OPINION

Eirwen Hopwood v West Lothian Council
David Parlett v West Lothian Council

1. David Parlett and Eirwen Hopwood occupy the adjoining halves of semi-detached houses in the Beecraigs Country Park (“the Park”), West Lothian, their addresses being 1 and 2 Whitebaulks Cottages, Beecraigs, Linlithgow, West Lothian, respectively. They do so under leases from the respondents, West Lothian Council, who are their employers as well as their landlords and who are also owners of the Park.

2. In January 2016, in the belief that they were secure tenants under the Housing (Scotland) Act 1987, they applied to the respondents to be allowed to buy their homes in terms of sec 61 of that Act. Their applications were met with notices of refusal (in terms of sec 68(1)(a) of the Act) dated 9 February 2016, the reason for refusal in both cases being that “you are an employee of the Council and your contract of employment requires you to occupy the property for the better performance of your duties. In terms of section 1 of the Housing (Scotland) Act 2001, your tenancy is therefore not a secure tenancy.” Both Mr Parlett and Mrs Hopwood then applied to us under sec 68(4) of the 1987 Act for a finding that they have a right to purchase their homes under sec 61 on such terms as we may determine.

3. Although not formally conjoined, given the common set of applicable facts and circumstances, we heard the applications as a single proof at Edinburgh on 23 May 2017 when both applicants were represented by Mr Andrew Upton, solicitor, and the respondents by Mr Jamie MacQueen, one of their in-house solicitors. We carried out an inspection of the subjects the following day.

4. By the time the applications came to be heard the respondents’ ground for asserting that the tenancies on which the houses were held were not secure tenancies had changed from reliance on para 1 of Schedule 1 to the 2001 Act (mistakenly referred to in said notices of refusal as sec 1 of the Act) to para 9, which provides as follows:

“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. A very helpful Joint Minute of Admissions lodged on behalf of parties concludes with agreement that whether the houses come within the terms of para 9 is the only question in the case and that if it is answered in the negative the applications must succeed and, correspondingly, that they must fail if it is answered in the affirmative.

CASES

Allison v Tayside Regional Council 1988 SLT (Lands Tr) 65
Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd 1985 SLT 453
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Dorman v Edinburgh City Council 2006 SLT (Lands Tr) 3
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
Fee v East Renfrewshire Council 2006 Hous LR 99
Fisher v Fife Regional Council 1989 SLT (Lands Tr) 26
McTurk v Fife Regional Council 1990 SLCT (Lands Tr) 49
Morrison’s Associated Companies Ltd v James Rome & Sons Ltd 1964 SC 160
Sinclair-Lockhart’s Trustees v Central Land Board 1951 SC 258
Taylor v Renfrewshire Council 2009 SLT (Lands Tr) 2
Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17

EVIDENCE

6. Parties were agreed that the respondents should lead at the proof. On their behalf evidence was led from Ms Tracey Thomson, an in-house surveyor, and Mr James Jack, their Head of Operational Services. The applicants then gave evidence. We found all of the witnesses to be credible and reliable.

7. Ms Thomson’s evidence consisted mainly of scene-setting, describing the extent and layout of the Park and the layout of the buildings and roads in the vicinity of the houses. It was entirely uncontroversial and there is no point in narrating it at length. Instead, what we took from it is reflected in our findings-in-fact below.

8. We do, however, need to say a little about Mr Jack’s evidence. He described the recreational and educational use made of the Park and how it attracts some 400,000 visitors annually. The houses at 1 and 2 Whitebaulks Cottages had always been let to staff in the Council’s Countryside Service, of which Mrs Hopwood was presently the manager. Her husband also worked within the Park, on the Estates side, but was presently on secondment to another post.

9. When evidence looked like approaching the question of whether the houses were within the curtilage of another building, Mr Upton objected to its admissibility on the basis that the respondents’ pleadings did not identify any particular building within whose curtilage the houses were said to be. We allowed the evidence subject to reservation as to competency and relevancy and we rule on the objection below.

10. Mr Jack explained that the Council had employees in those buildings as an element of the control and management of the Park. The tenants knew the Park and could deal with any out-of-hours enquiries. The Council would have concerns about how the houses were looked after and managed in different ownership or occupancy and how they would appear to visitors. Interaction between the occupiers of these houses and visitors was also important.

