OPINION

Alexander Andrew and Carole Andrew v North Lanarkshire Council

Introduction and Summary

[1] This is an application for a finding that the applicants have the right to purchase the dwellinghouse at which they reside. Mr Andrew was and is in the employment of the respondents, currently as a horticulture supervisor. It is a matter of agreement that although the applicants occupied, rent-free, under missives of let dated 1987, until recently Mr Andrew was required under his contract of employment to occupy this house for the better performance of his duties so that there was no secure tenancy or Scottish secure tenancy and therefore, in terms of the legislation, no right to buy. Prior to the application to purchase, however, Mr Andrew was advised that this requirement had been removed and invited to enter into a new tenancy agreement on the basis of paying rent. He refused to do so and continued to occupy rent-free. In that situation, the respondents argued in opposing the application that there was no tenancy and the applicants are occupying without right or title to do so; or alternatively that if the applicant does have a right to occupy, this is under the original missives of let based on the requirement to occupy for better performance of his duties and remains for that reason excluded from being a (now) Scottish Secure Tenancy. Alternatively and additionally, the respondents relied on another exclusion from secure tenancies, viz. that the dwellinghouse is within the curtilage of a large greenhouse building used for horticultural purposes and mainly consisting of accommodation used for such purposes.

[2] Having considered the evidence and submissions and having carried out a site inspection, the Tribunal has in the particular circumstances decided:-

(i) At the time of the application, Mr Andrew occupied under a tenancy agreement which had not been terminated and, further, was no longer excluded from being a Scottish Secure Tenancy under (now) Schedule 1, Para 1, of the Housing (Scotland) Act 2001 (“the 2001 Act”); and

(ii) the dwellinghouse was not “within the curtilage” of the greenhouse building and was not excluded under (now) Schedule 1, Para 9, of the 2001 Act.

Accordingly, Mr Andrew had, at the time of the application to purchase, a Scottish secure tenancy. It follows that the applicants have the right to purchase the house.

Procedure

[3] The applicants Alexander Andrew and Mrs Carole Andrew applied to the respondents, North Lanarkshire Council, on 19 September 2010 to purchase the dwellinghouse at West Lodge, Drumpellier Country Park, Townhead Road, Coatbridge. The respondents refused said application on 7 October 2010. The applicants applied timeously to the Tribunal for a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”). The respondents opposed this application. At an oral hearing of the application on 4 May 2011, the applicants were represented by Mr Smart, Solicitor, of Ian S. Smart & Co, Solicitors, Cumbernauld, who called Mr Andrew as a witness. The respondents were represented by Mr Young, Solicitor, of North Lanarkshire Council, who did not call any oral evidence. Parties also lodged a number of documentary productions which were agreed to be what they bore to be. The Tribunal carried out a site inspection.

Authorities referred to:-

Kinghorn v Glasgow City Council 1984 SLT (Lands Tr) 9
Grampian Housing Association v Pyper 2004 Hous. L.R. 22
Housing (Scotland) Acts 1987 and 2001

The Facts

[4] The Tribunal found the following facts admitted or proved.

[5] Mr Andrew commenced employment with Monklands District Council (“MDC”) on 2 November 1981 as a chargehand craftsman gardener at the nursery within Drumpellier Country Park. According to a Statement of Particulars at that time, he could be required to work “at such other place of employment in the Authority’s service as may be required”. The Statement did not refer to any requirement to reside at the house.

[6] On 28 October 1987, MDC made an offer of let to the applicant of West Lodge, Drumpellier Country Park, Coatbridge (“the house”) under a heading of “Missive of Let – Tied House”. Condition 1 of the offer provided:-

“1. The date of entry under the lease shall be the Twenty-Eighth day of November, Nineteen Hundred and Eighty Seven and the lease will endure for a period of one week from the said date of entry and will continue from week to week thereafter until lawfully terminated. You shall occupy the said dwelling house rent and rates free and on the terms and conditions stipulated in the “Offer of Let” of the said dwelling house issued by the Director of Leisure and Recreational Services, Monklands District Council.”

The tenant was responsible for the costs of heating and lighting and for internal decoration. The landlord undertook what were described as normal landlord responsibilities.

Condition 5 provided:-

“5. It shall be understood that the said dwelling house is let only to the tenant in terms of his contract of employment with the Department of Leisure and Recreation Services, Monklands District Council which requires the Tenant to occupy the said dwelling house at all times for the duration of the Tenants employment with the Department of Leisure and Recreational Services, Monklands District Council and is necessary to be occupied for the better performance of his duties and for no other reason whatsoever.”

