Heritable property - Land obligation - Prohibition on building in front of dwellinghouse - Burdened subjects currently a paddock capable of a range of uses including some which would have a serious adverse affect on the benefited subjects - Conveyancing and Feudal Reform (Scotland) act 1970, section 1(3)(a), (b) and (c)

Stevens v Smith
16 May 1997

In 1954 the proprietor of a substantial dwellinghouse in Brechin with extensive garden grounds, sold an adjacent area of ground for the purpose of enabling a house to be built and providing it with a paddock. To protect the amenity it was agreed that there would be no building on the paddock ground without consent.

In 1995 the owner of the house which had been built on the said adjacent subjects sold the subjects in two lots, thus dividing the house and garden from the paddock. The paddock was sold as a site available for building a house. Planning permission was obtained to build a house in that part of the paddock immediately adjacent to the benefited subjects.

The various properties lay on the south or east sides of North Latch Road in Brechin. To the south and east of the subjects was open farm ground. There were extensive rural views. The dwelling, the existing house, and a very substantial building at No. 15 North Latch Road were situated around a bend in the road. These subjects presented an appearance which was different from other properties in the road because the corner comprised a large area of wooded ground. The three houses and the wooded ground could be said to constitute an enclave different from the neighbouring residential areas. Although a swimming pool had been built in the benefited subjects in front of the dwellinghouse the view preserved by the burden had not changed to any significant extent since it was imposed. It had an attractive open rustic outlook over the paddock ground.

For the burdened proprietor the main contention was that a range of activity could be carried out on the burdened subjects which would have a substantial adverse effect on the amenity of the benefited proprietor. Compared with this the benefit of the obligation was slight. In particular it would be possible for the burdened proprietor to create a high screen of trees immediately to the south of the benefited subjects. This could be done for the legitimate purpose of screening the proposed house. If erected it would block the view to a very much greater extent than the proposed house which was to be of low profile. It would intrude on the view rather than significantly blocking it.

The difficulty which the tribunal found in this case was that there was no reason to suppose that a solid screen of trees would be established to the north of the paddock if permission to build a house was not given. That was the only foreseeable justification for the expense and effort which would be involved. On the other hand it was foreseeable that a burdened proprietor might exercise a reasonable judgement that if he did create such a screen a tribunal would, in future, be prepared to exercise a discretion in favour of allowing the house building. The practical answer was that, on the evidence, it was clear that a suitable screen was unlikely to be effected for many years and, accordingly, that the benefited proprietors would require to put up with a house intruding on their view for a substantial period. The "circular argument" was not fully addressed by counsel.

Held: (1) Even if regard had to be had to a wider "neighbourhood" than the said "enclave" there has been no relevant change bringing the application with section 1(3)(a); (2) the paddock was capable of continuing to be used for a wide range of purposes including, in particular, the purpose originally envisaged for it. The obligation could not be said to be unduly burdensome compared with the benefit it afforded to protection of amenity; (3) although it was possible that if a suitable permanent woodland was in fact established at the north end of the paddock, the building of a house to the south of it could be accepted as a reasonable use of land, the tribunal were not satisfied on the evidence that a suitable permanent screen could be erected within a sufficiently short time scale to outweigh the undoubted adverse impact on amenity of the building of a house. Accordingly the proposed construction was not a reasonable use of the burdened subjects.

See full decision:  LTS/LO/1996/16