole grassy area surrounding the house might be beyond the curtilage: taking that out would not deprive the school of anything. By contrast with Fee, the area of the school’s legal ownership was irregular, with no roads bounding and less uniformity. The only part of the house from which there was a view of the school building was the side, where a higher fence could be erected. There was no fence enclosing the house and garden within the grounds. The house no longer had any purpose of serving the school. Its proximity did not necessarily place it within the curtilage. Mr Forbes also referred to Barron v Borders Regional Council, Burns v Central Regional Council, Allison v Tayside Regional Council and Shipman v Lothian Regional Council. The onus was on the respondents. Their witnesses had not indicated how they applied the relevant criteria, and the Education Department had decided to refuse the application without legal advice. Exceptions to the right to buy should be kept to a minimum (Barron, at 39B-G). Reference to possible future development was, as a matter of construction of the statutory wording, not competent: the house had to be considered as it was.

Respondents’ Submissions

[13] Mrs Briggs submitted that the respondents’ witnesses had explained the position. There was no blanket policy. There had been no change in the extent of ownership of the site. There was vehicular access down Houston Road. The main school building was quite extensive. The house was on an elevated position, giving views to parts of the grounds and school buildings, in a very open area. As at April 2009, there was a janitor living on site. She reviewed passages in Barron, Sinclair-Lockhart’s Trustees and Fee. The house was useful (she did not suggest necessary) for the enjoyment of the school. There were no other houses round about, so that the house could be suggested to be a deterrent to intruders. Apart from the hedges, there was no particular privacy between the school and the house. It was useful for the respondents to know the occupier of the house. The house occupied a fairly small area, entirely within the school’s feu and not on the boundary. There was no access from the public footpath. Children could play on the grassy area. The hedges merely delineated the differences between the schoolhouse and the rest of the school. Possible future development was relevant. The house was close to the school, particularly at its side door. Site conditions could be different in other cases: each was to be looked at on its merits.

Tribunal’s Consideration

[14] It is clear that the onus in a case of this nature is on the respondents. They require to persuade us, on a balance of probabilities, that this house is within the curtilage of this primary school building. The relevant date is the date of the application to the landlords. In the event, however, little turns on the fact that Mr Taylor has retired since that date.

[15] ‘Curtilage’ is a necessarily imprecise word, so that each case must be decided on its own facts and circumstances. In this case, although we have reached a clear view on our consideration of all the relevant material before us, we can readily understand both sides’ positions from their different perspectives.

[16] We have to decide this application on the basis of the statutory test. Although guidance can be obtained from authoritative decisions, and also from the approach and decisions of the Tribunal in other applications, we have not taken decisions reached by the respondents in the cases of other janitors’ houses into account. The fact that the council have granted other applications to them, even if the situations were similar, cannot really assist in deciding this application to the Tribunal. Such decisions, whether to grant or to refuse other tenants’ applications, might be right or might be wrong. Nor are we concerned with the applicants’ policy, or lack of policy, in relation to such applications. Further, the fact that they decided to refuse this application without obtaining legal advice is no more relevant to our decision than it would be to know whether the applicant was following legal advice in pursuing this matter: we simply have to decide whether this house does or does not come within the statutory exception. We also leave out of account the respondents’ favourable treatment of Mr Taylor in relation to rent and Council Tax, which can on the evidence only be explained on the view, consistent with their position in this application, that he did not have a secure tenancy.

[17] We do, however, acknowledge that the current practice and policy in relation to employment of janitors can be of some relevance to the question whether the ground is used for the comfortable enjoyment of the building.

[18] There is authoritative guidance on the meaning of curtilage from two court decisions often referred to. Firstly, in Sinclair-Lockhart’s Trustees v CentralLand Board, which was actually a dispute of a very different kind, Lord Mackintosh said:-

“ … the 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 as an integral part of the same, although it has not been marked off or enclosed in any way. It is enough that it serves the purposes of the house or building in some necessary or reasonably useful way.”

Consideration of the functional connection between a building and the land around it is therefore permissible in deciding the extent of the curtilage. Such a connection is not, however, essential, because the extent of the curtilage may be determined simply on the geographical or physical position: a house may be within the area of ground which is the curtilage of another house or building even if it is not required or used for the enjoyment of that other building. Thus, in Fee, we decided, in very similar circumstances regarding the employment of janitors, that the ground in which the janitor’s house was situated did not meet the functional test, but we went on to decide that it did meet the geographical or physical test and that that house was within the curtilage of that school building.

[19] In this case also, although we recognise that we have to apply the test at a date when Mr Taylor was still working as janitor and living in the house, the clear implication of these respondents’ current policy in relation to janitors’ duties, hours of work and residence preclude us from holding that the house site is used for the enjoyment of the school building. His job could be done from elsewhere, and he was under no duty, out of hours, to do anything. His (or indeed anyone’s) residence in the house may have conferred some slight advantage to the school, but this in our view falls short of satisfying Lord Mackintosh’s ‘enjoyment’ test. The fact that, following his retirement, the respondents have no wish for a resident janitor, or indeed for the house to be occupied at all as a dwellinghouse, reinforces this view.

[20] Turning to the physical test, we can first note the other authoritative decision, Assessor for Lothian v B. P. Oil Grangemouth Refinery Limited. There again, the point at issue was very different, but the Lands Valuation Appeal Court, in reversing a decision that pipelines buried in a seabed were within the curtilage of the marine terminal from which they ran, held that ‘curtilage’ had primarily a geographical connotation and involved a piece of ground of relatively small extent. We take from that that if the respondents are to succeed, the house must be within a relatively small area which can be identified as curtilage.