Condition 6 provided:-

“6. In return for the concessions provided in (1) and (2) above the Tenant hereby accepts that he shall carry out the following duties, viz.:-

(a) Deal with emergency call outs in respect to the Park and related areas.

(b) Deal with queries from public bodies, such as the police, and the public and if necessary refer them to the correct quarter for action.

(c) Take all such steps as are necessary to ensure good order and security within the boundaries of Drumpellier nursery environs and to take action to alert other services as required.”

[7] On 29 October 1987, Mr Andrew signed a written acceptance of the tenancy, including as follows:-

“ In particular I accept the condition that the said dwelling house is let to me by virtue of my employment with the Department of Leisure and Recreational Services, Monklands District Council in my capacity as Nursery Chargehand only for as long as I remain in the said employment as aforesaid.”

[8] On 6 May 2008, by which date the respondents were, following local government reorganisation, his employers, Mr Andrew was appointed to the post of horticulture supervisor, his present position. Clause 4 of the Statement of Particulars of the terms of this employment provided:-

“4. Employment Location. You will be employed at Drumpellier Nursery, Coatbridge. However you may be required to work at a different location throughout the year.

The Council reserves the right, as a term of your employment, to transfer you either temporarily or permanently, to any other location within the geographical area of the Council to meet the needs of the service or for your self development.”

The Statement also referred to an attached job description. Neither the Statement nor the job description referred to any requirement to reside at the house.

[9] On 9 January 2009 the respondents wrote to Mr Andrew referring to “previous correspondence and discussions” and confirming that with effect from 9 February 2009 he would no longer be required to occupy West Lodge Cottage, Drumpellier Park, to undertake duties in relation to his employment. The letter also advised:-

“Housing and Social Work Services will be in contact with you in due course with details of your new tenancy agreement”.

[10] Mr Andrew refused to sign a new tenancy agreement.

[11] Correspondence ensued between the respondents and Mr Andrew’s solicitors. The respondents’ position was that Mr Andrew did not have a tenancy of the house. They requested that he sign a new tenancy agreement. On 26 March 2010 the Housing and Social Work Services noted that the male applicant had not signed “the SST tenancy agreement” and advised “ … having taken legal advice, Court Proceedings will commence unless the SST is signed within the next 14 days.”

[12] Mr Andrew remains employed by the respondents and the applicants remain in occupation of the house.

[13] Drumpellier Country Park (“the park”) comprises an extensive area of principally open land with extensive tree belts and grassed areas lying generally to the north west of Coatbridge and available to the public as an area for recreation. The principal access is from Townhead Road which runs along the northern boundary of the park. At this main entrance there is a reception centre incorporating a cafeteria. From there, a surfaced roadway leads to an extensive car park. The car park overlooks a loch which can be fairly described as a central feature of the park. Walkways are laid out through the park enabling walkers and cyclists to enjoy the natural environment. Picnic areas are provided. A golf course lies on the eastern side of the park.

[14] From the main public car park a single track roadway, restricted to official or service vehicles, leads in a generally southerly direction through the park and eventually connects to the built up area of Coatbridge.

[15] An area to the west of this roadway, just south of the loch and close to the geographical centre of the park, contains a large covered greenhouse, areas for the growing of plants outdoor, two semi-detached houses, West Lodge and East Lodge, a large carpark entered from the roadway with approximately 35 spaces, and two small areas of formal garden grounds. The eastmost side of this area is bounded by the service road. At around this point a barrier has been erected stopping any unauthorised traffic from using the service road as a through route. There are heavy tree belts of mature trees on the west side of this area and also on the east side of the service road. To the south of this area lie agricultural fields which are part of the park. Walkways lead from the north of this area to the side of the loch.

[16] The largest building within this area of the park is the greenhouse which is built in a series of single storey bays. Another short roadway leads from the carpark to the walkway on the north. On the eastern side of this roadway two smaller “polytunnels” have been erected. Large vehicle gates are located at either end of this short connecting roadway. The greenhouse and its adjacent outside plant area as well as the area containing the polytunnels is enclosed on all sides by a 6ft. high metal palisade fence which incorporates the gateways at either end of this roadway. The fence and gates were erected in the mid 1980’s. These gates are normally kept locked.