11. Asked whether, if Mr Parlett’s secondment (he and Mr Hopwood are both on secondment) was made permanent, he would have to leave his present house, Mr Jack was not sure how that would be dealt with. He was not aware of removal having been insisted upon in other cases. Even if the secondments were made permanent, the individuals concerned would still be Council employees, which would provide a degree of reassurance to the Council. Should they cease to be Council employees altogether that would be different and whether they would be required to move would depend on the circumstances. The fact that they were knowledgeable about the Park, albeit they would no longer be Council employees, might be relevant.

12. Beyond that, Mr Jack’s evidence was, like Ms Thomson’s, mainly concerned with the history and geography of the Park and uncontroversial.

13. We can summarise the applicants’ evidence very shortly. Mrs Hopwood had come to work for the Council in January 2009. She had moved from Oldham and had been offered the tenancy of 2 Whitebaulks Cottages. Her occupancy of it was tied to her employment in the sense that she had only been offered it because she was a Council employee but not in the sense of being tied to specific duties in the Park. She had not been required to occupy the house. She could have done her job equally well from any home within commuting distance. Having recently been promoted, her work base was shortly to move to Bathgate. Whereas originally the Whitebaulks Cottages (of which there are only two) had been managed by the Council’s Property Services Department and they had charged a lower rent they had at some point been transferred to the Housing Services Department and the rent now being paid was the same as that which applied across the Council’s tenanted properties.

14. Mr Parlett described the roles he had performed for the Council and the various tasks undertaken prior to his current secondment. When he had first worked at Beecraigs, in the 1990s, he had lived in Linlithgow. He had then moved to work for Edinburgh Council before returning to West Lothian and to Beecraigs in 1999 which was when he had been offered the tenancy of 1 Whitebaulks Cottages. He had lived there since but his various roles had never required him to live in the Park; he could have performed them equally well without living there. He thought the house may originally have been a tied house but, if so, that had ceased when its management had been taken over by the Council’s Housing Department.

SUBMISSIONS

15. As with the evidence, the respondents went first.

16. At the outset of his submissions Mr MacQueen acknowledged that the onus of proving that para 9 of Schedule 1 of the 2001 Act applied was on the respondents; Taylor v Renfrewshire Council at para [14].

17. As to within which building’s curtilage the houses were said to be situated, Mr MacQueen advanced three possible positions. Common to all of them was that the farm was the relevant context for the purposes of para 9.

18. His first position was that the relevant building for the purpose of para 9 comprised the viewing shed and the two sheds next to it (these three buildings being collectively referred to hereinafter as “the viewing sheds”) together with the building used for animal husbandry (hereinafter called “the Animal Welfare Shed”). (For a description of these and the other buildings about to be referred to and their location, see our findings-in-fact below.) All of these building were within each other’s curtilage and the Whitebaulks Cottages were similarly within their curtilages. He also confirmed that this collection of buildings excluded the Sutherland Building and the former Visitors’ Centre. It was a principle of statutory interpretation that the singular includes the plural unless Parliament said otherwise. Fee v East Renfrewshire Council was an example of two buildings being seen as constituting “the building”.

19. These buildings were all part of a working farm and they were held by the respondents for purposes other than housing.

20. If the tribunal was not persuaded of that, however, Mr MacQueen’s second position was that “the building” comprised only the viewing sheds. This excluded the Animal Welfare Shed on the basis of distance: it was slightly further away than the viewing sheds (a matter not borne out by our own assessment of the distances involved). His third position was that any one of the viewing sheds on its own would do because they were each within each other’s curtilage, they all served the same purpose and were of similar size.

21. As to what “curtilage” means, Lord Mackintosh’s discussion in Sinclair-Lockhart’s Trustees v Central Land Board, at page 264,with its “comfortable enjoyment” test, was relied upon as was comment by the judges in Assessor for Lothian Region v Grangemouth Refinery Ltd at pages 458 and 459 to the effect that each case was to be determined on its own facts. The character of the building or buildings was important. In this case they were part of a working farm. The curtilage of the relevant building did not have to be marked off or enclosed; Barron v Borders Regional Council at page 38F. Allison v Tayside Regional Council was distinguished because the schoolhouse in question in that case had substantial stone walls separating its garden from the surrounding ground. Reference was also made to the cases of Walker v Strathclyde Regional Council and McTurk v Fife Regional Council, the latter involving the desirability of a janitor’s house being occupied by an employee of the respondents for security purposes. Shared use of things such as access routes was a factor which pointed towards properties being within the same curtilage; Dorman v Edinburgh City Council at page 40L.

22. As had been made clear in Fee, the concept of curtilage in this context involved two tests, geography and use and the respondents required to succeed only on one of these.

