Heritable Property – Title Conditions – Discharge or Variation – Proposed new house in rear garden area and service lane of Victorian terrace house, now flatted – 1875 Feu Contract – Building restrictions and rights in relation to lane – Purpose – Changes of circumstances in neighbourhood – whether mutuality of benefit destroyed by departure from common scheme – Nature and extent of access rights – Extent of benefit – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Variation of Title Condition – Compensation – Service lane – Changed arrangements in relation to loading and unloading car consequent on removal of, and building over, area at end of service lane – ‘substantial loss or disadvantage’ – Claim refused – Title Conditions (Scotland) Act 2003, Section 90(6),(7)

West Coast Property Developments Ltd. v Clarke & Others
28 June 2006

The proprietors of part of the rear garden area and a service lane of a Victorian terraced house, now flatted, obtained planning permission to build a further house in line with two existing mews houses but also so as to close off the end part of the service lane. An 1875 Feu Charter providing for the development of the whole terrace included use and building restrictions and there were also access rights in relation to the lane. The applicants submitted that there may have been such departures from the scheme of the Feu Charter as to destroy the mutuality of benefit, but accepted that there had been a ius quaesitum tertio, did not seek a declaration as to the validity or enforceability and accepted that a number of neighbouring proprietors were benefited. The application was opposed by mews house proprietors and some flat proprietors in the terrace.

The proprietor of the immediately adjoining mews house submitted a claim for compensation, supported by a valuation opinion addressing a reduction in value arising out of the loss of amenity resulting from changed arrangements in relation to the use made by that proprietor of the end part of the service lane.

Held (1) the conditions in the Feu Charter would be varied so as to permit the proposed development. The purpose of the conditions had been to preserve the amenity of the terrace houses and provide rear service access. The actual development had been so different from that envisaged in the Feu Charter that there was a substantial doubt as to its strength. The character of the rear ground had evolved differently from the original scheme. There could not have been any purpose of protecting the amenity of the mews houses. The age of the condition was also a significant factor. One further mews house would have a limited impact on the visual amenity of the terrace. On an examination of the particular circumstances, the benefit from the existing provisions in relation to the end part of the service lane could be over-stated. Inability to proceed under the planning permission to develop an area with little or no prospect of other valuable use would be a considerable impediment, albeit that this was simply a development for financial profit. Overall, there was insufficient weight in the objections and it was reasonable to grant the application. Complete discharge of the 1875 conditions would not, however, be granted: they might still have some force, particularly in relation to the restriction to residential use, and the respondents were entitled to the assurance that the development would not depart from that for which planning permission had been obtained.

(2) refusing the claim for compensation, the valuation opinion submitted addressed loss of amenity resulting from changed arrangements in regard to the use made by this proprietor of the end part of the service lane. However, there was no loss of access or passage. The title condition did not confer amenity or use rights in relation to the service lane for purposes going beyond obtaining access. There was accordingly no loss consequent upon the variation. In any event the loss of the opportunity to load and unload in that area could not be described as ‘substantial’, because of the proximity of another area where there was such opportunity.

Authorities referred to:-

Stevenson v Biggart (1867) 3 S.L.R. 184
Hislop v MacRitchie’s Trustees (1881) 8 R. (H.L.) 95
Calder v Merchant Company of Edinburgh (1886) 13 R. 623
McInroy v Duke of Atholl 18 R. (H.L.) 48
Charlton v Scott (1894) 22 R. 109
Richardson v Borthwick (1896) 3 S.L.T. 303
J. A. McTaggart & Co. v Harrower (1906) 8 F. 1101
Scotland v Wallace 1964 S.L.T. (Sh. Ct.) 9
Hampden Park Ltd. v Dow 2002 S.L.T. 95
Church of Scotland Trs. v McLaren LTS/LO/2004/16, 16.3.2005
Shephard & Ors. v Turner & An’r [2006] E.W.C.A. Civ 8
Gordon, Scottish Land Law, 2nd Ed’n, 22–76
Reid, The Law of Property in Scotland, para. 429, footnote 28
Cusine & Paisley, Servitudes and Rights of Way, 12–16, 14 – 16–18

See full decision:  LTS/TC/2005/21