[17] East Lodge House and West Lodge House are positioned immediately north of the car park. They are single storey in height. They are both enclosed on all sides. They have individual gardens positioned between the houses and the car park but on their north side there is only a narrow access passage, capable of use by pedestrians only, leading from the main service road to the east. It would appear that their principal entrance, or “main door”, is on this northern side but both houses principally use the doors to the rear which open on to their gardens and face the car park. 3 of the marked bays in the car park have been marked as “house”, 1 opposite West Lodge and 2 opposite East lodge. A low rise retaining wall separates the car park from another narrow passage which as with the passage to the north provides pedestrian access to the houses and opens out through gates onto the service road through the park. Both houses overlook the formal gardens to their north. There is a line of high Lausoniana trees along the western boundary of the garden of West Lodge and the ground within the glasshouse area fence. The applicants have erected a “portakabin” in their garden.

[18] The car park in this area, as well as having the three spaces associated with the two houses, is used by the employees working in the greenhouse area. It is also used by members of the public who know how to access it from the south, although as this access is obscure the numbers are limited. Commercial traffic, such as suppliers, for the greenhouse come through the carpark and through the gates in the metal palisade fence. The park’s own vehicles, including grass cutting equipment generally use the northern approach road to the greenhouse. There are gates at the entrance to the car park which are normally closed to at nights although if trouble is being experienced then the residents of the two lodge houses lock them. The internal gate from the car park to the short internal roadway is normally locked.

[19] The two small formal gardens lying to the north of the houses are primarily used as a location for the taking of wedding photographs.

[20] A CCTV system serves the greenhouse area and its associated grounds. The applicants have installed a miniaturised system serving the house they occupy. There are identical signs notifying the public of the presence of CCTV on both the walls of the house and the greenhouse.

[21] Apart from the reception area at the main entrance to the park this area appears to contain the only buildings in the park. It has the appearance of a grouping together of support facilities serving the overall park, constructed together for practical as well as aesthetic reasons. There is no overall form of appearance or construction between the houses, the car park and the greenhouse.

[22] The greenhouse serves the whole of respondent’s area of responsibility.

Applicants’ Submissions

[23] The applicants claimed that Mr Andrew was at the relevant date, i.e. when the application to purchase was made, a tenant under the 1987 missives of let and that the tenancy was not at that time excluded from being a Scottish secure tenancy, with the result that he had the right to buy in terms of Section 61 of the 1987 Act. It was accepted that there had been a requirement on him to occupy for the better performance of his duties, so that he would not previously have had the right, but he had specifically been advised by the letter of January 2009 that he was no longer so required. The landlords having repudiated that requirement could not argue that it still applied. The argument that Mr Andrew no longer had any right or title to occupy the house was also resisted. Payment of rent was not essential to establish a tenancy under the legislation (Kinghorn v GlasgowCity Council). The respondents were in any event demanding rent, in so far as they were requiring the position to be regularised by an agreement involving the payment of rent. The position might have been different if they had said that Mr Andrew could remain in the house, rent-free, on a ‘grace and favour’ basis. The respondents had been offering a non-secure tenancy, based on the ‘curtilage’ argument. In response to Mr Young’s submissions, Mr Smart posed the question as to what part of the definition of ‘tenancy’ in Section 41 of the 2001 Act was not satisfied immediately after the letter of January 2009, there having been no suggestion in that letter that the tenancy agreement was at an end. Again, it might have been different if any requirement to vacate had been added.

[24] On the curtilage issue, Mr Smart emphasised the distinct metal palisade fence enclosing the nursery in its entirety but not enclosing either house. There was limited common access, the principal access being through the car park. The existence of the gate leading into the nursery yard strengthened the position. There was also a path to the house itself. The current exercise of access did not interfere with access to the nursery, nor would it do so if the house were sold. The car park had been added relatively recently. On the authorities, the visual impression was important. Someone, hypothetically, wanting to buy the nursery would never imagine that the houses were included.

Respondents’ Submissions

[25] The respondents’ position, under reference to the terms of the missive of let, was that the let had been provided rent-free to Mr Andrew in return for his carrying out certain specified duties. Following meetings of the relevant Committee of the respondents, the requirement to reside in the accommodation for the better performance of these duties was removed, with employees to be approached individually to negotiate new tenancy agreements. Mr Andrew, having refused to sign any such tenancy agreement and not paid any rent, was occupying the house without right or title to do so. An action for recovery of possession had in fact been raised, after the application to purchase. Alternatively, if there was found to be a tenancy agreement, it still contained the requirement to occupy for better performance and the tenancy would accordingly continue to be excluded under the statute from being a secure tenancy.

