Heritable Property – Title Conditions – Discharge – Proposal to demolish house in housing estate so as to provide access through to proposed neighbouring development – Original developer having retained, but then given up, one plot, for this purpose – Reasonableness – Extent of benefit to neighbouring proprietors and burden on applicants – Refusal – Title Conditions (Scotland) Act 2003, Sections 98, 100

McPherson & Anr v Mackie & Ors
28 February 2006
LTS/TC/2005/18, 19

Applications to discharge arose out of a proposal to demolish a house in a small, high quality housing estate, contrary to the Deed of Conditions, and sell the land to a developer in order to provide access through to a proposed neighbouring development. The original developers of the estate, in 1990, had retained one plot with the option of using it for access through but had been unable to obtain planning permission and had sold the plot for one more house, leaving no way through, but a change in the planning position had now enabled outline planning position for the proposed new development, using this access, to be obtained. Most of the other proprietors on the estate opposed the application.

Held, rejecting the application, the applications were not reasonable in relation to the houses between the entrance to the estate and the subjects, particularly the immediate neighbour. The title conditions had the clear purpose of preserving the amenity and setting of the estate, for mutual benefit, each owner having purchased in the knowledge that each of his neighbours, as well as himself, was similarly bound. It was not part of the purpose of the title conditions that access could be taken to another development, although the history in relation to that option was relevant. The impact of the proposal was not as serious as the respondents suggested, but there was a tangible real benefit in being able to prevent it. There was no evidence of the amount of ‘ransom’ value which would be realized by the applicants and thus no quantification of the burden on them. The conditions in no way impeded ordinary normal use of the house which it was proposed to demolish. The existence of planning consent was of little significance in what was essentially a private issue, and the consideration in the planning process of issues such as amenity was not conclusive in relation to the amenity provided by a private title condition. Although it did appear that the proposed development site was for the time being land-locked, this was irrelevant as res inter alios acta. On a consideration of all the circumstances, including the extent and uncertain duration of the annoyance of construction traffic, the interests of the neighbouring proprietor in particular were strong enough to outweigh the interests of the applicants in exploiting a windfall development value.

See full decision:  LTS/TC/2005/18 & 19