Heritable Property – Title Conditions – Discharge or Variation – Proposed new house in rear garden ground – Conditions prohibiting further building without consent – Purpose of conditions – Scale and in particular height of building having substantial effect on amenity of one benefited proprietor – Refusal as unreasonable – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Validity – Proviso with regard to further building attached to a consent required under an existing building condition – whether further valid real burden

Faeley v Clark and Others
28 June 2006

The proprietors of a modern house proposed to build a further two and a half storey house with granny flat in an extensive area of rear garden ground. Planning consent and building warrant had been obtained. A number of houses overlooked the site to varying degrees. Many of the houses enjoyed fine views over the Firth of Clyde. Building restrictions were contained in certain break-off conveyances of land to enable modern building. The principal objectors did not object to the principle of an additional house and would not have opposed a lower building which could be shown not to have a material impact on the amenity of their house. The applicants contended that the proposed house would have a negligible impact. There were competing submissions as to whether a proviso in a recorded deed granting permission for the erection of the applicants’ house itself created an additional valid real burden.

Held, refusing the application as regards the title conditions benefiting the principal objectors, the outlook and sea views were essential features of the amenity. The building restrictions must have had reasonable protection of these as an important part of their purpose. There had been no particular change of circumstances. The specific effect on the objectors had not been part of the planning issue. On its assessment of the circumstances, particularly on the basis of its impression at a site inspection, the Tribunal considered that the applicants had failed to establish that their proposal was reasonable in the light of the title condition. There were certain problems with the applicants’ evidence. It was not possible to reach an absolutely precise view of the impact of the proposals, but they would have a substantial effect on the amenity of the house and main part of the garden of the principal objectors’ property. The substantial interest of these objectors in adhering to the condition was not outweighed by the burden on the applicants of being unable to develop to that height. The application would have been granted in relation to the objections of another benefited proprietor under a different title condition, as her amenity was not affected to any substantial extent.

It was not necessary to decide the question whether a further real burden had been created in the deed granting consent for the erection of the applicants’ house, but the Tribunal tended to the view that this Minute of Agreement, which had not itself been referred to in a subsequent title, did not go beyond its main purpose of recording consent as required by an earlier condition. The proviso might create a fresh personal obligation, but for a real burden to be created there was a need for at least very clear expression, even if it was not necessary for it to have been so incorporated, a matter about which there were competing views.

Authorities referred to

Graham v Brownson, Lands Tribunal for Scotland (LTS/LO/2002/28), 20.5.2003
Reid v Robertson, Lands Tribunal for Scotland (LTS/LO/2002/26), 10.6.2003
Ord v Mashford 2006 S.L.T. (Lands Tr.) 15
Stair Memorial Encyclopedia, Vol. 18, paras. 386-8
Gordon, Land Law in Scotland, para. 23-05
Halliday, Conveyancing Law and Practice, para. 34-22
Macdonald, Conveyancing Manual, 7th ed’n., para. 15-37

See full decision:  LTS/TC/2005/30