[26] In oral argument, Mr Young argued that the statutory definition of ‘tenancy’ required an agreement under which the house was made available. He argued that one or other of two events prior to the application to purchase had superseded the agreement in the missive of let. Firstly, Mr Andrew’s more recent contract of employment in 2008, in particular the provisions about the location of the employment and the job description, clearly contained no requirement on him to occupy the house. In his acknowledgment of the 1987 missive of let, he had accepted that the house had been let to him by virtue of his employment (with the respondents’ predecessors) in his capacity as nursery chargehand “only for as long as I remain in the said employment as aforesaid.” The let had been a service tenancy, which would have been a tenancy under the definition, but was no longer so once that contract of employment was no longer in force. Secondly, alternatively, it was superseded by the letter of January 2009 confirming that the requirement to occupy no longer applied. Thus both the missive of let and the previous employment contract no longer applied. There was, by the date of that letter at the latest, no tenancy. It had to be asked, on what basis was Mr Andrew occupying. There was no agreement on which a tenancy could be based.

[27] Alternatively, if, contrary to these submissions, the applicants were entitled to occupy under the tenancy agreement, that made it clear that Mr Andrew was required to occupy for the better performance of his duties so that that must remain a term of his contract of employment and the statutory exclusion therefore still applied.

[28] Mr Young said that there were three alternatives: missives of lease, with rent, but that required consensus in idem which was lacking; a service occupancy which had been superseded; or a service occupancy which had continued so that the statutory exclusion still applied. The analysis in Kinghorn (at pages 13-14) was sensible and it could not be said that the respondents could unilaterally alter the agreement with the result of producing a right to buy. Reference was also made to Grampian Housing Association v Pyper, at para 17. There had to be an agreement under which the house was made available. The agreement here was in the missives added to the contract of employment but had been superseded. There never was a secure tenancy, nor any other form of statutory tenancy.

[29] Alternatively and additionally, the respondents argued, the dwellinghouse fell within the definition in Paragraph 9 of Schedule 1 of the 2001 Act and for that reason also was not a Scottish secure tenancy. It was within the curtilage of the large greenhouse building which required a large area of ground around it. Recognising that a geographical test was most appropriate, Mr Young referred also to a functional connection between the nursery and the house. He said that the whole area was a working nursery which could be visited by the public, including the houses, garden and car park, although he accepted that the area in question was not separated from the remainder of the park by a homogenous boundary wall. Some plants from the nursery were used in the garden. There was nowhere else in that area for cars to park, so that in the event of sale of the house a parking space, i.e. parking rights plus access to the parking space, would require to be transferred, which would create a problem. The car parking was an indication reinforcing the geographical aspect of curtilage. Mr Young also referred to the signs advising of CCTV coverage of the area.

Tribunal’s Consideration: Tenancy

[30] In order to succeed the applicants must, at the time of their application to purchase, i.e. September 2010, have occupied under a Scottish secure tenancy. That has to have been a tenancy as defined in Section 41 of the 2001 Act, i.e. “an agreement under which a house is made available for human habitation”. If that requirement is satisfied, it must not be a tenancy which, under Schedule 1 of that Act, was not a Scottish secure tenancy.

[31] It appears clear and not disputed that the 1987 missive of let, on which the applicants base their claim, was an agreement which did create a “tenancy”, albeit it was a rent-free service tenancy which was not at that time a secure tenancy. The respondents, however, claim that that agreement was, to use their word, ‘superseded’.

[32] The respondents clearly wished to negotiate a different agreement. Why that did not happen was not fully explored, although some of the correspondence was produced. The question is whether or not, in the circumstances which were established, there remained at the date of the application to purchase an agreement satisfying the statutory definition. The circumstances had changed in the two ways relied on by the respondents. We have therefore had to consider whether either of these changes involved brought to an end the respondents’ agreement to the applicants’ occupying the house.

[33] We note that in terms of Condition 1 of the missive of let the lease “will endure for a period of one week from the said date of entry and will continue from week to week thereafter until lawfully terminated”.

