Heritable Property – Title Conditions – Discharge or Variation – Proposal to demolish house and erect two detached houses in its place, contrary to title restriction to one two storey house – Effect on natural light in one room of neighbouring house – Limited nature and purpose of title conditions in relation to building – Reasonableness – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Daly & Anr v Bryce & Anr
28 April 2006

Joint proprietors of a 1960’s low level bungalow applied to lift a title restriction limiting building to one two-storey house, so as to permit demolition of the house and its replacement by two two-storey houses. The respondents, immediate neighbours and admittedly benefited proprietors, would be particularly affected by loss of natural light in one room.

Held, allowing the application to the extent of permitting the proposed development for which planning permission had been obtained, the condition did provide a degree of protection of the physical amenity of the immediate neighbour. However, the purpose of the condition was to preserve the amenity of the neighbourhood as a whole, by a restriction to residential use, control over density of development and some, quite limited, restriction on building. The condition was not directed at the particular protection of immediate neighbours. There was no purpose of retaining private control over building close to the boundary. The fact of abolition of feudal tenure had to some extent shifted the focus of enforcing real burdens to neighbours but that could not be used to extend the purpose of the conditions. There had been some development, although not of this type, in the neighbourhood. The condition did provide protection against over-development but that had not featured in the respondents’ evidence or submissions. As to the degree of burden on the applicants, their house was clearly in need of extensive treatment, and either refurbishment or demolition and rebuilding a single house would be very expensive and onerous. Weighing up all the statutory factors, but particularly the limited nature and purpose of the title conditions, the Tribunal was satisfied on balance that it was reasonable to grant the application to the extent of varying the conditions so as to permit the proposed development.

Authorities relied on:-

Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Limited 2006 SLT (Lands Tr) 2
Cameron v Stirling 1988 SLT (Lands Tr) 18
Miller Group Ltd v Gardner’s Exrs 1992 SLT (Lands Tr) 62
Halliday, Conveyancing Law and Practice

See full decision:  LTS/TC/2005/15