23. Applying the law as set out in these cases to the present case, it was clear that farm buildings required a large curtilage of fields, indeed the boundaries of the farm constituted the curtilage of the farm buildings. We put it to Mr MacQueen that we had heard no evidence that the houses had ever been occupied or used in connection with the farm. Whilst accepting that this was so, he contended that they were, nevertheless, necessary or reasonably useful for the purposes of the farm. The houses were not part of the farm but were surrounded by it.

24. As to physical characteristics bearing on curtilage, as was the case in McTurk and Fee, the stone wall in front of the houses here was not so significant and substantial as to take the houses out of the curtilage of the neighbouring buildings. The same wall continued past the houses, in front of the Sutherland Building, past the sheds and round the carpark, so the houses were not treated differently or separately from any of the other buildings. The access road, giving access to both the houses and the other buildings was itself part of the curtilage of the farm. So the geographical test for curtilage was satisfied.

25. The comfortable enjoyment or use test was also satisfied. The applicants were employees of the respondents, familiar with the Park, and it was desirable to have such people living in those houses because they could deal with any problems which arose. The respondents were concerned as to what might happen in future if they were not able to control who lived in those houses. The houses were therefore necessary for the comfortable use of the farm.

26. Mr Upton devoted the first chapter of his submissions to renewing his objection to the admissibility of evidence as to whether the houses were within the curtilage of any other building. His complaint was that the pleadings did not give adequate notice as to the particular building within whose curtilage the houses were said to be. He referred to passages about the function of pleadings and the need for fair notice from the speech of Lord Normand in Esso Petroleum Co Ltd v Southport Corporation at page 238 and Lord President Clyde in Morrison’s Associated Companies Ltd v James Rome & Sons Ltd at page 182 and to MacPhail Sheriff Court Practice, 3rd ed at para 9.30. Because the respondents’ pleadings gave no notice as to the building within whose curtilage the houses were said to be, any evidence to the effect that they were within the curtilage of any building or buildings was inadmissible.

27. The second chapter of his submissions was devoted to the meaning of “curtilage” in the context of this case. It was wrong to say that the fields of the farm were its curtilage: a farm may have fields many miles away from the farm steading. Curtilage had to be determined bearing in mind the two tests set out in Sinclair-Lockhart’s Trustees at page 264 and in three stages: (i) identifying the building within whose curtilage the houses were said to be; (ii) identifying the purpose of that building, and (iii) asking whether the houses served that purpose in some necessary or reasonably useful way.

28. In the present case it could not be said that the houses served the purposes of any of the farm or recreational buildings around them in any way. Their occupants’ employment did not require them to live there. They could perform their functions just as well from any other address within commuting distance. The cases involving school janitors were relevant. Most of those had failed the “necessary or reasonably useful” test because times had changed and janitors no longer required to live on site. As to the perception of visitors should the houses fall into disrepair, members of the public would not necessarily associate those living in the houses with the Park.

29. As to the geographical test, Mr Upton founded strongly on the case of Fisher v Fife Regional Council in which it had been held that the curtilage of a building could not extend to the other side of a public road. In the present case, that meant that the houses could not be within the curtilage of the Animal Welfare Shed. As for the viewing sheds, these were separately fenced and not immediately adjacent to the houses, indeed being separated from them by the Sutherland Building, on which the respondents were no longer relying. So the houses were not within the curtilage of any of these buildings but were, instead, an island of their own within the Park. Moreover the boundary walls along the front and fences along the sides of the houses gave the impression that they were separate from their surroundings.

30. We should dismiss the answers as irrelevant, grant the applications and award the applicants their expenses.

31. In a brief rejoinder Mr MacQueen reminded us that there were two tests to be applied and that the respondents need only succeed on one of them and sought to distinguish the case of Fisher on the ground that the road between the Animal Welfare Shed and the houses here led only into a cul-de-sac and not, as in Fisher, to another destination.

Tribunal’s Consideration

32. In taking his objection to the admissibility of evidence to do with curtilage and inviting us to dismiss the respondents’ answers as irrelevant, Mr Upton was treating this as a proof before answer situation in which, following proof, a case can be dismissed as irrelevant. In this tribunal, on a matter such as this, we are disinclined to take such a technical approach. Instead, having heard the evidence and seen the locus, we think it more sensible simply to answer the question posed in the final paragraph of parties’ Joint Minute of Admissions which is whether the houses form part of, or are within the curtilage of, a building such as is described in para 9 of Schedule 1 to the 2001 Act.