[34] The question whether the post of ‘horticulture supervisor’ offered to Mr Andrew in May 2008 was any different from that of ‘nursery chargehand’ was not really explored. We are bound to say that it was not evident to us that the provisions referred to by Mr Young in the statement of particulars of the new contract of employment in relation to the place of employment were any different in effect from those of the old contract, nor was there an old job description which could be compared with the new one produced. More importantly perhaps, there was nothing in the offer of the new employment and associated documentation, and no other evidence, which gave any indication that the lease was to come to an end. There is no evidence that he was at that stage told that he was no longer allowed to occupy the house or indeed that any alteration to the tenancy was under consideration. A question might have been raised whether, under this new contract of employment, there was truly still a requirement to occupy for better performance of duties, but that question has not been raised. It appears to us an untenable proposition on the material before us that the offer and acceptance of the new post involved termination of the agreement for Mr Andrew to occupy the house.

[35] The second change, in January 2009, is more difficult for the applicants. We must ignore the reference in that letter to “previous correspondence and discussion”, because there was neither agreement nor evidence as to any such things having taken place, but Mr Andrew was formally notified on 9 January 2009 that the requirement to occupy for the better performance of duties was withdrawn and that “Housing and Social Services will be in contact with you in due course with details of your new tenancy agreement”. Bearing in mind that Condition 5 of the existing tenancy agreement did refer to that requirement as the sole basis for the let, we can accept that there was at least an indication that the basis for the existing let had gone and a new agreement was required.

[36] Again, however, there was no express termination of the tenancy. In our opinion, the correct interpretation of this event, i.e. withdrawal of the requirement under the contract of employment to occupy the house, together with an indication that a new and different tenancy agreement would be required, is not that the previous tenancy agreement was at an end but that the landlords wished to re-negotiate the terms or, it may be said, enter into a different agreement. There is a difference between, on the one hand, expressing a wish to enter into a different agreement, and on the other hand terminating, or giving notice to terminate, the existing agreement. In the first case, the previous agreement remains in place until there is a new agreement taking its place. That, as it seems to us, was the position following the letter of January 2009. The respondents may at some later stage, following the failure to reach a new agreement, have terminated the previous agreement, but they do not appear to us to have done so prior to the application to purchase.

[37] It may also be pointed out that, apart from there being no indication in the letter of January 2009 of termination of the agreement, there was also no suggestion or, we think, even implication, that the respondents were not agreeing to the applicants’ continuing to occupy the house.

[38] The position in this case appears to us to be quite different from the situation in Grampian Housing Association v Pyper to which Mr Young referred us. The defender and appellant in that case argued that she had a tenancy which became a Scottish secure tenancy on the commencement date of the 2001 Act. The Sheriff Principal decided that she could not establish a tenancy within the meaning of Section 41 of the Act because she did not at the relevant date have an “agreement”. However, the starting point of the argument in that case was that the tenant had previously been served with a notice to quit with the admitted result that her previous contractual tenancy had been terminated. There had been no such notice to quit in this case.

[39] It was not argued that anything after the letter of January 2009 altered the position. The respondents’ correspondence, including their letter of 7 October 2010 refusing the applications to purchase, is based on their claim that Mr Andrew had not had a title to occupy since 9 January 2009. We therefore consider that there was still a “tenancy” within the meaning of the Act when the applicants submitted their application to purchase.

[40] We would add, although we were not addressed on this aspect and have not relied on it, that we think that there might be a further difficulty in the way of the respondents’ argument if a closer look is taken at statutory provisions in relation to tenancies. The particular protection of secure tenancies from termination would not apply, because on the agreed position this had not previously been a secure tenancy, but we do note that some at least of the provisions relating to Scottish secure tenancies, and in particular the restriction on variation of tenancies, are applied by Section 39 of the 2001 Act to tenancies excluded from being Scottish secure tenancies only by the operation of paragraphs 1 or 9 of Schedule 1. It might be suggested that what the respondents were actually seeking to do was to vary the terms of the agreement on which they made the house available for occupation by the applicants. It might not seem right that the restriction on variation (Sections 24 to 26 of the 2001 Act) could be avoided by characterising what happened as termination, or ‘supersession’. There might be further statutory provisions which would also have to be considered.

[41] The respondents argued that if it was held that there was still a tenancy the original agreement cannot have been changed so that the requirement to occupy the house for the better performance of duties under the contract of employment must still apply to it and it must continue to be excluded under Paragraph 1 of Schedule 1 (and also under Paragraph 9, the argument considered separately below). The obstacle in the way of the argument under Paragraph 1 is the respondents’ own purported withdrawal of the requirement. In the opinion of the Tribunal, this is fatal to the respondents’ position.

