Heritable property - Discharge of land obligations - Prohibition on use of subjects forming part of an office block - Variation to allow use as restaurant etc - Conveyancing and Feudal Reform (Scotland) Act 1970, section 1(3)(a) and (c)

Pender v Sibbald Properties Limited
25 September 1998

The applicants were proprietors of ground floor and basement subjects forming part of an office block in the "office core" of Glasgow City Centre. The premises had been used as a solicitors office. The various tenants of the office block had, in 1966 been given an opportunity to buy the block. As part of their arrangements for doing so, they entered into a Deed of Conditions which, inter alia, included a land obligation limiting the whole subjects to use as commercial offices and storage accommodation but permitting use and occupation as shops in the basement and ground floor. At the date of the application the other premises in the basement and ground floor were occupied as an antique shop and as a shop selling musical equipment. The applicants sought variation to allow their premises to be used as a restaurant or as a bar.

There had been various changes in the neighbourhood since the obligation was imposed. Licensed premises were common. The public attitude towards licensed premises had changed dramatically since the publication of the Clayson Report. There was evidence that bars and restaurants could be operated without detriment to the amenity of adjacent property. Concern was expressed about the effects of certain types of restaurants including restaurants used for the sale of food to be consumed off the premises and restaurants using a style of cooking likely to generate smell. The subjects would not be likely to be able to be used as a restaurant without a vent up the back area of the office block. The objectors as the whole other proprietors of the block were unlikely to grant permission for such a vent.

Held (1) as a result of the changes in the vicinity and public attitudes the obligation was unreasonable and inappropriate.

(2) The application could be granted under the provisions of section 1(3)(c) as the obligation impeded some reasonable use of the land. It was irrelevant that that reasonable use might also be impeded by difficulty in obtaining permission to erect a suitable vent or that application for liquor licence was still pending and opposed.

(3) Obligation should be varied to allow use as a restaurant excluding use where the predominant method of cooking was by immersion in fat, use for Indian, Chinese or Oriental styles of cooking and use for consumption of hot food off the premises.

See full decision:  LTS/LO/1998/6