33. That said, however, Mr Upton’s criticisms illustrate very clearly the difficulty the respondents here have in making out a case under para 9. That difficulty is basically that para 9 requires them to identify a building within whose curtilage the subjects are said to be. So it is not sufficient to say that the subjects are within Beecraigs Country Park and that the whole park forms a single entity. In Answer 3 of their pleadings what they say is this:

34. “Access to the park is from both the north and south, with a road running through the park providing access to the property and other buildings adjacent to it. As at the date of the Applicant’s application to the Respondent to purchase the property it was and still is within the curtilage of several other buildings, which are all owned by the Respondents and form part of the park. The park is a large area, and within that there is the property and other buildings in close proximity. The area around the property includes the Sutherland Suite which was opened in 2009. … This is used as the Rangers’ base and offers conference room facilities. The Visitors’ Centre at the time of the application was in close proximity to the property. It sold gifts and refreshments and the Applicant could use the office facilities along with approximately 5 other employees. … The Animal Attraction and Deer Farm are in close proximity to the property as well as a viewing shed for public use and fields which are fenced in for the red deer, Highland and Belted Galloway cattle and Hebridean sheep, through which there is a fenced path running South that the public can walk along to see the animals. This is the east and south east of the property. The property is within the curtilage of these buildings and the animal fields. At the time the application was made other buildings in the park and nearby included a restaurant/café, a camping and Caravan park, a fishery with a small loch … and a sawmill with staff canteen facilities. The property is within the curtilage of several buildings which belong to the Respondents and are not used for housing.”

35. However, as we have seen, when it came to Mr MacQueen’s closing submissions, the Sutherland Suite and the Visitors’ Centre were no longer relied upon, never mind the buildings further afield, such as the sawmill, whereas a building not mentioned in the pleadings – the Animal Welfare Shed – was. Although Mr MacQueen did not say as much, we deduce that the logic of this change is to tie the subjects in with the agricultural buildings and exclude those used for educational or recreational purposes.

36. Even with that clarification, however, the respondents’ position remains unsatisfactorily vague in that the Tribunal is offered three possibilities from which, it would appear, it is being asked to take its pick: (a) that the subjects are within the curtilage of both the Animal Welfare Shed and the viewing sheds; (b) that it is within the curtilage only of the viewing sheds; and (c) that it within the curtilage of any one of the three viewing sheds.

37. This is a highly unsatisfactory state of affairs. Respondents pleading para 9 of Schedule 1 should aver clearly from the outset which building or combination of buildings is being relied on and why; the Tribunal should not be left to work out for itself which of a range of possibilities might apply. On a more technical approach we would be justified in sustaining Mr Upton’s objection to the admissibility of the evidence to do with curtilage and, consequently, his plea to the relevancy. We prefer, however, to deal with matters on their merits so we shall repel the objection and decide these cases on the whole evidence.

38. Findings-In-Fact

39. As a result of that evidence, including the Joint Minute earlier referred to, we have found the following matters admitted or proved:

i. The subjects are located within Beecraigs Country Park, a large recreational facility owned by the respondents close to Linlithgow.

ii. Within the park is a working farm. As well as being a commercial operation in its own right, the farm has a recreational and educational aspect in that it allows visitors, which include large numbers of families and schoolchildren, the opportunity to see a range of animals at fairly close quarters.

iii. Although the park is large we are concerned only with a relatively small cluster of buildings in the area in which the subjects are situated. That cluster is situated to the east of a public road which runs roughly north/south through the park. It is shown on the plan annexed hereto.

iv. This cluster is accessed by a road which, although not adopted by the respondents in terms of the roads or highways legislation, is available for the use of all visitors to the park: it is, to all intents and purposes, a public road. It and the surrounding buildings form a cul-de-sac.

v. The subjects are situated to the south of this road and are the first buildings on the right as one enters the cul-de-sac. They are shown in photograph 1 annexed. The block which they comprise has areas of garden ground on all four sides. At the front they are separated from said road by a stone wall approximately three feet high. To the eastern side and along the rear they have slatted wooden fences, perhaps five feet high, marking their perimeters, as shown in photograph 2. The western perimeter of the block is formed by said north/south public road along which a substantial hedge which continues south along the roadside flourishes, as shown in photograph 3. Accordingly, they form a self-contained unit, in that they are bounded by walls, fences or hedges on all sides.

vi. Immediately to the east is the Sutherland Building, which is used for meetings, conferences and as an educational resource for children with an extensive car parking area in front of it. It is not one of the buildings the respondents now rely on so it is not being said that the subjects are within its curtilage.

vii. Directly opposite the subjects and on the other side of the access road from them is the Animal Welfare Shed. It is one of the buildings being relied upon by the respondents; in other words it is being said that the subjects are within its curtilage.