[42] Whatever the correct interpretation of the tenancy agreement in the particular circumstances might be, the issue under Paragraph 1 is the content of the contract of employment. This cannot in our view be said to include a requirement on the employee which has been expressly withdrawn by the employer. Authorities on the provision which is now Paragraph 1 of Schedule 1 of the 2001 Act have emphasised that insertion of an express contractual provision purporting to stipulate that occupation is for the better performance of duties does not exclude the function of the Tribunal to assess the test of better performance: if there is such a contractual requirement of occupation, is it for the better performance of duties? Here, of course, matters are the other way round. To succeed at this stage of the argument in this case, the respondents would in our opinion need to show that their express withdrawal of the requirement did not represent the true position under the contract of employment and there was in fact a requirement to occupy for the better performance of duties. That would be a somewhat unreal argument and it is sufficient for us to say that nothing of that kind has been established. Even if it can be said that this unilateral contractual statement did not alter the contract, the employers have simply not established that the requirement which on this view was still in place was for the better performance of duties. Mr Andrew told us in evidence – and we have no reason to doubt – that he has continued to carry out the work referred to in Condition 6 of the 1987 missive of let, but this is clearly now on a voluntary basis which cannot be referable to duties under his contract of employment.

[43] In these circumstances, we do not think that the respondents can avoid the position that there was at the relevant date a “tenancy” within the statutory definition and that the exclusion in Paragraph 1 cannot apply.

[44] It might be suggested that this is an unfortunate outcome which permits the applicant Mr Andrew to ‘have his cake and eat it’, i.e. to continue to enjoy rent-free occupation without the requirement to occupy for the better performance of duties. Beyond pointing out that if this is the correct application of the statutory provisions, so it must be, some further points can be made here. Firstly, it can be pointed out that the material before us is clearly not the whole story: we do not know all the rights and wrongs of the parties’ positions. Secondly, there is nothing in the January 2009 letter to indicate any change in Mr Andrew’s actual work duties (other than the requirement to occupy). Thirdly, the withdrawal of that requirement appears to involve a recognition that Mr Andrew (and apparently other employees in similar positions) should not be excluded from having secure tenancies and should be able to have the right to buy (unless of course they were excluded under Paragraph 9 or indeed another provision of Schedule 1). The unfairness, if there is any, would seem to relate not to the question of the right to buy but rather to the question of whether rent should be paid. We would have thought that the respondents could have brought about that desired result in another way. At all events, we do not consider that the lease had been “lawfully terminated” and the applicants have established that there was at the time of their application a tenancy within the meaning of the Act. Paragraph 1 of Schedule 1 of the 2001 Act does not apply.

Tribunal’s Consideration: Curtilage

[45] We turn to consider the alternative argument under Paragraph 9 of the Schedule. Having regard to the applicants’, in our view correct, acceptance that the nursery building is a ‘building’ which satisfies the requirements of Paragraph 9, the single issue here is whether the applicants’ house is, in terms of that provision, within the curtilage of the nursery building. If so, the applicants cannot have a secure tenancy.

[46] The house appears clearly to be within the park, perhaps ‘within the curtilage’ of the park. That no doubt makes its sale to a private owner inconvenient, presumably necessitating particular access provisions in the title. The statutory provision is, however, more narrowly drawn, as the respondents accepted. We must focus on the extent of the curtilage of the nursery building, i.e. the complex of glasshouses.

[47] A house may have its own enclosure, or curtilage, and yet be within the curtilage of another building. It may also be possible for a building to be fenced, perhaps for security purposes, and yet have a more extensive curtilage, although authorities and dictionary definitions stressing the limits of areas properly referred to as curtilage suggest limits to that. The situation regarding access to the house is relevant, but the fact that access to a house is through the curtilage of another building does not necessarily put it within the curtilage of that building.

[48] Parties agreed that the primary consideration was geographical and that the Tribunal’s own impression at site inspection would be important. The respondents did, however, also suggest that there was a degree of functional connection between the house and the nursery building.

[49] In the Tribunal’s view having considered the submissions and inspected the locus, the palisade fence and gated enclosure accurately reflects the curtilage of the nursery building. Within that fence and gates lie the building consisting mainly of glasshouses, flower and seed beds, some polytunnels and huts plus associated roadway, paths and grass areas. The applicants’ house and East Lodge, as well as being outwith that area, are physically enclosed within clearly identifiable gardens.