[21] The Tribunal has in the past recognized that the fact that a house within the grounds of another building can be seen to have its own small curtilage does not necessarily mean that it is not within the curtilage of the other building and therefore does not mean that the statutory exception cannot be made out (Barron, at 38F-G). That will, however, be a factor the strength of which will vary according to the circumstances, including how clearly and permanently defined the smaller curtilage is and where it is situated.

[22] We can accept that the fact that access to this house requires to be taken through the school grounds in the respondents’ ownership, so that in the event of a sale a servitude access right would need to be created, would not in itself prevent this application succeeding. As tenant, Mr Taylor must be entitled to access through the school grounds, so that if he were found entitled to buy the house he would be entitled to this access right – Housing (Scotland) Act 1987, Section 64(1). Again, however, this is a factor in our consideration of the whole issue. In this case the access would be a shared access using the school’s main entrance.

[23] This brings us also to mention that the boundaries of the respondents’ title to the school ground are by no means determinative of the issue. Certainly, if the question had arisen in other areas of the site, where fences are positioned some distance inside the legal boundary, the fences, rather than the boundary, might mark the extent of the curtilage.

[24] However, in our opinion, the curtilage of this school building, in the area of the house, does run to the legal boundary, which is, approximately at least, marked not by a physical fence or wall but by the extent of the mown grass and the clear enough indication of the point at which Houston Road gives way to the entrance of the school grounds.

[25] This particular school building is a very substantial complex, whose natural surrounding ground in our view includes, at least on this west side, more than just the small and narrow surfaced playground areas. We think that it naturally includes the grass area and house at the north-west corner. Although the house has its own small garden and there is a low fence, hedge and bushes around most of the house, these features are not in our view of a scale and permanence as to point at all strongly to their being outside the curtilage: they merely afford a degree of privacy to a family living within the grounds. The hedge and bushes had, when we saw them, clearly been allowed to become seriously overgrown but did not seem to us to form the type of substantial or robust enclosure which has been found by the Tribunal in some other cases, such as Barron and Burns. The school entrance area, including the main car park and bus stance, is right beside the house. It is the only means of access to the house. The main entrance to the school building is separated from the house only by quite small areas of playground and grass on which the pupils regularly play. The house is surrounded by school grounds in an area of those grounds where much of the school activity, in particular vehicle and pedestrian traffic, takes place. The whole school site sits on its own in a semi-rural location and the house cannot be seen as part of any other group of houses.

[26] We have considered other possible views of the curtilage in the area of the house. It can be said that the quite narrow strip of mown grass to the north of the house does not appear at present to be of any particular use to the school so that it might be possible to exclude it from the curtilage and thus make the house directly accessible from outside the curtilage. In that case, the house would not be surrounded by ground within the curtilage. Further, while we cannot conceive of a curtilage which did not extend to the point of entrance from Houston Road, it would be possible to extend the line of the south side of the house plot westwards so as to exclude the grassy areas directly to the west and north of the house. That could result in an approximately rectangular area, including the house and an L-shaped area of grass, at the north-west corner of the grounds, outside the curtilage. Such approaches, however, appear to us to be artificial and to ignore the well established extent of the relatively small area which naturally goes with this school building.

[27] We recognise that the boundary at that corner of the site is artificial in the sense that it is not at that point marked by any wall or fence. We do note that although Sinclair-Lockhart’s Trustees involved the concept of a curtilage without defined physical boundaries, that related to ground used for the enjoyment of the house, which cannot be said here. We have considered the significance of this absence of any physical marking of the boundary. It seems to us, however, that such a physical boundary has in effect been achieved in another way. When we viewed the site, we were struck by the contrast between the mown grass area and the undeveloped scrub area on the other side. This forms a natural barrier, although not of course a completely impenetrable one (in the same way as there is no barrier to entering the car park). Putting the matter another way, this is in our view the equivalent of a fence. It seems to us that that approximate line is the well established limit of the relatively small area of ground which goes along with the school building. Whatever might possibly be said about the east side of the school grounds, where there is a relatively larger playing field area, a small curtilage in this area at the north-west corner is in our opinion well established and clear. The applicants’ house is within it. This is not in our view a case of surplus or more distant ground which is not used in connection with the building.

[28] We have taken no account of the possibility of future development of this area of the school grounds. We can readily understand that the respondents might not wish to lose any of this particular school site and that any development would be for the direct benefit of the school, but we accept the submission that such a consideration, relating to the future, is not relevant. There is nothing in the definition of this statutory exclusion, or the legislation as a whole, which enables local authority or other landlords to whom the legislation applies, to reserve land for future redevelopment in the face of a claim to a secure tenancy and thus the right to buy. We note the Tribunal’s discussion of this matter in Barron, at 38H to 39E, and also that the Parliament, in enacting the Housing (Scotland) Act 2001 (legislation which did in fact add some further restriction of the right to buy) did not alter the provision in this respect. There might perhaps be more difficult cases in relation to schools’ present needs, but that does not arise here.

[29] Nor have we relied in reaching our view on the visibility through the gap in the hedge in the area of the side door of the house, of parts of the school. That seems to us to relate to the argument about functional connection and not to the geographical test.

Decision

[29] For all these reasons, we are satisfied that the applicants’ house is within the curtilage of the school building and that Mr Taylor accordingly does not have a ‘Scottish secure tenancy’. The applicants therefore do not have the right to buy this house, and we must refuse this application.

[30] Mrs Briggs did indicate that if the respondents were successful they would not seek expenses. The Tribunal’s order will accordingly be simply to refuse the application.