viii. The other buildings on which the respondents rely are three “viewing sheds” situated at the far end of the cul-de-sac, so called because they offer visitors the opportunity of viewing the animals in the sheds.

ix. The remaining building within the cul-de-sac is a now disused Visitor Centre and it is not being relied upon by the respondents for curtilage purposes.

x. Although the stone wall which runs past the houses also runs along the frontages of the various other buildings referred to, there is no perimeter wall or fence enclosing all or any of those buildings along with the subjects.

xi. To the north, east and south of this cul-de-sac with its cluster of buildings lie open fields which are part of the farm.

xii. The subjects were built in the 1950s probably by Linlithgow County Council, to whom the lands of Balvormie and Whitebaulks had been disponed in 1922 (production R2), or its statutory successor as local authority. We heard no evidence as to why a single block of two semi-detached houses came to be built in this location. (With the exception of one other house, located some distance away, they form the only residential accommodation in the Park.) In particular we heard no evidence as to whether the houses were ever used in connection with the farm.

xiii. The applicants are not required to live in the subjects for the better performance of their duties and these duties could be performed equally effectively from homes within commuting distance of the Park.

Against that factual background we apply the tests to which we were referred.

The geographical test

40. There is nothing about the geography of the subjects in relation to the buildings on which the respondents rely to suggest any kind of unity. Measuring the shortest distance between them, the viewing sheds are approximately 46 metres away and the Animal Welfare Shed 38 metres, with the public road into the cul-de-sac in between [scaled measurements based on Google maps]. Far from there being any kind of physical unity between them they are in three separate locations within the cul-de-sac as shown on said plan and are interspersed with other buildings serving different purposes.

41. In coming to this conclusion we bear in mind that it is not necessary that the subjects and the buildings within whose curtilage they are said to be are enclosed by any kind of physical perimeter such as a wall or fence; Lord Mackintosh in Sinclair-Lockhart’s Trustees v Central Land Board at page 123. We also bear in mind that the fact that the subjects are surrounded on all four sides by walls, fences or a hedge, does not, of itself, mean than they cannot be within the curtilage of another building; Barron v Borders Regional Council at 38F-G. In Fisher v Fife Regional Council the Tribunal (comprising both Lord Elliott and Sheriff Horsfall) said (at page 29) “while fragmented ownership, as here, can exist on both sides of a public road, the curtilage of a building cannot”. Even if that might be thought to state the position too absolutely, the existence of a road over which the public have access running between the subjects and the Animal Welfare Shed is certainly not supportive of any kind of unity between the subjects and that building.

42. The fact of the matter is that there is no homogeneity or shared identity between the subjects and these other buildings which would make one conclude, on the basis of their physical relation to each other, that they are part of a single entity or a greater whole. The geographical test for curtilage therefore fails.

The necessary or reasonably useful test

43. This formulation, repeated many times since, derives from Lord Mackintosh in Sinclair-Lockhart’s Trs, ibid, where he said “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 a 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.”

44. We are satisfied that the subjects fail this test also. While we entirely understand the respondents’ wish to have those houses occupied by their own employees and, in particular, employees who have knowledge and experience of the Park, it is simply not the case that the houses serve those other buildings in any necessary or reasonably useful way. Instead the viewing sheds and Animal Welfare Shed can and do operate entirely independently of the houses. The houses are not necessary to their operation nor are they useful adjuncts of those buildings or their purposes. The high-water mark of the respondents’ case is that it provides a measure of reassurance to them to have their own people live in those houses in terms of keeping an eye on things, animal welfare and assisting visitors. There was, however, no evidence that Mrs Hopwood or Mr Parlett are ever called upon to do any of those things; for example, deal with out-of-ours emergencies. Their only duties are those for which they are contracted in their respective contracts of employment and, as they both said in evidence, these could be performed equally well even if they lived some miles away. Accordingly, our conclusion is that there is nothing about the subjects which make them necessary or reasonably useful in relation to the purposes of the viewing sheds or Animal Welfare Shed.

DECISION

45. Both tests having been failed, our conclusion is that the subjects are not within the curtilage of any other building to which para 9 applies, that they are, therefore, held on Scottish secure tenancies and that the applicants are, therefore, entitled to buy them.

EXPENSES

46. Mr Upton moved for an award of expenses if successful. We did not hear Mr MacQueen on the matter so we have given the respondents 14 days within which to confirm their position and lodge written submissions if so advised.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 June 2017

W Douglas Ballantyne – Deputy Clerk to the Tribunal


Annex to this Opinion (PDF)