[50] In order to succeed, the respondents required to persuade us that at least the applicants’ house can properly be seen as within the curtilage. They argued that the car park, both houses and the ‘wedding garden’ were all part of the nursery. In effect they wanted to add that broadly rectangular area to the east of the fenced and gated area to it, making up an identifiable working nursery area. We have considered whether that is an appropriate view of the curtilage of the nursery building. It does have the merit of producing an approximately square area, but to our mind it does not succeed on either a geographical or a functional approach. We can appreciate that there can be said to be something in the nature of a service area differing slightly from the rest of the park, although the ‘wedding garden’ does not in our view fit this picture very well. We do not think, however, that there is any real unity among the nursery building with its enclosure, the two dwellinghouses, the garden and the car park. Accepting that a curtilage may not need to be actually physically enclosed, we could not see the area suggested (or any part of it including the applicants’ house) as an enclosure, particularly when compared with the area within the palisade fence and gates.

[51] The car park and the nursery building appear to have been developed together, the glasshouse having previously been in the area now occupied by the car park. This has produced some commonality of construction and appearance among the nursery building and car park area, extending to the south boundary walls of the gardens of the two houses. The houses themselves, however, were clearly built rather earlier and, with their distinctly enclosed gardens, did not give us any visual impression of being within the grounds of either the nursery building or the nursery building and car park.

[52] Nor can we see a functional connection putting the area suggested, or the applicants’ house, within the curtilage of the nursery building. Suggested functional connections with the nursery were the use of plants from the nursery in the gardens, the car parking and a CCTV system. The car park, being an ancillary feature, might possibly be thought of as serving the nursery and thus within its curtilage despite being outside the fenced and gated enclosure, but it appeared to us in fact to be a car park which serves the nursery, the two houses and the park as a whole. The nursery, we were told, supplies plants for the whole of the respondents’ area. The CCTV system, including notices warning of its existence, did not seem to us to advance the case.

[53] There is, by contrast, obvious functional connection between the nursery building and the ground, including extensive seed and flower beds, polytunnels, etc., within the fenced and gated enclosure.

[54] In short, we felt that the area suggested comprises five separate elements, i.e. the nursery, the two houses, the ‘wedding garden’ and the car park (or possibly four if the car park were seen as part of the nursery area). The houses, garden and the car park are not within the curtilage of the nursery building.

[55] There was, as we understood it, no suggestion that the park roadway to the east of the houses was within the curtilage of the nursery building. The applicants’ house has two pedestrian accesses, each along footpaths leading off from that roadway. The footpath on the north side leads through the garden area of East Lodge, although there is a wooden fence separating it from the rest of the garden of that house. The footpath on the south side, between the car park and the houses, is outwith the gardens of the houses and is thus not exclusive to the houses. There is no vehicular access as such, i.e. no access for vehicles into the house gardens, but there are convenient designated parking spaces, one for the applicants’ house and two for East Lodge, in the car park. If the car park were regarded as within the nursery ground, it would be necessary to have access through the nursery ground when coming by car to the applicants’ house but not when taking pedestrian access. If East Lodge were seen as within the curtilage of the nursery all access to West Lodge would be through the nursery ground. As we see it, however, the more natural view is that the house requires to take access through the park roadway and car park, and, in the case of one footpath, through the garden area of the other house, but not through the nursery ground.

[56] Another way, suggested by Mr Smart, of looking at the issue is to consider whether anyone contemplating buying the nursery would consider that the houses would be likely to be part of the purchase. We agree that there would be no reason to think that: both the geographical and the functional links are too weak to supplant the enclosure formed by the palisade fence and gates.

[57] For these reasons, we do not consider that the applicants’ house lies within the curtilage of the nursery building. The respondents therefore cannot rely on that exclusion of any tenancy of the house from being a Scottish secure tenancy.

Decision

[58] We accordingly grant the application for a finding that the applicants have a right to purchase the dwellinghouse. The offer which the respondents will, following this decision, require to make will require to make appropriate provision in relation to access, but any issue as to the terms and conditions of the purchase does not fall to be considered in this application. If there is any issue in relation to expenses, that can be disposed of on the basis of written submissions in accordance with the Tribunal’s normal practice.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 June 2011

Neil M Tainsh – Clerk to the Tribunal