Heritable property - Land obligation - Discharge - Obligation excluding building - Large garden sites - Conveyancing and Feudal Reform (Scotland) Act 1970, section 1(3)(a), (b) and (c)

Smart v Myerscough and Others
1 March 2002
LTS/LO/2001/32 and 33

A proprietor of open lands in the north west of Edinburgh developed them in the 1930s for housing. A road was created and substantial plots were allocated on each side for the construction of houses. In particular two plots, in excess of four and three acres respectively, were feued subject to a variety of conditions which made clear the intention that they be used for a single private dwellinghouse with related spacious grounds. The title of the smaller plot came to be burdened with a servitude which, in effect, prevent building within 30 metres of the larger. Over the years many changes took place in that latter plot. A block of flats for sheltered housing was created adjacent to the original lodge. A development of eight two-storey dwellinghouses with its own service roadway was created. The original dwelling house had been divided into two. A two-storey house had been built in its grounds. Various other parts of the original 1920s development had been changed with sub-division of the original large plots. The burdened plot continued to be used for one large house, with adjacent gardener's house, and substantial garden ground. It was proposed to build four houses within the garden ground. The present owners and occupiers of the said divided house opposed discharge. They accepted that as benefited proprietors they had no right to resist building in the garden ground but they did have a right to prevent houses within 30 metres of their boundary. They contended that discharge of the obligation and the building of houses within the 30 metre strip would have a serious effect on the value of their houses. They claimed compensation. For the applicants it was contended that the development would have no measurable effect on value and, in any event, that the building of the houses within the 30 metre strip would have no greater impact than a development in which the houses were kept beyond that area.

Held (1) having regard to the changes in the fashion for use of the burdened land and the obvious changes in the benefited land, the obligation was unreasonable in the whole circumstances and could be discharged in terms of (a); (2) the Tribunal was not persuaded that the obligation should be discharged under (b); (3) the proposed use was a reasonable one in all the circumstances and should be allowed in terms of (c); (4) on the whole evidence available to the Tribunal the benefited proprietors would not suffer any substantial loss in consequence of the discharge. Observed a possible test of the value of loss in such a situation would be to consider what a proprietor in the position of the benefited proprietor might be prepared to pay if he had the option of acquiring a right equivalent to the land obligation.

See full decision:  LTS/LO/2001/32 and 33